United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT & 0 UNITED STATES DISTRICT JUDGE
before the Court are Abernathy, Roeder, Boyd & Hullet
(“ARBH”) and Richard M. Abernathy's
(“Abernathy”) (collectively “the Abernathy
Defendants”) Motion to Dismiss First Amended Complaint
(Dkt. #36), Abernathy, Roeder, Boyd & Hullet and Richard
M. Abernathy's Motion to Stay Discovery (Dkt. #50), and
Plaintiff's Motion to Strike the Abernathy
Defendant's Reply to Plaintiff's Response to their
Motion to Stay Discovery (Dkt. #53). Having considered the
motions and the relevant pleadings, the Court finds that
Defendants' Motion to Dismiss should be granted and the
motion to stay and motion to strike should be denied as moot.
case arises out of Plaintiff Don High's employment as a
prosecutor for the Municipal Court with Defendant the City of
Wylie (“the City”). Through Plaintiff's
tenure handling prosecution duties, Plaintiff alleges that
either Abernathy or ARBH serve as the City Attorney for the
City. Abernathy hired Plaintiff on April 10, 1995, to act as
a prosecutor for the City in its Municipal Court on April 27,
1995 (“the Hire Letter”). (Dkt. #32, Exhibit 1 at
p. 1). The Hire Letter did not specify the amount of time
Plaintiff would work for the City but included an attachment
with the pre-trial and trial dates for 1995 (Dkt. #32,
Exhibit 1 at p. 2). Plaintiff remained working as a
prosecutor for the City, while also working in private
practice, for the next twenty-three years. ARBH provided
Plaintiff's first paycheck, but the City provided every
other paycheck for the next twenty-three years. Since the
Hire Letter and first paycheck, Plaintiff has admittedly had
minimal communication with the Abernathy Defendants (Dkt. #32
¶ 22). It is unclear whether the City Council took part
in Plaintiff's hiring, was in any way aware of
Plaintiff's hiring, or approved Plaintiff's hiring.
after the Hire Letter, it became clear that the City Council
was involved in the hiring of prosecutors for the City. On
April 10, 2007, the City Council passed its first resolution
in relation to Plaintiff's employment, Resolution
2007-15(R), appointing Plaintiff as a prosecutor for the
City's Municipal Court for a time frame of two years. For
the next ten years, the City Council passed a new resolution
every two years, extending Plaintiff's position for an
additional two years. Based on the resolution, Plaintiff
alleges that it is unclear who is Plaintiff's supervisor,
but that Lisa Davis, the Court Administrator
(“Davis”), acted as his supervisor alleging that
“her conduct demonstrated that she was supervising
[Plaintiff's] work conduct and performance.” (Dkt.
#32 ¶ 81).
claims that Davis began treating Plaintiff in a disparate
manner in February 2017, that this conduct was brought to the
attention of Linda Bantz, the City's Finance Director,
and Mindy Manson, the City Manager, (“City Manager
Manson”) and they did nothing about it or encouraged
the behavior. According to Plaintiff, Davis successfully
reduced Plaintiff's hours and removed him from all jury
trial dockets, even though it was made known that Plaintiff
wanted to work more hours. Specifically, Plaintiff claims
“Davis almost single handedly changed the terms and
conditions of High's employment with the City.”
(Dkt. #32 ¶ 49). Further, on March 14, 2017, Davis
proposed a resolution to the City Council which would only
extend Plaintiff's position for one year, as opposed to
two years as had been typical up until this point. The City
Council voted the resolution, Resolution 2017-07(R), through
and extended his position for only one year.
this time, while Davis reduced Plaintiff's hours, the
City had an attorney from ARBH handle additional hours of
prosecution that was needed in the Municipal Court. Davis
also had an ARBH attorney fill in for Plaintiff on a day he
ran late to court due to car trouble. Davis continued to
reduce Plaintiff's hours and remove him from dockets and
place an ARBH attorney as a prosecutor in his place.
September 1, 2017, Davis drafted a performance improvement
plan (“PIP”) (Dkt. #32 ¶ 85) with the help
of Abernathy (Dkt. #32 ¶ 22). It was intended to be
presented to him by Abernathy and City Manager Manson (Dkt.
#32 ¶ 70). It allegedly indicated that Plaintiff was
going to be closely monitored by the City Manager, the Human
Resources Director, and the City Attorney. However, the PIP
was never presented to Plaintiff and he never signed it.
filed three complaints with the City's human resources
department regarding the alleged discrimination by the
City's employees, with the last complaint being filed on
March 13, 2018. City Manager Manson responded to the
complaints, Abernathy did not.
March 27, 2018, the City Council held its regular meeting.
Abernathy was present at this meeting, although Abernathy is
not a City Council member. At that meeting, the City Council
voted to revoke Resolution 2017-07(R), but Plaintiff remained
employed with the City on an at-will basis.
on this set of facts, Plaintiff sued the City, Davis, City
Manager Manson, and ARBH for violations of Age Discrimination
in Employment Act 29 U.S.C. §§ 12201 et seq.
(“ADEA”), Race Discrimination in Violation of
Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§§ 2000e et seq.) (“Title VII”) and
creating a hostile work environment. Plaintiff also seeks a
declaratory judgment as to the Abernathy Defendants.
November 2, 2018, the Abernathy Defendants filed the present
Motion to Dismiss asking the Court to dismiss the claims
asserted against them (Dkt. #36). On November 30, 2018,
Plaintiff filed a response (Dkt. #46). No. reply was filed.
on December 19, 2018, the Abernathy Defendants filed the
present Motion to Stay asking the Court to stay discovery
until the motion to dismiss was decided (Dkt. #50). On
January 2, 2019, Plaintiff filed a response (Dkt. #51). On
January 10, 2019, the Abernathy Defendants filed a reply
(Dkt. #52). The next day, on January 11, 2019, Plaintiff
filed the present Motion to Strike the reply that was filed
in support of the Motion to Stay (Dkt. #53). The Abernathy
Defendants filed a response to the Motion to Strike (Dkt.