United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal Chief United States District Judge
C. Garcia sued the Communities in Schools of Brazoria County,
Inc., the Communities in Schools of Southeast Harris County,
Inc., and seven individuals, alleging federal-law claims for
age discrimination, and seeking damages and equitable relief
for state-law claims for fraudulent misrepresentation,
intentional infliction of emotional distress, breach of
fiduciary duty, ultra vires acts in violation of corporate
bylaws, civil conspiracy, conversion, and defamation. (Docket
Entry No. 1 at ¶¶ 2-3). Garcia amended his
complaint, the defendants moved to dismiss, and Garcia did
not respond to the motion. (Docket Entry Nos. 32, 33). After
a careful review of the amended complaint, the motion, and
the applicable law, the court grants the motion to dismiss in
part and denies it in part. (Docket Entry No. 33). Garcia
must file an amended complaint, amending those allegations
that were dismissed without prejudice, no later than
June 21, 2019.
reasons for this ruling are detailed below.
court takes the well-pleaded factual allegations as true for
the purposes of this motion. In 1996, Garcia helped found the
nonprofit Communities in Schools of Brazoria County, Inc.,
which partnered with the Communities in Schools of Southeast
Harris County to form the Communities in Schools Joint
Venture. Garcia became, at age 50, the new organization's
executive director. (Docket Entry No. 32 at ¶¶ 17,
18). Donna Montes, Cheryl Sellers, and Elizabeth Evans worked
under Garcia at the Joint Venture. Sellers was the Director
of Community Relations, and Evans was the Chief Financial
Officer. (Id. at ¶ 19).
2013, Garcia reached an agreement with the Communities in
Schools Joint Venture Board relating to his eventual
departure. (Id. at ¶ 20). Carol Bertholf,
Roland Hendricks, and John Vasut were members of the
Communities in Schools of Brazoria County Board; Bertholf
served as that Board's chairperson; and Kelly Shea was
the chairperson of the Communities in Schools Southeast
Harris County Board. (Id. at ¶ 19). The
agreement required the Joint Venture to pay Garcia for unused
vacation time based on records that Garcia would submit from
2013 to September 2017. (Id. at ¶ 20).
January 2017 Board meeting for the Communities in Schools
Brazoria County, and at a February 2017 Board meeting for the
Communities in Schools Southeast Harris County, Garcia
announced that he would retire in June 2018. (Id. at
¶ 21). Garcia alleges that on February 24, 2018, he gave
Bertholf a draft proposal of his retirement plan “to
get her personal advice on [his] transition.”
(Id. at ¶ 22). Garcia met with his executive
staff on March 7, 2018, to discuss a revised draft that he
wanted to present to the Joint Venture Board later that
month. The staff agreed that Garcia should become a member of
the Joint Venture board after he retired or remain as the
Joint Venture's executive director. (Id. at
alleges that on March 6, 2018, before the scheduled
Communities in Schools Southeast Harris County Board meeting,
the chairperson, Shea, “held a secretive Board meeting,
” without informing Garcia. At that meeting, Shea
allegedly falsely represented that Garcia “had
submitted his resignation and agreed to terms for
severance.” (Id. at ¶ 24). Montes, Evans,
and Sellers were at the meeting. (Id. at ¶ 25).
The Communities in Schools Southeast Harris County Board
voted to terminate Garcia's employment, and Shea
cancelled the Board meeting that Garcia was scheduled to
attend later that month. (Id. at ¶¶ 25,
alleges that he never discussed his retirement proposal with,
submitted his resignation to, or agreed to a severance
package from, the Southeast Harris County Board.
(Id. at ¶ 24). Garcia alleges that after the
March 6 meeting, Montes, Evans, and Sellers did not tell him,
their supervisor, about the discussions of his retirement.
Instead, they allegedly began undermining Garcia at work by
ignoring his emails, not copying him on emails, failing to
notify him of meetings, taking unscheduled vacations, and
leaving work unfinished. (Id. at ¶ 25).
According to Garcia, the individual defendants began to
“establish a false narrative . . . that [he] had
committed financial fraud, created a toxic environment,
racism, and mismanaged the organization.” (Id.
at ¶ 26). These defendants allegedly falsely represented
to other Board members that Garcia “had submitted his
Draft Proposal to both boards and was seeking to retire in
May 2018.” (Id. at ¶ 27). As noted,
Garcia alleges that he gave the May 2018 draft to Bertholf to
obtain her advice, but he did not submit it to either Board
or to Shea for official action. (Id.).
March 21, Garcia told Bertholf that he would not retire until
June 2018 and would instead remain as the executive director
until the Communities in Schools Joint Venture started its
next program year in September 2018. (Id. at ¶
28). He emailed this information to the members of both
Boards that same day. (Id.).
next day, Garcia attended a Joint Venture Board meeting.
Bertholf, “without warning, due process, ” or
good cause, announced that Garcia was resigning.
(Id. at ¶ 29). Shea then gave Garcia an Age
Discrimination in Employment Act and the Older Workers
Benefit Protection Act release agreement and asked him to
sign it during the meeting. Garcia was not given prior notice
or an opportunity to seek an attorney's advice.
(Id.). Garcia alleges that he “made a
good-faith complaint to the Board members regarding his
rights under the Age Discrimination in Employment Act, but he
was “instantly retaliated against” by being
terminated for not signing the release agreement.
(Id.). Over Garcia's complaints about the
release agreement's impact on his rights under the Age
Discrimination in Employment Act and other statutes, the
defendants “continued to attempt to coerce [Garcia] to
sign immediately by waving a check in front of him.”
(Id. at ¶ 31). Vasut allegedly “use[d]
his position as a Judge to intimidate” Garcia,
including stating that if he failed to resign and sign the
release agreement, he would face a restraining order
preventing him from returning to his office, talking to
staff, or going to the school campuses that the Joint Venture
served. (Id. at ¶¶ 30, 32). Garcia did not
sign the agreement. (Id. at ¶ 32).
asked that he be allowed to stay on as executive director
until May 1, 2018, with no severance. The Board denied that
request. (Id. at ¶ 33). Vasut “ordered
Officer Castellow to escort” Garcia off the premises.
(Id. at ¶¶ 33-34). Garcia was not allowed
to collect his personal belongings. (Id. at ¶
34). Bertholf and Shea later allowed Montes, Evans, and
Sellers to enter Garcia's office and pack those
belongings, but did not make them available to Garcia for
almost 8 months. (Id. at ¶¶ 34, 37, 54).
Shea, and Hendricks informed the Communities in Schools Joint
Venture executive staff that Garcia had resigned and
allegedly told the staff “that they would be fired if
they discussed [Joint Venture] business with [Garcia].”
(Id. at ¶ 38). Garcia alleges that these
defendants made false accusations at the meeting about his
health and his actions as executive director, suggesting
financial improprieties. (Id.). Montes emailed all
Joint Venture employees an announcement that Garcia had
resigned. (Id.). Montes called a meeting of all
Communities in Schools staff on March 28, 2018, to allegedly
“falsely represent . . . that [Garcia] had resigned,
allude to all employees to call 911 if [Garcia] should
visit their campus, and not to talk to [Garcia] about
[Communities in Schools] matters or they would be
fired.” (Id. at ¶ 39). At a later meeting
of both boards, an independent auditor stated that Garcia had
not committed any financial wrongdoing. (Id. at
tried to appeal the decision in April 2018 by emailing the
Communities in Schools Joint Venture Board for a hearing, in
accordance with the Joint Venture Employee Manual. Bertholf
denied that request and a second request Garcia sent in
November 2018. (Id. at ¶ 43). The Joint
Venture's attorney told Garcia that the organization
would ship his personal belongings to him, but Garcia alleges
that the “Board of Directors [was] using [his] personal
property as a hostage to coerce him into signing a release
and waiver of his claims and never intended to return his
property until this action took place.” (Id.
at ¶ 45). Garcia then received a second release
agreement and a request for an immediate response.
(Id. ¶ 48). Garcia refused to sign that
agreement as well. (Id.). According to Garcia, the
harassment and pressure continued. He alleges that Evans
hired a private investigator, worked with Montes and Sellers
to move Garcia's personal property out of his former
office, and falsely told the Texas Workforce Commission that
Garcia had resigned. (Id. at ¶¶ 49-51).
filed a complaint with the Equal Employment Opportunity
Commission in September 2018, and Garcia requested and
received a right to sue letter. (Id. at ¶ 52).
This lawsuit followed.
to Garcia, the March 22 meeting violated the Joint Venture
bylaws, both on timely notice to Board members and on quorum
requirements. (Id. at ¶ 36). Garcia alleges
that the meeting was planned to avoid the expiration of
several defendants' Board memberships in May 2018.
(Id.). Garcia alleges that the defendants
terminated, harassed, and discriminated and retaliated
against him, because he was 71 years old. (Docket Entry No.
32 at ¶ 2). He also asserts fraudulent
misrepresentation, promissory estoppel, intentional
infliction of emotional distress, breach of fiduciary duty,
violation of corporate bylaws, ultra vires acts, civil
conspiracy, conversion, and defamation against the Board of
Directors. (Id. at ¶ 3). Garcia seeks equitable
relief, damages, and fees. (Id. at ¶ 2).
The Standard for a Rule 12(b)(6) Dismissal
12(b)(6) allows dismissal if a plaintiff fails “to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) must be read in
conjunction with Rule 8(a), which requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Rule 8 “does
not require ‘detailed factual allegations,' but it
demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (citing Twombly, 550
U.S. at 556).
withstand a Rule 12(b)(6) motion, a “complaint must
allege ‘more than labels and conclusions, '”
and “a formulaic recitation of the elements of a cause
of action will not do.” Norris v. Hearst Tr.,
500 F.3d 454, 464 (5th Cir. 2007) (quoting Twombly,
550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (alteration in original)
(quoting Twombly, 550 U.S. at 557). “[A]
complaint ‘does not need detailed factual
allegations,' but must provide the plaintiff's
grounds for entitlement to relief-including factual
allegations that when assumed to be true ‘raise a right
to relief above the speculative level.'”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007) (quoting Twombly, 550 U.S. at 555).
“Conversely, when the allegations in a complaint,
however true, could not raise a claim of entitlement to
relief, this basic deficiency should be exposed at the point
of minimum expenditure of time and money by the parties and
the court.” Id. (quotation marks and
considering a motion to dismiss under Rule 12(b)(6), “a
district court must limit itself to the contents of the
pleadings, including attachments.” Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.
2000). Documents “attache[d] to a motion to dismiss are
considered part of the pleadings, if they are referred to in
the plaintiff's complaint and are central to [the]
claim.” Id. at 498-99 (quoting Venture
Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,
431 (7th Cir. 1993)). The court may also “take judicial
notice of matters of public record.” Norris,
500 F.3d at 461 n.9.
court should generally give a plaintiff at least one chance
to amend under Rule 15(a) before dismissing the action with
prejudice, unless to do so would be futile. See Carroll
v. Fort James Corp., 470 F.3d 1171, 1175 (5th Cir. 2006)
(“[Rule 15(a)] evinces a bias in favor of granting
leave to amend.” (quotation omitted)); Great Plains
Tr. Co. v. Morgan Stanley Dean Witter & Co., 313
F.3d 305, 329 (5th Cir. 2002) (“[D]istrict courts often
afford plaintiffs at least one opportunity to cure pleading
deficiencies before dismissing a case, unless it is clear
that the defects are incurable or the plaintiffs advise the
court that they are unwilling or unable to amend in a manner
that will avoid dismissal.”). A court may deny a motion
to amend for futility if an amended complaint would fail to
state a claim upon which relief could be granted.
Pervasive Software Inc. v. Lexware GmbH & Co.
KG, 688 F.3d 214, 232 (5th Cir. 2012). The district
court has discretion to grant or deny leave to amend.
The Age Discrimination Claims
defendants argue that Garcia has not alleged facts that could
show the defendants discriminated or retaliated against him
because of his age. (Docket Entry No. 33 at 17, 21). The
defendants also argue that Garcia's allegation that the
defendants violated the Older Workers Benefit Protection
Act's waiver provisions cannot be a basis for an
independent Age Discrimination in Employment Act claim.
(Id. at 15-17).
The Age Discrimination in Employment Act Claim
ADEA makes it unlawful for an employer “to fail or
refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age.” 29 U.S.C. §
623(a)(1); see Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 141 (2000). An employee who is at
least 40 years old cannot be subjected to an adverse
employment action because of the employee's age. 29
U.S.C. § 631(a); see Rutland v. Moore, 54 F.3d
226, 228 (5th Cir. 1995) (citing 29 U.S.C. §§
623(a), 631(a)). The prima facie elements of an ADEA
claim are that the plaintiff: (1) is within the protected
class; (2) is qualified for the position; (3) suffered an
adverse employment decision; and (4) was replaced by someone
younger or treated less favorably than similarly situated
younger employees. Leal v. McHugh, 731 F.3d 405,
410-11 (5th Cir. 2013) (citing Smith v. City of
Jackson, 351 F.3d 183, 196 (5th Cir. 2003)). The Supreme
Court has held that to survive a Rule 12(b)(6) motion to
dismiss, “an employment discrimination plaintiff need
not plead a prima facie case of
discrimination.” Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 515 (2002).
alleges that he is within the protected class because he is
over 40, was qualified for his executive director position,
was terminated, and was replaced by Montes, a younger
employee. (Docket Entry No. 32 at ¶ 58). Garcia has