Gardner-Douglas v. Tunsel

UNITED STATES DISTRICT COURT August 27, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

CYNTHIA GARDNER-DOUGLAS, §

Plaintiff, §

§

VS. § CIVIL ACTION NO. 4:23-CV-04207

§

WINNIE TUNSEL, et al., §

Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the Court is the Motion to Dismiss filed by Defendant Scott Hilsher.

(Dkt. 18). Having carefully reviewed the complaint, motion, response, and applicable law,

the Court GRANTS the motion and DISMISSES the case for the reasons explained below.

FACTUAL BACKGROUND1

This case arises from allegations of employment discrimination. Plaintiff Cynthia

Gardner-Douglas (“Gardner-Douglas”) proceeds pro se and in forma pauperis in this

action. For purposes of the Court’s consideration of the pending motion, the following

facts alleged in Gardner-Douglas’s complaint2 are taken as true. Gardner-Douglas was

selected to serve on the Harris County Appraisal Review Board (“ARB”) for a two-year

1 Plaintiff Cynthia Gardner-Douglas’s filings in this case are sometimes a little difficult to parse

and include several disjointed documents (e.g., copies of emails, portions of documents sent to or

received from the Texas Workforce Commission, and what appears to be a page from a manual).

As Gardner-Douglas is a pro se litigant, the Court liberally construes her pleadings. Haines v.

Kerner, 404 U.S. 519 (1972) (per curiam).

2 Gardner-Douglas initially filed a form complaint and later an amended complaint. (Dkts. 1, 14).

The Court considered both.

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term beginning January 2022. (Dkt. 14 at 1). During her time there, her peers were

assigned more work than she was and the ARB chairperson, Winnie Tunsel (“Tunsel”),

gave more work to those with whom she had personal relationships. (Dkt. 1 at 5). Gardner-

Douglas alleges she was terminated on June 17, 2023 “as a[] supposed case of identity

theft” but that the ARB denies she was terminated. (Dkt. 14 at 2, 4). She wrote an email

to Tunsel that day stating that there was never any mention of her being terminated or laid

off, that she was not sure if she was “being singled out based on a physical disability,”

and that she would not have applied for the ARB position if she felt she could not do the

job. (Dkt. 1-3 at 1; Dkt. 14 at 5). She applied for unemployment benefits following the

termination but was denied because Scott Hilsher (“Hilsher”)—a Senior Assistant Harris

County Attorney and General Counsel to the ARB—told the Texas Workforce

Commission that she had quit her job. (Dkt. 14 at 1, 4).

She filed a charge with the Equal Employment Opportunity Commission (EEOC)

on July 10, 20233. (Dkt. 18-1 at 8). The charge stated, in relevant part, that she was

“subjected to harassment and different terms and conditions of employment by Ms. Tunsel

. . . because of [her] disability;” she had been “openly discriminated against based on [her]

Disability;” “Ms. Tunsel[] discriminated against [her] being disabled . . . and showed

extreme favoritism on assigning ARB members to work”; and she has never been given

the opportunity to move up in positions as other members were. (Dkt. 18-1 at 8). It further

3 Although Gardner-Douglas alleges that to the best of her recollection, she filed the charge on

June 29, 2023 (Dkt. 1 at 5), the EEOC Charge of Discrimination shows it was digitally signed on

July 10, 2023. (Dkt. 18-1 at 8). In either case, she filed the EEOC charge several days after she

was allegedly terminated.

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stated that when she was terminated, she was “humiliated by the entire situation and

believe[d] this was done on purpose due to [her] disability.” (Dkt. 18-1 at 8). The EEOC

issued a Notice of Right to Sue on July 21, 2023. (Dkt. 1-2 at 1).

Gardner-Douglas alleges that she interacted often with Hilsher in the process of

being employed, during her employment, and following her employment. For example,

Hilsher emailed her a Memorandum of Understanding regarding the position, spoke at

several meetings and trainings, requested that she meet with him and send him “the

documents from Unemployment” following her termination, spoke with the EEOC

investigator, told the Texas Workforce Commission that she quit her job, and represented

Tunsel and the ARB when Gardner-Douglas appealed the Commission’s decision. (Dkt.

14 at 1–2, 4, 9, 14; Dkt. 22 at 1–2, 5–6, 10).

She states that Hilsher “has been the voice for ARB on behalf of Winnie Tunsel.”

(Dkt. 14 at 4). However, she also states that she has “never alleged that Scott Hilsher, was

involved or had knowledge in my accusations of discrimination based on my disability.”

(Dkt. 14 at 1). And she clarified in her response to Hilsher’s motion to dismiss that she

has “not accused Scott Hilsher of employment discrimination, nor any abuse to [her]

physically,” but that Hilsher “has knowledge of Winnie Tunsel's actions before and after

[her] termination on June 17, 2023” and that “[a]1l actions taken and decisions made have

been by Scott Hilsher, Winnie Tunsel, and I suspect one other person.” (Dkt. 22 at 1).

Gardner-Douglas brought this action for discrimination in her employment against

Hilsher pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112 to

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12117 (“ADA”), alleging that she was discriminated against based on her “disability or

perceived disability” through termination of her employment, unequal terms and

conditions of her employment, and retaliation. (Dkt. 1 at 3–4). She also appears to bring

state-law claims for bullying, favoritism, and harassment. (Dkt. 1 at 3). She named as

defendants Tunsel and Hilsher. (Dkt. 1 at 2). In his motion to dismiss, Hilsher argues that

Gardner-Douglas’s claims should be dismissed for several reasons,4 including because

she fails to state a claim under the ADA. The Court considers this argument below.

LEGAL STANDARD

I. Federal Rule of Civil Procedure 12(b)(6)

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading 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). A motion filed under Federal Rule of Civil Procedure 12(b)(6) tests a

pleading’s compliance with this requirement and is “appropriate when a defendant attacks

the complaint because it fails to state a legally cognizable claim.” Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001). A complaint can be dismissed under Rule

12(b)(6) if its well-pleaded factual allegations, when taken as true and viewed in the light

most favorable to the plaintiff, do not state a claim that is plausible on its face. Amacker v.

Renaissance Asset Mgmt., LLC, 657 F.3d 252, 254 (5th Cir. 2011); Lone Star Fund V

4 These include that Hilsher is not an “employer” under the ADA, that Gardner-Douglas failed to

exhaust her administrative remedies, and that Gardner-Douglas failed to file her ADA claims

within 90 days of receiving her notice of rights to sue from the EEOC. (Dkt. 18). Because the

Court finds that Gardner-Douglas fails to state a claim for disability-discrimination or retaliation

under the ADA, the Court need not reach these arguments.

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(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). As the Fifth Circuit

has further clarified:

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. This includes the basic requirement that the facts plausibly

establish each required element for each legal claim. However, a complaint is

insufficient if it offers only labels and conclusions, or a formulaic recitation of the

elements of a cause of action.

Coleman v. Sweetin, 745 F.3d 756, 763–64 (5th Cir. 2014) (quotation marks and citations

omitted).

Courts construe pleadings filed by pro se litigants under a less stringent standard of

review. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Under this standard, “[a]

document filed pro se is ‘to be liberally construed,’ Estelle [v. Gamble, 429 U.S. 97, 106

(1976)], and ‘a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94

(2007). Nevertheless, “[t]hreadbare 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)

(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (observing that courts

“are not bound to accept as true a legal conclusion couched as a factual allegation”); see

also Payton v. United States, 550 Fed. App’x 194, 195 (5th Cir. 2013) (affirming dismissal

of pro se complaint that “failed to plead with any particularity the facts that gave rise to

[the plaintiff’s] present cause of action”) (“[T]he liberal pro se pleading standard still

demands compliance with procedural standards.”).

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When considering a motion to dismiss, a district court generally may not go outside

the pleadings. Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir. 2010). The court’s

review is limited to the complaint; any documents attached to the complaint; any

documents attached to the motion to dismiss that are central to the claim and referenced by

the complaint; and matters subject to judicial notice under Federal Rule of Evidence 201.

Allen v. Vertafore, Inc., 28 F.4th 613, 616 (5th Cir. 2022); George v. SI Group, Inc., 36

F.4th 611, 619 (5th Cir. 2022); see, e.g., Robles v. Ciarletta, 797 F. App'x 821, 831 (5th

Cir. 2019) (district court properly considered body camera video and police report when

ruling on motion to dismiss where both pieces of evidence were referenced in complaint

and were central to plaintiff’s claims).

II. Section 1915

Under Section 1915, a district court “shall dismiss [a] case” brought by a plaintiff

proceeding in forma pauperis “at any time if the court determines that ... the action ... is

frivolous or malicious [or] fails to state a claim on which relief may be granted[.]” 28

U.S.C. § 1915(e)(2)(B); see also Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002);

Patel v. United Airlines, 620 Fed. App'x 352 (5th Cir. 2015). An in forma pauperis case

may be dismissed as frivolous if it lacks an arguable basis in law or fact. Newsome, 301

F.3d at 231. “A complaint lacks an arguable basis in law if it is based on an indisputably

meritless legal theory, such as if the complaint alleges the violation of a legal interest

which clearly does not exist.” Id.

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ANALYSIS

Gardner-Douglas has failed to state a claim under the ADA for disability

discrimination or retaliation, and thus her claims against Hilsher will be dismissed. Her

claims against Tunsel will be dismissed for the same reason.

III. Disability-Discrimination Claims

Gardner-Douglas has failed to state a claim against Hilsher for disability

discrimination under the ADA. Though she alleges that she was subject to different terms

and conditions in her employment than her peers and that she was terminated, she fails to

allege that she has a disability as defined by the ADA.

Under the ADA, it is unlawful for an employer to “discriminate against a qualified

individual on the basis of disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training, and other

terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “A claim of

discrimination under the ADA requires a plaintiff to allege a disability, that he was

qualified for his position, and that he suffered an adverse employment action because of

his disability.” Olivarez v. T-mobile USA, Inc., No. 20-20463, 2021 WL 1945680 (5th Cir.

May 14, 2021); Dabbasi v. Motiva Enterprises, L.L.C., 107 F.4th 500, 508 (5th Cir. 2024)

(“To establish a prima facie case of disability discrimination, [plaintiff] must demonstrate

‘(1) he has a disability, or was regarded as disabled; (2) he was qualified for the job; and

(3) he was subject to an adverse employment decision on account of his disability.’”

(quoting Caldwell v. KHOU-TV, 850 F.3d 237, 241 (5th Cir. 2017))). Thus, “[t]o plead a

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cause of action under the [ADA], a plaintiff must first plausibly allege he is disabled

within the meaning of that Act.’” Hughes v. Terminix Pest Control, Inc., No. 23-30617,

2024 WL 3440465, at *1 (5th Cir. July 17, 2024); Tyler v. La-Z-Boy Corp., 506 F. App'x

265, 267 (5th Cir. 2013) (“As a threshold requirement in an ADA claim, the plaintiff must,

of course, establish that he has a disability” (quoting Waldrip v. Gen. Elec. Co., 325 F.3d

652, 654 (5th Cir. 2003))).

That requires alleging the plaintiff (1) has an “impairment” that “substantially

limits” a “major life activit[y],” (2) has “a record of such an impairment,” or (3) is

“regarded as” having an impairment “whether or not the impairment limits or is perceived

to limit a major life activity.” 42 U.S.C. § 12102. “We assess whether a plaintiff had a

disability at ‘the time of the adverse employment action.’” Dabbasi, 107 F.4th at 508

(quoting Jennings v. Towers Watson, 11 F.4th 335, 344 (5th Cir. 2021)).

Physical or mental impairment means—(1) Any physiological disorder or

condition, cosmetic disfigurement, or anatomical loss affecting one or more body

systems, such as neurological, musculoskeletal, special sense organs, respiratory

(including speech organs), cardiovascular, reproductive, digestive, genitourinary,

immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) Any mental or

psychological disorder, such as an intellectual disability (formerly termed “mental

retardation”), organic brain syndrome, emotional or mental illness, and specific

learning disabilities.

29 C.F.R. § 1630.2. Major life activities “include, but are not limited to,” seeing, hearing,

walking, thinking, and “operation of a major bodily function.” 42 U.S.C. § 12102(2).

Gardner-Douglas has failed to allege an ADA claim based on an actual disability.

She has not sufficiently alleged that she has an impairment or a record of an impairment,

let alone one that substantially limits a major life activity. Although Gardner-Douglas

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several times states that she has a “disability,” nowhere in her initial complaint, amended

complaint, EEOC charge, or response to Hilsher’s motion to dismiss does Gardner-

Douglas name, identify, or describe her disability. The only insight Gardner-Douglas

provides is that the disability may be “physical.” (Dkt. 1-3 at 1). She also does not allege

that said disability affects any major life activity, including any of those that are

specifically listed in the ADA. She thus necessarily cannot allege that her disability

“substantially limits” any major life activity. Merely asserting that she has an unspecified

physical disability is insufficient to “plausibly allege” that she is disabled within the

meaning of the ADA. Hughes, No. 23-30617, 2024 WL 3440465, at *1; see, e.g., Aguirre

v. W.L. Flowers Mach. & Welding Co., No. CIV.A. C-11-158, 2011 WL 2672348, at *2

(S.D. Tex. July 7, 2011) (“Plaintiff's reference to a ‘medical condition’ that limited him

to working no more than forty-five hours per week does not adequately allege the

existence of a ‘disability’ as defined by the ADA, as it neither states the nature of the

impairment nor the manner in which Plaintiff's major life activities are substantially

limited.”); Norris v. Saafe House, No. 4:23-CV-752, 2023 WL 8456140, at *4 (S.D. Tex.

Dec. 6, 2023) (finding that plaintiff did not sufficiently allege nature of her disability—

and dismissing discrimination claim under the ADA—where plaintiff merely stated that

she was permanently disabled under the ADA and defendant was aware of her disability

at the time of hire but did not describe “the nature of her disability or her level of

impairment” anywhere in her complaint); Adamore v. Sw. Airlines Corp., No. CIV.A. H-

11-0564, 2011 WL 6301398, at *7 (S.D. Tex. Dec. 15, 2011) (dismissing ADA claim

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where plaintiff “summarily state[d] that she is disabled” but did “not identify her disability

and plead[ed] no facts linking her alleged disability to any mistreatment or lack of

accommodation”); St. v. Maverick Tube Corp., No. 4:15-CV-02736, 2016 WL 8711338,

at *6 (S.D. Tex. June 17, 2016), report and recommendation adopted, No. 4:15-CV-2736,

2016 WL 3948106 (S.D. Tex. July 19, 2016) (finding plaintiff had not alleged sufficient

facts to show that he had “a disability within the meaning of the ADA” where he did “not

claim that his injury is an impairment that ‘substantially limits’ a ‘major life activity;’ that

he ‘has a record of such impairment;’ or that he ‘is regarded as having such

impairment.’”).

Alleging that Hilsher discriminated against her because of her unspecified physical

“disability” is also not enough to state a “regarded as” ADA claim. Though the “regarded

as” definition of disability is broader than its counterparts, not every alleged “disability”

qualifies as an impairment under the ADA. For example, in Chancey v. BASF, the plaintiff

sued BASF for disability discrimination under the ADA on the theory that BASF

“regard[ed] him as if he had an ‘impaired immune system and an impaired respiratory

system.’” No. 23-40032, 2023 WL 6598065, at *1 (5th Cir. Oct. 10, 2023), cert. denied

sub nom. Chancey v. BASF Corp., 144 S. Ct. 1060 (2024). The Fifth Circuit explained

that it agreed with the district court’s holding that “merely being at risk of developing a

condition is insufficient to state a disability-discrimination claim under the ADA.” Id. at

2. In the same vein, the “definition of impairment does not include physical

characteristics, including eye color, hair color, left-handedness, height, or weight that is

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within a ‘normal range’ and is not the result of a physiological disorder.” E.E.O.C. v. Res.

for Hum. Dev., Inc., 827 F. Supp. 2d 688, 693–94 (E.D. La. 2011) (citing 29 C.F.R. §

1630.2(h)). Here, Gardner-Douglas’s conclusory allegations that she has a physical

disability is insufficient to satisfy Rule 8. Iqbal, 556 U.S. at 678 (“Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not

suffice.”).

Accordingly, the Court holds that Gardner-Douglas has failed to state a claim for

disability-discrimination under the ADA.

IV. Retaliation Claim

Gardner-Douglas also fails to state a retaliation claim under the ADA against

Hilsher.

“The ADA prohibits an employer from ‘discriminat[ing] against any individual

because such individual has opposed any act or practice made unlawful by [the ADA] or

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

an investigation, proceeding, or hearing under [the ADA].’” Lyons v. Katy Indep. Sch.

Dist., 964 F.3d 298, 303–04 (5th Cir. 2020) (alterations in original) (quoting 42 U.S.C. §

12203(a)). “To establish a prima facie case of unlawful retaliation under the ADA, the

plaintiff must show that: (1) she engaged in an activity protected by the ADA, (2) she

suffered an adverse employment action, and (3) there is a causal connection between the

protected activity and the adverse action.” Id. To demonstrate “a causal connection

between the protected activity and the adverse action[,] a plaintiff must demonstrate that

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the employer's decision ‘was based in part on knowledge of the employee's protected

activity.’” Id. at 305.

Though Gardner-Douglas lists retaliation as a cause of action, she alleges no facts

to support that claim. Specifically, she does not allege that she suffered an adverse

employment action with a causal connection to activity protected by the ADA. The most

detail she provides on this claim is that she was “reta[liated] against” “based on [her]

Disability.” (Dkt. 14 at 4). She does not state a claim that is plausible on its face. Amacker,

657 F.3d at 254.

But even if this Court assumes that Gardner-Douglas engaged in a protected activity

(i.e., filing an EEOC charge) and the adverse employment actions which she suffered were

her termination and different terms and conditions of her employment, her claim will still

fail because there is no causal connection between the protected activity and the adverse

employment action. Lyons, 964 F.3d at 304 (explaining that filing an EEOC charge is an

activity protected under the ADA). Gardner-Douglas asserts that she was subject to

different terms and conditions during her employment and that her employment was

terminated on June 17, 2023. But she did not file her EEOC charge until after the

termination of her employment (i.e., on July 10, 2023), which means that the protected

activity followed the adverse employment action—and thus that the protected activity did

not cause the adverse employment action. And, even assuming that the adverse

employment action was Hilsher lying to the Texas Workforce Commission about whether

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she quit her job, Gardner-Douglas has not alleged that that action was in any way connected

to her filing an EEOC charge, let alone that one had a causal connection with the other.

“Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of

entitlement to relief. Without some factual allegation in the complaint, it is hard to see how

a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of

the claim, but also ‘grounds’ on which the claim rests.” Twombly, 550 U.S. at 556 n.3.

Gardner-Douglas has failed to make the requisite showing on her retaliation claim.

V. Claims against Tunsel

Tunsel has not appeared in this lawsuit, and the Court examines whether Gardner-

Douglas’s claims against her are appropriately dismissed under 28 U.S.C. § 1915(e)(2)(B).

Gardner-Douglas brings the same causes of action against Tunsel and Hilsher. (Dkt. 1 at

3). She fails to state a claim against Tunsel for the same reasons she fails to state a claim

against Hilsher. Her claims against Tunsel are therefore dismissed under 28 U.S.C. §

1915(e)(2)(B) for failure to state a claim.

VI. Supplemental Jurisdiction

Gardner-Douglas appears to assert causes of action for bullying, favoritism, and

harassment under state law. (Dkt. 1 at 3). Having dismissed all federal causes of action in

this case, the Court will decline to exercise supplemental jurisdiction over Gardner-

Douglas’s state-law claims. Federal district courts have the discretion to decline to exercise

supplemental jurisdiction over state-law claims; that discretion is guided by the statutory

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factors set forth in 28 U.S.C. § 1367(c) and the common-law factors of judicial economy,

convenience, fairness, and comity. Mendoza v. Murphy, 532 F.3d 342, 346 (Sth Cir. 2008).

CONCLUSION

For the reasons stated above the Court finds that Hilsher’s Motion to Dismiss (Dkt.

18) is GRANTED, and Gardner-Douglas’s claims against Tunsel are DISMISSED under

28 U.S.C. § 1915(e)(2)(B). To the extent Gardner-Douglas brings state-law claims, her

claims are DISMISSED without prejudice.

SIGNED at Houston, Texas on August 27, 2024.

UNITED STATES DISTRICT JUDGE

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