Opinion
EP-22-CV-00070-FM
08-24-2022
LIZA ZUNIGA, Plaintiff, v. MERRICK GARLAND, Attorney General; DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF INVESTIGATIONS, Defendants.
ORDER GRANTING MOTION TO DISMISS
Frank Montalvo, United States District Judge
Before the court are “Complaint” [ECF No. 1], filed February 28, 2022 by Liza Zuniga (“Plaintiff') and “Motion to Dismiss” (“Motion”) [ECF No. 7], filed May 6, 2022 by Merrick Garland, the Department of Justice, and the Federal Bureau of Investigations (“FBI”) (collectively, “Defendants”). Plaintiff alleges Defendants discriminated against her based on her race and sex in violation of Title VII of the Civil Rights Act, created a hostile work environment, and retaliated against her. Defendants move to dismiss for failure to state a claim upon which relief can be granted. After due consideration of the Motion and applicable law, the Motion is GRANTED.
Plaintiff is unclear about who she is suing and in what capacity. In her initial complaint, she claims the parties include her and “the Defendant,” by which she means “MERRICK GARLAND, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, and FEDERAL BUREAU OF INVESTIGATIONS.” See “Complaint” (“Compl.”) 2, ECF No. 1, filed Feb. 28, 2022 (emphasis added). She continues to refer to Defendants in the singular throughout her Complaint, but she variously refers to them in the singular and plural in her response. See “Plaintiffs Response to Motion to Dismiss” (“Resp.”) 1, ECF No. 11, May 27, 2022 (referring ambiguously to “Defendant,” “Defendant's,” and “Defendants'”). Defendants' motion to dismiss, meanwhile, is filed on behalf of Merrick Garland, the Department of Justice (“DOJ”), and the Federal Bureau of Investigations (“FBI”). “Motion to Dismiss” (“Mot.”) 1, ECF No. 7, filed May 6, 2022. The court will construe Plaintiffs complaint as bringing suit against three parties-Merrick Garland in his official capacity, DOJ, and the FBI-and the motion to dismiss as sought by these same three Defendants.
Compl. At 9-11; Plaintiff also cites 42U.S.C. Section 1983 and impliedly raises Monell liability in her quest for declaratory and injunctive relief and compensatory damages. Id. at 1-2 (“policy, practice, custom”). Plaintiff misunderstands the application of Section 1983-and by extension Monell-which is a means of addressing violations of federal rights by state or local entities. See Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (outlining the elements of a Section 1983 claim); Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (describing the elements of municipal liability under Section 1983).
Mot. at 1.
I. BACKGROUND
Plaintiff was employed at the FBI in El Paso, Texas between 2009 and 2019. She allegedly began experiencing discrimination and a hostile work environment from an unnamed supervisor in 2017 and, as a result, she filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) sometime that same year. Subsequently, she was treated poorly by that supervisor and another executive management employee, which she concluded was because of her sex or national origin or a reprisal for her EEOC complaint-she otherwise “worked very hard and continually received excellent performance ratings.”
Compl. at 5.
Id.
Id.; Plaintiff did not detail how she was treated poorly. Instead, she claims she “began experiencing discrimination and hostile work environment harassment” from the supervisor and that the executive management employee spread “false rumors” about and “discriminat[ed] against” her. Id. at 5-6.
Things deteriorated in 2019. First, Plaintiff was transferred to a new team, which she was unhappy about. She filed an EEOC complaint concerning the transfer but dropped it after she was told everyone from her original team was being reassigned, not just her. Second, she began experiencing physical and mental stress from the perceived workplace harassment; as a result, she secured a doctor's note permitting her to decline after-hours and weekend duty. Plaintiff also began looking for work elsewhere.
Id. at 6.
Id. at 4.
Id. at 6.
Id.
On Monday, July 29, 2019, Plaintiff resigned from the FBI, effective Friday, August 2, 2019. As a result of her resignation, Plaintiff lost computer access and access to the Sensitive Compartmental Information Facility (“SCIF”) that same Monday. Although losing computer and SCIF access before one's final day is allegedly atypical, Plaintiff was told she was a security risk. Two days later she learned her current supervisor (not the one against whom she filed her 2017 EEOC complaint) had told another FBI employee that he considered Plaintiff “insubordinate and derelict in her duty” by refusing to work outside of regular office hours, despite her doctor's note. On Friday, August 2, 2019, she was “humiliatingly walked out of the building,” which . allegedly happens only to fired employees. She would later learn. she was not being recommended for rehire within the government.
Id.
Id. at 4-5.
Id. at 7.
Id. at 7-8.
Id. at 3, 8.
Id. at 8.
Plaintiff commenced this action on February 28, 2022, claiming Defendants had violated her civil rights by discriminating based on race and sex, retaliating for her exercise of protected activity, and creating a hostile work environment. She seeks declaratory and injunctive relief and compensatory damages. Defendants moved to dismiss Plaintiffs claims pursuant to Federal Rules Civil Procedure Rule 12(b)(6).
Id. at 1.
Id.
Mot. at 1.
II. LEGAL STANDARD
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim for which relief can be granted.” “[T]he central issue is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.” To survive a motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” Therefore, a complaint is not required to set out “detailed factual allegations,” but it must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Although the court must accept well-pleaded allegations in a complaint as true, it does not afford conclusory allegations similar treatment.
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n. 8 (5th Cir. 2000); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id. (citing Twombly, 550 U.S. at 556).
Twombly, 550 U.S. at 555.
See Kaiser Aluminum & Chem. Sales, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (citing Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th Cir. 1974)).
III. DISCUSSION
Plaintiff raises claims of racial or sex discrimination, retaliation, and hostile work environment. She does not support any of these claims with sufficient factual allegations.
A. Discrimination Based on Race or Sex
To adequately plead discrimination under Title VII of the Civil Rights Act, whether based on sex or national origin, a plaintiff must show “(1) she is a member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated but outside the protected class were treated more favorably.”
Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007) (outlining the elements for sex discrimination); Abarca v. Metro. Transit Auth., 404 F.3d 938, 941 (5th Cir. 2005) (same elements apply for discrimination based on race or national origin).
Plaintiff has established the first two elements of her discrimination claim: she alleges she is a member of two protected groups-female and Hispanic-and there is every indication she was qualified for her position.
Compl. at 3 (Plaintiff was employed in her position for ten years).
However, Plaintiff has failed to allege an adverse employment action. Adverse employment actions “include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensation.” Plaintiff does not claim she was fired or failed to receive leave, promotion, or compensation due to her protected status. She asserts she was . “constructively discharged,” but merely invoking those magic words does not equate to sufficient factual pleading. Constructive discharge occurs when an employer “makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation.”Plaintiff claims she “began experiencing discrimination and hostile work environment harassment” in 2017. She claims this “poor treatment” came to a head in 2019 when she was forced to change teams. She claims her work life was causing her “a great deal of emotion, mental, and physical stress,” and, as a result, she resigned. But, these thread-bare allegations are mere “labels and conclusions.” She has pleaded no facts describing the discrimination or poor treatment.
Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d. 818, 824 (5th Cir. 2019).
See Compl. at 8.
Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005) (internal quotation marks and citation omitted).
Compl, at 5.
Id. at 6.
Id.
Twombly, 550 U.S. at 555.
Moreover, under the fourth element, the adverse employment action must have been “taken against a plaintiff because of her protected status.” Plaintiff completely fails to link any injury to race- or sex-based discrimination. She claims she was treated differently; in particular, she lost computer and SCIF access before her last day and, on her last day, was escorted from the building, which apparently is reserved only for fired employees. Even if that were the case, she has not alleged this disparate treatment was because of her race or sex. Instead, by her own allegations, it was allegedly because her supervisor considered her a security risk. Elsewhere she claims she “always worked very hard and continually received excellent performance ratings” and therefore “could only conclude” the poor treatment she suffered at work “was a direct result of [her] national origin, sex, and reprisal for prior EEO[C] activity.” Plaintiff s factless suspicion does not “raise a right to relief above the speculative level.” In short, Plaintiffs discrimination claim fails.
Cicalese v. Univ, of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (internal quotation marks and citation omitted).
Compl. at 3-4.
Id. at 7.
Compl. at 6.
Twombly, 550 U.S. at 555.
B. Retaliation
“To establish a prima facie case of retaliation, the plaintiff must establish that: (1) [she] participated in an activity protected by Title VII; (2) [her] employer took an adverse employment action against [her]; and (3) a causal connection exists between the protected activity and the adverse employment action.”
McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (internal quotation marks and citation omitted).
Plaintiff engaged in protected activity when she filed EEOC complaints in 2017 and 2019. Defendants do not dispute that she filed these complaints or that such activity is protected. However, Plaintiff has failed to adequately allege she suffered an adverse employment action. First, as discussed in the previous section, she was not “constructively discharged.” Second, to the extent Plaintiff claims her supervisor retaliated against her in response to her resignation, this claim also fails since losing access to her computer and the SCIF and being escorted from the building were not “ultimate employment decisions.”
See Compl. at 4; Beaumont v. Tex. Dept. of Criminal Justice, 468 F.Supp.2d 907, 923 (E.D. Tex. 2006).
Mot. at 11.
Welsh, 941 F.3d at 824; see Compl. at 8.
Furthermore, even assuming for the sake of argument Plaintiff had been “constructively discharged,” she cannot establish a causal connection between her EEOC complaints (2017 and April 2019) and her allegedly “forced” resignation on July 29, 2019, since at least three months had passed between these events. Thus, her retaliation claim fails.
See Compl. at 4. Plaintiff claims she suffered retaliation as a “direct and proximate” result of her EEOC complaints. Id. at 11. The court construes her complaint as alleging a connection based on closeness in time. See Besser v. Tex. Gen. Land Off., 834 Fed. App'x. 876, 885 (5th Cir. Nov. 3, 2020) (following guidance from Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) in establishing that no more than two-and-a-half months should elapse between a protected activity and an adverse employment action when the causal connection between the two is based on temporal proximity).
C. Hostile Work Environment
Under a hostile work environment claim, “the plaintiff must prove that she is (1) a member of a protected class who was (2) subject to ‘unwelcome harassment' that was (3) based on the plaintiffs status as a member of a protected class ... and was (4) ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' and that (5) ‘the employer knew or should have known of the harassment in question and failed to take prompt remedial action.'”
Abbt v. City of Houston, 28 F.4th 601, 607 (5th Cir. 2022) (citation omitted).
First, Plaintiff adequately alleges the first element-she is a member of protected classes based on her race and sex-but she fails on all the rest. With respect to the second element, she has not adequately alleged she was harassed. She claims her supervisor noted on a form that she was not recommended for rehire; informed the legal department he considered her a security risk; and revoked her computer access amount to examples of harassment. Such administrative measures are insufficient to sustain a claim founded on harassment. Third, Plaintiff did not connect any of these alleged mistreatments to her status as a woman or Hispanic ethnicity. Fourth, none of her supervisor's actions would have “alter[ed] the conditions of [her] employment” since all of them occurred after her resignation. Finally, since there was no harassment, there was nothing about which her employer should have known or to which it should have responded.
Compl. at 5, 8.
See Abbt, 28 F.4th at 607 (A hostile work environment must be “objectively and subjectively offensive such that a reasonable person would find it hostile or abusive... To determine whether the victim's work environment was objectively offensive, courts consider the totality of the circumstances, including (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or merely an offensive utterance; and (4) whether it interferes with an employee's work performance.”) (cleaned up).
Id.
IV. CONCLUSION
Plaintiff fails to sufficiently allege discrimination, retaliation, or hostile work environment.
Accordingly, it is HEREBY ORDERED that “Motion to Dismiss” [ECF No. 7] is GRANTED.