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, TEXAS, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

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

Amended Complaint and Brief in Support (Doc. 22). For the reasons given below, the Court

GRANTS the Motion.

I.

BACKGROUND1

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

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

age. See Doc. 21, Am. Compl., ¶¶ 73, 79, 85. Further, he claims the City retaliated against him for

participating in protected activity. Id. ¶ 91. Specifically, Jenkins, a long-time employee of the City,

filed a grievance against his then-supervisor for racist and hostile treatment in 2014. Id. ¶ 21.

According to Jenkins, the City did not properly handle his grievance, and his supervisor threatened

to ensure Jenkins never received a promotion. Id. ¶¶ 27, 33. Years later, in 2020, Jenkins applied

for a promotion but did not progress past the first round of interviews despite being “highly

1 The Court draws its factual background from Jenkins’s Amended Complaint. See Doc. 21, Am.

Compl.

qualified.” Id. ¶¶ 44–47. Jenkins believes his former supervisor, who sat on the interview panel,

sabotaged his promotion and gave other less qualified individuals the promotion instead. Id. ¶¶ 48,

62. Jenkins seeks damages to remedy this alleged discrimination and retaliation.

Jenkins is a fifty-seven-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. Id. ¶¶ 5–6. Before then, he “worked for the State of Delaware for

10 years as the Senior Social Worker/Case Manager” and 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.” Id. ¶¶ 21–22. He claims that Curry, “a

Caucasian/White male . . . [treated] Jenkins in a racist and hostile manner because of Jenkins’s

race.” Id. 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.

Id. ¶ 23. He explains that 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. ¶ 24.

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. ¶ 27. Jenkins details his repeated attempts to receive a final resolution on his

grievance against Curry, all of which were unavailing. Id. ¶ 25. He also alleges that “[n]umerous

other City employees . . . have also filed complaints of discrimination and retaliation against City

management employees only to have their grievances not timely heard or never heard to a

conclusion.” Id. ¶ 31. Jenkins names two specific individuals, “Ms. S” and “Ms. R,” who were

eventually terminated after filing grievances against the City. Id.

Despite the City failing to resolve Jenkins’s grievance, Curry knew of the grievance and

responded by “yell[ing] at Jenkins and promis[ing] . . . that he would make sure Jenkins ‘never’ got

a promotion.” Id. ¶ 33. Jenkins notified the City about Curry’s threat. Id. ¶ 44. Jenkins was

transferred out of Curry’s department but thereafter “hit a ceiling on his promotional opportunities

at the City.” Id. ¶ 34. 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. ¶¶

34–35.

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

was moved . . . under a new supervisor.” Id. ¶ 36. This new supervisor 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. ¶ 37. In October of that year,

Jenkins was “denied the promotion opportunity to the position he held on a temporary basis.” Id.

¶ 38.

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

positions. Id. ¶ 40. Jenkins claims after submitting his application, he was sent an email by the City

stating, “Congratulations! Your education and experience qualify you to be placed on the eligibility

list for Supervisor II (code).” Id. ¶ 41. 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. ¶¶ 47–

48. Jenkins later learned that, while two of the three panel members gave Jenkins positive rankings,

“Curry gave Jenkins negative rankings which caused Jenkins to not be considered for even the

second round of interviews.” Id. ¶ 56.

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

Supervisor II positions: Servando Galvez, Jeanne Robbins, William Castillo, and Corey Blacksher.

Id. ¶¶ 48–49. 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. ¶ 50. “Robbins . . . a Black female in her mid/late 30’s . . . only

had 5 to 6 years of code compliance.” Id. ¶ 51. “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. ¶ 52. “Blacksher . . . a Black male in his early/mid 40’s . . .

only had 2-3 years in Code Compliance.” Id. ¶ 53. Jenkins had trained both Galvez and Robbins,

had longer tenure and more experience than the four individuals selected, and had obtained his

ICC certification while those selected had not. Id. ¶¶ 50–53. None of these four promoted

individuals had “previously complained of race discrimination.” Id. ¶ 59.

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 this suit. He claimed that by denying him these promotional opportunities,

the City discriminated against him on the basis of race, gender, and age. Id. ¶¶ 73, 79, 85. He also

claims that the City retaliated against him “because of his protected activities.” Id. ¶ 61. He brings

his claims under 42 U.S.C. § 1981, 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. ¶¶ 73, 79, 85, 91.

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

Procedure 12(b)(6). Doc. 22, 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.” 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, 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 has facial plausibility when the

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

defendant is liable for the misconduct alleged.” Id. “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 (internal quotations 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. 22, Mot., 1. The City argues that (1) Jenkins’s § 1981 claim fails under

§ 1983 for failure to allege the existence of an official policy or custom implemented or ratified by

a policymaker; (2) Jenkins’s race, gender, and age discrimination claims are not facially plausible;

and (3) Jenkins’s retaliation claim is not facially plausible. Id. at 5, 14, 20, 21. The Court addresses

these claims below and 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 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 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 Supreme

Court concluded that plaintiffs must assert a cause of action against state actors under § 1983 to

remedy violations of civil rights under § 1981. See id. Thus, to determine whether Jenkins states a

viable § 1981 claim, the Court considers whether Jenkins has asserted 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) (Fitzwater, J.) (citing

Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978)). More specifically, municipal

liability under § 1983 requires “(1) an official policy (or custom), of which (2) a policymaker can

be charged with actual or constructive knowledge, and (3) a constitutional violation whose

‘moving force’ is that policy or custom.” Pineda v. City of Hous., 291 F.3d 325, 328 (5th Cir. 2002).

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.” Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th

Cir. 2001) (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) (Fitzwater,

J.) (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., 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 show 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 forms of “official policies” in the §

1983 context: (1) “a policy statement formally announced by an official policymaker,” or (2) a

“persistent 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.” Id. at 168–69 (quoting Webster v. City of Hous.,

735 F.2d 838, 841 (5th Cir. 1984) (en banc)). Additionally, in rare circumstances, “a plaintiff may

show the existence of a custom or policy by demonstrating that a policymaker took a single

unconstitutional action. Finally, a failure to train may represent a policy for which a municipality

may be held liable if the failure to train directly caused the injury.” Liggins v. City of Duncanville,

2021 WL 929105, at *8 (N.D. Tex. Mar. 11, 2021) (Scholer, J.).

But just alleging that a policy or custom exists will not suffice—“a plaintiff must allege that

the custom or policy served as the moving force behind the constitutional violation.” Spiller v. City

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

omitted). “The description of a policy or custom and its relationship to the underlying

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

Jenkins alleges the City “has a persistent and widespread practice of arguing that an

employee’s grievance is untimely (when it clearly is not)[,] . . . does not finish investigations or

issue findings regarding employee grievances[, and] . . . has no training, procedures, or systems in

place for properly handling grievances regarding discrimination and retaliation.” Doc. 21, Am.

Compl., ¶ 26. The City argues Jenkins has failed to show a policy or custom promulgated by a

policymaker, that such policy or custom was the moving force behind his constitutional violations,

and a failure to train. See Doc. 22, Mot. Dismiss, 5–13. The Court agrees with the City that

Jenkins’s Amended Complaint fails to state a claim under § 1981.

First, Jenkins has not pleaded that the Dallas City Council has promulgated, ratified, or had

any knowledge of a “persistent widespread practice” of improperly-handled employee grievances.

“Actual or constructive knowledge of [a] custom must be attributable to the governing body of the

municipality or to an official to whom that body has delegated policy-making authority.” Webster,

at 841; see also Piotrowski, 237 F.3d at 578–79 (noting that liability requires actual or constructive

knowledge on the part of municipal policymaker). Jenkins makes no mention of the Dallas City

Council in his Amended Complaint. This failure alone dooms his § 1981 claim.

However, in addition to failing to identify an action by a policymaker, Jenkins also fails to

identify a policy or custom. “Isolated violations are not the persistent, often repeated, constant

violations that constitute custom and policy.” Bennett v. City of Slidell, 728 F.2d 762, 768 n.3 (5th

Cir. 1984); see also Ratliff v. Aransas Cnty., 948 F.3d 281, 285 (5th Cir. 2020) (holding that pleading

the existence of a widespread practice or custom requires more than merely describing the incident

that gave rise to the alleged injury). Jenkins alleges that the City has mishandled grievances filed

by “[n]umerous other . . . employees.” Doc. 21, Am. Compl., ¶ 31. He also alleges he is aware of

two former employees, Ms. S and Ms. R, whose “grievances were either not timely heard or were

not heard to a meaningful conclusion.” Id. Jenkins’s allegation regarding the grievances of

“numerous other City employees” cannot establish a persistent widespread practice, as it is wholly

conclusory and provides the Court no basis to determine if these grievances were “similar incidents”

to establish a pattern. See Sinegal v. City of El Paso, 414 F. Supp. 3d 995, 1008 (W.D. Tex. 2019)

(“While a detailed catalogue of similar incidents may not always be available to plaintiffs at the

12(b)(6) stage, a widespread practice claim must ordinarily at least identify similar incidents to

survive dismissal.”) (internal quotation and alteration omitted).

Jenkins’s allegations regarding Ms. S and Ms. R are similarly unavailing. While these

allegations at least partially identify the complainants, Jenkins fails to allege when these grievances

were filed, the subject of the grievances, or specific details regarding the City’s response to the

grievances (or lack thereof). See Doc. 21, Am. Compl., ¶ 31. Again, this failure prevents the Court

from determining if these grievances were sufficiently similar to Jenkins’s experience to support the

inference of a pattern. See Sinegal, 414 F. Supp. 3d at 1008; Saenz v. City of El Paso, 637 F. App’x

828, 832 (5th Cir. 2016) (per curiam) (holding that “[w]ithout further context surrounding the

circumstances,” the allegations regarding twenty-one prior incidents spanning nine years did not

“plausibly suggest a pattern of abuses”). Further, three alleged incidents over a seven-year period

cannot establish a persistent widespread practice. McConney v. City of Hous., 863 F.2d 1180, 1184

(5th Cir. 1989); see Moreno v. City of Dall., 2015 WL 3890467, at *9 (N.D. Tex. June 18, 2015)

(Boyle, J.) (finding that eight incidents did “not support an inference of a pattern of abuses that

can be distinguished from mere isolated incidents”); cf. Rivera v. City of San Antonio, 2006 WL

3340908 at *12 (W.D. Tex. Nov. 15, 2006) (finding that a pattern was alleged by citing that the

police department had received hundreds of complaints involving the use of excessive force by

officers); Oporto v. City of El Paso, 2010 WL 3503457, at *5 (W.D. Tex. Sept. 2, 2010) (finding

that thirty-two incidents of excessive deadly force fell within the “acceptable range of sufficiently

numerous prior incidents needed to allege a pattern at th[e motion to dismiss] stage”) (internal

quotations omitted). Thus, Jenkins fails to allege the existence of a widespread custom to trigger

municipal liability.

Finally, Jenkins fails to state a claim that the City failed to train its employees on the

grievance policy. “To prevail on a ‘failure to train’ theory, a plaintiff must demonstrate that: (1)

the municipality’s training procedures were inadequate; (2) the municipality was deliberately

indifferent in adopting its training policy; and (3) the inadequate training policy directly caused

the violations in question.” Liggins, 2021 WL 929105, at *10. Jenkins merely asserts that “the City

has no training, procedures, or systems in place for properly handling grievances regarding

discrimination and retaliation.” Doc. 21, Am. Compl., ¶ 26. Without further allegations regarding

the inadequacy of the City’s training, the City’s deliberate indifference, or how the inadequate

training caused the violation of Jenkins’s rights, Jenkins’s Amended Complaint fails to state a claim

for failure to train under § 1983.

Because Jenkins fails to plead the existence of a custom promulgated or ratified by Dallas

City Council or that the City failed to train its employees on the grievance policy, Jenkins’s § 1981

claims are DISMISSED.

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

Title VII2 makes it unlawful for employers to “discriminate against any individual with

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

2 “Because one of the purposes of the TCHRA 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) (internal footnote omitted). Thus, the Court will not

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

of discrimination under Title VII, 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) (internal quotations and

alteration omitted). 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) (Boyle, J.).

The Court previously dismissed Jenkins’s race and gender discrimination claims because he

“failed to plead that he was qualified for [the Supervisor II] position.” Doc. 20, Mem. Op. & Order,

16. Jenkins now pleads that “he knows he was qualified because the positions were publicly posted

and he met the qualifications.” Doc. 21, Am. Compl., ¶ 41. Jenkins also claims that after applying

for the position of Supervisor II, the City responded, “Congratulations! Your education and

experience qualify you to be placed on the eligibility list for Supervisor II (code).” Jenkins’s

conclusory statement that he knows he met the Supervisor II qualifications does nothing to move

the needle toward stating a claim. See Ashcroft, 556 U.S. at 678 (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.”). However,

the City’s alleged response to Jenkins is enough to allow the Court to draw a reasonable inference

that Jenkins was qualified for the role.

conduct a separate analysis of Jenkins’s TCHRA claims, as the analyses and holdings will be identical to

Jenkins’s Title VII claims.

And while the City argues that being granted an interview is not always equivalent to being

qualified for the role, especially because Jenkins failed to allege the requisite qualifications and how

he met them, the Court is unconvinced. At the motion to dismiss stage, Jenkins’s claim need only

be plausible, see Twombly, 550 U.S. at 570, and stating the requisite qualifications for a role is not

required for plausibility. See Drerup v. Consol. Nuclear Sec., LLC, 2020 WL 13608068, at *2 (N.D.

Tex. May 13, 2020) (Reno, Mag. J.) (finding that the plaintiff did not need to plead the

qualifications for the position she was denied to plead a disability discrimination claim if the

plaintiff plead other facts indicating she was qualified). Here, the City’s alleged statement that

Jenkins’s education and experience qualified him for “the eligibility list for Supervisor II” creates a

reasonable inference that he was qualified for the role.

However, Jenkins fails to demonstrate he satisfies the “ultimate question” of his

discrimination claims: “whether [the City] took the adverse employment action against [Jenkins]

because of [his] protected status.” See Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013).

First, Jenkins’s Amended Complaint is devoid of “specific objective incidents of racial

discrimination, such as racial comments or treatment different from similarly situated employees

of another race.” See Smith v. Dall. Cnty. Hosp. Dist., 2014 WL 645248, at *6 (N.D. Tex. Feb. 19,

2014) (Fish, J.). Instead, Jenkins alleges he filed a grievance against Curry over seven years ago for

“treating Jenkins in a racist and hostile manner because of Jenkins’[s] race,” treating Jenkins “like

a slave,” and discriminating against him. Doc. 21, Am. Compl., ¶ 23. These conclusory allegations

are insufficient to suggest the City’s decision to not promote Jenkins seven years later was based on

his race. See Ashcroft, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”). Further, Jenkins makes no allegations

suggesting the City or Curry ever discriminated against him because of his gender.

Additionally, while the Court can infer Jenkins was qualified for the Supervisor II position

from the email from the City referenced above, because Jenkins has not pleaded the requisite

qualifications for the role, the Court has no way of determining whether Jenkins was more qualified

for this position than the individuals the City promoted. Without these qualifications or a

description of the role, the Court has no reference as to what metrics the City used in evaluating

candidates for the role of Supervisor II. The Court cannot infer that Jenkins was more qualified

than those promoted because Jenkins possessed greater experience in “code compliance” and “had

worked in several specialized units within code,” without also knowing that this experience was

used by the City in evaluating candidates for Supervisor II. See Doc. 21, Am. Compl., ¶¶ 50–54;

Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 42 (5th Cir. 1996) (recognizing that greater

experience alone does not make a candidate more qualified for a role).

Finally, the promotion of several individuals within Jenkins’s protected classes further

weakens the inference that Jenkins was not promoted because of his race or gender. Jenkins objects

to the City’s promotion of four individuals to Supervisor II instead of him, two of which were

African American and three of which were males. See Doc. 21, Am. Compl., ¶¶ 50–53. The Fifth

Circuit has held “the single fact that a plaintiff is replaced by someone within the protected class

does not negate the possibility that the discharge was motivated [by] discriminatory reasons.”3

Hornsby v. Conoco, Inc., 777 F.2d 243, 246–47 (5th Cir. 1985). But, in Hornsby, the Fifth Circuit

still affirmed the district court’s dismissal of Hornsby’s gender discrimination claims “because she

3 The Fifth Circuit later recognized an inconsistency in its later precedents on this subject in Nieto

v. L&H Packing Co. 108 F.3d 621, 624 n.7 (5th Cir. 1997) (comparing the holding in Hornsby to its holding

in Singh v. Shoney’s Inc., 64 F.3d 217 (5th Cir. 1995), which held that “a plaintiff’s replacement by a member

of the same protected class precludes the establishment of a prima facie case” of discrimination). However,

since Hornsby is still good law, the Court will follow its reasoning. See id. (noting that the earlier precedent

controls).

failed to offer any evidence other than her subjective belief . . . that she was terminated because of

her sex.” Id. at 247. Thus, while the fact that other individuals within Jenkins’s protective class

were promoted instead of him is not “outcome determinative, [it] is certainly material to the

question of discriminatory intent” and can be factored into the Court’s analysis as to whether

Jenkins has alleged facts demonstrating that the City’s decision to not promote Jenkins was because

of his race or gender. See Nieto v. L&H Packing Co., 108 F.3d 621, 624 n.7 (5th Cir. 1997). Here,

Jenkins has not done so, thus his race and gender discrimination claims are DISMISSED.

C. ADEA and TCHRA Claims for Age Discrimination

The ADEA4 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 prima facie case 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. App’x

596, 600 (5th Cir. 2015). “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

4 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).

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) (Boyle, J.) (internal quotations and citation omitted). 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)).

Here, Jenkins has adequately pleaded that he was qualified for the position of Supervisor

II, but his Amended Complaint fails to plead any facts showing that the City’s decision to not

promote him was because of or motivated by his age. Instead, Jenkins pleads that “[t]he panel

interview ratings demonstrate that but for the lower ratings by . . . Curry, . . . Jenkins would have

been awarded at least one of the available positions.” Doc. 21, Compl., ¶ 56(e) (emphasis omitted).

While Jenkins may plead his claims in the alternative, nowhere in his Complaint does he provide

any facts suggesting that his age, not Curry’s alleged bias, was the but-for cause, or a motivating

factor, of the denial of the promotion.

This failure ultimately makes Jenkins’s ADEA claim implausible. See Chhim, 836 F.3d at

470 (holding a plaintiff need not state a prima facie case to state a claim but must allege “sufficient

facts on all of the ultimate elements . . . to make his case plausible”). The Amended Complaint

must provide the Court a reasonable basis to infer the denial of the promotion was based on age to

survive a motion to dismiss. See Leal, 731 F.3d at 413 (reversing a dismissal of plaintiff’s claims

despite the “admittedly bare allegations” because the plaintiff sufficiently pleaded he was not

promoted because of his age by alleging one of the officials with decision-making authority over

the selection, Salinas, said that the department needed “new blood”). Without such a basis,

Jenkins’s age discrimination claim is DISMISSED.

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

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

activity, (2) an adverse employment action occurred, and (3) 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 a 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) (Brown,

J.) (citing Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)). 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. Id. (citing Watts v. Kroger

Co., 170 F.3d 505, 512 (5th Cir. 1999)).

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)).

The Court previously dismissed Jenkins’s retaliation claim for failure to establish a causal

connection between Jenkins’s protected activity and the City’s decision to not promote him to

Supervisor II. Jenkins’s claims fail for the same reason now. Again, Jenkins’s grievance and the

incident where Curry “yelled at [him] and promised [him] that he would make sure Jenkins ‘never’

got a promotion” occurred seven years ago. See Doc. 21, Am. Compl., ¶ 33. As stated previously,

this temporal proximity alone cannot establish a causal connection. See Garvin, 391 F. Supp. 3d at

653 (finding a one-year gap alone between protected activity and an adverse employment action

was insufficient to satisfy a causal connection at the pleading stage). And Jenkins has not pleaded

that the City departed from any policies or procedures during the interview process. Cf. id. (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 while Jenkins has established he was qualified for the Supervisor II position, see supra

Section III.B, the Court still cannot plausibly find his employment record “does not support the

adverse action.” See id. Jenkins has alleged several incidents that could support the City’s decision

to not promote him. For instance, Jenkins himself admits he has applied to “approximately 85

openings with the City of Dallas” and never received an interview. Doc. 21, Compl., ¶ 20. He also

admits he received a temporary promotion but “was eventually denied the promotion opportunity

to the position he held on a temporary basis.” Id. ¶ 38. Finally, Jenkins admits he received a

suspension from the City “regarding his use of City issued pepper spray.”5 Id. ¶ 25(l). Given these

alleged facts, the Court cannot reasonably draw the inference that Jenkins’s employment record

did not support the City’s denial of the promotion. “[W]ithout other evidence of retaliation,” the

Court cannot conclude a causal connection exists between the City’s decision to not promote

Jenkins and his protected activity, which occurred seven years prior. See Feist, 730 F.3d at 454

(stating a five-month lapse between the protected activity and adverse action without further

evidence cannot support a causal connection). For these reasons, Jenkins’s retaliation claim is

DISMISSED.

E. Leave to Amend

Jenkins does not request leave to amend his pleadings in his Response. See Doc. 25, Resp.

However, under the Federal Rules of Civil Procedure, the Court should freely give leave to amend

when justice so requires. Fed. R. Civ. P. 15(a)(2). The decision to allow amendment of a party’s

pleadings is within the sound discretion of the district court. Foman v. Davis, 371 U.S. 178, 182

(1962); Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).

In determining whether to allow such amendment, a court considers the following: “undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance

of the amendment, [and] futility of amendment.” Foman, 371 U.S. at 182; accord Schiller v.

Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation omitted).

5 Jenkins claims he filed a grievance regarding “the false accusations, untrue statements, and

misrepresentation of the facts within the City’s suspension,” but he does not deny the suspension occurred.

See Doc. 21, Am. Compl.,¶ 25(l).

Here, the Court finds that it is in the interest of justice that Jenkins be given one additional

opportunity to plead his claims. Accordingly, the Court GRANTS LEAVE to Jenkins to file an

amended complaint. The amended complaint must be filed within TWENTY-ONE DAYS of the

date of this Order.

IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the City’s Motion to Dismiss (Doc. 22).

Jenkins’s claims are DISMISSED WITHOUT PREJUDICE. The Court GRANTS LEAVE for

Jenkins to file an Amended Complaint within TWENTY-ONE DAYS of this Order to remedy

the pleading defects identified.

SO ORDERED.

SIGNED: May 17, 2023.

tl

NITED WATES DISTRICT JUDGE

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