Noakes v. Department of Homeland Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DANA NOAKES CIVIL ACTION

VERSUS No. 22-213

DEPARTMENT OF HOMELAND SECTION I

SECURITY, ET AL.

AMENDED ORDER & REASONS

Before this Court is a Federal Rule of Civil Procedure 12(b)(6) motion1 to

dismiss plaintiff Dana Noakes’ (“Noakes”) lawsuit, filed by defendants Secretary for

the Department of Homeland Security Alejandro Mayorkas (“Mayorkas”) and

Transportation Security Manager Reginald Chesterfield (“Chesterfield”) (collectively,

“defendants”). The defendants allege that Noakes fails to state a claim upon which

relief can be granted.2 For the reasons discussed below, defendants’ motion is granted

and Noakes’ claims are dismissed.3

1 R. Doc. No. 19.

2 R. Doc. No. 19-1, at 2. The defendants’ motion also raises Rule 12(b)(1) arguments,

asserting that several of Noakes’ claims are not properly before the Court because

she has not exhausted her administrative remedies with regards to those claims

arising from her second Equal Employment Opportunity (“EEO”) complaint, filed on

January 6, 2022, regarding “her denial of promotions and premature loss of [Family

and Medical Leave Act (“FMLA”)] leave.” R. Doc. No. 1, ¶ 85. As the Court dismissed

these unexhausted claims on August 30, 2022, see R. Doc. No. 34, it will only address

the defendants’ Rule 12(b)(6) arguments with regards to Noakes’ first EEO complaint.

3 Pursuant to the status conference held on October 18, 2022, with counsel for all

parties participating, the Court determined that it was necessary to amend its Order

& Reasons with regards to Noakes’ Title VII retaliation claims to reflect that Noakes’

allegations that the TSA retaliated against her by denying her applications for

promotion, and by auditing her hours and terminating her FMLA leave, arise from

I. BACKGROUND

A. Noakes’ Equal Employment Opportunity (“EEO”) Complaints4

Noakes is employed by the Transportation Security Administration (“TSA”) as

a Transportation Security Officer at Louis Armstrong New Orleans International

Airport (“MSY”).5 On July 1, 2021, Noakes filed a formal EEO complaint of

discrimination with TSA’s Office for Civil Rights and Civil Liberties.6 In her

complaint, Noakes alleged that

TSA subjected the Complainant to discrimination and harassment

(sexual and nonsexual) based on race (Caucasian), color (white),

sex (female), and age (YOB: 1969) and reprisal (prior EEO activity)

when on April 14, 2021, management informed Complainant that

her Anti-Harassment Program (AHP) investigation was closed.7

On October 27, 2021, TSA’s Office for Civil Rights and Civil Liberties issued a

procedural dismissal of the formal EEO complaint, on the grounds that

[Noakes’] allegations amount to an impermissible attack on the

AHP . . . . The [Equal Employment Opportunity Commission

(“EEOC”)] has consistently held that an employee cannot use the

EEO complaint process to lodge a collateral attack on another

administrative proceeding, such as those involving resolution of

workplace violence complaints and other related process. The

essence of this claim is Complainant’s dissatisfaction with the

AHP’s investigation and her dissatisfaction with the lack of her

response from the AHP coordinator with regard to the concerns

with the AHP’s investigation. The proper forum for Complainant

her second, unexhausted EEO complaint and were therefore previously dismissed

without prejudice pursuant to the Court’s August 30, 2022 order, R. Doc. No. 34.

4 As a full discussion of the facts underlying this action is provided in R. Doc. No. 34,

the factual background underlying Noakes’ complaints is omitted here.

5 R. Doc. No. 1 ¶¶ 1, 7.

6 Id. ¶ 83; R. Doc. No. 19-3, at 2.

7 R. Doc. No. 19-3, at 2. While Noakes’ July 1, 2021 EEO complaint included multiple

grounds for discrimination and harassment, such as Noakes’ age and sex, the

allegations in her complaint only pertain to race, color, and reprisal.

to raise challenges with the AHP process is within the AHP

program office, not the EEO process.8

TSA’s Office for Civil Rights and Civil Liberties concluded that Noakes’

“allegations [were] outside the purview of EEOC regulations and jurisdiction” and

dismissed the complaint “pursuant to 29 C.F.R. § 1614.107(a)(l), for failure to state a

claim due to lodging a collateral attack against the [AHP].”9 Noakes received her

right-to-sue letter for the October 27, 2021 procedural dismissal on November 4,

2021.10

B. Procedural Posture

Noakes filed the present action against Mayorkas and Chesterfield in their

official capacities, alleging a hostile work environment based on race (Count I),11

retaliation (Count II),12 and race-based employment discrimination (Count III), in

violation of Title VII of the Civil Rights Act of 1964, as amended, 28 U.S.C. § 2000e,

et seq.13 Noakes also brought a claim against Chesterfield, in his official capacity, for

retaliation based on protected political speech in violation of the First Amendment of

the U.S. Constitution (Count IV).14 On July 12, 2022, the defendants filed a motion

to dismiss for failure to state a claim—the motion currently before the Court.15

8 Id. at 3.

9 Id.

10 R. Doc. No. 1, ¶ 84.

11 Id. ¶¶ 86–99.

12 Id. ¶¶ 100–104.

13 Id. ¶¶ 105–117.

14 Id. ¶¶ 118–123.

15 R. Doc. No. 19.

II. STANDARDS OF LAW

Federal Rule of Civil Procedure 12(b)(6)

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of

a complaint when a plaintiff fails to set forth well-pleaded factual allegations that

“raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007); see Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 570).

If the well-pleaded factual allegations “do not permit the court to infer more than the

mere possibility of misconduct,” then “the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Rule 8(a)(2))

(alteration in original).

In assessing the complaint, a court must accept all well-pleaded facts as true

and construe all factual allegations in the light most favorable to the plaintiff. Spivey

v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Gentilello v. Rege, 627 F.3d 540, 544

(5th Cir. 2010). “[T]he Court must typically limit itself to the contents of the

pleadings, including attachments thereto.” Admins. of the Tulane Educ. Fund v.

Biomeasure, Inc., No. 08-5096, 2011 WL 4352299, at *3 (E.D. La. Sept. 16, 2011)

(Vance, J.) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.

2000)). In assessing a complaint, courts “do not accept as true conclusory allegations,

unwarranted factual inferences, or legal conclusions.” Plotkin v. IP Axess Inc., 407

F.3d 690, 696 (5th Cir. 2005) (citing Southland Sec. Corp. v. INSpire Ins. Sols., Inc.,

365 F.3d 353, 361 (5th Cir. 2004)).

The complaint “must provide the defendant with fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.” Dura Pharms., Inc. v.

Broudo, 544 U.S. 336, 346 (2005) (quotations omitted). “[P]laintiffs must allege facts

that support the elements of the cause of action in order to make out a valid claim.”

Webb v. Morella, 522 F. App’x 238, 241 (5th Cir. 2013) (quoting City of Clinton, Ark.

v. Pilgrim’s Pride Corp., 632 F.3d 148, 152–53 (5th Cir. 2010) (quotation marks

omitted)). “[C]onclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice to prevent a motion to dismiss.” Id. (quoting Fernandez-

Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993) (quotation marks

omitted)). “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to

relief.’” Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v.

Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986) (alteration in original)).

III. LAW & ANALYSIS

A. Noakes’ Complaint Fails to State a Cognizable Title VII Hostile Work

Environment Claim (Count I)

i. Hostile work environment claims under Title VII

A plaintiff need not plead a prima facie hostile work environment case to

survive the Rule 12(b)(6) stage. In Stone v. Louisiana Dep’t of Revenue, the Fifth

Circuit held that the district court “applied incorrect standards when it dismissed

[the plaintiff’s] discrimination, harassment, and retaliation claims for failure to plead

a prima facie case.” 590 F. App’x 332, 339 (5th Cir. 2014). In reaching its holding, the

Fifth Circuit relied upon the Supreme Court’s decision in Swierkiewicz v. Sorema N.

A., which noted the incongruity between requiring a plaintiff to “plead more facts [to

survive a motion to dismiss] than he may ultimately need to prove to succeed on the

merits” in cases alleging direct evidence of Title VII discrimination. 534 U.S. 506,

510–12 (2002). Accordingly, in Stone, the Fifth Circuit noted the “proper standard” at

the Rule 12(b)(6) stage is the Iqbal standard—whether the plaintiff has “pleaded

factual content [that] allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” 556 U.S. at 678.

However, the Fifth Circuit further noted that a plaintiff must nonetheless

“allege facts sufficient to state all the elements of her claim.” Stone, 590 F. App’x at

339 (quoting Mitchell v. Crescent River Port Pilots Ass’n, 265 F. App’x 363, 370 (5th

Cir. 2008)) (emphasis in original). Put another way, “she must plead sufficient facts

on all of the ultimate elements of the claim to make her case plausible.” Davis v. Tex.

Health & Hum. Servs. Comm’n, 761 F. App’x 451, 454 (5th Cir. 2019) (per curiam);

see also Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021) (Plaintiffs

“[need] ‘plausibly allege facts going to the ultimate elements of the claim to survive a

motion to dismiss.’”) (quoting Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 768

(5th Cir. 2019)) (alterations omitted and added). Therefore, “[a]llegations related to

[the] prima facie inquiry may . . . be helpful in satisfying the general Iqbal plausibility

standard.” Haskett v. Cont’l Land Res., L.L.C., 668 F. App’x 133, 134 (5th Cir. 2016)

(citation omitted).16

To state a prima facie case of a hostile work environment based on race in

violation of Title VII, a plaintiff must establish that: “(1) the victim belongs to a

protected group; (2) the victim was subjected to unwelcome harassment; (3) the

harassment was based on a protected characteristic; (4) the harassment affected a

term, condition, or privilege of employment; and (5) the victim’s employer knew or

should have known of the harassment and failed to take prompt remedial action.”

E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 399 (5th Cir. 2007).17

ii. Noakes has failed to plead sufficient facts to make a plausible claim of a

hostile work environment based on race in violation of Title VII

In her complaint, Noakes alleges that “TSA . . . fostered and permitted a severe

and pervasive hostile work environment based on race”18 by:

(1) refusing to discipline any of Ms. Noakes’s non-white harassers

because of their race (which only emboldened them to continue

their campaign of harassment against Ms. Noakes); (2) refusing to

investigate Ms. Noakes’s chief harassers, who are non-white,

because of their race; (3) violating TSA’s own policies in bringing

16 The Court notes the difficulty of threading the needle at the motion to dismiss stage

between appropriately requiring the plaintiff allege “sufficient” facts to state each

element of her claim—which necessitates considering the elements of a prima facie

case—and inappropriately requiring the plaintiff “make a showing of each prong of

the prima facie test[.]” Stone, 590 F. App’x at 339.

17 A plaintiff alleging a hostile work environment in violation of Title VII, “[a]s in any

lawsuit, . . . may prove his case by direct or circumstantial evidence. The trier of fact

should consider all the evidence, giving it whatever weight and credence it deserves

. . . .” U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983); see also

Garza v. Kempthorne, No. 08-2566, 2010 WL 1427266, at *4 (S.D. Tex. Apr. 8, 2010)

(“A plaintiff may use either direct or circumstantial evidence to prove claims for

discrimination and hostile work environment”).

18 R. Doc. No. 1, ¶ 91.

allegations against Ms. Noakes without any supporting documents

eight months after the alleged misconduct; (4) violating TSA’s own

policies by failing to render a timely decision on any of the

complaints at issue, in a way that caused psychological harm to

Ms. Noakes; (5) lying to Ms. Noakes on or around March 1, 2021,

when TSA certified that it had no further allegations against her

when in fact it did, or fabricating an additional allegation,

Allegation #2, upon receiving Ms. Noakes’s response to the first

allegation; (6) construing the First Amendment to protect non-

white employees’ harassment of Ms. Noakes’s but not a white

employee’s expressions of political or social opinions; (7)

monitoring Ms. Noakes’s social media; and (8) threatening Ms.

Noakes with additional disciplinary processes if she expresses a

viewpoint disfavored by TSA. This is a non-exhaustive list of TSA

demonstrating an anti-white bias.19

Accepting “all well-pleaded facts as true, viewing them in the light most

favorable to the plaintiff[]” Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit,

369 F.3d 464, 467 (5th Cir. 2004), Noakes has pleaded sufficient facts to establish

that she (1) is a white woman,20 and therefore a member of a protected group,21 and

(2) was subjected to unwelcome harassment.22

However, Noakes does not plead sufficient factual content on the remaining

three elements of a hostile work environment case—namely, that any alleged

harassment was conducted and permitted based on her race, that the harassment

affected a term or condition of her employment, and that her employer failed to take

prompt remedial action—for the Court to draw the reasonable inference that Noakes

19 Id.

20 Id. ¶ 7.

21 See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (holding that

white employees are protected from race discrimination under Title VII of the Civil

Rights Act of 1964 and the Civil Rights Act of 1870).

22 R. Doc. No. 1, ¶¶ 90–99.

was subjected to a hostile work environment. WC & M Enters., Inc., 496 F.3d at 399.

Accordingly, Noakes fails to state a cognizable claim of a Title VII hostile work

environment violation based on race.

First, the factual statements alleged in Noakes’ complaint indicate that the

source of conflict between Noakes and her coworkers was not her race, but her

opinions on “some of the global protests and riots” and her “critici[sm of] a video of a

group of white rioters in the United Kingdom.”23 Nothing in Noakes’ complaint

indicates that she was the subject of harassment because of her race. Merely noting

that one’s alleged harassers are of a different race—here, “non-white”—is not

sufficient to prove their conduct was motivated by racial animus.

Similarly, Noakes offers no evidence to support her claims that TSA’s conduct,

or failure to take a certain action, was motivated by racial preference or to target

Noakes because of her race. For instance, Noakes claims that TSA “refused” to

discipline her alleged harassers because they are “non-white.”24 She also claims that

TSA fostered and permitted a “hostile work environment to continue specifically to

pressure Ms. Noakes to resign.”25 Yet she offers no “further factual enhancement” to

make these claims rise above the level of “naked assertion” and to pass “the line

between possibility and plausibility of ‘entitle[ment] to relief.’” Twombly, 550 U.S. at

557 (quoting Rule 8(a)(2)). To extrapolate from the lone fact that Noakes is white and

her coworkers are not and conclude that she was singled out for harassment (and that

23 Id. ¶ 9.

24 Id. ¶ 91.

25 Id. ¶ 94.

TSA permitted this harassment) because of her race is too great of a logical leap in

the absence of any factual support.

Second, the facts provided in Noakes’ complaint do not support a finding that

any harassment she suffered affected a term, condition, or privilege of her

employment. To do so, the harassment must be “sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working

environment.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting

Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)) (quotations omitted). To be

sufficiently severe or pervasive to alter the working conditions of the victim’s

employment, “not only must the victim perceive the environment as hostile, the

conduct must also be such that a reasonable person would find it to be hostile or

abusive.” WC & M Enters., Inc., 496 F.3d at 399. When determining whether the

victim’s work environment was objectively hostile or abusive, courts must consider

the totality of the circumstances, including “the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee’s work

performance.” Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000) (quoting Harris,

510 U.S. at 23). “No one factor is determinative.” WC & M Enters., Inc., 496 F.3d at

399.

While critical social media posts made by Noakes’ coworkers may have been

unpleasant, considering the totality of the circumstances, they are not so offensive as

to fundamentally change the conditions of her employment. First, the posts were

limited to an isolated period of time26 and took place online and outside of the

workplace. Second, though Noakes’ complaint states that the posts made by her

coworkers showed her “personal identifiable information,”27 including her “name,

photo, employer, title, and work location[,]”28 none of this information constitutes

“personally identifying information,” such as “social security numbers, birth dates, or

contact information.” Gremillion v. Grayco Commc’ns, L.P., No. 16-9849, 2018 WL

2219333, at *2 (E.D. La. May 15, 2018) (van Meerveld, M.J.). Indeed, information on

employer, role, and employment location is the same information many people share

publicly on LinkedIn pages. While Noakes may not have preferred that this

information be shared, as is her prerogative, the mere fact that it was shared does

not satisfy Title VII’s “demanding” standard. Faragher v. City of Boca Raton, 524 U.S.

775, 788 (1998). Further, though Noakes references “hostile and threatening”

comments on the social media posts,29 she does not allege that they were made by her

coworkers and therefore that her professed fear of coming to work30 was reasonable.

Noakes does not allege sufficient factual content for this court to find that any

harassment she suffered was so severe and pervasive as to alter the conditions of her

employment. Her experience may have been unpleasant, but as the Supreme Court

noted, Title VII is not a “general civility code.” Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 80 (1998).

26 Id. ¶ 12.

27 Id. ¶ 18.

28 Id. ¶ 21.

29 Id. ¶ 17.

30 Id. ¶ 23.

Finally, despite Noakes’ claims that “TSA took no remedial action”31 regarding

her alleged workplace harassment, Noakes’ complaint indicates that TSA did in fact

take steps to address the concerns Noakes raised in her AHP investigation. Two

weeks after Noakes lodged her AHP complaint, Federal Security Director of

Louisiana Arden Hudson (“FSD Hudson”) “sent an email to the MSY workforce”

which “informed the workplace about unacceptable social media and internet

behavior, including TSA’s Zero Tolerance Policy. The letter also discussed

cyberbullying [and] respecting people’s privacy . . . .”32 Reminding employees that

TSA has a “Zero Tolerance Policy” for workplace harassment satisfies the Fifth

Circuit’s requirement that “[p]rompt remedial action must be reasonably calculated

to end the harassment.” Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 329

(5th Cir. 2004) (quotations omitted) (holding that [an] employee could not prove her

employer failed to take remedial actions where it provided employee with an

“employee handbook containing the company’s antiharrassment policy[,]” which

directed the employee to report incidents of harassment to the Director of Human

Resources if she “does not feel that her allegation is being handled satisfactorily by .

. . her supervisor,” and where the employee acknowledged receipt of this handbook

and its provisions).

Though “[t]he record is rife with vague assertions of racial animus,” Ramsey,

286 F.3d at 269, the assertions are little more than “conclusory allegations,

31 Id. ¶ 26.

32 Id. ¶¶ 24–25.

unwarranted factual inferences, or legal conclusions.” Plotkin, 407 F.3d at 696.

Noakes’ “subjective belief of racial motivation, without more, is not sufficient to show

a hostile work environment.” Cavalier v. Clearlake Rehab. Hosp., Inc., 306 F. App’x

104, 107 (5th Cir. 2009). Noakes’ complaint fails to state a cognizable claim of a hostile

working environment based on race in violation of Title VII, even under the liberal

pleading standard of the Rule 12(b)(6) stage.

B. Noakes’ Complaint Does Not State a Cognizable Title VII Retaliation

Claim (Count II)

i. Retaliation claims under Title VII

Pursuant to Title VII of the Civil Rights Act of 1964,

[i]t shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by

this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a) (Discrimination for making charges, testifying, assisting, or

participating in enforcement proceedings).

A plaintiff need not establish a prima facie case of retaliation to survive a Rule

12(b)(6) motion to dismiss. See Stone, 590 F. App’x at 339; see also Nieman v. Hale,

No. 12-2433, 2012 WL 3204990, at *4 (N.D. Tex. Aug. 8, 2012) (“a plaintiff is not

required to plead a prima facie case based on discrimination and retaliation at the

pleading stage for purposes of Rules 8 and 12(b)(6).”); Thornton v. Dallas ISD, No.

13-3012, 2014 WL 46398, at *3 (N.D. Tex. Jan. 6, 2014) (“The Fifth Circuit has

cautioned that a plaintiff is not required to make a showing of each prong of the prima

facie test at the pleading stage”).

Nonetheless, the plaintiff must “at least plead facts giving rise to a reasonable

inference of plausibility for the ultimate elements of her claim.” Jenkins v. Louisiana

Workforce Comm’n, 713 F. App’x 242, 245 (5th Cir. 2017). To that end, and as

previously stated, it is useful to consider each element of a prima facie case of Title

VII retaliation, to “analyz[e] the sufficiency of her complaint.” Id. (applying the

holding—that a plaintiff need not plead a prima facie case of discrimination at the

Rule 12(b)(6) stage, but must plead sufficient facts on each element of the claim to

make her case plausible—of Chhim v. Univ. of Texas, 836 F.3d 467, 470 (5th Cir.

2016) to a Title VII retaliation claim); accord Thompson v. Houma Terrebonne Hous.,

No. 18-9394, 2019 WL 2524591, at *3 (E.D. La. June 19, 2019) (Feldman, J.). The

elements of a prima facie Title VII retaliation case are:

(1) [the plaintiff] engaged in an activity protected by Title VII; (2)

that an adverse employment action occurred; and (3) that there

was a causal connection between the participation in the protected

activity and the adverse employment decision.

McMillan v. Rust Coll., Inc., 710 F.2d 1112, 1116 (5th Cir. 1983).

Protected activity, under Title VII’s anti-retaliation provision, “can consist of

either: (1) “oppos[ing] any practice made an unlawful employment practice by this

subchapter” or (2) “ma[king] a charge, testif[ying], assist[ing], or participat[ing] in

any manner in an investigation, proceeding, or hearing under this subchapter.”

E.E.O.C. v. Rite Way Serv., Inc., 819 F.3d 235, 239 (5th Cir. 2016) (quoting 42 U.S.C.

§ 2000e-3(a) (alterations in Rite Way)).

For purposes of a retaliation claim, an adverse employment action is one that

“a reasonable employee would have found . . . materially adverse, which in this

context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006).33

“To demonstrate that a causal link exists between the protected activity and

the adverse employment action at the prima facie stage, an employee can show close

enough timing between her protected activity and the adverse employment action.”

Saketkoo v. Admins. of Tulane Educ. Fund, 31 F.4th 990, 1001 (5th Cir. 2022)

(“Saketkoo v. Admins.”). If a plaintiff relies solely on temporal proximity to establish

the causal link, the temporal proximity must be “very close.” See Clark Cty. Sch. Dist.

v. Breeden, 532 U.S. 268, 273 (2001) (per curiam). While the Supreme Court has

approvingly cited a case holding that a three-month gap is insufficient to show

causation, Breeden, 532 U.S. at 273–74 (citing Richmond v. ONEOK, Inc., 120 F.3d

205, 209 (C.A.10 1997)), the Fifth Circuit has held that a period of approximately two

months between the protected activity and the adverse employment action is

sufficient temporal proximity “to show causal connection for purposes of a prima facie

case.” Outley v. Luke & Assocs., Inc., 840 F.3d 212, 219 (5th Cir. 2016); see also Garcia

v. Pro. Cont. Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019) (period of two-and-a-half

months is close enough to “establish causation.”).

33 The Supreme Court, in promulgating the above definition in Burlington, declined

to apply the narrow definition of adverse employment actions utilized in Title VII

discrimination claims to Title VII retaliation claims. Because the discrimination and

retaliation provisions of Title VII have different statutory language and different

purposes, “the antiretaliation provision, unlike the substantive provision, is not

limited to discriminatory actions that affect the terms and conditions of employment.”

Burlington, 548 U.S. at 64.

ii. Noakes has failed to state a claim of Title VII retaliation

Noakes engaged in protected activity when she filed her EEO complaint. Dollis

v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (“[F]iling an administrative complaint is

clearly protected activity”). As stated, the remaining two elements of a prima facie

case of retaliation are (1) the employee suffered an adverse employment action, and

(2) the adverse employment action was causally related to her participation in the

protected activity. Using these remaining elements of a prima facie case as a guide to

“analyz[e] the sufficiency of her complaint[,]” Jenkins, 713 F. App’x at 245, the Court

will first address the adverse employment actions Noakes alleges TSA took against

her, and will then consider whether there is a causal relationship between any

adverse actions and Noakes’ filing of her EEO complaint.

Noakes alleges TSA took four adverse employment actions against her: (1)

denying her applications for promotion;34 (2) “auditing her hours [and] denying her

FMLA leave to which she was entitled[;]”35 (3) “dismissing Ms. Noakes’s original

harassment complaint[;]”36 and (4) “baselessly investigating Ms. Noakes subsequent

to the pretextual complaints of her colleagues.”37

Regarding the first two alleged adverse employment actions, all of Noakes’

claims arising from her second EEO complaint—regarding “her denial of promotions

and premature loss of FMLA leave”38—were dismissed without prejudice for failure

34 R. Doc. No. 1, ¶ 102.

35 Id. ¶ 103.

36 Id.

37 Id.

38 Id. ¶ 85.

to exhaust her administrative remedies, pursuant to the Court’s August 30, 2022

order.39 Noakes’ allegations that TSA retaliated against her for filing an EEO

complaint by taking the adverse employment actions of denying her applications for

promotion and by auditing her hours and terminating her FMLA leave arise out of

her second EEO complaint and, therefore, were previously dismissed without

prejudice.

Regarding the remaining two alleged adverse employment actions, the Court

notes that TSA’s decisions to dismiss Noakes’ original harassment claim and

subsequently to investigate allegations made against Noakes by her coworkers

occurred before she made her first EEO complaint. As stated in Noakes’ complaint,

her supervisor contacted her on March 1, 2021 to have a Pre-Decisional Discussion,

the first step in TSA’s formal disciplinary process, regarding the first allegation made

against Noakes.40 On March 9, 2021, Noakes was informed that a second allegation

had been made against her.41 She also states that TSA informed her on April 14, 2021

that its investigation into Noakes’ original harassment claim had concluded and that

TSA would take no action.42 However, Noakes’ complaint states that she initiated

contact with the EEO counselor for TSA on May 18, 2021, and filed her formal

complaint on July 1, 2021.43 Therefore, “any facts claimed as retaliation prior to May

39 R. Doc. No. 34.

40 R. Doc. No. 1, ¶¶ 46–48.

41 Id. ¶ 56.

42 Id. ¶ 45; R. Doc. No. 19-3, at 2.

43 R. Doc. No. 1, ¶¶ 81, 83. While TSA’s investigation into the two allegations made

against Noakes was completed on November 9, 2021, and therefore after she filed her

[18, 2021] do not have ‘a causal connection between the protected activity and the

adverse employment action.’” Stone, 590 F. App’x at 341 (quoting McCoy v. City of

Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007)).

As Noakes does not plead sufficient facts to indicate that she suffered any

already exhausted adverse employment actions, it follows that she cannot show the

necessary causal relationship between her participation in the protected activity and

any adverse employment action. Davis, 761 F. App’x at 454. Noakes therefore fails to

state a cognizable Title VII retaliation claim.

C. Noakes’ Complaint Fails to State a Cognizable Title VII Disparate

Treatment Discrimination Claim (Count III)

i. Disparate treatment discrimination claims pursuant to Title VII

Pursuant to Title VII of the Civil Rights Act of 1964, it is an “unlawful

employment practice for an employer”

(1) to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national

origin; or

(2) to limit, segregate, or classify his employees or applicants for

employment in any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise adversely

affect his status as an employee, because of such individual’s race,

color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1)-(2).

EEO complaint, TSA’s dismissal of the allegations against Noakes was not an adverse

employment action. Id. ¶ 62.

Generally, to establish a prima facie case of Title VII discrimination pursuant

to a disparate treatment theory,44 based on circumstantial evidence,45 a plaintiff

must show that

(1) she belongs to a protected group, (2) she was qualified for her

position, (3) she suffered an adverse employment action; and (4) . .

. in the case of disparate treatment, that similarly situated

employees were treated more favorably.

Nasti v. CIBA Specialty Chemicals Corp., 492 F.3d 589, 593 (5th Cir. 2007) (quoting

Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512–13 (5th Cir. 2001)).

The “‘ultimate question’ in a Title VII disparate treatment claim [is] ‘whether a

defendant took the adverse employment action against a plaintiff because of her

protected status.’” Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013)

(quoting Kanida v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004))

(emphasis in Raj); see also Pacheco v. Mineta, 448 F.3d 783, 787 (5th Cir. 2006)

(“[P]roof and finding of discriminatory motive is required” in disparate treatment

claims).

44 While both parties refer to Noakes’ claim as “race discrimination,” the theory of

employment discrimination alleged in her complaint is “disparate treatment.”

Disparate treatment occurs when an “employer simply treats some people less

favorably than others because of their race, color, religion, sex, or national origin.”

Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 335 n.15 (1977). In the instant case,

Noakes’ complaint alleges that “TSA discriminated against [her] on the basis of race

by granting preferential treatment to her non-white harassers throughout the

investigations and adjudications of their claims, and manifesting prejudice against

[her] as a white employee throughout the same.” R. Doc. No. 1, ¶ 108.

45 For the purposes of Title VII, “direct evidence includes any statement or written

document showing a discriminatory motive on its face,” and which, “if believed,

proves the fact without inference or presumption.” Herster v. Bd. of Supervisors of La.

State Univ., 887 F.3d 177, 185 (5th Cir. 2018) (citations omitted). Noakes’ complaint

does not allege direct evidence, only circumstantial evidence.

Again, a plaintiff need not make out a prima facie case of disparate treatment

to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim. Swierkiewicz,

534 U.S. at 510–12; accord Raj, 714 F.3d at 331. Nonetheless, as noted above, she

must “plead sufficient facts on all of the ultimate elements of a disparate treatment

claim to make [her] case plausible[,]” Chhim, 836 F.3d at 470, and to allow the Court

to “draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

Plaintiffs filing Title VII disparate treatment claims using circumstantial

evidence accordingly “must ‘identify at least one coworker outside of [their] protected

class who was treated more favorably under nearly identical circumstances.’”

Saketkoo v. Tulane Univ. Sch. of Med., 510 F. Supp. 3d 376, 386 (E.D. La. 2020)

(Africk, J.) (“Saketkoo v. Tulane”) (quoting Alkhawaldeh v. Dow Chem. Co., 851 F.3d

422, 426 (5th Cir. 2017) (citation omitted)); see also Chhim, 836 F.3d at 471

(dismissing plaintiff’s Title VII disparate treatment case based, in part, on the fact

that he “plead[ed] no facts that suggest the applicant hired by the [employer] was less

qualified than [him] or was similarly situated.”). Specifically, the Fifth Circuit

require[s] that an employee who proffers a fellow employee as a

comparator demonstrate that the employment actions at issue

were taken under nearly identical circumstances. The employment

actions being compared will be deemed to have been taken under

nearly identical circumstances when the employees being

compared held the same job or responsibilities, shared the same

supervisor or had their employment status determined by the same

person, and have essentially comparable violation histories. And,

critically, the plaintiff’s conduct that drew the adverse employment

decision must have been nearly identical to that of the proffered

comparator who allegedly drew dissimilar employment decisions.

Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009) (citations omitted).

Failure to identify a potential comparator “alone justifies dismissal of [a plaintiff’s]

Title VII claim[,]” and “[i]f no such comparator exists, the plaintiff cannot establish a

prima facie case.” Saketkoo v. Tulane, 510 F. Supp. 3d at 386 (quotations omitted);

see also Saketkoo v. Admins., 31 F.4th at 998 n. 3 (“Lee sets out the requirements for

conducting the comparator analysis. Although it does not affirmatively state that

such an analysis is required to satisfy the fourth prong and make a prima facie case,

our court has since interpreted Lee this way.”)

ii. Noakes has failed to state a claim of race-based disparate treatment in

violation of Title VII

Noakes has pleaded sufficient facts to establish that she (1) is a white woman,46

and therefore a member of a protected group,47 and (2) neither party disputes that

she was qualified for her position at MSY.48 However, Noakes does not plead

sufficient factual content on the remaining two ultimate elements of a disparate

treatment case—namely, that she suffered some adverse employment action by her

employer, and that she was treated less favorably than other similarly situated

employees outside her protected group because of her protected characteristic—for

the Court to draw the reasonable inference that Noakes was subjected to disparate

treatment based on her race.

46 R. Doc. No. 1, ¶ 7.

47 See McDonald, 427 U.S. 273.

48 See R. Doc. No. 1 ¶¶ 72, 76.

First, considering only Noakes’ exhausted first EEO complaint, the Court finds

that Noakes has failed to plead sufficient facts to make a plausible claim that TSA

took adverse employment action against her. Noakes’ complaint asserts that “TSA

exhibited anti-white bias”49 against her in connection with TSA’s decision to close her

AHP investigation by:

(1) refusing to discipline any of Ms. Noakes’s non-white harassers;

(2) refusing to investigate Ms. Noakes’s chief harassers, who are

non-white; (3) violating TSA’s own policies in bringing allegations

against Ms. Noakes without any supporting documents eight

months after the supposed misconduct; (4) violating TSA’s own

policies by failing to render a timely decision on any of the

complaints at issue, in a way that caused psychological harm to

Ms. Noakes; (5) lying to Ms. Noakes on or around March 1, 2021,

when it certified that it had no further allegations when in fact it

did, or fabricating an additional allegation, Allegation #2, upon

receiving Ms. Noakes’s response to the first allegation; (6)

construing the First Amendment to protect non-white employees’

harassment of Ms. Noakes’s but not a white employee’s expressions

of political or social opinions; (7) monitoring Ms. Noakes’s social

media; and (8) threatening Ms. Noakes with additional disciplinary

processes if she expresses a viewpoint disfavored by TSA.50

Per the Fifth Circuit’s jurisprudence, adverse employment actions in the

context of Title VII disparate treatment claims “include only ultimate employment

decisions such as hiring, granting leave, discharging, promoting, or compensating[.]”

Hamilton v. Dallas Cnty., 42 F.4th 550, 554 (5th Cir. 2022). An employment action

that “‘does not affect job duties, compensation, or benefits’ is not an adverse

employment action.” Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 824 (5th Cir.

49 Id. ¶ 109.

50 Id. Noakes’ allegations with regards to her claims of race-based discrimination in

violation of Title VII are largely identical to her allegations of a hostile work

environment based on race. See Section III, A., ii, supra.

2019) (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004)). And,

relevant to the facts in the instant case, the Fifth Circuit has held that “allegations

of unpleasant work meetings, verbal reprimands, improper work requests, and unfair

treatment do not constitute actionable adverse employment actions as discrimination

or retaliation.” King v. Louisiana, 294 F. App’x 77, 85 (5th Cir. 2008).

Considering the definition of “adverse employment action,” declining to pursue

disciplinary action against Noakes’ coworkers is not an adverse employment action.

Nor are the other related actions Noakes asserts TSA took in connection with the

termination of her AHP investigation (“lying,” “refusing,” “construing,” etc.) akin to

actions the Fifth Circuit has deemed to be “adverse employment actions”—hiring,

promoting, firing, compensating, or granting leave. The Fifth Circuit has held that

reprimanding an employee does not constitute an ultimate employment action. See

Green v. Admins. of the Tulane Educ. Fund, 284 F.3d 642, 657–58 (5th Cir. 2002)

(“[R]eprimands[ ] do not constitute ultimate employment decisions”), abrogated on

other grounds by Burlington, 548 U.S. 53; see also Washington v. Veneman, 109 F.

App’x 685, 689 (5th Cir. 2004) (listing actions the Fifth Circuit has held are not

ultimate employment actions, including reprimands for reading on the job, “rude

behavior from supervisors, undeserved poor performance ratings, denying a

performance award, . . . threatening disciplinary action, [or] disclosing personal

information on an organizational chart . . . .”). Accordingly, simply closing an

investigation and declining to reprimand other employees does not constitute an

ultimate employment decision and, therefore, an adverse employment action.

Second, even if the conduct above did constitute adverse employment actions,

Noakes cannot prove a nexus between the conduct and any racially discriminatory

motive. For instance, Noakes’ complaint states that when TSA informed Noakes on

April 14, 2021 that her AHP investigation would be closed, TSA “failed to list several

of the most egregious offending employees, including the non-white employees” who

had “revealed” Noakes’ personal information—presumably a reference to the

Facebook post made by a coworker which included Noakes’ “name, photo, employer,

title, and work location.”51 Noakes proceeds to assert that “[a]pparently, TSA never

investigated those portions of Ms. Noakes’s complaint. No explanation was given as

to why TSA refused to investigate these employees. The employees it failed to

investigate were all non-white.”52 Noakes offers no factual support for the assertions

that TSA “refused” or “failed” to investigate all parts of Noakes’ complaint, Noakes

fails to provide factual allegations to support the implicit assertion that the names of

Noakes’ “non-white” alleged harassers were omitted because they were “non-white.”

Likewise, Noakes asserts that “‘TSA legal’ had apparently informed FSD

Hudson that he could not discipline the offending employees, who were non-white,

because their speech was protected by the First Amendment.”53 Again, the implicit

assertion is that TSA protected the speech of “non-white” employees in particular but

did not offer the same protection to speech by white employees, even targeting white

employees for retaliation based on their speech. Noakes’ complaint employs the

51 R. Doc. No. 1, ¶ 21.

52 Id. ¶ 45.

53 Id. ¶ 40.

“weasel word”54 “apparently” to imply factual proof without providing any. The Court

cannot “accept as true conclusory allegations, unwarranted factual inferences, or

legal conclusions[,]” Plotkin, 407 F.3d at 696.

Finally, Noakes similarly has not identified at least one coworker outside of

her protected class who was treated more favorably than her under nearly identical

circumstances. See Saketkoo v. Admins, 31 F.4th at 998. Noakes’ complaint states

that no action was taken against “[n]on-white employees [who] openly shared on

Facebook that they abuse the FMLA system,” or against non-white coworkers who

“posted negative remarks” about individuals who participated in the events that

transpired at the U.S. Capitol on January 6, 2021.55 However, Noakes does not allege

that these employees “held the same job or responsibilities, shared the same

supervisor or had their employment status determined by the same person, and have

essentially comparable violation histories[,]” Lee, 574 F.3d at 260, as required by

Fifth Circuit precedent. Noakes’ vague allegations of unpunished coworkers are too

general to provide a true comparator, and “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice” to survive a

motion to dismiss. Iqbal, 556 U.S. at 679.

54 The word “apparently” “fits squarely within that category commonly understood by

lawyers to be ‘weasel words.’ Such words’ meaning[s are] malleable to a point where

they mean what the user wants them to mean in any given situation; they have no

meaning of their own.” Abstrax, Inc. v. Hewlett-Packard Co., No. 14-158, 2014 WL

5677834, at *2 (E.D. Tex. Nov. 4, 2014); see also Woodhill Corp. v. Fed. Emergency

Mgmt. Agency, 168 F.3d 1025, 1027 (7th Cir. 1999) (“[W]e use the weasel word

‘apparently’ . . . .”).

55 R. Doc. No. 1, ¶¶ 77, 79.

Accordingly, Noakes’ complaint does not state a plausible Title VII disparate

treatment claim because it fails to allege any facts that would allow the Court to draw

the reasonable inference that TSA discriminated against Noakes on the basis of her

race when it closed her AHP investigation.

D. Noakes’ Complaint Fails to State a Cognizable Claim for Retaliation

Based on Protected Speech (Count IV)

i. Retaliation for protected speech claims under the First Amendment

There are four elements to a prima facie First Amendment retaliation claim in

the employment context: “(1) the plaintiff suffered an adverse employment decision,

(2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest

in speaking outweighed the governmental defendant’s interest in promoting

efficiency, and (4) the protected speech motivated the defendant’s conduct.” Kinney v.

Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (citing Lukan v. N. Forest ISD, 183 F.3d

342, 346 (5th Cir. 1999)).

Unlike in the context of Title VII claims, a plaintiff alleging retaliation in

violation of the First Amendment must plead at the Rule 12(b)(6) stage each element

of the prima facie case to state a cognizable claim. See Cox v. Kaelin, 577 F. App’x

306, 312 (5th Cir. 2014) (Plaintiff’s complaint “contain[s] sufficient factual matter . .

. to state a claim to relief that is plausible on its face, as it is plausible from the

complaint that [the plaintiff] can succeed on all the elements of a First Amendment

retaliation claim, and it therefore withstands [defendant’s] motion to dismiss.”

(quotations omitted)); see also Oscar Renda Contracting, Inc. v. City of Lubbock, Tex.,

463 F.3d 378, 382 (5th Cir. 2006); Briscoe v. Jefferson Cnty., 500 F. App’x 274, 278

(5th Cir. 2012).

In the context of First Amendment retaliation claims, “[a]dverse employment

actions are discharges, demotions, refusals to hire, refusals to promote, and

reprimands.” Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998),

(quoting Pierce v. Tex. Dep’t of Crim. Just., 37 F.3d 1146, 1149 (5th Cir. 1994)). The

Fifth Circuit has “declined to expand the list of actionable actions, noting that some

things are not actionable even though they have the effect of chilling the exercise of

free speech.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (quoting

Benningfield, 157 F.3d at 376). Specifically, the Fifth Circuit has held that “false

accusations, verbal reprimands, and investigations [are] not actionable adverse

employment actions.” Colson v. Grohman, 174 F.3d 498, 511 (5th Cir. 1999). Likewise,

“mere accusations or criticism” are not adverse employment actions. Breaux, 205 F.3d

at 157–58 (citing Harrington v. Harris, 118 F.3d 359 365, 366 (5th Cir. 1997)).

ii. Noakes has failed to plausibly state a claim of retaliation for protected

speech in violation of the First Amendment

Noakes alleges that “TSA’s initial commencement of disciplinary action

against [her], . . . as well as Defendant Chesterfield’s threat against [Noakes] that

TSA is monitoring her social media accounts” were “prohibited content-based

restrictions on [her] free speech”56 taken by Chesterfield because he disagreed with

the opinions expressed in Noakes’ social media posts.

56 Id. ¶¶ 122–23.

With respect to the second element of a prima facie case, Noakes’ complaint

pleads sufficient factual content for the Court to infer that Noakes’ social media posts

involved a matter of public concern—protests against police violence in the wake of

George Floyd’s death in police custody.57 Noakes’ complaint therefore satisfies the

second element of a prima facie case of retaliation under the First Amendment.

The third element of the prima facie test is the balancing test established by

the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). This test

asks the Court, when evaluating First Amendment retaliation claims, to balance “the

interests of the [employee], as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in promoting the efficiency of

the public services it performs through its employees.” Connick v. Myers, 461 U.S.

138, 142 (1983) (alteration in original) (quoting Pickering, 391 U.S. at 568). However,

the Fifth Circuit held in Burnside v. Kaelin that there is a rebuttable presumption at

the motion to dismiss stage that no Pickering balancing is needed to state a First

Amendment retaliation claim.58 773 F.3d 624 (5th Cir. 2014).

While that presumption may be rebutted when “‘reasonable inferences drawn

from a complaint’ do not plausibly show that the employee’s interests outweigh the

employer’s[,]” Garza v. Escobar, 972 F.3d 721, 728 (5th Cir. 2020) (quoting Burnside,

57 Id. ¶ 9.

58 “The rebuttable presumption applies because reasonable inferences drawn from a

complaint, obviously drafted by the aggrieved employee, will generally lead to a

plausible conclusion that the employee’s interest in commenting on matters of public

concern outweighs the employer’s interest in workplace efficiency.” Burnside, 773

F.3d at 628.

773 F.3d at 628), nothing in Noakes’ complaint indicates that—nor do the defendants

argue that—TSA’s interests in efficiency outweighed Noakes’ private interest in

commenting on matters of public concern. The presumption is not rebutted, and the

Court finds Noakes has satisfied the third element of a prima facie First Amendment

retaliation case.

However, Noakes’ complaint does not contain sufficient factual matter to state

a facially plausible claim as to the remaining first and fourth elements: that she

suffered an adverse employment action, and that such an adverse employment action

was motivated by Noakes’ protected speech.

First, based on Fifth Circuit caselaw, investigating allegations made by

Noakes’ coworkers against her is not an adverse employment action; investigations

and rescinded reprimands are not actionable adverse employment actions.

Benningfield, 157 F.3d at 376. It follows that merely terminating Noakes’ AHP

investigation and not finding in her favor is not an adverse employment action. What

does and does not constitute an adverse action in this context is clearly established,

see id., and even a generous interpretation of “formal reprimand” does not encompass

TSA’s decisions to simply stop investigating her complaints and to not discipline her

coworkers.59

59 The distinction between formal reprimands and informal reprimands or

investigations arises from the fact that “a formal reprimand, by its very nature, goes

several steps beyond a criticism or accusation and even beyond a mere investigation;

it is punitive in a way that mere criticisms, accusations, and investigations are not.”

Colson, 174 F.3d at 512 n.7.

Second, Noakes asserts that Chesterfield monitored her social media accounts

in retaliation for her protected speech. As verbal reprimands and investigations are

not adverse employment actions, Colson, 174 F.3d at 511, monitoring an employee’s

social media is not likely to meet the Fifth Circuit’s bar for an actionable adverse

employment action—even if it may have “the effect of chilling the exercise of free

speech.” Id. (citing Pierce, 37 F.3d at 1150). Moreover, Noakes has not offered any

factual allegations which would raise her claim that Chesterfield is monitoring her

social media activity above the level of the merely speculative. Noakes’ complaint

states that

[w]hen TSA finally dismissed the allegations, Defendant

Chesterfield stated that the decision to dismiss the cases against

her was based upon the fact that there had been ‘no similar

conduct’ by Ms. Noakes since June 2020. This statement strongly

implies that Defendant Chesterfield was monitoring, and

continuing to monitor, Ms. Noakes’s social media for expressions of

viewpoints he disfavored.60

Yet Noakes alleges no facts whatsoever to substantiate her claims that

Chesterfield was (1) monitoring her social media accounts, and (2) was targeting her

for expressing specific viewpoints that (3) he disagreed with—and not instead that

TSA simply had not received another complaint from one of Noakes’ coworkers about

her social media posts. When, as here, “the allegations of the pleading do not allow

the court to infer more than the mere possibility of wrongdoing, they fall short of

showing that the pleader is entitled to relief.” Nieman, 2012 WL 3204990, at *2 (citing

Iqbal, 556 U.S. at 679). Even if monitoring an employee’s social media to punish the

60 R. Doc. No. 1, ¶¶ 63–64.

employee for expressing disfavored viewpoints could be an adverse employment

action, Noakes proffers no facts that make this allegation plausible.

The factual support for Noakes’ related claim that Chesterfield threatened her

in retaliation for her protected speech is likewise lacking. Noakes’ complaint states

that when Chesterfield informed Noakes that the TSA would not be pursuing a

disciplinary action against her, “Chesterfield stated that he would pursue no

disciplinary charges ‘at this time.’ Taken together [with the comment Noakes alleges

indicated that Chesterfield was monitoring her social media], this notice functioned

as a threat: if Ms. Noakes were to at any time express any political or social

viewpoints Defendant Chesterfield or other TSA management did not like, he would

move forward with discipline against her.”61 Noakes alleges no facts that would

support her interpretation of the phrase “at this time” as hostile or threatening.

Noakes must provide more than mere supposition to substantiate her claim that

Chesterfield retaliated against her and that this retaliation was motivated by her

protected speech.62 Where, as here, a plaintiff’s complaint contains only “conclusory

allegations and unwarranted deductions of fact[,]” dismissal is warranted. Blackburn

v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).

61 Id. ¶¶ 65–66.

62 The defendants also assert that the First Amendment claim against Chesterfield

should be dismissed on the grounds that it is “redundant of the claims against TSA[.]”

R. Doc. No. 19-1, at 17. As the Court will dismiss this claim on the grounds that

Noakes fail to state a cognizable claim for relief, the Court need not reach the question

of whether it is redundant.

For the foregoing reasons, Noakes fails to plausibly state a cognizable claim of

retaliation for protected speech in violation of the First Amendment.

HiIl. CONCLUSION

For the reasons stated herein,

IT IS ORDERED that the defendants’ motion to dismiss is GRANTED and

Noakes’ claims arising out of her first exhausted EEO complaint are DISMISSED.

New Orleans, Louisiana, October 18, 2022.

Mi eAn__

_

UNITED STATES DISTRICT JUDGE

32