Jenkins v. City of Dallas

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TOMMY JENKINS, §

§

Plaintiff, §

§

v. § CIVIL ACTION NO. 3:22-CV-0960-B

§

CITY OF DALLAS §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant City of Dallas (“the City”)’s Motion to Dismiss Original

Complaint and Brief in Support (Doc. 10). For the reasons given below, the Court GRANTS the

Motion.

I.

BACKGROUND

This is a workplace discrimination and retaliation case. Plaintiff Tommy Jenkins (“Jenkins”)

claims that his current employer, the City, has discriminated against him due to his race, gender, and

age and has retaliated against him after Jenkins participated in protected activity. See Doc. 1, Compl.

¶¶ 60, 66, 72, 78. Specifically, Jenkins, a long time employee of the City, filed a grievance against his

then-supervisor for racist and hostile treatment in 2014. Id. ¶¶ 20–21. According to Jenkins, the City

did not properly handle his grievances and his supervisor threatened to “get Jenkins fired.” Id. ¶ 24,

26. Years later, in 2020, Jenkins applied for a promotion but did not progress past the first round of

interviews despite being “highly qualified.” Id. ¶¶ 34–36, 38. Jenkins believes his supervisor, who sat

on the interview panel, sabotaged his promotion and gave five other less qualified individuals the

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promotion instead. Id. ¶¶ 39, 46. Jenkins seeks damages to remedy this discrimination and

retaliation. See id. at 14–15.

Jenkins is a 56-year-old African American male who is currently employed in the City’s code

enforcement unit as a “Code Officer II.” Id. ¶¶ 5–9. Since 2013, Jenkins has worked in code

enforcement for the City; before that time he “worked for the State of Delaware for 10 years as the

Senior Social Worker/Case Manager” and then for the State of Texas’s department of Adult

Protective Services for four years. Id. ¶¶ 11, 13–15. He has a Bachelor of Social Work degree. Id.

¶ 10. During his employment with the States of Delaware and Texas he received “Kudos Awards”

and other commendations. Id. ¶¶ 13, 15. He has also received “Kudos” and recognitions during his

employment with the City, and is “one of four Code Officers” in the City “to have obtained an

advance[d] International Code Council ICC/American Association of Code Enforcement (AACE)

certification [(ICC Certification)].” Id. ¶¶ 17–18.

“Despite his background and qualifications, Jenkins has been repeatedly passed over for

promotional opportunities which have gone to younger less qualified females or Hispanics.” Id. ¶ 19.

Jenkins traces his “struggles to be promoted . . . to 2014 . . . when [he] filed a series of grievances

against his former supervisor Robert Curry [(“Curry”)],” complaining that Curry “a Caucasian/White

male . . . and another supervisor . . . were treating Jenkins in a racist and hostile manner because of

Jenkins’s race.” Id. ¶¶ 20–21. Jenkins’s initial grievance email “detail[ed] the abuse and hostility he

suffered at the hands of . . . Curry” and stated:

But I be damn if, I except (sic) any harassment from a manager that has and knows

very little about, and a supervisor, who shuffles the beat of slavery mentality this is

not 1954, 1964, this is 2014 . . . I am a “MAN” and treated both you with respect

that neither of you deserve.

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Id. ¶ 22. This last line “was a reference to the famous ‘I am a MAN’ placards of the civil rights

marches of the 1960s.” Id. His “subsequent grievance forms” also “stated that he was an African

American male and believed that the [C]ity’s actions against him were racially motivated and

discriminatory.” Id. ¶ 23.

Jenkins claims that the grievances he filed against Curry “were not properly handled by the

City” because it “did not process the grievances to a conclusion or notify Jenkins of any alleged

conclusion.” Id. ¶ 24. “[T]he City will frequently not respond to or fully process employee

grievances,” he alleges, “effectively rendering the City employees’ grievance process ineffective.” Id.

¶ 25. However, Curry knew of the grievances and responded by “yell[ing] at Jenkins and promis[ing]

. . . that he (Mr. Curry) would do what he could to get Jenkins fired.” Id. ¶ 26. Jenkins notified the

City about Curry’s threat. Id. ¶ 37.

Jenkins was transferred out of Curry’s department but thereafter “hit a ceiling on his

promotional opportunities at the City.” Id. ¶ 27. Though he frequently applied “to higher positions,”

he was not promoted for seven years, while “numerous younger and less senior employees move[d]

up the ranks.” Id. ¶¶ 27–28.

In May 2018, Jenkins and other City employees joined “an overtime lawsuit against the City.”

Id. ¶ 29. “Managers and supervisors within the Code department knew who joined the suit.” Id.

In April 2019, Jenkins received a temporary promotion but “[d]espite doing very well . . . was

moved . . . under a new supervisor” who conducted Jenkins’s “six-month review without feedback

. . . from [Jenkins’s] prior manager,” though the prior manager had supervised Jenkins for most of

the period under review. Id. ¶¶ 30–31. In October of that year, Jenkins was “denied the promotion

opportunity . . . and . . . told by the director of the department that he (the director) could not ‘go

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against his supervisor or management team.’” Id. ¶ 32.

Jenkins sought promotion again in December 2020, applying for five open Supervisor II

positions. Id. ¶¶ 34–36. But Curry was part of the interview panel for those positions and Jenkins,

though highly qualified, did not advance to the second round of interviews. Id. ¶¶ 36–38. Jenkins

later learned that “Curry gave Jenkins negative rankings which caused Jenkins to not be considered

for even the second round of interviews despite his excellent qualifications.” Id. ¶ 46.

Jenkins pleads that he “was more qualified than” four of the five individuals chosen for the

Supervisor II positions: Servando Galvez (Galvez), Jeanne Robbins (Robbins), William Castillo

(Castillo), and Corey Blacksher (Blacksher]. Id. ¶¶ 39–40. Specifically, he pleads that “Galvez . . .

a Hispanic male in his mid-late 30’s . . . only had 3-4 years of code compliance experience at the time

. . . [and] had no general Code experience at the time of the promotion.” Id. ¶ 41. “Robbins . . . a

Black female in her mid/late 30’s . . . only had 5 to 6 years of code compliance.” Id. ¶ 42. “Castillo

. . . a Hispanic male in his early/mid 40’s . . . only had 3-4 years of experience in Code Compliance

. . . . [and] no current knowledge of specialized units or general code.” Id. ¶ 43. “Blacksher . . . a

Black male in his early/mid 40’s . . . only had 2-3 years in Code Compliance.” Id. ¶ 44. Jenkins had

trained both Galvez and Robbins, had longer tenure and more experience than any of those selected,

and had obtained his ICC certification while those selected had not. Id. ¶¶ 41–44, 48. None of these

four promoted individuals had been “plaintiffs in the overtime lawsuit” or “previously complained

of race discrimination.” Id. ¶ 49.

In April 2022, after receiving a right to sue notice from the Equal Employment Opportunity

Commission (EEOC) and requesting such notice from the Texas Workforce Commission (TWC),

Jenkins filed the instant suit claiming that by denying him these promotional opportunities after

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2014, the City discriminated against him on the basis of race, gender, and age. Id. ¶¶ 47, 50, 57–58.

He also claims that the city retaliated against him “because of his protected activities.” Id. ¶ 51. He

brings his claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age

Discrimination in Employment Act (“ADEA”), and the Texas Commission on Human Rights Act

(“TCHRA”). Id. ¶¶ 52–55.

The City now moves to dismiss all of Jenkins’s claims under Federal Rule of Civil Procedure

12(b)(6). Doc. 10, Mot. Dismiss 1. The motion is fully briefed and ripe for review. The Court

considers it below.

II.

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.” Fed. R. Civ. P. 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 quotations

omitted). But the court will “not look beyond the face of the pleadings to determine whether relief

should be granted based on the alleged facts.” Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

To survive a motion to dismiss, plaintiffs 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 has facial plausibility when the plaintiff

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

liable for the misconduct alleged.” Id. “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.” Id.

(quoting Twombly, 550 U.S. at 556). When well-pleaded facts fail to meet this standard, “the

complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. at 679

(quotation marks and alterations omitted).

III.

ANALYSIS

The City moves to dismiss all of Jenkins’s claims for failure to state a claim upon which relief

can be granted. Doc. 10, Mot. 1. The City argues that: (1) Jenkins’s Section 1981 claim fails for

failure to plead under Section 1983; (2) even if the Section 1981 claim survived, it would fail under

Section 1983 for failure to allege the existence of an official policy or custom; (3) several of Jenkins’s

Title VII, ADEA, and TCHRA claims are time-barred; (4) Jenkins’s race, gender, and age

discrimination claims are not facially plausible; and (5) Jenkins’s retaliation claim is not facially

plausible. Id. at 1, 4, 6, 9, 14, 16.

The Court addresses these claims in the aforementioned order. The Court finds that each

claim is insufficiently pled. Accordingly, the Court dismisses Jenkins’s claims without prejudice.

A. Section 1981 Claim for Race Discrimination

Section 1981 (“§ 1981”) provides that “[a]ll persons within the . . . United States shall have

the same right . . . to make and enforce contracts,” which “includes the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.” 42 U.S.C. § 1981(a)–(b). This statute “serves as a

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deterrent to employment discrimination and a means of punishing employers who discriminate on

the basis of race.” Carroll v. Gen. Accident Ins. Co. of Am., 891 F.2d 1174, 1176 (5th Cir. 1990).

In 1989, the Supreme Court held in Jett v. Dallas Independent School District, 491 U.S. 701,

731 (1989), that § 1981 did not provide a separate cause of action against local government entities.

The Court concluded that plaintiffs must assert a cause of action against state actors under Section

1983 (“§ 1983”) to remedy violations of civil rights under § 1981. See id. This holding has led to the

dismissal of § 1981 claims against local government entities for the failure to clearly and expressly

cite to § 1983. See Meyers v. La Porte Indep. Sch. Dist., 277 F. App’x 333, 335 (5th Cir. 2007)

(“Because Meyers brought her § 1981 claim independently of her § 1983 claim, the district court did

not err by granting summary judgment to LPISD.”); Felton v. Polles, 315 F.3d 470, 483 (5th Cir.

2002) (“[The plaintiff] failed to invoke the only remedy available to him [(§ 1983)] for the claimed

deprivation of his § 1981 rights—he has essentially failed to state a claim.”); Oden v. Oktibbeha Cnty.,

Miss., 246 F.3d 458, 464 (5th Cir. 2001) (plaintiff could not state a claim under § 1981 due to failure

to plead under § 1983).

However, the Fifth Circuit has cast doubt on “the formalistic approach taken by earlier cases

in this circuit[]” regarding § 1981 claims. See Escamilla v. Elliott, 816 F. App’x 919, 923 (5th Cir.

2020); see also Graham v. Bluebonnet Trails Co., 587 F. App’x 205 (5th Cir. 2014) (“We have doubts

about the district court’s denial of [the plaintiff’s] section 1981 claim on the ground that she did not

cite section 1983 as the procedural vehicle for asserting such a claim[.]”). These doubts stem from

the Supreme Court’s decision in Johnson v. City of Shelby, 574 U.S. 10 (2014) (per curiam). There,

the Court reversed the Fifth Circuit’s dismissal of a civil rights claim for failure to explicitly invoke

§ 1983. Id. at 11. The Court noted that the Federal Rules of Civil Procedure “do not countenance

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dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”

Id.

Here, the City argues that since “Plaintiff has not raised [his discrimination and retaliation

claims] pursuant to § 1983 . . . the § 1981 claims are facially invalid.” Doc. 10, Mot. 5. Jenkins argues

that his § 1981 claims “necessarily refer to the remedy provided by [§] 1983, because the City, a

municipality, is a state actor.” Doc. 13, Resp. 8. Thus, according to Jenkins, this “implicit reference

to [§] 1983” saves his § 1981 claim from dismissal. Id.

While a perfect statement of legal theory is not necessary to survive dismissal, Jenkins’s

Complaint fails to state the only theory needed to state a claim. Unlike, the complaint in Escamilla

v. Elliott, which, while not a “model of clarity[,]” did state that the “action” was “brought under 42

U.S.C. § 1981 and § 1983[,]” Jenkins’s Complaint contains no mention of § 1983 anywhere in the

document. See 816 F. App’x at 924. Permitting implicit references to § 1983 would effectively create

an independent cause of action under § 1981 where none exists. See Jett v. Dallas Independent School

District, 491 U.S. 701, 735 (1989) (“We hold that the express ‘action at law’ provided by § 1983 for

the ‘deprivation of any rights, privileges, or immunities secured by the Constitution and laws,’

provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981

when the claim is pressed against a state actor.”) (emphasis added).

Even if Jenkins’s “implicit reference” to § 1983 sufficiently stated a claim, Jenkins fails to

plead sufficient facts to state a claim under § 1983. “A municipality is a ‘person’ subject to suit under

§ 1983 under certain circumstances.” Linicomn v. City of Dall., 2015 WL 5664265, at *2 (N.D. Tex.

Sept. 25, 2015) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). More

specifically, “municipal liability under [§] 1983 requires proof of three elements: a policymaker; an

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official policy [or custom]; and a violation of constitutional rights whose ‘moving force’ is the policy

or custom.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). For that reason, “the

unconstitutional conduct must be directly attributable to the municipality through some sort of

official action or imprimatur; isolated unconstitutional actions by municipal employees will almost

never trigger liability.” Id. (internal footnote omitted). In other words, respondeat superior liability

will not do—a municipality may be held liable only if a constitutional right was deprived under the

guise of an official policy or custom. See Linicomn, 2015 WL 5664265, at *2.

First, whether a city official is a policymaker is a question of state law to be determined by the

Court. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). “State law, including valid local

ordinances and regulations, ‘will always direct a court to some official or body that has the

responsibility for making law or setting policy in any given area of a local government’s business.’”

Dall. Police Ass’n v. City of Dall., 2004 WL 2331610, at *4 (N.D. Tex. Oct. 15, 2004) (citing

Praprotnik, 485 U.S. at 125). The Fifth Circuit has held that under Texas law, the final policymaker

for the city of Dallas is the Dallas City Council. Groden v. City of Dall., 826 F.3d 280, 286 (5th Cir.

2016); Bolton v. City of Dall., Tex., 541 F.3d 545, 550 (5th Cir. 2008) (consulting the Texas

Government Code to determine the policymaker for Texas cities). Thus, to survive a motion to

dismiss, Jenkins must plead facts which establish that the challenged policy was promulgated or

ratified by Dallas City Council.

Next, to plead a municipal liability claim, a plaintiff must demonstrate that “the allegedly

unconstitutional action constitutes a ‘custom or policy’ of the municipality.” Zarnow v. City of Wichita

Falls, 614 F.3d 161, 168 (5th Cir. 2010). There are two kinds of “official policies” in the § 1983

context: (1) “a policy statement formally announced by an official policymaker,” or (2) a “persistent

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widespread practice of city officials or employees, which, although not authorized by officially adopted

and promulgated policy, is so common and well settled as to constitute a custom that fairly represents

municipal policy.” Zarnow, 614 F.3d at 168–69 (quoting Webster v. City of Hous., 735 F.2d 838, 841

(5th Cir. 1984) (en banc)). To plead that a custom or policy exists, a plaintiff must show either “a

pattern of unconstitutional conduct . . . on the part of municipal actors or employees” or that “a final

policymaker took a single unconstitutional action.” Id. at 169 (emphasis omitted). But just alleging

that a policy exists will not do—“[t]he description of a policy or custom and its relationship to the

underlying constitutional violation . . . cannot be conclusory; it must contain specific facts.” Spiller

v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997).

The City argues that Jenkins’s Complaint “fails to reference or even allude to” any policy or

custom among city officials. Doc. 10, Mot. 6–7. Jenkins argues that the Complaint has alleged a

policy or custom. See Doc. 13, Resp. 9. Jenkins alleges that: (1) “[t]he City did not process the

grievances to a conclusion or notify Jenkins of any alleged conclusion”; (2) “the City will frequently

not respond or fully process employee grievances”; (3) “the City of Dallas allowed Mr. Curry to be

on the interview panel despite the fact that Jenkins had previously filed written grievances against

Mr. Curry”; and (4) “Curry was allowed to be on the interview panel despite the fact that Jenkins

had previously notified the City that Curry had threatened Jenkins that he would make sure Jenkins

never advanced within the City and that he would do what he could to make sure Jenkins was fired.”

Doc. 1, Compl. ¶¶ 24, 25, 36, 37. Jenkins’s Response also alleges that “the underlying and systemic

problem is the City of Dallas’ wholesale failure to have training, procedures, and systems in place to

fully respond to grievances alleging race discrimination and to have training, procedures, and systems

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in place to prevent discrimination and retaliation in the promotional interview process.” Doc. 13,

Resp. 10.

Jenkins’s Complaint fails to allege facts that create a reasonable inference of a “policy

statement” or a “persistent widespread practice” promulgated or ratified by the Dallas City Council.

Jenkins only pleads isolated incidents confined solely to his personal experience. Jenkins does not

explain the City’s grievance policy or how the processing of his grievances “felt, and [was] futile.” See

Doc. 1, Compl. ¶ 24. The Court cannot conclude that the City did “not respond to or fully process”

Jenkins’s grievances without any details of the City’s actions regarding the grievance. See id. ¶ 25.

Additionally, Jenkins attempts to extrapolate a custom of “not respond[ing] or fully

process[ing] employee grievances” from his alleged negative experience with the grievance process.

See id. But one instance of alleged ineffectiveness does not create a custom and “[c]onclusory

allegations of ‘customs, practices, or procedures’ are not sufficient.” G.M. ex rel. Lopez v. Aledo Ind.

Sch. Dist., 2014 WL 1084170, at *5 (N.D. Tex. Mar. 18, 2014), aff’d, 595 Fed. Appx. 262 (5th Cir.

2014); see Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984), cert. denied, 472 U.S. 1016,

105 (1985) (“An isolated incident is insufficient to show a custom.”). Similarly, even if Curry made

racist and hostile comments to Jenkins and sabotaged Jenkins’s interview, this act alone cannot

create liability under § 1983. See Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir.

2009), cert. denied, 562 U.S. 827 (2010) (“A municipality is almost never liable for an isolated

unconstitutional act on the part of an employee.”). Finally, Jenkins’s bald assertion in his Response

that the City failed “to have training, procedures, and systems in place” regarding discrimination and

retaliation appears nowhere in his Complaint and is purely conclusory. See Spiller, 130 F.3d at 167

(descriptions of policies or customs must contain specific facts).

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Jenkins also inadequately pleads the third element of his § 1983 claim—that there was a

violation of constitutional rights whose moving force was the identified policy or custom—because

he inadequately pled the first two elements. The third element requires a plaintiff to “show both

culpability and a direct causal link between the municipal policy and the constitutional violation.”

Gordon v. Neugebauer, 2014 WL 5531734, at *7 (N.D. Tex. Oct. 31, 2014) (citing Piotrowski, 237

F.3d at 578). And because Jenkins failed to identify an official policy or custom promulgated by the

Dallas City Council, he “is unable to identify any causal link between the alleged policy and the

alleged constitutional violation.” See id.

Jenkins “has failed to invoke the only remedy available to him for the claimed deprivation

of his § 1981 rights[.]” Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002), overruled on other grounds.

Additionally, he fails to adequately plead sufficient facts to state a claim under § 1983. Thus, Jenkins

has failed to state a claim, and the Court DISMISSES WITHOUT PREJUDICE the § 1981 claim.

B. Timeliness

A plaintiff must exhaust certain administrative remedies before filing a charge of

discrimination under Title VII, the ADEA, and TCHRA. Title VII and the ADEA both require that

a plaintiff file a charge of discriminatory conduct with the EEOC within 300 days after the alleged

unlawful act occurs. EEOC. v. Com. Off. Prod. Co., 486 U.S. 107, 107 (1988); Anson v. Univ. of Tex.

Health Sci. Ctr. at Hous., 962 F.2d 539, 540 (5th Cir. 1992). TCHRA requires a complaint be filed

with the Texas Workforce Commission no later than 180 days after the alleged unlawful act occurs.

Tex. Lab. Code § 21.202(a).

The City argues that any allegation of discrimination which occurred before either July 15,

2020 or November 12, 2020 (300 days and 180 days, respectively, from when Jenkins filed his charge

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with the EEOC and TWC) is time-barred under Title VII, the ADEA and TCHRA. Doc. 10, Mot.

9. Jenkins responds that he does not seek relief for any action “before the issues specifically outlined

in his EEOC charge” and that any prior incident included in the Complaint is evidence that supports

his claims. Doc. 13, Resp. 11.

Jenkins’s EEOC charge of discrimination and retaliation was filed on May 11, 2021. Doc. 1,

Compl. ¶ 56. Any improper action that occurred 300 days prior to that filing, or July 15, 2020, is

therefore time-barred under Title VII and the ADEA. See Anson, 962 F.2d at 540. Thus, Jenkins’s

allegations of racist treatment in 2014, the ineffective grievance process thereafter, and any denial

of promotion prior to July 15, 2020 under Title VII and the ADEA are time-barred. See Doc. 1,

Compl. ¶¶ 21–27.

Jenkins’s TWC charge of discrimination and retaliation was also filed on May 11, 2021. Id.

¶ 56. Any improper action that occurred 180 days prior to that filing, or November 12, 2020, is

therefore time-barred under TCHRA. See Tex. Lab. Code § 21.202(a). Thus, Jenkins’s allegations

of racist treatment in 2014, the ineffective grievance process thereafter, and any denial of promotion

prior to November 12, 2020 under TCHRA are time-barred. See Doc. 1, Compl. ¶¶ 21–27.

To the extent that Jenkins’s Complaint seeks relief for these time-barred actions under Title

VII, the ADEA, and TCHRA, these claims must be DISMISSED WITHOUT PREJUDICE.

C. Title VII and TCHRA Claims for Race and Gender Discrimination

Title VII makes it unlawful for employers to “discriminate against any individual with respect

to [his] compensation, terms, conditions, or privileges of employment, because of such individual’s

race [or] . . . sex.” 42 U.S.C. § 2000e-2(a)(1). In order to establish a prima facie case of

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discrimination under Title VII,1 a plaintiff must demonstrate: “(1) that [he] is a member of a

protected class; (2) that [he] was qualified for the position at issue; (3) that [he] was the subject of

an adverse employment action; and (4) that [he] was treated less favorably because of [his]

membership in that protected class than were other similarly situated employees who were not

members of the protected class, under nearly identical circumstances.” Moore v. Univ. Miss. Med.

Ctr., 719 F. App’x 381, 385 (5th Cir. 2018) (quotation marks and alterations omitted) (quoting Lee

v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). At the pleading stage, a plaintiff may

survive a Rule 12(b)(6) motion without pleading a prima facie case, however, courts can and do

consider these elements at this stage. Garvin v. Sw. Corr., L.L.C., 391 F. Supp. 3d 640, 652 (N.D.

Tex. 2019). Ultimately, the complaint must give the defendant fair notice of the plaintiff’s claims and

the grounds upon which they rest. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514–15 (2002).

The City argues that Jenkins fails to establish elements two and four. The City contends that

Jenkins did not “establish why any particular experience or certification qualified him for the

Supervisor II position which he sought.” Doc. 10, Mot. 11. The City also argues that Jenkins does

not allege facts that “point to the conclusion that his race or gender were used a factor with respect

to the employment decision.” Id. at 12. Finally, the City argues that Jenkins did not identify a

similarly situated coworker who received more favorable treatment. Id.

1 “Because one of the purposes of the TCHRA [Texas Commission on Human Rights Act] is ‘to

provide for the execution of the policies of Title VII of the Civil Rights Act of 1964,’” the Texas Supreme

Court has “held that those analogous federal statutes and the cases interpreting them guide [its] reading of

the TCHRA.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633–34 (Tex. 2012) (citation

omitted). As such, the Court will not conduct a separate analysis of Jenkins’s TCHRA claims, as the analyses

and holdings will be identical to Jenkins’s Title VII claims.

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Jenkins responds that the Complaint provides “a very detailed recitation of [his] impressive

qualifications.” Doc. 13, Resp. 12. Additionally, Jenkins argues that he has identified several

individuals outside his protected class that were treated more favorably than him. Id. at 12–13.

Finally, Jenkins accuses the City of confusing “jury argument[s]” with “motion to dismiss

argument[s]” by lumping the five promotions at issue together. Id. at 13.

The Court finds that Jenkins has failed to plead that he was qualified for the position at issue.

Jenkins states that his ten years as a Senior Social Work/Case Manager for the State of Delaware,

four years at the Adult Protective Services for the State of Texas, and eight years as a Code Officer

II for the City of Dallas, along with the various certifications, commendations, and awards he has

received, make him “highly qualified for the [Supervisor II positions.]” Doc. 1, Compl. ¶¶ 7, 11,

13–15, 17–18, 38. However, Jenkins has not pled the requisite qualifications considered for the

position of Supervisor II or how his previous experience supports his qualification for this role. The

Court cannot summarily conclude that Jenkins’s experience in a wholly different role automatically

qualifies him for a promotion without sufficient information as to what the role entails. Without

more, any statement that Jenkins was qualified for the Supervisor II position is purely conclusory.

Jenkins also fails to plead sufficient facts that he was treated less favorably because of his race

or gender. Despite Jenkins’s claims that he has pled a comparator outside of his protected class (Doc.

13, Resp. 14), nowhere in the Complaint does Jenkins allege any facts suggesting that the four

promoted individuals were similarly situated to Jenkins. See Lee, 574 F.3d at 259–60 (factors

contributing to employees being similarly situated include same supervisors, same divisions, same

work responsibilities, similar violation histories). Jenkins only pleads the promoted individuals’ years

of experience and omits details such as the position each individual held or any other relevant

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qualifications. See Doc. 1, Compl. ¶¶ 41–44. While Jenkins need not establish the “nearly identical

circumstances” of these comparators at the pleading stage, Jenkins must allege the “ultimate

elements” of his claims to survive a motion to dismiss. See Cicalese v. Univ. of Tex. Med. Branch, 924

F.3d 762, 767–68 (5th Cir. 2019) (holding that such issues were “more suited to the summary

judgment phase[,]” but a plaintiff must still allege a plausible claim). Here, Jenkins has failed to do so.

Additionally, Jenkins’s “better qualified” argument fails to save his Complaint (See Doc. 13,

Resp. 14), because, as discussed above, Jenkins has failed to plead that he was qualified for this

position. The Court cannot assume that Jenkins was better qualified for the role of Supervisor II than

the promoted individuals, even at the pleading stage, without facts first showing that Jenkins was

indeed qualified for the promotion. For these reasons, Jenkins’s race and gender discrimination claims

must be DISMISSED WITHOUT PREJUDICE.

D. ADEA and TCHRA Claims for Age Discrimination

The ADEA2 makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).

To establish a claim of age discrimination under the ADEA, a plaintiff must show that he (1) was

within the protected class; (2) was qualified for the position; (3) suffered an adverse employment

decision; and (4) was either i) replaced by someone outside the protected class, ii) replaced by

someone younger, or iii) otherwise discharged because of his age. Keller v. Coastal Bend Coll., 629 F.

2 The prima facie case for age discrimination under TCHRA mirrors the prima facie case under the

ADEA aside from the third element, which is discussed below. See Goudeau v. Nat’l Oilwell Varco, L.P., 793

F.3d 470, 474 n.2 (5th Cir. 2015) (applying the TCHRA elements and the ADEA elements to the plaintiff’s

claims).

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App’x 596, 600 (5th Cir. 2015) (citing Jackson v. Cal–W. Packaging Corp., 602 F.3d 374, 378 (5th

Cir. 2010)). “Because the ADEA prohibits discrimination on the basis of age and not class

membership, the fact that a replacement is substantially younger than the plaintiff is a far more

reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone

outside the protected class.” Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013) (quoting O’Connor

v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996). Although one need not plead a prima facie

age discrimination claim to survive a motion to dismiss, a plaintiff must plead “sufficient facts on all

of the ultimate elements . . . to make his case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d

467, 470 (5th Cir. 2016) (per curiam).

“[B]ecause liability for disparate treatment under the ADEA depends on whether age actually

motivated the employer’s decision, a plaintiff must set forth allegations that would enable the court

to reasonably infer that the employer took the adverse employment action because of the plaintiff's

age.” Owen v. Stmicroelectronics, Inc., 2016 WL 2757368, at *5 (N.D. Tex. May 12, 2016) (citations

and internal quotation marks omitted). In other words, under the ADEA, a plaintiff must show “that

his age was the ‘but-for’ cause of his employer’s decision.” Id. In contrast, under TCHRA, a plaintiff

“need only show that age was a ‘motivating factor’ in the defendant’s decision,” as opposed to the

“but for” causation standard used under the ADEA. Reed v. Neopost USA, Inc., 701 F.3d 434, 439

(5th Cir. 2012) (citing Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex. 2001)).

The City challenges whether Jenkins was qualified for the position and whether Jenkins has

plead that he was not selected because of his age. In fact, the City argues that several facts cut

against Jenkins’s argument that he was not selected for the Supervisor II position because of his age.

Doc. 10, Mot. 15. First, it argues that Jenkins merely estimated the ages of the promoted individuals,

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and several were not significantly younger. Id. Second, it points out that Jenkins did not identify the

age of the “mysterious fifth individual.” Id. Third, the City argues that Jenkins did not allege that the

documentation obtained through Jenkins’s FOIA request suggested that Curry’s negative rankings

were “in response to or motivated by his age.” Id.; see Doc. 1, Compl. ¶¶ 45–46. Fourth, it asserts that

Jenkins’s arguments that he was not selected because of his race, gender, and in retaliation for his

protected speech undermine his claim that his age was the “but-for” cause of the promotion denial.

See Doc. 10, Mot. 15. Jenkins argues that the City’s case law supporting its “not significant younger”

argument is inapplicable and that “but-for does not mean ‘sole’ cause or ‘solely,’” so his age claim can

exist alongside his other discrimination claims. Doc. 13, Resp. 15–16.

The Court finds that Jenkins has alleged sufficient facts to plead he was not selected for the

promotion because of his age. Jenkins is correct that he “need not plead that age was the sole cause

of [his] injury to survive a motion to dismiss.” Leal, 731 F.3d at 415. And “[w]hile most circuits have

generally agreed that age ranges above ten years are significant (and those below are not), [the Fifth

C]ircuit has not established such a bright-line rule.” Ross v. Judson Indep. Sch. Dist., 993 F.3d 315,

323 (5th Cir. 2021), cert. denied, 142 S. Ct. 216 (2021). Thus, Jenkins’s allegations that the promoted

individuals’ estimated ages ranged from ten to twenty years younger than him sufficiently plead that

he was not promoted in lieu of substantially younger individuals.

However, as explained above in reference to Jenkins’s race and gender discrimination claims,

Jenkins has not adequately pled that he was qualified for the promotion. Thus, Jenkins fails to state

a claim for age discrimination and the claim must be DISMISSED WITHOUT PREJUDICE.

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E. Title VII, ADEA, and TCHRA Claims for Retaliation

To state a claim of retaliation, a plaintiff must show (1) that he engaged in a protected

activity, (2) that an adverse employment action occurred, and (3) that a causal link existed between

the protected activity and the adverse action. Septimus v. Univ. of Hous. , 399 F.3d 601, 610 (5th Cir.

2005). A plaintiff has engaged in protected activity if he either “oppos[es] any practice made an

unlawful employment practice by [Title VII or the ADEA] or . . . ma[kes] a charge, testif[ies],

assist[s], or participat[es] in any manner in an investigation, proceeding or hearing under [Title VII

or the ADEA].” 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d). “The protected activity need not be

the sole factor motivating the employer’s challenged decision in order to establish the causal link

element.” Tapley v. Simplifile, LC, 2020 WL 208817, at *3 (N.D. Tex. Jan. 14, 2020) (citing Gee v.

Principi, 289 F.3d 342, 345 (5th Cir. 2002)) (citations and internal quotation marks omitted). But,

to establish a causal connection between the protected activity and the adverse employment action

taken by the employer, the plaintiff must plead that the employer was aware of the protected activity.

See id.

The City disputes elements one, the existence of protected activity, and three, a causal

connection between the activity and the employment action. First, the City argues that Jenkins failed

to plead that he engaged in protected activity because the two alleged protected activity did not

involve violations under Title VII, the ADEA, or TCHRA. Doc. 10, Mot. 17. The City also argues

that Jenkins failed to plead “a reasonable causal connection” to these alleged protected activities and

the denial of the promotion. Id. at 18. Jenkins responds that he need not use “magic words” to state

a claim when the allegations in the Complaint plainly state that Jenkins complained of illegal

employment practices. Doc. 13, Resp. 18. Additionally, Jenkins argues that the proposition that his

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protected activity occurred too long ago to constitute a causal connection is a “summary judgment

type argument” that “fails to take [his] pleadings as true and in a light most favorable to [him.]” Id.

First, Jenkins has not alleged any existence of protected activity related to age discrimination.

The two instances of alleged protected activity relate to the overtime suit and the grievances

regarding Curry’s allegedly racist comments towards Jenkins. See Doc. 1, Compl. ¶¶ 22–23, 29.

Without having engaged in protected activity related to the ADEA, Jenkins cannot state a claim for

retaliation under the ADEA. See Heggemier v. Caldwell Cnty., 826 F.3d 861, 869 (5th Cir.

2016) (citation omitted) (“[A] plaintiff has engaged in protected activity if he has opposed any

practice forbidden by the ADEA.”). For these reasons, his retaliation claim under the ADEA must

be dismissed.

Next, Jenkins’s participation in the overtime lawsuit cannot constitute protected activity

under Title VII. Jenkins has alleged no facts which suggest that this lawsuit involved “any practice

made an unlawful employment practice by [Title VII.]” 42 U.S.C. § 2000e-3(a). Jenkins appears to

concede this point in his Response by only discussing his grievances against Curry. See Doc. 13,

Resp. 17.

The grievances against Curry do constitute protected activity under Title VII. “The filing of

an internal discrimination complaint is a protected activity.” Reffell v. Tex. Dep’t of Aging & Disability,

2008 WL 11348327, at *6 (N.D. Tex. Sept. 5, 2008)(citing

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 194 (5th Cir. 2001)). And while the City is correct that

Jenkins does not explicitly state in his Complaint that his grievances alleged violations of Title VII,

the Court can reasonably infer that Jenkins’ grievances about racist and hostile treatment involved

an unlawful employment practice under Title VII.

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Whether Jenkins has sufficiently alleged a causal connection between the protected activity

and the adverse employment action is a closer question. Evidence of a causal connection can include

“temporal proximity between a protected act and adverse employment action; an employment record

that does not support the adverse action; and an employer’s departure from typical policies and

procedures.” Garvin, 391 F. Supp. 3d at 653. Temporal proximity alone cannot establish a causal

connection when the acts are separated by more than five months. Id. (citing Feist v. La., Dep’t of

Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013)). Here, Jenkins’s protected activity

occurred six years before he was denied the promotion. See Doc. 1, Compl. ¶¶ 22, 34 (protected

activity occurred in 2014 and denial of promotion occurred in 2020). Without more, this temporal

proximity cannot establish a causal connection. See Garvin, 391 F. Supp. 3d at 653 (alleging a one

year gap alone between protected activity and an adverse employment action was insufficient to

satisfy a causal connection at the pleading stage).

Jenkins has not pled sufficient, additional evidence to support a causal connection. He claims

that after he filed his grievance, Curry “yelled at [him] and promised [him] that he would make sure

Jenkins never got a promotion[.]” See Doc. 1, Compl. ¶ 26. However, this alleged incident cannot

overcome the seven year temporal proximity, because it also is pled to have occurred in 2014. Id.

Additionally, Jenkins does not plead any departure from policies and procedures by the City during

the interview process. Cf. Garvin, 391 F. Supp. 3d at 653 (finding a causal connection where the

protected occurred one year before the adverse action and the plaintiff alleged that the defendant

“failed to follow its usual policies in reassigning him”). And as explained above, Jenkins has not

established that he was qualified for the Supervisor II role, so he has not plead that his employment

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record did not warrant a denial of the promotion. For these reasons, Jenkins has not pled sufficient

facts to establish a retaliation claim and his claims must be DISMISSED WITHOUT PREJUDICE.

F. Leave to Amend

Given that this is the Court’s first opportunity to assess the sufficiency of Jenkins’s allegations,

the Court deems it appropriate to provide him one chance to amend his pleadings in light of the

deficiencies noted in this Order. See Fed. R. Civ. P. 15(a) (2) (“The court should freely give leave [to

amend] when justice so requires.”). The amended complaint shall be filed within TWENTY-ONE

DAYS of the date of this Order.

IV.

CONCLUSION

For the reasons stated above, the Court GRANTS the City’s Motion to Dismiss Original

Complaint. Jenkins’s claims are each DISMISSED WITHOUT PREJUDICE. The Court

GRANTS LEAVE for Jenkins to file an Amended Complaint WITHIN TWENTY-ONE DAYS

of this Order to the extent that they can remedy the pleading defects identified therein.

SO ORDERED.

SIGNED: October 6, 2022.

Bil

NITED WATES DISTRICT JUDGE

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