Davis v. CenterPoint Energy, Inc

Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT March 13, 2025

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

KRYSTLE DAVIS, §

Plaintiff, □

VS. § CIVIL ACTION NO. 4:24-cv-1019

CENTERPOINT ENERGY, INC.,

Defendants. . □

ORDER

Pending before this Court is CenterPoint Energy’s (“Defendant” or “CenterPoint”) Motion

to Dismiss. (Doc. No. 3). Plaintiff Krystle Davis (“Plaintiff’ or “Davis”) responded in opposition,

(Doc. No. 6), to which Defendant replied, (Doc. No. 8). Having considered the motion and the

applicable law, the Court GRANTS the motion as to Plaintiff’s Texas Labor Code claim and

§ 1981 Retaliation claim, which are hereby DISMISSED, but DENIES the motion as to

Plaintiff’s. § 1981 Race Discrimination claim. (Doc. No. 3).

I. Background

Plaintiff, an individual of African American descent, filed this suit against her former

employer for racial discrimination. (Doc. No. | at 1). Plaintiff alleges that, because of her race, she

was subjected to unfair treatment and a systemic pattern of harassment and hostility by her

supervisor at CenterPoint Energy. (Doc. No. 6 at 1-2). According to her Complaint, this racially

discriminatory conduct culminated in several unfounded disciplinary hearings and, eventually, her

termination. (Id. at 2).

Plaintiff began working at CenterPoint in November 2019 as a Utility Agent. (/d.). She

alleges that throughout her employment she was treated more harshly, given fewer opportunities,

and disciplined more severely than similarly situated, non-African American colleagues. (Jd).

Plaintiff alleges that she raised concerns on several occasions about operations and systems

efficiencies to her supervisor who then allegedly retaliated through disciplinary actions and

artificially lowering her customer satisfactions scores. (Doc. No. 1 at 10). In February 2022,

Plaintiff alleges that she began meeting with a department manager to discuss the treatment by her

supervisor, but that the meetings only led to more significant harassment and unfair treatment.

(Doc. No. 6 at 2). Finally, Plaintiff alleges she was terminated due to her complaints and grievances

with her supervisor and other managers. (/d.).

Plaintiff brought this suit claiming damages for racial discrimination-under 42 U.S.C.

§ 1981, retaliation under 42 U.S.C. § 1981, and racial discrimination under Texas Labor Code

§ 21 201-202. (Doc. No. 1). Defendant filed a Rule 12(b)(6) motion to dismiss on several grounds.

(Doc. No. 3). First, Defendant argues that Plaintiff’s racial discrimination claim under § 1981 must

be dismissed because she has failed to allege a legally sufficient comparator who was treated

differently under similar circumstances. (Id. at 4). Second, Defendant argues that Plaintiffs

retaliation claim must be dismissed because she did not allege that she complained to CenterPoint

about the racial discrimination. (Id at 6). Third, and finally, Defendant argues that Plaintiff did not

exhaust her administrative remedies, and thus her Texas Labor Code claim is barred. (/d. at 8).

Il. Legal Standard

A defendant, or Plaintiff who is the subject of a counterclaim, may file a motion to dismiss

a complaint for “failure to state a claim upon which relief may be granted.” FED. R. Civ. P. 12(6)(6).

To defeat a motion to dismiss under Rule 12(b)(6), 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).

“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.” Ashcroft v.

Igbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). “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.” Jd. (quoting Twombly, 550 U.S. at 556). “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.’” Jd. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mut. Auto. Ins. Co., 609 F.3d 673, 675 (Sth Cir, 2007). The court is not bound to accept factual

assumptions or legal conclusions as true, and only a complaint that states a plausible claim for

relief survives a motion to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual

allegations, the court assumes their veracity and then determines whether they plausibly give rise

to an entitlement to relief. Id.

II. Analysis

A. Section 1981 Racial Discrimination Claim

Plaintiff’s first claim is for racial discrimination under 42 U.S.C. § 1981. This section

prescribes an independent cause of action against private employers for discrimination on the basis

of race. Section 1981(a) states:

All persons within the jurisdiction of the United States shall have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give

evidence, and to the full and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and shall be subject to like

punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no

other.

42 U.S.C. § 1981(a). Section 1981(b), in turn, defines the phrase “make and enforce contracts” as

“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(b). In

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short, the statute serves to protect against racial discrimination for certain enumerated activities.

While the remedies spawning from liability are somewhat different under the two statutes, the □

Fifth Circuit has held that the “analysis of a discrimination claims under § 1981 is identical to the □

analysis of Title VII claims.” Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386

(5th Cir. 2017). .

To establish a § 1981 claim for contractual discrimination, Plaintiffs must allege that (1)

they are a member of a racial minority; (2) Defendants intended to discriminate on the basis of

and (3) the discrimination concerned one or more of the activities enumerated in the statute—

here, making a contract. Body by Cook, Inc., 869 F.3d at 386. Although “naked allegation[s]” of

discriminatory intent are too conclusory to survive a motion to dismiss, discriminatory motive may

be—and commonly is—demonstrated by circumstantial evidence. Body by Cook, 869 F.3d at 386-

87; Bellows, 118 F.3d at 274. An allegation that similarly situated non-minorities received better

treatment “could create the necessary inference and set the predicate for establishing the section

1981 claim.” See Crosby v. Kilgore, 9 F.3d 104, 1993 WL 481800, at *1 (Sth Cir. 1993).

(unpublished); cf Lindsay v. Yates, 498 F.3d 434, 439-40 (6th Cir. 2007) (holding that plaintiffs-

purchasers pleaded a § 1981 claim by alleging that (1) sellers advertised their house for sale; (2)

plaintiffs signed a purchase agreement and made deposit; and (3) sellers terminated the contract

three weeks after signing agreement and one day after agent learned buyers were black). Body by

Cook, 869 F.3d at 386-87.!

The question before this Court is whether Plaintiff has alleged facts to plausibly set outeach

of the three elements. The first element is not contested—Plaintiff pleaded that she is African

American, and Defendant concedes as much. See (Doc. No. 6 at 5). Similarly, Defendant does not

Accordingly, at the pleading stage, a plaintiff need not plead a prima facie case under the framework

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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challenge the third element—Plaintiff’s employment, though at will, is protected from racially

discriminatory action by § 1981. The second element, however, is hotly contested.

Defendant argues that Plaintiff has failed to allege facts that plausibly demonstrate different

treatment with someone similarly situated outside of the protected class. (Doc. No. 6 at 5). To state

a claim, Plaintiff must allege that a similarly situated employee was not only treated more

favorably, but treated more favorable in nearly identical circumstances. Okoye v. Univ. of Tex.

Hous. Health Sci. Center, 245 F.3d 507, 514 (Sth Cir. 2001).

Plaintiff points to her allegations that an employee named “Amanda,” a non-African

American Sales Team Lead, was given a verbal warning for the exact same conduct that led to

Plaintiff receiving “a final write-up.” (Doc. No. 1 at 10). Defendant contends that this allegation,

without more context regarding “Amanda’s” comparative seniority, responsibilities, and

disciplinary history, is inadequate. (Doc. No. 6 at 5). Plaintiff contends that she adequately sets out

the conduct for which she was disciplined and provides an example of a non-African American

Sales team lead who was not written up for the same conduct.

While Plaintiff’s allegations are by no means overly specific, the Court construes the

allegations about “Amanda” within the context of other allegations—namely, Plaintiffs claim that

this disparate treatment occurred with other co-workers as well. Specifically, Plaintiff states that

the conduct subject to the write-up “was an issue with several agents across the board, and the

other agents received a verbal warning, and Ms. Davis was given a final write-up instead of a

verbal warning... .” (Doc. No. 1 at 10). Additionally, Plaintiff pleaded that the racial nature of

her differential treatment was further implied by the fact that she was replaced immediately by a

non-African American sales agent. (Doc. No. 1 at 14).

At this stage, the Court must take all plausibly pleaded allegations as true and grant

inferences for the Plaintiff. Ashcroft, 556 U.S. at 678. As such, the Court finds that the allegations

about the supervisor’s treatment of Amanda, a similarly situated comparator, combined with the

immediate replacement of Plaintiff with a non-African American, are sufficient.to establish an

inference of racial discrimination. As Plaintiff has pleaded sufficient allegations to establish the

second element, and the first and third elements are not challenged, Plaintiff has adequately

pleaded her racial discrimination claim. On this claim the motion to dismiss is DENIED.

B. Section 1981 Retaliation Claim

The elements of a § 1981 retaliation claim are: (1) that the plaintiff engaged in activities

protected by § 1981; (2) that an adverse action followed; and (3) a causal connection between the

protected activities and the adverse action. Body by Cook, 869 F.3d at 390 (citing Foley v. Univ. of

Hous. Sys., 355 F.3d 333, 339, 340 n.8 (Sth Cir. 2003)). While Defendant does not concede that

the second and third elements are met, Defendant’s motion to dismiss attacks the first element

exclusively. (Doc. No. 3 at 6-7).

Defendant argues that Plaintiff's Complaint fails to plead a retaliation claim because it

contains no factual allegations showing that Plaintiff alerted CenterPoint employees of the

unlawful discrimination she claims. (Doc. No. 3 at 7). Further, Defendant contends that Plaintiff’s

alleged complaints of unfair treatment do not satisfy this requirement because her grievances did

not set out a racial basis for that mistreatment. (/d.). Plaintiff contends that the complaints and

grievances she filed are sufficient to establish opposition to the discriminatory treatment. (Doc.

No. 6 at 7-8).

An employee engages in a protected activity under Section 1981 when “he has opposed

any practice made unlawful by [Title VII].” 42 U.S.C. § 2000e-3(a). In other words, to qualify as

a protected activity, the employee's conduct must have “opposed” the employer's practice, and that

opposed practice must have been unlawful. Scott v. U.S. Bank Nat'l Ass'n, 16 F.4th 1204, 1209 (Sth

Cir. 2021), as revised (Nov. 26, 2021).

Plaintiff’s Complaint does not set out sufficient factual allegations to establish that her

complaints and grievances opposed the unfair treatment on the grounds that it was racially

discriminatory. Plaintiff provides several examples of complaints she made regarding her

supervisor’s conduct but none of them seem to have been about race. For example, Plaintiff

describes a meeting with an Human Resources representative that she requested to complain that

her supervisor wrote her up for being late when her shift had not yet started. (Doc. No. 1 at 7).

When describing what she communicated to the HR representative, Plaintiff says that she was

“singled out due to her being vocal about other concerns prior to the incident. . . .” (d.). Based on

the Court’s reading, in context this seems to refer to prior concerns Plaintiff raised regarding “a lot

of systems issues, and customers [] calling in to complain about their appointments being

rescheduled for service repairs.” (Doc. No. | at 4). Plaintiff describes that she raised these concerns

to her supervisor who was then dismissive of her ideas to resolve the issues. (/d. at 5).

The next alleged occurrence described by Plaintiff was a meeting with her department

manager to address concerns that her supervisor was refusing to correctly record Plaintiff's

customer scores. (/d. at 8). Plaintiff alleges that she stated she “wasn’t being treated fairly.” (/d.).

These were the only allegations that Plaintiff claims to have raised issues with Defendant, and in

neither instance did Plaintiff allege that her supervisor’s unfair treatment was based on racial

discrimination or because she had complained of discriminatory conduct.

At this stage, Plaintiff does not have to adequately plead that the actions she protested were

racial discrimination. Scott, 16 F.4th at 1210. Plaintiff does, however, have to plead that she did

protest what she believed to be racial discrimination. Jd. Here, Plaintiff adequately pleads that she

protested unfair treatment but does not seem to have conveyed any belief or notice to Defendant’s

employees that her mistreatment was based on racial discrimination. Rather, Plaintiff’s first

formalized complaint to HR explicitly stated that she believed the unfair treatment was “due to her

being vocal about other concerns prior to the incident. .. .” (Doc. No. 1 at 7). Theoretically, the

referenced “other concerns prior” could have been allegations of racial discrimination, but Plaintiff

does not plead that.

. Plaintiff fails to provide sufficient factual allegations to establish that she was fired for

opposing unfair treatment that was based on racial discrimination. Instead, Plaintiff pleaded that

she was fired for protesting unfair treatment based on instances in which she raised concerns about

systems and operations failures. This is insufficient to establish a retaliation claim under § 1981.

On this claim, the motion to dismiss is GRANTED, and Plaintiffs retaliation claim is

DISMISSED without prejudice.

C. Texas Labor Code Claim for Racial Discrimination

To bring a claim under Chapter 21 of the Texas Labor Code, a claimant must first exhaust

her administrative remedies with the Texas Workforce Commission. See TEX. LAB. CODE § 21.201;

Hoffman-La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 446 (Tex. 2004). One aspect of this

administrative compliance is that “a complaint under this subchapter must be filed not later than

the 180th day after the alleged unlawful employment practice occurred.” TEX. LAB. CODE

§ 21.202. While the 180-day requirement found in § 21.201 is not jurisdictional, it is mandatory.

Hinkley v. Envoy Air, Inc., 968 F.3d 544, 553 (Sth Cir. 2020). The timeline of relevant events as

Plaintiff alleges is as follows:

(1) October 12, 2022 — Plaintiff is terminated from CenterPoint.

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(2) In early December 2022, Plaintiff “opened a claim with the EEOC.”

(3) On April 13, 2023, Plaintiff was denied unemployment benefits.

(4) On April 19, 2023, Plaintiff “submitted an appeal [of the denial] to the Texas Workforce

Commission.

(5) On May 17, 2023, Plaintiff dual-filed a charge of discrimination with the EEOC and

Texas Workforce Commission against Defendant for racial discrimination.

(Doc. No. 1 at 3; 13). The two charges of discrimination filed on May 17, 2023, were 217 days □

after the alleged discriminatory termination. Thus, the question for the Court is whether any of

Plaintiff’s actions prior to that date constitute “a complaint under [TEX: LAB. CODE § 21.202].”

Plaintiff claims that her Texas Labor Code claim should not be dismissed because her

EEOC intake questionnaire, filed in early December of 2022, constitutes a charge. (Doc. No. 6 at

9). An EEOC complaint of employment discrimination is sufficient to satisfy the 180-day filing

requirement and avoid the time bar. Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 502-03

(Tex. 2012). Further, an EEOC questionnaire can satisfy the requirements of § 21.202, but only

“when it can 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.’” Yeh

Chesloff, 483 S.W.3d 108, 114 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (citing

Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)).

Following Holowecki, the EEOC changed the intake form to require employees to clearly

express their intent by checking one of two boxes. Brahmana v. Lembo, No. C-09-00106 RMW,

2010 WL 965296, at *1 (N.D.Cal. Mar. 17, 2010). An intake questionnaire that has a checked Box

1, next to the statement “I want to file a charge of discrimination, and I authorize the EEOC to

look into the discrimination I described above,” qualifies as a “charge.” Henderson v. Bank of Am.,

N.A., Civ. Action No. 2:14-cv—895, 2015 WL 2374519, at *2 (E.D. Tex. May 15, 2015); Crevier—

Gerukos v. Eisai, Inc., Civ. Action No. H-11—0434, 2012 WL 681723, at *8 (S.D. Tex. Feb. 29,

2012) (citing additional unpublished cases in support of proposition). On the other hand, an intake

questionnaire that has a checked Box 2, next to the statement “I want to talk to an EEOC employee

before deciding to file a charge of discrimination,” and “I understand that by checking this box, I

have not filed a charge with the EEOC”. does not constitute a charge. See Lugo—Young v. Courier

Network, Inc., No. 10-CV—3197 (RRM)(LB), 2012 WL 847381, at *6 (E.D.N.Y. Mar. 13, 2012)

(holding that, based on plain language in Box 2, plaintiff's intake questionnaire could not be

construed as timely EEOC charge); see also Hawthorne v, Vatterott Educ. Ctrs. Inc., No. 099-CV—

442-TCKPIC, 2010 WL 3258560, at *4 (N.D. Okla. Aug. 17, 2010) (indicating that employee

could lose rights by checking second box).

Plaintiff’s Complaint does not even allege that a questionnaire was filled out, merely that

she “opened a claim” with the EEOC. (Doc. No. 1 at 13). Nevertheless, presuming that “opened a

claim” means filling out a questionnaire, there is no basis for the Court to infer whether Plaintiff

chose “Box 1” or “Box 2.” In fact, Plaintiff's Response in Opposition to the Motion to Dismiss

acknowledges that the Complaint does not allege that any box was checked and offers to file a

Freedom of Information Act request to determine which box Plaintiff selected. (Doc. No. 6 at 11).

Also complicating things for Plaintiff is the fact that she pleaded her May 17, 2023 appointment

with the EEOC was “to finalize the filing of her EEOC charge.” (Doc. No. | at 13). Logically,

Plaintiff cannot now say that her December 2022 questionnaire served as an official complaint,

(Doc. No. 6 at 10), after originally pleading that six months later she “finalize[d] the filing of her

EEOC charge” in May of 2023. (Doc. No. 1 at 13). Thus, Plaintiff failed to properly plead the

satisfaction of her administrative obligations. On this claim, the motion to dismiss is GRANTED,

and Plaintiff’s Texas Labor Code claim is therefore DISMISSED without prejudice.

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IV. Conclusion

For the foregoing reasons, the Court GRANTS the Motion to Dismiss the § 1981

Retaliation claim and Texas Labor Code claim and DENIES the motion as to Plaintiff’s § 1981

Racial Discrimination claim. Therefore, Plaintiff’s § 1981 Retaliation claim, and Texas Labor

Code claim are DISMISSED without prejudice.

.

Signed on this day of March KS | |

Andrew S. Hanen

United States District Judge

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