United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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. ¶
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
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. 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.
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.
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.
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.
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.
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
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. 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. Doc. 14, Second Mot., 1-2. ...