Gaumond v. The City of Dallas Texas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PAUL GAUMOND, §

§

Plaintiff, §

§

v. § Civil Action No. 3:21-CV-00624-E

§

CITY OF DALLAS, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court are the following motions: (1) Plaintiff’s Motion for Extension of Time

to File Responsive Pleadings (“Motion to Extend”), (Doc. 33); (2) Defendant’s Motion to Dismiss

Plaintiff’s First Amended Complaint (“Second Motion to Dismiss”), (Doc. 24); (3) Plaintiff’s

Motion for Leave to File Second Amended Complaint (“Motion for Leave”), (Doc. 34); and (4)

Defendant’s Motion to Strike Plaintiff’s Second Amended Complaint (“Motion to Strike”), (Doc.

35). Having considered the motions, the responses and replies, and the relevant law, the Court

rules as follows:

1. Plaintiff’s Motion to Extend, (Doc. 33), is DENIED;

2. Defendant’s Second Motion to Dismiss, (Doc. 24), is GRANTED;

3. Plaintiff’s Motion for Leave, (Doc. 34), is DENIED; and

4. Defendant’s Motion to Strike, (Doc. 35), is GRANTED;

Because Plaintiff has already amended his pleadings once as a matter of course, and the Court—

for the reasons discussed below—concludes that Plaintiff has alleged his best case, all of Plaintiff’s

claims are hereby DISMISSED WITH PREJUDICE.

I. BACKGROUND

A. Factual Background

This case arises out of the termination of Plaintiff Paul Gaumond (“Plaintiff”) from his

employment with Defendant City of Dallas, Texas (“Defendant” or “the City”). Plaintiff alleges

that until March 19, 2019, he was employed as a Sergeant with the City of Dallas. 1

On December 20, 2018, Plaintiff learned that he and several other male officers were the

subject of an internal investigation into alleged misconduct committed in “the private line of

work.” (Doc. 20, pg. 2, ¶ 5). Specifically, Plaintiff was alleged to have engaged in racially

motivated conduct and made racist statements. (Doc. 20, pg. 6, ¶ 22). On or about December 20,

2018, Plaintiff was placed on administrative leave and informed that Defendant would hold a “pre-

termination hearing” regarding the allegations of his misconduct. (Doc. 20, pgs. 2-3, ¶ 5). On

January 14, 2019, Plaintiff attended the pre-termination hearing and presented evidence and

witnesses in his favor. (Doc. 20, pg. 3, ¶ 5).

On or about March 19, 2019, Plaintiff received a letter from Cheritta Johnson

(“Johnson”)—the Assistant Director of the Security Division of the City of Dallas’s Court and

Detention Services—informing him that he was discharged from his employment. (Doc. 20, pg. 4,

12). In that letter, Johnson informed Plaintiff that he was entitled to an appeal of the termination

decision within ten working days of his discharge pursuant to the Personnel Rules of the City of

Dallas. (Doc. 20, pg. 7, ¶ 28). Plaintiff timely appealed what he asserted to be a wrongful

1 Plaintiff’s pleadings contradict themselves as to which department of the City of Dallas employed him.

Plaintiff affirmatively pleads that, “[u]ntil March 19, 2019, [he] was continuously employed by the City

of Dallas, Texas, in its Equipment Building Services/Security Division since on or about August 13,

2013, having been hired at the rank of Sergant (sic).” (Doc. 20, pg. 1). However, he alleges that the

individual who discharged him was the Assistant Director of the City of Dallas’s Court and Detention

Services—Security Division. (Doc. 20, pg. 4, ¶ 11). For its part, Defendant indicates in its Second Motion

to Dismiss that this action arose out of Plaintiff’s “separation of employment with the City’s Department

of Court and Detention Services.” (Doc. 24, pg. 7).

termination by filing written notice with Defendant’s Court and Detention Services on March 25,

2019. (Doc. 20, pg. 7, ¶ 28). Plaintiff also requested relevant documents from Defendant for use

in his appeal via an open records request. (Doc. 20, pg. 3, ¶ 5). Defendant sought a protective

opinion from the Texas Attorney General’s Office, which concluded that Defendant was required

to produce the requested documents, provided that it did not disclose the personal information of

other individuals. (Doc. 20, pg. 3, ¶ 5). As of the filing of Plaintiff’s First Amended Complaint,

Plaintiff had received neither a hearing to appeal his termination nor the written documents he

requested. (Doc. 20, pg. 3, ¶5).

On March 18, 2021, Plaintiff initiated this action by filing his Original Complaint and Jury

Demand. (Doc. 1). Plaintiff asserted the following claims against Defendant: (1) unlawful

discrimination on the basis of race, color, national origin, sex, and age2 under Title VII of the

Civil Rights Act of 1965 (“Title VII”), 42 U.S.C §§ 2000e, et seq; (2) unlawful retaliation under

Title VII, Id.; and (3) violation of his constitutional rights under (a) the Due Process Clause of the

Fourteenth Amendment, U.S. CONST. AMEND. XIV, (b) the Equal Protection Clause of the

Fourteenth Amendment, Id., and (c) violation of the Equal Protection Clause of the Texas

Constitution, TEX. CONST., art. 1, § 3.

B. Procedural Background

On December 6, 2021, Defendant filed its First Motion to Dismiss Plaintiff’s Original

Complaint. (Doc. 7). Rather than responding to Defendant’s First Motion to Dismiss, Plaintiff filed

three consecutive motions for extension of time to file a response, (Doc. 9; Doc. 16; Doc. 18), each

of which were unopposed and granted by the Court, (Doc. 10; Doc. 17; Doc. 19). On March 23,

2 Title VII of the Civil Rights Act of 1964 does not provide a cause of action for age discrimination, see 42 U.S.C.

§§ 2000e, et seq., which is fatal to his age discrimination claim as discussed below.

2022, Plaintiff filed his First Amended Complaint, (Doc. 20), which mooted the Defendant’s First

Motion to Dismiss, (Doc. 21). The First Amended Complaint asserted the same claims as the

Original Complain but included additional factual allegations.

On April 21, 2022, Defendant filed its Motion to Dismiss Plaintiff’s First Amended

Complaint, (Doc. 24), which is currently pending before the Court. Rather than timely responding

to the Second Motion to Dismiss, Plaintiff again filed three successive unopposed motions for

extension of time to file a response, (Doc. 26; Doc. 28; Doc. 30), each of which were again granted

by the Court, (Doc. 27; Doc. 28; Doc. 31). Plaintiff never responded to the Second Motion to

Dismiss. Instead, on July 13, 2022, he filed a Second Amended Complaint without leave of court.

(Doc. 32). Plaintiff then filed a fourth motion for extension of time to respond to the Second

Motion to Dismiss, (Doc. 33), which is currently pending before the Court. This is his seventh

overall request to extend filing deadlines. Plaintiff also filed an out-of-order Motion for Leave to

File Second Amended Complaint, (Doc. 34). Defendant opposed the Motion for Leave and filed a

Motion to Strike Plaintiff’s Second Amended Complaint, (Doc. 35), which is opposed by Plaintiff

and currently pending before the Court.

II. LEGAL STANDARD

A. Rule 12(b)(6)

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

quotation marks and citations omitted). “The court’s review is limited to 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.” Lone Star Fund V (U.S.), L.P. v. Barclays

Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citation omitted).

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 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. Thus, 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).

B. Rule 15(a)

Federal Rule of Civil Procedure 15(a)(1) provides that a party may amend its pleadings

once as a matter of course within twenty-one days of the service of (1) the pleading, (2) a

responsive pleading, or (3) a motion under Rule 12(b), (e), or (f). FED. R. CIV. P. 15(a)(1).

Otherwise, a party may only amend its pleading with leave of court or the written consent of the

opposing party. FED. R. CIV. P. 15(a)(2). Rule 15 instructs courts to “freely give leave when justice

so requires.” Id.

“Although Rule 15 evinces a bias in favor of granting leave to amend, it is not automatic.”

Matter of Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996) (internal quotation marks and

citations omitted). “A decision to grant leave is within the discretion of the trial court.” Id. (citation

omitted). The Supreme Court has identified five factors relevant to a trial court’s decision whether

to grant leave: (1) undue delay; (2) bad faith or dilatory motive on the part of the movant; (3)

repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the non-

movant; and (5) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). The Fifth

Circuit has affirmed denials of leave to amend where it determined that the proposed amendment

would be futile after analyzing the claims. See Edoinwe v. Bailey, 860 F.3d 287, 295 (5th Cir.

2017) (where the proposed amended complaint failed to state a claim under 42 U.S.C. § 1983).

Additionally, the Fifth Circuit has said that “[g]ranting leave is not required . . . if the plaintiff has

already pleaded his best case.” Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009).

III. ANALYSIS

A. Plaintiff’s Motion for Extension to File Responsive Pleading is DENIED.

The Court first considers Plaintiff’s fourth motion for extension of time to respond to the

Second Motion to Dismiss. This is his seventh overall motion for extension of time. Defendant

filed its First Motion to Dismiss on December 6, 2021. After three successive motions to extend,

Plaintiff filed the First Amended Complaint on March 24, 2022—108 days after Defendant filed

its First Motion to Dismiss. Defendant filed its Second Motion to Dismiss on April 21, 2022, and

Plaintiff filed three more successive motions for extension of time to respond. Plaintiff never

responded but instead filed the instant Motion to Extend on July 14, 2022—eighty-four (84) days

after Defendant filed its Second Motion to Dismiss.

Federal courts have the inherent power to manage their own docket. See Chambers v.

NASCO, 501 U.S. 32, 43-46 (1991). Given Plaintiff’s continued inability to comply with the rules

governing responsive motions and pleadings embodied in Federal Rule of Civil Procedure 15, the

Court finds no reason to grant the Plaintiff’s seventh overall request to extend filing deadlines.

Accordingly, Plaintiff’s Motion for Extension of Time, (Doc. 33), is DENIED.

B. Defendant’s Second Motion to Dismiss Plaintiff’s First Amended Complaint is

GRANTED.

The Court next considers Defendant’s Second Motion to Dismiss. For the reasons

discussed below, the Court concludes that Plaintiff’s First Amended Complaint fails to state any

claim upon which relief can be granted. Accordingly, Defendant’s Second Motion to Dismiss,

(Doc. 24), is GRANTED.

1. Plaintiff has not stated a claim of unlawful discrimination under Title VII.

Title VII of the Civil Rights Act of 1964 protects employees from unlawful discrimination

on the basis of race, color, religion, sex, and national origin. 42 U.S.C.A. § 2000e-2(a) (“It shall

be an unlawful employment practice for an employer to . . . discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of such

an individuals’ race, color, religion, sex, or national origin . . . ). Plaintiff alleges that Defendant

violated Title VII by unlawfully discriminating against him on the basis of his race, color, national

origin, sex, and age. The Court concludes that Plaintiff has failed to state a plausible claim for

discrimination under Title VII and, as such, his discrimination claim must be dismissed.

In McDonnell Douglas Corp. v. Green, the Supreme Court laid out the required elements

needed for a plaintiff to establish a prima facie case of discrimination under Title VII. 411 U.S.

792 (1973). “To demonstrate a prima facie case of employment discrimination, [Plaintiff] must

show that [he] (1) belongs to a protected class; (2) was qualified for the position; (3) experienced

adverse employment action; and (4) was similarly situated to other employees who were not

members of [his] protected class and who were treated more favorably.” West v. City of Houston,

960 F.3d 736, 740 (5th Cir. 2020) (citing Bryan v. McKinsey & Co., Inc., 375 F.3d 358, 360 (5th

Cir. 2004)) (internal quotation marks omitted). Plaintiff affirmatively pleads that he belongs to

three protected classes—race (white/Caucasian), sex (male), and age (over the age of forty). (Doc.

20, pg. 5, ¶ 18).

To satisfy the “similarly situated” prong, a plaintiff must identify “at least one coworker

outside of his protected class who was treated more favorably ‘under nearly identical

circumstances.’” Alkhawaldeh v. Dow. Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017) (quoting Lee

v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009)). “This coworker, known as a

comparator, must hold the ‘same job’ or hold the same job responsibilities as the Title VII

claimant; must ‘share[] the same supervisor or’ or have his employment status determined by the

same person’ as the Title VII claimant; and must have a history of ‘violations’ or ‘infringements’

similar to that of the Title VII claimant.” Id. (quoting Lee, 574 F.3d at 260).

The McDonnell Douglas framework is an evidentiary rather than a pleading standard. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). However, plaintiffs must “plead sufficient

facts on all of the ultimate elements of a disparate treatment claim to make his case plausible.”

Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016). Accordingly, the Fifth Circuit

has affirmed dismissals for failure to state a claim where plaintiffs failed to allege sufficient facts

to support a reasonable inference on elements of the McConnell Douglas framework. See, e.g.,

Olivarez v. T-mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021) (dismissing claims where

plaintiff failed to plead facts on the “similarly situated” factor because plaintiff did not identify a

comparator); Chhim, 836 F.3d at 471 (dismissing claims because the plaintiff “plead[] no facts that

suggest the applicant hired by the [defendant] was less qualified than [plaintiff] or was similarly

situated”); Davis v. Tex. Health and Human Servs. Comm’n, 761 F.App’x 451, 454 (5th Cir. 2019)

(dismissing claims because plaintiff failed to allege facts from which the district court could

reasonably infer that plaintiff was treated less favorably).

The Court concludes that Plaintiff has not stated a plausible claim of discrimination under

Title VII because he (1) fails to specify a protected class with respect to national origin and (2)

fails to identify comparator employees with respect to his allegations of sex and race

discrimination. First, with respect to the first element of the McDonnel Douglass framework,

plaintiff identifies two protected classes under Title VII—race (white/Caucasian) and sex (male).

Plaintiff makes vague reference to being treated differently based on national origin but fails to

identify his national origin. Thus, he has not stated a plausible claim for discrimination based on

national origin under Title VII.

With respect to his allegations of discrimination based on race and sex, Plaintiff does not

allege facts sufficient support a reasonable inference in his favor on the fourth element—the

“similarly situated” element. The First Amended Complaint does not identify any comparator

employee who is outside of Plaintiff’s protected classes and received more favorable treatment

than Plaintiff under nearly identical circumstances. See Alkhawaldeh, 851 F.3d at 426. Instead,

Plaintiff makes only a conclusory allegation that other officers of different colors and national

origin received preferential treatment. (Doc. 20, pg. 5, ¶¶ 16, 18). Accordingly, the Court must

conclude that Plaintiff has failed to allege a plausible claim for discrimination based on race or sex

under Title VII.

The Court also concludes that Plaintiff has failed to allege a plausible claim of age

discrimination. Plaintiff asserts this claim under Title VII. However, Title VII of the Civil Rights

Act does not provide a cause of action for age discrimination. See 42 U.S.C. § 2000e-2(a), (e), &

(m) (prohibiting employment discrimination on the basis race, color, religion, sex, or national

origin, but not age). Thus, Plaintiff has not articulated any plausible theory of liability for age

discrimination. Because Plaintiff has not stated a claim of age, race, sex, or national origin

discrimination upon which relief can be granted, the Court concludes that his discrimination claim

must be dismissed.

2. Plaintiff has not stated a claim for unlawful retaliation under Title VII.

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to retaliate

against an employee who “oppose[s] any practice made an unlawful employment practice by [Title

VII], or . . . ma[kes] a charge, testif[ies], assist[s], or participate[s] in any manner in an

investigation, proceeding, or hearing under [Title VII].” 42 U.S.C § 2000e-3(a). To establish a

prima facie retaliation claim under Title VII, a plaintiff must show that: “(1) he participated in an

activity protected by Title VII; (2) his employer took an adverse employment action against him;

and (3) a causal connection exists between the protected activity and the adverse employment

action.” Thomas v. Trege, 913 F.3d 458, 463 (5th Cir. 2019). As with Title VII discrimination

claims, a plaintiff must at least “plausibly allege facts going to the ultimate elements of [a Title

VII retaliation claim] to survive a motion to dismiss. Cicalese v. Univ. of Texas Med. Branch, 924

F.3d 762, 768 (5th Cir. 2019). The Court concludes that Plaintiff has failed to do so, and, as such,

his retaliation claim must be dismissed.

Plaintiff appears to allege that he engaged in protected activity under Title VII insofar as

he “opposed Defendant’s wrongful allegations of racist acts and statements and discrimination

against him.” (Doc. 20, pg. 6 ¶ 22). Defendant argues that that this is insufficient to establish that

Plaintiff engaged in protected activity because (1) “[d]enial of one’s own wrongdoing is not

protected activity[,]” and (2) “Plaintiff [does not] allege how he opposed ‘discrimination’ against

himself, or the nature of the discrimination he opposed.” (Doc. 24, pg. 15). However, the Court

need not reach the issue of whether this conduct constitutes protected activity because Plaintiff has

not plausibly alleged that he was subjected to an adverse employment action as a result of his

purported protected activity.

“An adverse employment action is one that ‘a reasonable employee would have found . . .

[to be] materially adverse, which in this context means that it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (quoting Aryain v. Wal-Mart Stores Tex. LP, 534

F.3d 473, 484 (5th Cir. 2008)) (alterations in original). “Although that is a fact-specific inquiry,

an employment decision tends to be ‘materially adverse’ when it changes ‘job title, grade, hours,

salary, or benefits’ or effects a ‘diminution in prestige or change in standing among . . . co-

workers.’” Hudson v. Lincare, Inc., — F.4th — , No. 22-50149, 2023 WL 240929, at *5 (5th Cir.

Jan. 18, 2023) (quoting Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 332 (5th Cir. 2009)).

“In determining whether an adverse employment action occurred, [courts] focus on the

final decisionmaker.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (citing

Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002)). “The actions of ordinary employees are not

imputable to their employer [under Title VII] unless they are conducted ‘in furtherance of the

employer’s business.’” Id. (quoting Long v. Eastfield College, 88 F.3d 300, 306 (5th Cir. 1996)).

“There must, however, be a ‘direct relationship between the allegedly discriminatory conduct and

the employer’s business.’” Id. (quoting Long, 88 F.3d at 306).

The only adverse employment actions the Court can discern from Plaintiff’s First Amended

Complaint are: (1) an alleged “pattern of retaliation” he experienced at the hands of employees of

the Dallas Police Department that “adversely effected (sic) [his] ability to perform his day-to-day

work as a police officer[;]” and (2) his termination. (Doc. 20, pg. 6, ¶ 20). Plaintiff has failed to

plead facts sufficient to state a plausible claim of unlawful retaliation based on either.

First, Plaintiff’s allegations relating to the purported “pattern of retaliation” fail because

they are conclusory. As an initial matter, Plaintiff fails to provide any facts whatsoever detailing

the alleged pattern of retaliation. Moreover, Plaintiff does not assert that the alleged pattern of

retaliation affected his job title, grade, hours, salary, benefits or diminished his prestige or standing

among his co-workers. Instead, he makes the conclusory assertion that the conduct of the unnamed

officers “adversely effected (sic) [his] ability to perform his day-to-day work[.]” (Doc. 20, pg. 6,

¶ 20). Because “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements” are not sufficient to survive a motion to dismiss, Iqbal, 556 U.S. at 678,

this alone renders Plaintiff’s allegation of a pattern of retaliatory conduct insufficient to support a

claim of unlawful retaliation under Title VII.

However, even if Plaintiff pled factual content detailing the conduct of the unnamed

officers, Plaintiff has not alleged any factual content to support an inference that the City of Dallas

is liable for their conduct under Title VII. The officers were not the final decisionmaker with

respect to Plaintiff’s employment status—Plaintiff affirmatively identifies Johnson as the final

decisionmaker. Thus, Plaintiff is alleging that the actions of the officers—as ordinary employees—

should be imputed to their employer—the City of Dallas. As the Fifth Circuit explained in Long v.

Eastfield College, “[e]mployers are liable under Title VII, in accordance with common law agency

principles, for the acts of employees committed in the furtherance of the employer’s business.” 88

F.3d at 306. Plaintiff attempts to connect the officers’ actions to the City by alleging that the City,

“via its police department, was the agency which had authority to not only receive and investigate

the allegations against Plaintiff, but also was the agency which had the authority to supervise and

discipline employees such as Plaintiff.” (Doc. 20, pg. 6, ¶ 22). Plaintiff does not allege any facts

allowing the Court to draw a reasonable inference that the officers’ alleged “pattern of retaliation”

was in the furtherance of City business. Thus, the Court concludes that Plaintiff has not plausibly

alleged that the City of Dallas is liable for unlawful retaliation under Title VII for the conduct of

the unnamed officers. Iqbal, 556 U.S. at 678; Long, 88 F.3d at 306.

Turning to the matter of Plaintiff’s termination, Plaintiff has not plausibly alleged any

causal link between his purported protected activity and his termination. It is axiomatic that

termination constitutes “adverse employment action.” However, Plaintiff still must allege that his

purported protected activity was the “but-for” cause of his termination. Univ. of Texas Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 360 (2013). (“Title VII retaliation claims must be proved according

to traditional principles of but-for causation[.]”). Plaintiff has failed to plead any facts supporting

a reasonable inference that he would not have been terminated but-for his purported protected

activity. In fact, Plaintiff does not even allege that he was terminated because of his participation

in the pre-termination hearing or his opposition to discrimination against him. Instead, Plaintiff

alleges that he engaged in a protected activity by “oppos[ing] Defendant’s wrongful allegations of

racist acts and statements and discrimination against him, but . . . was terminated from his

employment anyway.” (Doc. 20, pg. 6, ¶ 22) (emphasis added). Even construing the pleadings in a

light most favorable to Plaintiff, the First Amended Complaint alleges—at most—that Plaintiff

was terminated despite, not because of, his purported protected activity. Thus, Plaintiff has not

plausibly alleged that there was a “causal connection . . .between [his purported] protected activity

and [his termination].” Thomas, 913 F.3d at 463.

Because Plaintiff has failed to plausibly allege that that he was subjected to an adverse

employment action as a result of engaging in a protected activity, the Court concludes that his

retaliation claim must be dismissed.

3. Plaintiff has not stated a claim of violations of his constitutional rights.

Plaintiff also brings claims against Defendant for violations of the Fourteenth Amendment

of the United States Constitution and Article I, Section 3 of the Texas Constitution. For the reasons

discussed below, Plaintiff has failed to state these claims in a manner upon which relief can be

granted.

(i) Federal Constitutional Claims

Plaintiff alleges that Defendant violated his due process and equal protection rights as

protected by the Fourteenth Amendment. Specifically, Plaintiff alleges that he has been: (1)

deprived—without due process of law—his (a) liberty interest in his standing in the community

and (b) property interest in continued employment; and (2) denied equal protection under the law

because of his sex, race, and age. (Doc. 20, pgs. 6-9, ¶¶ 24-33). Plaintiff seeks “equitable relief as

appropriate and damages for the violation of his rights under the United States Constitution as

protected by the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.”

(Doc. 20, ¶ 24). The Court concludes that these claims must be dismissed because Plaintiff has

failed to plausibly state any claim upon which relief can be granted.

With respect to Plaintiff’s request for equitable relief, the Court cannot discern from his

pleadings the type of equitable relief requested. Plaintiff seeks “equitable relief as appropriate . . .

for the violation of his rights under the United States Constitution as protected by the Fourteenth

Amendment to the United States Constitution and 42 U.S.C. § 1983.” (Doc. 20, ¶ 24). Plaintiff

has not filed a response to Defendant’s motion to dismiss; as such, this issue remains unbriefed.

Accordingly, there is no grounds on which the Court can determine that Plaintiff has stated a claim

upon which equitable relief can be granted.

With respect to Plaintiff’s request for damages, the only vehicle through which individuals

may seek monetary damages from municipalities for alleged violations of their federal

constitutional rights is 42 U.S.C. § 1983. See Monell v. New York City Dept’ of Social Serv., 436

U.S. 658 (1978). The Court concludes that Plaintiff has failed to state a claim upon which monetary

damages can be granted because he has not identified any official policy or custom that was the

“moving force” behind the alleged constitutional violations.

The Supreme Court has made clear that a municipal entity may not be held liable under §

1983 “unless action pursuant to official municipal policy of some nature caused the constitutional

tort.” Monell, 436 U.S. at 691 (emphasis added). “While municipalities can be sued directly under

§ 1983, Monell establishes that they ‘cannot be found liable on a theory of vicarious liability or

respondeat superior.’” Webb v. Twn. of Saint Joseph, 925 F.3d 209, 214 (5th Cir. 2019) (quoting

Davidson v. City of Stafford, 848 F.3d 384, 395 (5th Cir. 2017), as revised (Mar. 31, 2017) (citing,

in turn, Monell, 436 U.S. at 690-91))). “In other words, ‘the unconstitutional conduct must be

directly attributable to the municipality through some sort of official action or imprimatur; isolated

actions by municipal employees will almost never trigger liability.” Id. (quoting Piotrowski v. City

of Houston, 237 F.3d 567, 578 (5th Cir.2001)). Thus, to assert liability under Monell, a plaintiff

must allege that “(1) an official policy (2) promulgated by the municipal policymaker (3) was the

moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588

F.3d 838, 847 (5th Cir. 2009) (citing Piotrowski, 237 F.3d at 578)).

“[T]he identity of [a] policymaker is a question of law, not fact—specifically, a question

of state law.” Groden v. City of Dallas, 826 F.3d 280, 284 (5th Cir. 2016) (citing City of St. Louis

v. Praprotnik, 485 U.S. 112, 124 (1988)). While plaintiffs need not specifically plead the identity

of a policymaker to survive a motion to dismiss, they must plead “facts which established that [a]

challenged policy was promulgated or ratified by the city’s policymaker.” Id. at 285. The Fifth

Circuit has previously determined that, under Texas law, the final policymaker for the City of

Dallas is the Dallas City Council. Id. at 286; Bolton v. City of Dallas, 541 F.3d 545, 550 (5th Cir.

2008) (citing TEX. LOC. GOV’T CODE § 25.029). Accordingly, to state a claim for damages against

the City of Dallas, Plaintiff must plausibly allege that his federal constitutional rights were violated

as a result of an official policy promulgated or ratified by the Dallas City Council. Plaintiff failed

to meet this requirement, and, as such, has failed to state a claim for municipal liability under §

1983.

In his First Amended Complaint, Plaintiff alleges that his due process rights were violated

as a result of the City’s failure to give him a hearing to appeal his termination decision.

Specifically, Plaintiff alleges that a city employee—Johnson—violated a city policy, embodied in

the Personnel Rules of the City of Dallas, that entitled him to appeal his termination within ten

working days of his discharge. (Doc. 20, pg. 7, ¶ 28). According to his pleadings, Plaintiff timely

appealed his termination in accordance with the instructions given to him by Johnson yet has been

“denied due process appeals to seek reinstatement to employment in direct contrast to [the City’s]

policies and procedures.” (Doc. 20, pg. 7, ¶ 13). Plaintiff does not allege that his due process rights

have been violated by an official policy or custom of the City of Dallas. Rather, he alleges that his

rights were violated because of the isolated actions of City employee who did not follow the City’s

official policy. Thus, Plaintiff specifically acknowledges that the “moving force” behind the

alleged constitutional violations was not an officially policy or custom, but rather Johnson’s failure

to follow an official policy—a policy which he has not alleged to be unconstitutional. Because

Defendant cannot be held liable under § 1983 for Johnson’s actions though either vicarious liability

or respondeat superior, Plaintiff has failed to state a plausible claim under Monell that City of

Dallas is liable for monetary damages for the violation of his due process rights. See Webb, 925

F.3d at 214.

With respect to his equal protection claim, Plaintiff asserts that he “has been denied equal

rights under the law, and equality under the law because of his sex, race, and age.” (Doc. 20, pg.

6, ¶ 26). Plaintiff alleges that he was denied “rights afforded to other similarly-situated employees

. . . [and] received treatment different from rights and remedies received by similarly-situated

employees and that the unequal treatment resulted from the Defendant’s discriminator (sic) intent,”

(Doc. 20, pg. 8, ¶ 30). Here again, however, Plaintiff fails to identify any City policy or custom of

sex, race, or age discrimination that resulted in his alleged unequal treatment. In fact, he makes no

factual allegations on this point relating to the actions of any particular City employee. Thus, he

has failed to allege a plausible claim under Monell that the City of Dallas is liable for monetary

damages for the violation of the equal protection rights. See Webb, 925 F.3d at 214. Because

Plaintiff has failed to state a claim upon which relief—equitable or monetary—can be granted for

the alleged violation of his federal constitutional rights, the Court concludes that these claims must

be dismissed.

(ii) Texas Constitutional Claims

Plaintiff alleges that the same conduct that violated his federal constitutional rights also

violated his rights under the equal protection clause of the Texas Constitution. (Doc. 20, pg. 6, ¶¶

25-26). The Court concludes that he has failed to state a claim upon which relief can be granted

under the Texas Constitution as well.

With respect to Plaintiff’s request for monetary damages for the alleged violation of the

Texas Constitution, Plaintiff’s claim fails because there is no vehicle through which he can obtain

damages. The Texas Constitution does not create private causes of action for monetary damages.

City of Beaumont v. Boullion, 896 S.W.2d 145, 149 (Tex. 1995) (holding that no independent cause

of action for damages against governmental entities exists for violations of the free speech and

assembly clauses of the Texas Constitution); see also Harrison v. Texas Dep't of Criminal Justice-

Institutional Div., 915 S.W.2d 882, 888 (Tex. App.—Houston [1st Dist.] 1995, no writ) (holding

no implied private right of action for money damages exists under the Texas Constitution); Vincent

v. West Texas State Univ., 895 S.W.2d 469, 475 (Tex. App.—Amarillo 1995, no writ) (holding

that the reasoning in Bouillion applied to actions for damages under equal protection clause of

Texas Constitution); Harris Cnty. Hosp. Dist. v. Cornelious, No. 01-98-01200-CV, 2000 WL

1682503, at *6 (Tex. App.—Houston [1st Dist.], Nov. 9, 2000) (same).

Texas does not have a statutory provision comparable to § 1983 that creates a private cause

of action for violations of the Texas Constitution. Bouillion, 896 S.W.2d at 147. Moreover, § 1983

cannot be used to pursue a cause of action for an alleged violation of state constitutional rights.

See 42 U.S.C § 1983 (“Every person who, under color of any statute . . . of any State . . . subjects,

or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws [of the United States] . . . .”); Wyatt v. Cole, 504 U.S. 158,

161 (“The purpose of § 1983 is to deter state actors from using the badge of their authority to

deprive individuals of their federally guaranteed rights and to provide relief to victims if such

deterrence fails.”) (emphasis added) (citation omitted). Thus, Plaintiff has failed to state a claim

for the violation of the Texas Constitution upon which the relief of monetary damages can be

granted.

Additionally, for the same reason that he fails to state a claim upon which equitable relief

under the Fourteenth Amendment, Plaintiff has not stated a plausible claim for equitable relief

under the Texas Constitution. Thus, Plaintiff has failed to state a plausible claim for any sort of

relief under the Texas Constitution. As such, the Court concludes that his claim under the Texas

Constitution must be dismissed.

In sum, the First Amended Complaint fails to state any claim upon which relief can be

granted. As such, Defendant’s Second Motion to Dismiss, (Doc. 24), is GRANTED.

C. Plaintiff’s Motion for Leave to File Second Amended Complaint is DENIED.

The Court next considers Plaintiff’s Motion for Leave to File Second Amended Complaint.

As noted above, courts consider the following factors when determining whether to grant leave to

amend after a plaintiff has already amended his pleadings as a matter of course: (1) undue delay;

(2) bad faith or dilatory motive on the part of the movant; (3) repeated failure to cure deficiencies

by previous amendments; (4) undue prejudice to the non-movant; and (5) futility of amendment.

Foman, 371 U.S. at 182. Given Plaintiff’s numerous previous motions for extension of time to file

responsive pleadings and the deficiencies of both the first and second amended complaints, the

Court concludes that granting leave would cause undue delay, that Plaintiff has repeatedly failed

to cure the deficiencies in his pleadings, and that amendment would be futile.

First, allowing Plaintiff to file his Second Amended Complaint would cause undue delay.

This suit was filed on March 18, 2021. However, Plaintiff waited seven months to serve Defendant.

(Doc. 36, pg. 9). This delay, coupled with Plaintiff’s failure to respond to either of the Defendant’s

two initial motions to dismiss, means that this case remains in the early pleadings stage almost two

years after it was initiated. Plaintiff’s Second Amended Complaint—which he filed without leave

of court—asserts the same claims as his Original Complaint and his First Amended Complaint.

For the reasons discussed below, however, the Second Amended Complaint cures none of the

defects in those complaints. Thus, allowing Plaintiff to file his Second Amended Complaint would

only further delay this case without correcting any of the issues that have plagued his pleadings to

date.

Plaintiff has repeatedly failed to cure the deficiencies with respect to his claim and granting

him a third bite at the apple would be futile. As discussed above, Plaintiff’s First Amended

Complaint does not cure the deficiencies in his Original Complaint because it does not state any

claims upon which relief can be granted. While Plaintiff’s Second Amended Complaint is stricken

from the record for the reasons discussed below, the Court considered the allegations contained

therein for the purposes of determining whether it would correct the deficiencies in the First

Amended Complaint. See Edionwe, 860 F.3d at 295 (considering plaintiff’s proposed amended

complaint for the purposes of determining whether amendment would be futile). It would not.

The Second Amended Complaint (1) adds some factual allegations not contained in the

First Amended Complaint and (2) appears to repleads his claim of age discrimination under the

Age Discrimination in Employment Act. These additions, however, do not cure the defects that

proved fatal to Plaintiff’s First Amended Complaint.3 Thus, the Court concludes that Plaintiff has

3 With respect to his discrimination claims, Plaintiff identified four male comparators, but does not plead

facts supporting a reasonable inference that he was treated less favorably than those comparators under

nearly identical circumstances because: (1) the comparators, while of a different race, were accused of

violating different rules than Plaintiff; (2) the comparators were of the same sex as Plaintiff; and (3) Plaintiff

does not allege that they were outside of Plaintiff’s protected class with respect to age. See O'Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308, 116 (1996) (holding that ADEA claims are analyzed under the

same framework as Title VII claims). With respect to his retaliation claim, the Second Amended (1) does

not cure the defects contained in his First Amended Complaint and (2) affirmatively pleads himself out of

a retaliation claim because the “protected activity” he identifies there is not, as a matter of law, protected

under 42 U.S.C. § 2000e-3(a). With respect to his federal constitutional claims, like his First Amended

Complaint, Plaintiff’s Second Amended Complaint (1) does not identify an official policy or custom that

was the moving force of the alleged of his federal constitutional rights and thus fails to state a claim under

Monell; (2) fails to state a plausible claim on which equitable relief can be granted for the alleged violations

of either the United States Constitution or the Texas Constitution; and (3) requests monetary damages for

the alleged violation of the Texas Constitution, for which there is no private right of action.

repeatedly failed to cure the deficiencies in his pleadings and allowing him to amend his pleading

for a second time would be futile.

Because allowing Plaintiff a third bite of the apple by filing a Second Amended Complaint

would only serve to unduly delay litigation, Plaintiff has repeatedly failed to cure his pleading

deficiencies, and the proposed amendment to those pleadings would be futile, Plaintiff’s Motion

for Leave to File Second Amended Complaint, (Doc. 34), is DENIED.

D. Defendant’s Motion to Strike Defendant’s Second Amended Complaint is

GRANTED.

Plaintiff has already availed himself of the right to amend his complaint once as a matter

of course. Nonetheless, Plaintiff improperly filed his Second Amended Complaint on July 13,

2022. Plaintiff has already amended his pleadings once under Rule 15(a)(1); thus, he may not

amend his complaint without the Court’s leave or the Defendant’s consent. FED. R. CIV. P.

15(a)(2). Because Plaintiff obtained neither, his Second Amended complaint must be stricken.

Accordingly, Defendant’s Motion to Strike Plaintiff’s Second Amended Complaint, (Doc. 35), is

GRANTED.

E. All claims are DISMISSED WITH PREJUDICE.

Because Plaintiff has already amended his pleadings once as a matter of course, and his

Second Amended Complaint does not cure the deficiencies that have discussed above, the Court

concludes that he has pled his best case. As such, because Plaintiff has failed to state any claim

upon which relief can be granted, the Court concludes that all of his claims should be, and therefore

are, DISMISSED WITH PREJUDICE. See Jones v. Greninger, 188 F.3d 322, 327 (5th Cir.

1999) (holding that a district court may dismiss with prejudice without giving leave to amend if it

determines that the plaintiff has plead his “best case”).

IV. CONCLUSION

For the reasons discussed above, the Court hereby: (1) DENIES Plaintiff’s Motion for

Extension of Time to File Responsive Pleadings, (Doc. 33); (2) GRANTS Defendant’s Second

Motion to Dismiss, (Doc. 24); (3) DENIES Plaintiff’s Motion for Leave to File Second Amended

Complaint, (Doc. 34); and (4) GRANTS Defendant’s Motion to Strike Plaintiff’s Second

Amended Complaint, (Doc. 35).

The Clerk of Court is hereby ORDERED to strike Plaintiff’s Second Amended Complaint,

(Doc. 32), from the record. All of Plaintiff’s claims are hereby DISMISSED WITH

PREJUDICE.

SO ORDERED: February 15, 2023.