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De La Vega v. USAA Real Estate Co.

United States District Court, W.D. Texas, San Antonio Division

November 7, 2019





         This Report and Recommendation concerns the Second Partial Motion to Dismiss filed by Defendant USAA Real Estate Company. See Dkt. No. 15. The District Court referred this case for disposition pursuant to Western District of Texas Local Rule CV-72 and Appendix C. See Dkt. No. 23. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, USAA's Motion, Dkt. No. 15, should be GRANTED.

         I. Factual and Procedural Background

         Plaintiff Anaestelle De la Vega initiated this action on May 28, 2019, alleging that Defendant USAA discriminated against her based on her race and/or national origin by reassigning her from her position as Senior Director of Investment Accounting to USAA's process team. See Orig. Compl. (Dkt. No. 1). De La Vega further alleges that USAA retaliated against her by terminating her employment a week after she filed her charge of discrimination with the Equal Employment Opportunity Commission. See Id. USAA subsequently moved to dismiss De la Vega's discrimination claim on the grounds that the claim lacked factual allegations to support a causal connection between her national origin or race and the alleged adverse employment action-USAA's reassignment decision. See Dkt. No. 5. Rather than file a response to USAA's motion, De La Vega filed an Amended Complaint, thereby mooting USAA's motion. See Dkt. Nos. 9 & 12.

         According to De La Vega's Amended Complaint, throughout her approximately nine years of employment with USAA, and “especially during the period she served as Senior Director of Investment Accounting, ” she was “frequently complimented in regard to her performance, ” her “willingness to ‘go above and beyond, '” and her “engaging personality.” Amend Compl. ¶¶ 7-8. In short, De La Vega alleges that “[e]veryone enjoyed working with her.” Id. De La Vega's mid-year 2018 performance review, which is her most recent performance evaluation, rated De La Vega as “superior” in terms of her overall performance as Senior Director of Investment Accounting as well as in “treat[ing] others with courtesy and respect.” Id. ¶ 9.

         On January 9, 2019, however, Ron Brown, the Executive Director of Financial Reporting, summoned De La Vega to a meeting. Id. Also present at the meeting was De La Vega's immediate supervisor Michelle Carrasco (now Salas), Executive Director of Process Accounting. Id. At the meeting De La Vega was informed that Accounting Officer Eric Mack decided to reassign her to the Process Team because “[p]eople don't like [her] management style.” Id. Although De La Vega concedes that the reassignment wouldn't have changed her job title or pay, she considered it a demotion because she wouldn't be in a supervisory role and would be less promotable. See Id. ¶ 10. According to her Amended Complaint, it is De La Vega's “belief and understanding that neither Mr. Brown nor Ms. Carrasco (Salas) were consulted about nor were they otherwise involved in Ms. De La Vega's demotion to the Process Team.” Id. ¶ 11. And De La Vega doesn't accuse the decisionmaker Mack of possessing discriminatory animus.

         De La Vega alleges that it was an individual named Joyce Hendry, who holds an unspecified position at USAA, who is ultimately responsible for De La Vega's reassignment. Hendry, De La Vega alleges, somehow and by some unspecified means “influenced and persuaded” Mack to demote De La Vega “because of [Hendry's] bias and prejudice against [De La Vega].” Id. In support, De La Vega alleges that “Hendry, on more than one occasion, made comments or remarks about Ms. De La Vega's race or national origin, and about how she did not believe that Ms. De La Vega had earned the promotions that she had received while employed with the Company or the praise that she had received for her performance from her supervisors, her peers, and her subordinates.” Id. Prior to her alleged demotion, De La Vega asserts, she was the only Hispanic or Latina manager at her level of the organization. See Id. She further alleges that she was replaced by a non-Hispanic, non-Latina employee. See id.

         Believing her reassignment was impermissibly discriminatory, De La Vega filed a charge of discrimination with the EEOC on February 7, 2019, alleging race and national origin discrimination. See Id. USAA then terminated De La Vega on February 14, 2019. See Id. ¶ 12. Although De La Vega concedes that the charge hadn't been served on USAA at that time, she claims she previously informed both Brown and Carrasco of her intent to file a charge and that both Brown and Carrasco “passed that information along” to the persons who made the termination decision, including Mack and USAA's Director of Human Resources. See Id. Consequently, De La Vega filed a new charge alleging retaliation premised on her termination. The EEOC issued a dismissal and notice of rights on March 6, 2019, see Id. ¶ 13, and De La Vega timely initiated this action a few months later.

         USAA now moves to dismiss De La Vega's discrimination claim-for a second time, and this time after De La Vega already amended it in response to USAA's arguments. USAA reiterates that De La Vega's Amended Complaint lacks facts capable of supporting a reasonable inference that Hendry (1) possessed discriminatory bias or (2) influenced Mack's decision to reassign De La Vega. See Dkt. No. 15.

         An October 16 Pretrial Conference, at which all parties appeared through counsel of record, provided the parties an opportunity to discuss the motion to dismiss. The September 12, 2019 Order setting the October 16 hearing informed the parties to “be prepared to discuss any motions that may be pending at the time of the conference.” Dkt. No. 24 (emphasis in original). At the hearing and during discussions about the motion to dismiss, asked De La Vega's counsel repeatedly declined a further opportunity to amend the Complaint to address the various deficiencies raised in the motion to dismiss. De La Vega explained that she couldn't provide additional factual allegations without the aid of discovery.

         II. Analysis

         De La Vega's claim of racial and/or national origin discrimination warrants dismissal. The ultimate question with respect to her Title VII disparate treatment claim is “whether [USAA] took the [alleged] adverse employment against [De La Vega] because of her protected status.” Raj. v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013) (emphasis in original); see also English v. Perdue, 777 Fed.Appx. 94, 99 (5th Cir. 2019). Although De La Vega doesn't need to establish a prima facie case of discrimination at this early juncture, she must “plead sufficient facts on all of the ultimate elements” of her claim to make the claim plausible. Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016); see also Meadows v. City of Crowley, 731 Fed.Appx. 317, 318 (5th Cir. 2018) (“Because [the plaintiff] has not pled such facts, the district court properly dismissed her complaint.”). Because she has failed to do so and disclaims any desire to replead, her claim should be dismissed.

         De La Vega's disparate treatment claim is somewhat atypical. In a more typical case, the plaintiff might allege that the decisionmaker was biased. Here, however, De La Vega's claim turns on her belief that a third person-Hendry-possessed discriminatory bias against her and that Hendry then somehow influenced the decisionmaker's (Mack) reassignment decision. But De La Vega hasn't pled facts to plausibly state this type of a “cat's paw” claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (to survive a motion to dismiss a complaint must contain “enough facts to state a claim to relief that is plausible on its face”). Indeed, de La Vega both fails to allege facts that ...

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