LaRocca v. Alvin Independent School District

UNITED STATES DISTRICT COURT February 28, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

GALVESTON DIVISION

LISA LAROCCA, §

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Plaintiff. §

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V. § CIVIL ACTION NO. 3:20-cv-00134

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ALVIN INDEPENDENT SCHOOL §

DISTRICT §

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Defendant. §

MEMORANDUM AND RECOMMENDATION

Before me is Alvin Independent School District’s Motion to Dismiss

Plaintiff’s Second Amended Complaint Pursuant to Rule 12(b)(1) & (6) (“Motion to

Dismiss”). See Dkt. 51. Having considered the motion, the relevant case law, and

the parties’ oral arguments, I recommend the Motion to Dismiss be DENIED.

BACKGROUND

Plaintiff Lisa LaRocca (“LaRocca”) is an American citizen of Italian descent.

From 2015 to 2019, she worked for Alvin Independent School District (“AISD”) as

a teacher. In her Second Amended Complaint, LaRocca brings, in effect, three

causes of action. First, LaRocca claims AISD discriminated against her on the basis

of her national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title

VII”). Second, LaRocca claims AISD retaliated against her on the basis of her

national origin in violation of Title VII. Third, LaRocca claims AISD violated

Section 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”) and Title II

of the Americans with Disabilities Act (“ADA”) by retaliating against her for

opposing AISD’s alleged “violations of special education law and the failure of

AISD to comply with the requirements of state and federal law relating to children

with disabilities.” Dkt. 48 at 17–18. AISD has moved to dismiss LaRocca’s claims

for failure to exhaust administrative remedies with the Equal Employment

Opportunity Commission (“EEOC”) and failure to state a claim.

LEGAL STANDARDS

A. FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

When evaluating a motion to dismiss for failure to state a claim, a court

accepts “all well-pleaded facts as true and view[s] those facts in the light most

favorable to the plaintiff.” Cummings v. Premier Rehab Keller, P.L.L.C., 948 F.3d

673, 675 (5th Cir. 2020) (quotation omitted). “To survive a motion to dismiss, a

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

to relief that is plausible on its face.” Id. (quotation omitted). Under this standard,

a district court must demand “more than a sheer possibility that a defendant has

acted unlawfully. Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and plausibility

of entitlement to relief.” Id. (quotations omitted). Dismissals under Rule 12(b)(6)

are “disfavored.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003).

In ruling on a motion to dismiss, my “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).

B. TITLE VII EXHAUSTION REQUIREMENT

“Before filing a claim under Title VII in federal court, plaintiffs must first

exhaust their administrative remedies by filing a charge of discrimination with the

[EEOC] within a statutorily mandated time period.” Wiggins v. Golden Corral

Corp., 802 F. App’x 812, 814 (5th Cir. 2020) (quotation omitted). “Administrative

exhaustion for Title VII claims is mandatory (but not jurisdictional), and courts

will dismiss claims not properly exhausted.” Id. (cleaned up).1 To determine

1 AISD’s Motion to Dismiss also references Rule 12(b)(1), which allows a party to challenge

the district court’s exercise of subject matter jurisdiction. Rule 12(b)(1) is inapplicable

here. “Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U.S.C.

§ 1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional

whether a claim has been presented to the EEOC that satisfies the exhaustion

requirement, a district court asks not only what is included in “the scope of the

administrative charge itself, but [also] the scope of the EEOC investigation which

can reasonably be expected to grow out of the charge of discrimination.” Melgar v.

T.B. Butler Publ’g Co., 931 F.3d 375, 379 (5th Cir. 2019) (quotation omitted).

ANALYSIS

A. LAROCCA HAS STATUTORY STANDING TO BRING CLAIMS UNDER THE

REHABILITATION ACT AND TITLE II OF THE ADA

AISD first argues that LaRocca lacks standing to bring a retaliation claim

under the Rehabilitation Act and Title II of the ADA. The ADA prohibits an

employer from “discriminat[ing] against any individual because such individual

has opposed any act or practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).

The Rehabilitation Act expressly incorporates the ADA “to determine whether [the

Rehabilitation Act] has been violated in a complaint alleging employment

discrimination.” 29 U.S.C. § 794(d).

AISD asserts that the Fifth Circuit has yet to recognize an individual’s ability

to bring a retaliation claim under these statutes “for advocating on behalf of a

separate protected individual.” Dkt. 51 at 15. AISD is correct. The Fifth Circuit has

provision. . . . [T]he Act’s charge-filing requirement[s] . . . do not speak to a court’s

authority, or refer in any way to the jurisdiction of the district courts.” Fort Bend Cnty. v.

Davis, 139 S. Ct. 1843, 1850–51 (2019) (cleaned up). As such, a Title VII claim should be

dismissed for failure to state a claim under Rule 12(b)(6) when a plaintiff fails to exhaust

administrative remedies. See Ganheart v. Brown, 740 F. App’x 386, 389 (5th Cir. 2018).

Similarly, AISD’s claim that LaRocca lacks a legislatively conferred cause of action under

the Rehabilitation Act and Title II of the ADA does not implicate subject matter

jurisdiction. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128

n.4 (2014); see also Simmons v. UBS Fin. Servs., Inc., 972 F.3d 664, 666 (5th Cir. 2020)

(“Unlike Article III standing, statutory standing is not jurisdictional. Instead, it asks the

merits question of whether or not a particular cause of action authorizes an injured

plaintiff to sue.” (quotation omitted)). “[A] dismissal for lack of prudential or statutory

standing is properly granted under Rule 12(b)(6).” Harold H. Huggins Realty, Inc. v.

FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011).

not addressed this issue. But numerous district courts—and three circuits—have

expressly held, in accordance with the statutory language, “that advocating for

members of a protected class is a protected activity for purposes of retaliation

claims” under the Rehabilitation Act and the ADA. Kirilenko-Ison v. Bd. of Educ.

of Danville Indep. Schs., 974 F.3d 652, 662 (6th Cir. 2020); see also Reinhardt v.

Albuquerque Pub. Schs. Bd. of Educ., 595 F.3d 1126, 1132 (10th Cir. 2010) (holding

that “advocacy on behalf of disabled students constitute[s] protected activity under

the Rehabilitation Act”); Barker v. Riverside Cnty. Off. of Educ., 584 F.3d 821, 826

(9th Cir. 2009) (remarking that “empathetic people who teach and interact

frequently with the disabled are those most likely to recognize their mistreatment

and to advocate on their behalf” in holding that teachers advocating for disabled

students was a protected activity under the Rehabilitation Act). AISD points to no

contrary case law and offers no reason why I should disregard that all circuits to

have considered the issue have held that advocating for the rights of disabled

students constitutes protected activity under the Rehabilitation Act and the ADA.

Because I am convinced that the Fifth Circuit, once confronted with this issue, will

reach a similar conclusion as its sister circuits, I reject AISD’s standing argument.

B. EXHAUSTION OF ADMINISTRATIVE REMEDIES

1. There Is No Requirement to Exhaust Administrative Remedies

under the Rehabilitation Act or Title II of the ADA

AISD argues LaRocca failed to exhaust her retaliation claim under the

Rehabilitation Act and the ADA. This argument is dead on arrival. The Fifth Circuit

has repeatedly held that there is no exhaustion requirement under the

Rehabilitation Act for claims against a federal grantee, like AISD. See Taylor v.

City of Shreveport, 798 F.3d 276, 284 (5th Cir. 2015); Prewitt v. U.S. Postal Serv.,

662 F.2d 311, 314 (5th Cir. Unit A Nov. 1981). Because Title II of the ADA adopts

the “the remedies, procedures, and rights as set forth in [the Rehabilitation Act],”

42 U.S.C. § 12133, there is also no exhaustion requirement under Title II of the

ADA. See Meriweather v. ABC Training/Safety Council Tex. Gulf Coast Chapter,

No. 3:15-cv-862, 2016 WL 8711726, at *3 (N.D. Tex. Oct. 24, 2016) (“Unlike Title

I, neither Title II nor Title III of the ADA requires that a plaintiff file an

administrative complaint with the EEOC or otherwise exhaust state or federal

administrative remedies before filing a lawsuit.”).

2. LaRocca Has Exhausted Her Administrative Remedies for

Her Title VII National Origin Discrimination Claim

AISD next argues that LaRocca failed to exhaust her Title VII national

original discrimination claim prior to filing this lawsuit.2 In evaluating the

exhaustion issue, I must decide whether LaRocca’s national origin discrimination

claim could “reasonably be expected to grow out of” the factual allegations asserted

in her EEOC charge. Melgar, 931 F.3d at 379.

On September 20, 2019, LaRocca submitted an EEOC Form 5 Charge of

Discrimination, which included a two-page Addendum describing the particulars

of her discrimination claim (“the Charge”). LaRocca checked the following boxes:

DISCRIMINATION BASED ON (Check appropriate box(es) )

[ x] RACE [| COLOR [ x] SEX [| RELIGION [| NATIONAL ORIGIN

RETALIATION [ x] AGE [| DISABILITY [| GENETIC INFORMATION

[| OTHER (Specify)

Dkt. 51-1 at 2. Notably, LaRocca did not check the national origin box, even though

a lawyer prepared and submitted the Charge on her behalf. See id. LaRocca argues

her failure to check the national origin box is not fatal to her national origin claim

because the Charge contains factual allegations implicating a national origin claim.

Specifically, LaRocca contends that her statements that she is an “American female

of Italian de[s]cent” and that “Alvin ISD discriminated against [her] by treating

2 To be clear, LaRocca has asserted both a national origin discrimination claim and a

national origin retaliation claim in this action. The Fifth Circuit has held that LaRocca

exhausted her administrative remedies for her retaliation claim. See LaRocca v. Alvin

Indep. Sch. Dist., No. 21-40043, 2022 WL 1001442, at *3 (5th Cir. Apr. 2, 2022).

[her] unfavorably because of [her] race and ethnicity” are sufficient to exhaust her

administrative remedies. Id. at 4.

The Charge does not allege facts sufficient to implicate a national origin

claim. Of note, LaRocca does not discuss or identify her national origin in the

paragraph where she uses the term “ethnicity.” Indeed, LaRocca only mentions

that she is an “American female of Italian de[s]cent” in the first sentence of the

Addendum, and certainly never links that heritage to AISD’s alleged misbehavior.

Id. In the sole paragraph of the Charge where LaRocca uses the term “ethnicity,”

she asserts that AISD discriminated against her because of her New York and

Brooklyn mannerisms—not because of her Italian heritage. Overall, nothing

suggests the national origin discrimination claim asserted in this lawsuit could

reasonably be expected to grow out of the factual allegations asserted in the

Charge.

But my inquiry does not end there. LaRocca argues I must also look at an

“EEOC Claim Form” she submitted to the EEOC on September 5, 2019, roughly

two weeks before she filed the Charge.3 The EEOC Claim Form is a six-page

document prepared and signed by LaRocca’s counsel, providing information

related to LaRocca’s claims of discrimination. In that document, LaRocca’s counsel

clearly checked a box complaining of discrimination based on national origin:

Discrimination based on national origin:

National Origin Discrimination

National Origin Discrimination & Work Situations

National Origin & Harassment

National Origin & Employment Policies/Practices

3 AISD asserts that I should not consider the EEOC Claim Form because it is not

referenced in Second Amended Complaint. This argument falls on deaf ears because the

EEOC Claim Form is, in fact, mentioned in LaRocca’s live pleading. LaRocca specifically

alleges that her national origin discrimination “claim was presented to the EEOC in a

claim form.” Dkt. 48 at 16.

Dkt. 30-1 at 18.

LaRocca maintains the EEOC Claim Form should be treated as part of her

charge of discrimination, and that by checking the “[d]Jiscrimination based on

national origin” box, she has exhausted her administrative remedies. AISD, on the

other hand, insists the EEOC Claim Form should not be considered part of

LaRocca’s administrative charge.

In Federal Express Corp. v. Holowecki, the United States Supreme Court

held that “a filing [with the EEOC] is to be deemed a charge” if it both satisfies the

regulatory requirements of a charge and may “be reasonably construed as a request

for the agency to take remedial action to protect the employee’s rights or otherwise

settle a dispute between the employer and the employee.” 552 U.S. 389, 402

(2008). One of the regulatory requirements of an EEOC charge is that it be

verified.4 See 29 C.F.R. § 1601.9. Although LaRocca’s EEOC Claim Form is signed

by her counsel, it is not verified as required by EEOC regulations. The Charge,

however, is verified.

Except for the lack of an initial verification, the EEOC Claim Form satisfies

the EEOC’s charge requirements because it “identif[ies] the parties” and

“describe[s] generally the action or practices complained of.” 29 C.F.R.

§ 1601.12(b). Because the EEOC Claim Form includes a sub-heading stating that it

is a “Charge of Discrimination,” it also may be reasonably interpreted as a request

for the EEOC to take remedial action on LaRocca’s behalf. Dkt. 30-1 at 18.

At first blush, LaRocca’s failure to verify the EEOC Claim Form could be

viewed as fatally defective. But the Fifth Circuit has addressed this exact situation:

that is, what happens when an initial unverified EEOC submission is followed by

an EEOC Form 5 Charge of Discrimination signed under penalty of perjury. See

EEOC v. Vantage Energy Servs., Inc., 954 F.3d 749, 756 (5th Cir. 2020). Noting

“Verified” means “sworn to or affirmed before a notary public, designated representative

of the [EEOC], or other person duly authorized by law to administer oaths and take

acknowledgements, or supported by an unsworn declaration in writing under penalty of

perjury.” 29 C.F.R. § 1601.3(a).

that the verification requirement is intended “to ‘protect[] employers from the

disruption and expense of responding to a claim unless a complainant is serious

enough and sure enough to support it by oath subject to liability for perjury,’” the

Fifth Circuit observed that this purpose “is not disturbed so long as the employee

verifies the claim ‘by the time the employer is obliged to respond to the charge.’”

Id. (quoting Edelman v. Lynchburg Coll., 535 U.S. 106, 113 (2002)). For that

reason, the Fifth Circuit held that a “later verification [in a EEOC Form 5] cures”

the employee’s failure to initially verify a submission “that qualifies as a charge.”

Vantage Energy Servs., 954 F.3d at 756; see also 29 C.F.R. § 1601.12(b) (“A charge

may be amended to cure technical defects or omissions, including failure to verify

the charge.”). Accordingly, LaRocca’s verification—via her attorney—of the Charge

should extend to the EEOC Claim Form, thus satisfying the verification

requirement, even though the EEOC Claim Form was not originally submitted to

the EEOC under oath. See Melgar, 931 F.3d at 380 n.4 (noting that a failure to sign

and verify an administrative charge “is not fatal in that the regulations allow

technical defects to be cured by filing an amended charge, and the amended charge

would relate back to the date the charge was first received”) (citing 29 C.F.R. §

1601.12(b)).

Having concluded that I may, indeed, review the EEOC Claim Form to

determine if LaRocca has exhausted her administrative remedies, I must now

examine whether that document put AISD on notice of “the existence and nature

of the charges against” it. EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984). I fully

recognize that the EEOC Claim Form is devoid of any substantive factual

allegations describing any national origin discrimination LaRocca encountered.

But, at the same time, “[b]y checking the [discrimination based on national origin]

box on her [EEOC Claim Form], LaRocca certainly put her employer on notice that

she was alleging” national origin discrimination. LaRocca, 2022 WL 1001442, at

*3. I acknowledge that the EEOC Claim Form and the Charge are inherently

inconsistent: the EEOC Claim Form indicates that LaRocca is pursuing a national

origin discrimination claim, while the Charge indicates that she is not pursuing a

national origin discrimination claim. Nevertheless, construing the scope of

LaRocca’s charge liberally, as I must, I conclude that her national origin

discrimination claim “could reasonably be expected to—and in fact did—grow out

of [her] charge of discrimination.” Patton v. Jacobs Eng’g Grp., 874 F.3d 437, 444

(5th Cir. 2017). Thus, LaRocca has properly exhausted her administrative remedies

for her national origin discrimination claim.

C. LAROCCA STATES A VIABLE CLAIM FOR RETALIATION UNDER TITLE VII,

THE REHABILITATION ACT, AND TITLE II OF THE ADA

AISD also argues that LaRocca has failed to plead factual allegations that

would support her retaliation claim under Title VII, the Rehabilitation Act, and

Title II of the ADA.

To establish a prima facie claim of retaliation under all three statutes,

LaRocca must plead that (1) she engaged in a protected activity; (2) she suffered

an adverse employment action; and (3) there was a causal link between the

protected activity and the adverse employment action. See January v. City of

Huntsville, 74 F.4th 646, 653 (5th Cir. 2023) (listing elements for a retaliation

claim under the Rehabilitation Act and Title II of the ADA); Fisher v. Lufkin Indus.,

Inc., 847 F.3d 752, 757 (5th Cir. 2017) (listing elements for a Title VII retaliation

claim).

1. Protected Activity Under the Rehabilitation Act and Title II

of the ADA

AISD asserts that LaRocca has not alleged a protected activity under the

Rehabilitation Act and Title II of the ADA. To engage in a protected activity under

the Rehabilitation Act or Title II of the ADA, LaRocca must have (1) opposed a

practice prohibited by the statutes; or (2) participated in any manner in a

proceeding under the statutes. See Haynes v. Penzoil Co., 207 F.3d 296, 299 (5th

Cir. 2000). LaRocca must also have had “at least a reasonable belief that the

practices she opposed were unlawful” under the Rehabilitation Act or Title II of the

ADA. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (quotation omitted).

“It is clear from the case law that protected activity does not include mere

assistance of special education students, but, rather, requires affirmative action in

advocating for, or protesting discrimination related to, unlawful conduct by

others.” Montanye v. Wissahickon Sch. Dist., 218 F. App’x 126, 131 (3d Cir. 2007);

see also Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (finding

that “protected conduct” contemplates such activity as “making complaints to

management,” “writing critical letters,” “protesting against discrimination,” and

“expressing support of co-workers”). “[A]ttempting to protect the rights of special

education students constitutes protected activity under the Rehabilitation Act [and

Title II of the ADA].” Reinhardt, 595 F.3d at 1132.

AISD argues that LaRocca’s allegations merely indicate that she assisted

special education students, as opposed to attempting to protect the rights of such

students. Not so. According to the Second Amended Complaint, LaRocca worked

as a teacher at Alvin High School during the 2018–2019 school year. In September

2018, LaRocca claims she twice discovered and reported errors in the special

education paperwork for many students. These errors, LaRocca avers, constituted

violations of special education laws. As a result of reporting this situation to her

superiors, LaRocca contends “the special education department became openly

hostile to” her and made false allegations that she threatened a co-worker. Dkt. 48

at 4. In October 2018, LaRocca alleges she was improperly denied access to

software necessary for her to do her job and ensure compliance with special

education laws. She also insists that she made a report about this access denial to

the school administration. In December 2018, after noticing that a special

education student’s Individual Education Plan was not being followed, as required

by federal law, LaRocca says she raised the issue with a senior member of the

school administration, but was summarily dismissed. All in all, LaRocca claims

that her efforts to ensure that AISD complied with federal special education laws

turned disastrous. Instead of thanking her for identifying areas of noncompliance

with special education laws and working to cure the deficiencies, LaRocca claims

AISD tried to get her fired, coerced her into resigning (before she retracted her

resignation), and then improperly removed her from Alvin High School. LaRocca

asserts that she was later vindicated when, in March 2019, the Texas Education

Agency found that Alvin High School was out of compliance with special education

laws.

As alleged in the Second Amended Complaint, LaRocca repeatedly

complained to AISD officials about the school district’s failure to comply with

special education laws. These alleged actions—challenging and reporting

violations of special education law—fall squarely within protected activity under

both the Rehabilitation Act and Title II of the ADA. Consequently, LaRocca has

adequately alleged that she engaged in protected activity.

2. Causal Connection

AISD also argues that LaRocca fails to sufficiently plead a causal connection

between the alleged protected activity and an adverse employment action. To

establish the requisite causal connection between the protected activity and the

adverse employment action, the United States Supreme Court has held that

LaRocca must show that “her protected activity was a but-for cause of the alleged

adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.

338, 362 (2013). “Often, events have multiple but-for causes.” Bostock v. Clayton

Cnty., 590 U.S. 644, 656 (2020). “So, for example, if a car accident occurred both

because the defendant ran a red light and because the plaintiff failed to signal his

turn at the intersection, we might call each a but-for cause of the collision.” Id.

“When it comes to Title VII, the adoption of the traditional but-for causation

standard means a defendant cannot avoid liability just by citing some other factor

that contributed to its challenged employment decision.” Id.

As far as her Title VII national origin retaliation claim is concerned, LaRocca

alleges in the Second Amended Complaint that she “encountered hostility from her

co-workers because of her Italian ethnicity.” Dkt. 48 at 2. When she complained

about how her co-workers treated her, LaRocca avers that AISD’s assistant

principal retaliated against her “by changing her job duties and assignments, as

well as imposing conditions on her that were not imposed on other employees.” Id.

at 17. “[A]ccept[ing] all well-pled facts as true” and “construing all reasonable

inferences in the complaint in the light most favorable to” LaRocca, as I am

required to do at this early pleading stage, I conclude that LaRocca’s allegations,

as set forth in the Second Amended Complaint, are sufficient to meet the but-for

causation standard. Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023). To the extent

AISD does not believe that LaRocca cannot satisfy the but-for causation standard,

it may move for summary judgment on that issue at the appropriate time.

The same is true for LaRocca’s retaliation claims under the Rehabilitation

Act and Title II of the ADA. As detailed above, LaRocca’s Second Amended

Complaint is replete with allegations that she reported violations of special

education law to AISD officials, and then those same officials retaliated against her

for making such reports. At this early juncture of the case, she has done more than

enough to meet her pleading burden on but-for causation.

D. LAROCCA STATES A VIABLE CLAIM FOR TITLE VII NATIONAL ORIGIN

DISCRIMINATION

Next, AISD asks me to dismiss LaRocca’s Title VII discrimination claim

based on her national origin, which she brings on separate theories of disparate

treatment and a hostile work environment. AISD argues that LaRocca has failed to

allege facts required to state a national origin discrimination claim under Title VII.

“[T]here are two ultimate elements a plaintiff must plead to support a

disparate treatment claim under Title VII: (1) an adverse employment action,

(2) taken against a plaintiff because of her protected status.” Cicalese v. Univ. of

Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019) (quotation omitted). To state

a claim for a hostile work environment, LaRocca must allege that she (1) belongs

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

harassment was based on her protected characteristic; (4) the claimed harassment

affected a term, condition, or privilege of employment; and (5) the employer knew

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

See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). For the

harassment to affect a term or condition of employment, the harassment “must be

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

and create an abusive working environment.” Lauderdale v. Tex. Dep’t of Crim.

Just., Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007) (cleaned up).

LaRocca easily satisfies her pleading burden at the motion to dismiss stage.

In the Second Amended Complaint, LaRocca explains that coworkers, both

superiors and equals, made derogatory remarks to her and about her based on her

Italian heritage. She describes repeated mocking of her Italian accent as severe and

pervasive. This discrimination, LaRocca continues, ultimately led to her

termination. In short, the live pleading sufficiently alleges that AISD knew of the

harassment and did not take any meaningful remedial action. Thus, this claim

should be permitted to proceed.

E. LAROCCA STATES A CLAIM FOR INJUNCTIVE RELIEF

In addition to monetary damages, LaRocca requests “equitable relief to

eliminate any negative job references from her record.” Dkt. 48 at 17, 19. AISD

argues LaRocca is barred from obtaining such injunctive relief because she

concedes that she is no longer employed by AISD. This argument is misplaced. The

fact that LaRocca no longer works for AISD is of no moment to her claim for

injunctive relief. A plaintiff “seeking injunctive relief must show a continuing or

threatened future injury to” herself. Stringer v. Whitley, 942 F.3d 715, 721 (5th Cir.

2019). LaRocca claims her request “to have adverse information expunged from

her record as a teacher . . . is necessary to purge the ongoing effects of AISD’s

violations of law.” Dkt. 52 at 10. For now, LaRocca has satisfied her pleading

burden and may proceed with her claim for injunctive relief. The merits of such a

claim will be addressed at a future date.

CONCLUSION

For the reasons discussed above, I recommend the Motion to Dismiss (Dkt.

51) be DENIED.

The parties have 14 days from service of this Memorandum and

Recommendation to file written objections. See 28 U.S.C. § 636(b)(1)(C); FED. R.

CIV. P. 72(b)(2). Failure to file timely objections will preclude appellate review of

factual findings and legal conclusions, except for plain error.

SIGNED this 28th day of February 2024.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE