plaintiff asserting retaliation claim must allege facts showing employer was aware of protected activity; otherwise, there can be no causal connection between protected activity and any adverse employment action taken by employer
How later courts described this case
- plaintiff asserting retaliation claim must allege facts showing employer was aware of protected activity; otherwise, there can be no causal connection between protected activity and any adverse employment action taken by employer
- noting substantive law governing Title VII and Chapter 21 retaliation claims is identical
Written by the judges who cited it.
The opinion
160UNITED STATES DISTRICT
COURT NORTHERN DISTRICT OF
TEXAS DALLAS DIVISION
CAMMERA “CAMI” HEERWAGEN, §
§
Plaintiff, §
§
§
v. § CIVIL ACTION NO. 3:19-cv-01187-E
§
§
ENLINK MIDSTREAM, LLC, §
§
Defendant. §
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant EnLink Midstream, LLC’s Partial Motion to Dismiss Plaintiff’s
Retaliation Claims (Doc. No. 6). Having carefully considered the motion, the parties’ briefing, and
applicable law, the Court concludes the motion should be GRANTED.
BACKGROUND
The following allegations are taken from plaintiff Cammera “Cami” Heerwagen’s Original
Petition (Doc. No. 1). Enlink Midstream, LLC (Enlink) employed Heerwagen beginning in June
2014. As a senior auditor, she was subjected to the following:
(1) Heerwagen’s supervisor Tony Dean dismissed her opinion, which was
expressed in a way “substantially similar” to the way her male coworkers expressed
work-related opinions, that a “SCM” audit could not be performed as planned.
Dean was “generally disrespectful and condescending” to her in front of her peers.
When the audit could not be performed, Dean reprimanded Heerwagen and gave
her a negative review “related to [her] expressing her opinion.”
(2) Dean ignored Heerwagen’s concern, based on her experience, about
unrealistic deadlines on a “SOX” project. Heerwagen then took her concern to
1
vice president David Bowman, but he reported her “lack of commitment” to a
manager and she received another reprimand.
(3) Bowman, who frequently called Heerwagen “nonobjective” and “biased,”
did not publicly criticize or reprimand male employees in the same or similar
position.
(4) Although Heerwagen was qualified for a manager position, Bowman
refused to interview her. And, when she expressed interest in transferring out of
Bowman’s department, he told her she was not allowed to transfer despite internal
lateral transfers being encouraged for her male coworkers.
(5) Following Enlink’s procedures, Heerwagen reported the discrimination she
was experiencing to a human resources representative and was told her report
would be investigated. She waited for the result, but “it turns out, the HR rep she
reported to did not follow the company policies for reports of discrimination, did
not open a file or an investigation and frankly, did nothing.” When Heerwagen
was terminated on February 7, 2018, the human resources director had no
knowledge of the discrimination report or an investigation of any kind into her
claims.
(6) According to Bowman, Heerwagen was terminated due to a “breach of
independence” after a manager in another Enlink department offered her a job.
Heerwagen, however, was not auditing the other department. Further,
Heerwagen had no control over the job offer, and the manager making the offer
was neither reprimanded nor terminated for his role in the “breach of
independence.” Heerwagen alleges the reason for her termination was a sham
created by Bowman to remove a female employee who dared to express her
opinion.
Heerwagen filed an Equal Employment Opportunity Commission (EEOC) inquiry on
February 13, 2018, with a follow up complaint on June 8, 2018. The EEOC issued a right to sue
letter on February 20, 2019. Thereafter, Heerwagen filed this action against Enlink alleging sex-
based discrimination in violation of Title VII1 and Chapter 21 of the Texas Labor Code.2 She
1 42 U.S.C. §§ 2000e et seq.
2 See TEX. LAB. CODE ANN. §§ 21.001 et seq. (formerly, and still often referred to as, the Texas Commission on
Human Rights Act (TCHRA)).
2
also asserts Title VII and Chapter 21 retaliation claims, alleging Enlink “retaliated and
discriminated against [her] when she opposed the practice of discrimination . . . by making a
charge of discrimination, assisted and participated in the investigation of her complaint of
discrimination and terminated her employment so the investigation could not be completed.”
Enlink moves to dismiss Heerwagen’s retaliation claims, asserting she failed to exhaust her
administrative remedies with respect to those claims.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.
8(a)(2). Rule 12(b)(6) authorizes a court to dismiss a plaintiff’s complaint for “failure to state a
claim upon which relief can be granted.” Id. 12(b)(6). In considering a Rule 12(b)(6) motion
to dismiss, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(internal quotation marks and citations omitted). The court may consider “the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss
that are central to the claim and referenced by the complaint.” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498–99 (5th Cir. 2000).
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
facially plausible if the plaintiff “pleads factual content that allows the court to draw the
3
reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The
plausibility standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. A claim “is implausible on its face when ‘the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct.’” Harold H. Huggins Realty, Inc.
v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also
Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019).
ANALYSIS
Heerwagen’s petition alleges she made a complaint of gender-based discrimination to
Enlink’s human resources department and, as a result, Enlink retaliated against her and
terminated her employment “so the investigation [of her complaint] could not be completed.”
She further alleges the treatment she received and “lack of investigation and support” by the
human resources department would dissuade her and and any reasonable worker from making,
filing or supporting a charge of discrimination against a male supervisor.
To make a prima facie case for a retaliation claim, a plaintiff must demonstrate (1) she
engaged in a protected activity (2) an adverse employment action occurred, and (3) there was a
causal link between the protected activity and the adverse employment action. Gorman v.
Verizon Wireless, L.L.C., 753 F.3d 165, 170–71 (5th Cir. 2014) (noting substantive law governing
Title VII and Chapter 21 retaliation claims is identical); see 42 U.S.C. § 2000e-3(a); TEX. LAB.
CODE ANN. §21.055. A plaintiff engages in a “protected activity” by opposing an “unlawful
employment practice”3 or making a charge, testifying, assisting, or participating in an
3 Under Title VII, it is an unlawful employment practice for an employer–
4
investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3. The protected
activity need not be the “sole factor motivating the employer’s challenged decision in order to
establish the ‘causal link’ element.” Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002) (quoting
Long v. Eastfield College, 88 F.3d 300, 305 n.4 (5th Cir. 1996)). However, a plaintiff must allege
facts showing the employer was aware of the protected activity; otherwise, there can be no causal
connection between the protected activity and any adverse employment action taken by the
employer. Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) (op. on reh’g).
Before filing suit, a plaintiff must exhaust his or her administrative remedies for Title VII
and Chapter 21 claims by filing an administrative charge. Gorman, 753 F.3d at 169–70; McClain
v. Lufkin Indus., 519 F.3d 264, 273 (5th Cir. 2008) (Title VII); Jones v. Grinnell Corp., 235 F.3d
972, 975 (5th Cir. 2001) (TCHRA); 42 U.S.C. § 2000e–5(e)(1), (f)(1); TEX. LAB. CODE ANN.
§21.202(a). A court must construe an EEOC charge broadly to assess whether it properly
exhausts a particular claim. Jefferson v. Christus St. Joseph Hosp., 374 F. App’x 485, 490–91 (5th
Cir. 2010). A claim is exhausted if it “could have been reasonably . . . expected to grow out of
the charge of discrimination.” Id. (quoting McClain, 519 F.3d at 273). Accordingly, a plaintiff’s
complaint “may encompass any kind of discrimination ‘like or related to’ allegations contained in
the EEOC charge.” Hayes v. MBNA Tech., Inc., No. 3:03-cv-01766-D, 2004 WL 1283965, at *6
(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).
5
(N.D. Tex. June 9, 2004) (citations omitted). Failure to properly exhaust administrative
remedies before filing an action will result in dismissal. See Dao v. Auchan Hypermarket, 96 F.3d
787, 788–89 (5th Cir.1996).
Enlink moves to dismiss Heerwagen’s retaliation claims, contending her EEOC charge4
did not allege a claim for retaliation and such a claim would not reasonably be expected to grow
out of the charge. A section of the EEOC charge allowed Heerwagen to check boxes indicating
the bases on which she alleged discrimination, and she checked the box indicating her allegation
of discrimination was based on “sex.” The box for “retaliation” was unchecked. In response,
Heerwagen notes a plaintiff need not “check a certain box,” see Pacheco v. Mineta, 448 F.3d 783,
792 (5th Cir. 2006), and directs the Court to the following recitation in her EEOC complaint:
Lastly, Ms. Heerwagen, before being terminated, reported the discrimination she
was experiencing to HR, describing her situation as a "hostile work environment"
that was causing her to have panic attacks from frequent public reprimands, put
downs in team meetings and the general horrible treatment she was receiving from
two of her male supervisors. She was told her report would be looked into and
investigated, including items in her PIP that she disputed as factually inaccurate.
Ms. Heerwagen used the HR contact information available to all employees and
followed the procedure laid out to her to make a report and waited for more
information as to the result of the investigation from HR, week after week. It
turns out, the HR rep she reported to did not follow the company policies for
reports of discrimination, did not open a file or an investigation and frankly, did
nothing. When Ms. Heerwagen was terminated the HR Director, Stacey
Cardwell, had no knowledge of Ms. Heerwagen's prior reports of discrimination or
of an investigation of any kind into the claims or disputed facts in Ms.
Heerwagen's PIP.
4 Enlink attached Heerwagen’s EEOC complaint and charge to its motion to dismiss (Doc. No. 6-1). The
documents were not attached to Heerwagen’s petition, but the petition refers to her “EEOC complaint and charge”
and the Court may consider documents that “are central to the claim and referenced by the complaint.” Collins, 224
F.3d at 498–99.
6
Heerwagen’s EEOC complaint clearly describes her reporting discrimination before being
terminated. However, it does not allege, as her petition in this action does, that Enlink retaliated
against her and terminated her employment “so the investigation [of her complaint] could not be
completed.” To the contrary, the EEOC complaint recites that Enlink’s human resources
director “had no knowledge of [Heerwagen’s] prior reports of discrimination” when Heerwagen
was terminated. See Watts, 170 F.3d at 512 (plaintiff asserting retaliation claim must allege facts
showing employer was aware of protected activity; otherwise, there can be no causal connection
between protected activity and any adverse employment action taken by employer). And, the
charge describes Heerwagen’s termination as Bowman “remov[ing] a female employee who dared
express an opinion.”
Neither Heerwagen’s EEOC charge nor EEOC complaint include statements or
allegations that she was terminated as a result of reporting discrimination as she alleges in her
petition. Even interpreting the charge and complaint broadly according to the scope of the
investigation that could reasonably be expected to grow out of them, the Court concludes such
an investigation would not include a claim of retaliation. See, e.g., Kelly v. Capitol One Auto Fin.,
No. 3:08-cv-0266-D, 2008 WL 2653202, at *3 (N.D. Tex. July 7, 2008) (when EEOC charge’s
factual allegations concerned only plaintiff’s “individual experience of being discharged because
she was pregnant,” the charge, “even liberally construed, could not reasonably be expected to
lead to the investigation of a claim that the discharge was in retaliation for complaining to the
Human Resources Department”). She therefore failed to exhaust her Title VII and Chapter 21
retaliation claims. See id. Accordingly, the Court GRANTS Enlink’s partial motion to dismiss.
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CONCLUSION
For the foregoing reasons, the Court finds Enlink’s Partial Motion to Dismiss Plaintiff’s
Retaliation Claims (Doc. No. 6) should be and is hereby GRANTED. The Court is precluded
from considering Heerwagen’s Title VII and Chapter 21 retaliation claims because she failed to
exhaust her administrative remedies with respect to those claims. Therefore, those claims are
DISMISSED with prejudice.5
SO ORDERED.
Signed February 20, 2020.
_______________________________
ADA BROWN
UNITED STATES DISTRICT JUDGE
5 Heerwagen’s response to the partial motion to dismiss contains two captions; the top one is titled “Plaintiff’s
Response to Defendant’s Motion to Dismiss and Alternative Motion for Leave to Amend” and the bottom one is
titled “Plaintiff’s Response to Defendant’s Partial Motion to Dismiss.” In the body of the response, however,
Heerwagen does not address or request leave to amend the complaint. Further, any amendment would be futile
based on Heerwagen’s failure to exhaust administrative remedies. See Ridgle v. Lowe's Home Centers, Inc., No. 3:04-
cv-1650-D, 2005 WL 8158192, at *3 (N.D. Tex. Mar. 17, 2005).
8