United States District Court, W.D. Texas, San Antonio Division
ORLANDO GARCIA DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
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.
Factual and Procedural Background
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.
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.
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.
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.
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.
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.
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
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.
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 ...