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Garvin v. Southwestern Correctional LLC

United States District Court, N.D. Texas, Dallas Division

June 18, 2019

JUSTIN GARVIN, Plaintiff,
v.
SOUTHWESTERN CORRECTIONAL, L.L.C., Defendant.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant's Second Motion to Dismiss (Doc. 13). For the following reasons, the Court GRANTS in part and DENIES in part the Motion.

         I. BACKGROUND [1]

         This is a case involving claims under Title VII of the Civil Rights Act of 1964 and Texas Commission on Human Rights Act (“TCHRA”). Plaintiff Justin Garvin brought his claims against his employer Defendant Southwestern Correctional, LLC (also known as LaSalle), on July 2, 2018. Doc. 1, Compl.; Doc. 12, Am. Compl., ¶ 2.2. Plaintiff was employed with Defendant from 2012 to 2017, in the jail transport division. Doc. 12, Am. Compl., ¶¶ 4.1, 4.21. He alleges that not long after he began his employment, he witnessed and was adversely affected by sexual favoritism in the workplace. Id. ¶¶ 4.2-4.3. He alleges he inquired about the disparate pay between the sexes, and made his discomfort known about the teasing, harassment, and work environment he experienced. E.g., Id. ¶¶ 4.4, 4.8, 4.9. He alleges that Defendant-through its employees-responded not by addressing his concerns, but instead by shunting him to less and less desirable and lucrative work assignments, until finally he had no other recourse but to quit. Id. ¶¶ 4.5, 4.9-4.21. It is upon these injuries that he bases his claims.

         Specifically, Plaintiff asserts three federal and three state-law causes of action: (1) Title VII gender discrimination; (2) Title VII sexually hostile work environment; (3) Title VII retaliation; (4) state-law wrongful termination; (5) state-law sexually hostile work environment; and (6) state-law retaliation. Id. ¶¶ 5.1-5.88. He seeks reinstatement to his former job duties, as well as damages for wrongful termination. Id. ¶ 1.1.

         A. Factual Background

         Because Title VII claims are so fact-specific, the Court pauses to more fully explore the allegations. Plaintiff worked as a transport officer for Defendant; his fellow transport officers included Diana Berend, a woman. Id. ¶¶ 4.6, 4.20. His direct supervisor was Sergeant Arbuthnot; also above Plaintiff in rank was Warden Eddie Williams and Major Judith Bennett. Id. ¶¶ 4.1, 4.2, 4.5. Arbuthnot ultimately answered to the Warden. Id. ¶ 4.10.

         For much of his employment with Defendant, Plaintiff transported prisoners to and from Defendant's facilities and various destinations, including the airport and courthouses. Id. ¶¶ 4.9, 4.12, 4.15. For a while he earned a higher rate for his assignments-those involving Immigrations Customs and Enforcement (ICE)-until he was shunted to less lucrative assignments. Id. ¶ 4.12.

         Shortly after starting his employment, he noticed that the Warden treated female employees better than male employees, even when similarly situated. Id. ¶ 4.2. After he inquired with other employees in 2015, his supervisor allegedly responded by calling Plaintiff “while he was off-duty and at home, and threatened him for discussing LaSalle's wages, ” and that “‘there would be consequences' if he kept it up.” Id. ¶ 4.3. Even when Plaintiff pointed out that he believed federal law protected his conversations, he says his supervisor “concluded by telling [Plaintiff] that Warden Williams wanted him to ‘keep his mouth shut.'” Id.

         Plaintiff's primary example of a woman treated preferentially is his coworker and fellow transport officer Diana Berend, who was married to another major working for Defendant.[2] Id. ¶ 4.6. He alleges that “[i]t was a common belief among [Plaintiff] and other LaSalle employees that Berend and Warden Williams had a sexual relationship.” Id. ¶ 4.7. He alleges that the Warden gave Berend a higher hourly pay rate and preferential title compared to Plaintiff, “even though Berend is significantly less qualified and experienced[.]” Id. According to Plaintiff, Berend herself acknowledged this preferential treatment, informing Plaintiff that “if Warden William's wife knew that she worked with the Warden, his wife would divorce him.” Id. ¶ 4.6. Allegedly, she would tell her coworkers that she was “‘moving up and [Warden] is taking me places.'” Id. ¶ 4.7.

         Plaintiff also describes several acts Berend got away with without receiving a demotion or pay cut. He alleges that Berend was not required to wear a bulletproof vest as the male employees were. Id. ¶ 5.9. On one occasion, she refused to carry a weapon while on duty-even though it was a job requirement. Id. Allegedly this caused an argument and friction between Berend and other male employees. Id. On another occasion:

While going on-duty at the Federal Courthouse, Berend told another officer to give his badge to her newly hired co-worker, Officer Bobby Hicks (“Hicks”) as Hicks did not yet have a badge. As they attempted to enter the Courthouse, Hicks was stopped by security as a result of the misappropriated badge. Berend's actions resulted in threatening letters to Defendant from federal government agencies regarding the Company adhering to its contract.

Id. Plaintiff alleges that Berend was not disciplined for this violation, unlike Plaintiff and other male employees. Id. Eventually, at the end of 2017, she was promoted to a position within Human Resources. Id.

         But before that-starting in May 2016, as Plaintiff alleges-“Berend would speak openly and often to [Plaintiff] about her breasts while sometimes even touching her own breasts in front of him, and she would describe her breasts, how she had them ‘lifted' and that she now wanted them ‘refreshed.'” Id. ¶ 4.8. And even though Plaintiff told her how uncomfortable the conversation made him, and how it was inappropriate at work, she “then increased her flirtations with [Plaintiff] stating that [Plaintiff] actually liked the topic and was just being shy.” Id. On at least one other occasion, Plaintiff was witness to Berend's half-hour call “of a personal nature” with the Warden while at work. Id. ¶ 4.9. Again, when Plaintiff evinced his discomfort, Berend told him to “‘lighten up.'” Id. And even when he complained to his supervisors the following day, neither took action; both ultimately answered to the Warden. Id. ¶ 4.10.

         One day after Plaintiff complained about Berend's behavior, the Warden reprimanded Plaintiff. Id. ¶ 4.11. He told him that Plaintiff was “in the wrong” and that he should not have told Berend that her comments made him uncomfortable. Id. Two weeks later, the Warden removed Plaintiff from his comparatively lucrative assignment with ICE-at $16.50 per hour-to one that paid $10.50 per hour. Id. ¶ 4.12. Allegedly, when Plaintiff inquired why, he was asked who he trusted on his team. Id. His supervisors then briefly interviewed that person-Dan Finely-before returning to Plaintiff with the news that Finely was the source of complaints about Plaintiff slacking, hence the demotion. Id. But Finely subsequently denied making any such complaint. Id. Plaintiff alleges that in fact, one of Plaintiff's supervisors told Plaintiff that the Warden had instructed them to figure out a way to remove Plaintiff from his ICE assignment. Id. ¶ 4.13.

         Eight to nine months later, around February 2017, Plaintiff was removed from two other work assignments. First, he was told he could no longer go to Defendant's Dallas Field Office. Id. ¶ 4.14. This made it impossible for him to receive ICE duty pay. Id. He was then the only transport officer removed from airport duty. Id. ¶ 4.15. In both cases he noted circumstances that made it appear that he was being singled out. Id. ¶¶ 4.14-4.15.

         On or about May 10, 2017, he was reassigned to shift duty, about half an hour after the Warden and several other higher-ranking employees saw him in a parking lot without a seatbelt and confronted him. Id. ¶¶ 4.16-4.21. Plaintiff sought but received no explanation from the Warden for the reassignment. Id. ¶ 4.20. According to Plaintiff, reassigning a transport officer to shift duty was a rare occurrence, and typically “occurred as a disciplinary measure against employees who were consistently late for work, or who had received numerous complaints from the county courthouse”-none of which applied to him. Id. ¶ 4.19. In fact, he had not received any write-ups in the previous three years. Id. With his removal to shift duty, Plaintiff would be working in one of Defendant's lower-paying jobs; any seniority in terms of wages he enjoyed as a transport officer would be taken from him, and he would be treated as a new hire. Id. ¶ 4.20. Plaintiff reports that “he would not have the opportunity to make an amount of pay equal to that which he was earning as a transport officer, and there was no chance that he would earn a significant pay increase to return him to that level.” Id. Confronted with these prospects, Plaintiff resigned the following day. Id. ¶ 4.21. This suit ensued.

         B. Procedural Background

         There has already been one motion to dismiss in this case, which the Court granted on February 1, 2019, with leave to amend. Plaintiff refiled his complaint, attaching his Right to Sue Notice.[3] Doc. 12-1, Compl., Ex. A (Plaintiff's Right to Sue Notice). Defendant responded with a second motion to dismiss. Doc. 13. Defendant incorporated its original motion to dismiss (Docs. 5, 6, & 10), arguing that the majority of Plaintiff's complaint was unchanged.[4] Doc. 14, Second Mot., 1-2. ...


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