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High v. City of Wylie

United States District Court, E.D. Texas, Sherman Division

August 5, 2019




         Pending 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.


         This 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.

         Sometime 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).

         Plaintiff 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.

         During 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.

         On 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.

         Plaintiff 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.

         On 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.

         Based 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.

         On 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.

         Further, 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. #54).

         LEGAL ...

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