Berry v. Tex. Woman's Univ.

Full title: D'ANDRE F. BERRY, Plaintiff, v. TEXAS WOMAN'S UNIVERSITY, ET AL.…

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

Date published: Mar 25, 2021

528 F. Supp. 3d 579 (E.D. Tex. 2021)

Opinion

CASE NO. 4:19-CV-00409-RWS-CAN

2021-03-25

D'Andre F. BERRY, Plaintiff, v. TEXAS WOMAN'S UNIVERSITY, et al., Defendants.

Kenneth Wayne Wigginton, Ken Wigginton, Attorney, Denton, TX, for Plaintiff. Andrea Leyva, Office of The Attorney General of Texas, Austin, TX, for Defendants.

ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE

Kenneth Wayne Wigginton, Ken Wigginton, Attorney, Denton, TX, for Plaintiff.

Andrea Leyva, Office of The Attorney General of Texas, Austin, TX, for Defendants.

ORDER

ROBERT W. SCHROEDER III, UNITED STATES DISTRICT JUDGE

Plaintiff D'Andre F. Berry ("Berry") asserts five claims in his live pleading. Docket No. 38. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Docket No. 40. The Magistrate Judge recommends granting in part and denying in part the motion. Docket No. 49 ("Report and Recommendation"). Berry filed an objection to the Report and Recommendation. Docket No. 50. The Magistrate Judge ordered Defendants to file a response, but Defendants declined to do so. Docket No. 51. The Court conducted a de novo review of the Magistrate Judge's findings and conclusions.

BACKGROUND

Berry originally filed his Complaint in the Eastern District of Texas on June 4, 2019. Docket No. 2. After the Court dismissed certain claims, Berry filed an Amended Complaint. Docket Nos. 37, 38. The live pleading asserts five claims: (1) under § 1983 for prospective relief against the Individual Defendants in their official capacities; (2) under § 1983 for monetary damages against the Individual Defendants in the individual capacities; (3) under Title VII against Defendant TWU; (4) under the FMLA for prospective relief against Defendant TWU and the Individual Defendants in their official capacities; and (5) under the FMLA for monetary damages against the Individual Defendants in their individual capacities. Docket No. 38. Defendants’ Second Motion to Dismiss asks the Court to dismiss Berry's claims for lack of subject-matter jurisdiction, qualified immunity, and failure to state a claim. Docket No. 40.

REPORT AND RECOMMENDATION

On February 22, 2021, the Magistrate Judge recommended the Court grant in part and deny in part Defendants’ Second Motion to Dismiss. Docket No. 49. Specifically, the Magistrate Judge recommends (1) Berry's § 1983 claims against the Individual Defendants in their individual capacities be dismissed with prejudice on the basis of qualified immunity; (2) Berry's § 1983 claim against the Individual Defendants in their official capacities as to Berry's requests related to reinstatement/rehire survive dismissal; (3) all other relief requested in connection with Berry's § 1983 claim against the Individual Defendants in their official capacities has already been dismissed or should be dismissed without prejudice as barred by Eleventh Amendment immunity; and (4) Berry's FMLA and Title VII claims remain.

Berry has raised a single objection to the Report and Recommendation. Berry objects to the recommendation for dismissal of his claims under 42 U.S.C § 1983 against the Individual Defendants in their individual capacities on the basis of qualified immunity. Notably, the Magistrate Judge explicitly declined to make a recommendation on Berry's FMLA claims related to qualified immunity because "the Individual Defendants do not move for dismissal of Plaintiff's FMLA claims based on qualified immunity[.]" Docket No. 49 at 18. But as to Berry's § 1983 claims, the Magistrate Judge detailed Berry's general allegations, lack of authority cited in his Rule 7(a) Reply, and failure "to delineate such specific, concrete facts or to provide precedent in the Supreme Court or this circuit that demonstrates the Individual Defendants’ conduct violated clearly established law." Id. at 18–20. For such reasons, the Magistrate Judge concluded that Berry failed to carry his burden of rebutting the Individual Defendants’ assertion of qualified immunity. Id. at 18–22.

DE NOVO REVIEW

1 After entry of the report, Berry timely filed an objection. Docket No. 50. As set forth supra, he raises a single objection: the Magistrate Judge incorrectly concluded that Berry "declined to delineate such specific, concrete facts or to provide precedent in the Supreme Court o[r] this circuit that demonstrates the Individual Defendants’ conduct violated clearly established law." Id. at 3. It is Berry's belief that he met his burden "in overcoming [the Individual Defendants’] defense of qualified immunity in their individual capacities under a Section 1983 claim." Id. at 3–4. In support, he points to the following allegations in his live pleading that (a) William Patten and Anthony Yardley were his "direct supervisors"; (b) Anthony Yardley "was the Director of Employee Relations, HR & Equity"; and (c) William Patten violated the FMLA Compliance Policy. Id. at 4. Thus, according to Berry, "Yardley and Patten, by virtue of their positions with TWU, and pursuant to the policies of TWU relating to the FMLA, would be well aware of [Berry's] FMLA protections, a statutory and constitutional right." Id. at 5. Berry points to no caselaw supporting his objection. And further his objection is devoid of any arguments about the remaining four Individual Defendants against whom this claim is asserted: Tomlinson, Benavides, Ramirez, and Sheeder. Dismissal as to these four Individual Defendants is warranted, and the Court addresses Berry's objection directed to Yardley and Patten.

234"To defeat a claim of qualified-immunity, the plaintiff has the burden to demonstrate the inapplicability of the defense." Mayfield v. Currie, 976 F.3d 482, 486 (5th Cir. 2020) (quoting McLin v. Ard, 866 F.3d 682, 689 (5th Cir. 2017) ). "The plaintiff must show ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.’ " Mayfield, 976 F.3d at 486 (quoting Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) ). A court has discretion as to "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

5678 The Court starts with the second prong—whether the right was clearly established. "The ‘clearly established’ prong is difficult to satisfy." Cunningham v. Castloo, 983 F.3d 185, 191 (5th Cir. 2020) (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019) ). "A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’ " Mullenix v. Luna, 577 U.S. 7, 11, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). Whether a right is clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Mullenix, 577 U.S. at 12, 136 S.Ct. 305 (quoting Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam)). Thus, a court should not "define clearly established law at a high level of generality." Mullenix, 577 U.S. at 12, 136 S.Ct. 305 (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). Merely referencing a constitutional or statutory right is not sufficient. Rather, a court "must frame the clearly established law question with specificity and granularity" because "the dispositive question is whether the violative nature of particular conduct is clearly established." Brown v. Tarrant Cty., Tex., 985 F.3d 489, 495 (5th Cir. 2021) (quoting Morrow, 917 F.3d at 874–75 ) (alterations omitted) (emphasis in original).

To reiterate, Berry argues "[a]ny reasonable official working for a university would understand or know of the existence of § 1983 and the FMLA," "the Individual Defendants’ actions were not objectively reasonable and that a reasonable official would understand that what they were doing violated Plaintiff's § 1983 and FMLA rights." Docket No. 43 at 20–21. Berry broadly points to accompanying allegations that two of the Individual Defendants were his supervisors, violated the FMLA Compliance Policy, and would have been aware of the FMLA protections.

9 But that is not enough. "[G]eneral propositions of law defined at ‘high levels of generality’ are insufficient to define clearly established law for purposes of defeating qualified immunity." Perniciaro v. Lea, 901 F.3d 241, 256 (5th Cir. 2018) (quoting al–Kidd, 563 U.S. at 742, 131 S.Ct. 2074 ) (alteration omitted). Indeed, the Fifth Circuit has continually warned lower courts not to define clearly established law too generally. See, e.g., Cunningham, 983 F.3d at 193 (reversing a district court's denial of qualified immunity because the court "defined clearly established law too generally for any controlling relevance in this case"); Garcia v. Blevins, 957 F.3d 596, 601 (5th Cir. 2020) (rejecting as too general the plaintiffs’ argument that there is a clearly established right "to be free from deadly force where he was not attempting to flee and did not pose an immediate threat to the officers, nor anyone else").

1011 Berry also points to no caselaw related to his claims under § 1983 and to support his objection. That presents a problem because it is his "burden to find a case in his favor that does not define the law at a ‘high level of generality.’ " Vann v. City of Southaven, Miss., 884 F.3d 307, 310 (5th Cir. 2018) (citing Cass v. City of Abilene, 814 F.3d 721, 732–33 (5th Cir. 2016) ). Without more, the Court is unable to discern "whether the violative nature of [this] particular conduct is clearly established." See Brown, 985 F.3d at 495 (emphasis added). This is because "clearly established law must be ‘particularized’ to the facts of the case." White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). Otherwise, a plaintiff "would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." White, 137 S. Ct. at 552 (citing Anderson, 483 U.S. at 639, 107 S.Ct. 3034 ).

Consider Bernabe v. Rosenbaum. There, the plaintiff sued an official under § 1983 and argued "it was clearly established that tasing someone who is not actively resisting arrest and unarmed violates the Fourth Amendment." No. 4:18-CV-00580-O, 2021 WL 1056453, at *10 (N.D. Tex. Mar. 18, 2021). The Northern District of Texas, reiterating that it is improper to define "clearly established law" at "a high level of generality," stated that the plaintiff "must point to case law clearly establishing Defendants acted unreasonably based on facts similar to the particular circumstances they faced—the use of a taser where a person suspected of a felony leads officers on an extended foot chase and ignores repeated warnings to stop and get to the ground." Id. (emphasis added). "Reciting an abstract right at a high level of generality will not suffice." Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir. 2017) (citing Anderson, 483 U.S. at 639–40, 107 S.Ct. 3034 ).

Berry's more "general proposition[s are] of little help in determining whether the violative nature of particular conduct is clearly established." McCreary v. Richardson, 738 F.3d 651, 656 (5th Cir. 2013) (quoting al–Kidd, 563 U.S. at 742, 131 S.Ct. 2074 ). Berry has failed to carry his burden; the Individual Defendants in their individual capacities are entitled to qualified immunity as to Berry's § 1983 claims. See generally Spivey v. Wilson, No. 5:17-CV-00094-RWS, 2019 WL 5095629, at *11 (E.D. Tex. Sept. 27, 2019) (concluding the defendants were entitled to qualified immunity when the plaintiff "failed to meet his burden of showing the violation of a clearly established right").

CONCLUSION

Having conducted a de novo review, the Court finds Berry's objection is without merit and OVERRULES it. The Court is also of the opinion that the findings and conclusions of the Magistrate Judge are correct. The Court hereby ADOPTS the Report and Recommendation of the United States Magistrate Judge (Docket No. 49) as the findings and conclusions of this Court. Accordingly, it is hereby

ORDERED that Defendants’ Second Motion to Dismiss (Docket No. 40) is GRANTED-IN-PART and DENIED-IN-PART, as follows:

(1) Berry's § 1983 claims against the Individual Defendants in their individual capacities are DISMISSED WITH PREJUDICE on the basis of qualified immunity;

(2) Berry's § 1983 claim against the Individual Defendants in their official capacities as to Berry's requests related to reinstatement/rehire remains;

(3) All other relief requested in connection with Berry's § 1983 claim against the Individual Defendants in their official capacities has already been dismissed or is DISMISSED WITHOUT PREJUDICE as barred by Eleventh Amendment immunity; and

(4) Berry's FMLA and Title VII claims remain.

It is further

ORDERED that, within fourteen days of the date of this Order, the Parties shall jointly submit a proposed scheduling order, exchange their initial disclosures, and communicate with the Magistrate Judge to schedule a management or scheduling conference.

So ORDERED and SIGNED this 25th day of March, 2021.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Texas Woman's University ("TWU"), Jason Tomlinson ("Tomlinson"), Lewis Benavides ("Benavides"), Anthony Yardley ("Yardley"), Rob Ramirez ("Ramirez"), Ward Sheeder ("Sheeder"), and William Patten's ("Patten") (collectively, "Defendants") "Amended Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6)" ("Second Motion to Dismiss") [Dkt. 40]. After reviewing the Second Motion to Dismiss [Dkt. 40], Plaintiff D'Andre F. Berry's ("Plaintiff") Response [Dkt. 43], Defendants’ Reply [Dkt. 44], Plaintiff's Sur-reply [Dkt. 45], Plaintiff's Rule 7(a) Reply [Dkt. 47], Defendants’ Response to Plaintiff's Rule 7(a) Reply [Dkt. 48], and all other relevant filings, the Court recommends the Defendants’ Second Motion to Dismiss [Dkt. 40] be GRANTED IN PART and DENIED IN PART , as set forth herein.

BACKGROUND

Plaintiff is a Texas resident who was employed by Defendant TWU as a Power Plant Operator at its Denton County, Texas campus until his employment was terminated on October 5, 2018 [Dkt. 38 at 1, 3]. The October 5, 2018 termination is the central focus of this matter, which Plaintiff contends gives rise to liability under 42 U.S.C. § 1983, the Family and Medical Leave Act ("FMLA"), and Title VII. Subsequent to his termination, Plaintiff filed the instant suit against Defendants in the Eastern District of Texas on June 4, 2019 [Dkt. 2 at 1]. On March 18, 2020, United States District Judge Robert W. Schroeder III adopted the undersigned's report and recommendation as to Defendant's First Motion to Dismiss, dismissing with prejudice five of Plaintiff's original claims:

(1) Plaintiff's § 1983 claim against TWU;

(2) Plaintiff's § 1983 claims seeking relief in the form of monetary damages against the Individual Defendants, in their official capacities;

(3) Plaintiff's FMLA claims seeking relief in the form of monetary damages against TWU and the Individual Defendants, in their official capacities;

(4) Plaintiff's § 1981 claims against TWU and the Individual Defendants; and

(5) Plaintiff's Title VII claims against the Individual Defendants.

[Dkt. 37].¹ Following dismissal of these claims, Plaintiff was afforded an opportunity to "amend his complaint to provide sufficient support for his remaining claims" [Dkt. 37 at 2].

1 Tomlinson, Benavides, Yardley, Ramirez, Sheeder, and Patten are hereinafter referred to as "the Individual Defendants" unless otherwise stated.

On April 17, 2020, Plaintiff filed his Amended Complaint—the live pleading [Dkt. 38]. Plaintiff's live pleading asserts five causes of action: (1) under § 1983 for prospective relief against the Individual Defendants in their official capacities; (2) under § 1983 for monetary damages against the Individual Defendants in the individual capacities; (3) under Title VII against Defendant TWU; (4) under the FMLA for prospective relief against Defendant TWU and the Individual Defendants in their official capacities; and (5) under the FMLA for monetary damages against the Individual Defendants in their individual capacities [Dkt. 38]. Plaintiff thus seeks prospective relief, economic damages, compensatory damages, punitive damages, equitable and injunctive relief, attorney's fees, and costs [Dkt. 38 at 3, 23-26].

Plaintiff pleads that he has satisfied all conditions precedent to suit, including filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), obtaining a right to sue letter from the EEOC, and filing this suit within ninety days of receiving notice of the right to sue [Dkt. 38 at 5]. Plaintiff further pleads he is an eligible employee under both the FMLA and Title VII, TWU is an employer, and the Individual Defendants were employed by TWU and "were in the supervisory and management hierarchy over him" [Dkt. 38 at 1, 14, 17]. More specifically, Patten was Plaintiff's direct supervisor and Supervisor of Power Plan Operations; Sheeder was Patten's direct supervisor and Assistant Director of Plant Utilities; Ramirez was Sheeder's direct supervisor and Director of the Physical Plant; and Tomlinson was Ramirez's direct supervisor and Associate Vice President, Facilities and Construction [Dkt. 38 at 1-2]. Separately, Yardley was Director of Employee Relations; Benavides was Yardley's direct supervisor and Senior Associate Vice President, Human Resources [Dkt. 38 at 1-2].

Generally, Plaintiff's live pleading alleges discrimination on the basis of race by imposing "more severe disciplinary sanctions on Plaintiff, who was a Black employee, for minor deviations from the work rules than they had on other non-Black employees" [Dkt. 38 at 2, 5]. According to Plaintiff, there were not "other similarly situated employees within the facility [who] were Black" [Dkt. 38 at 10]. Plaintiff further describes the restraint and denial of Plaintiff's FMLA rights as a result of Plaintiff causing "an inquiry by or against TWU's Facilities Administration" [Dkt. 38 at 2]. Plaintiff claims his "problems began when Patten was promoted over him as his supervisor," who "was less qualified for the position of Supervisor of Power Plant Operations [and] had less tenure" [Dkt. 38 at 5]. Plaintiff details how Patten subsequently "allowed a noose to be hung over the facility's restroom and joked about it," told Plaintiff "to clean the toilets and demanded to know whether [he] was even able to do that" even though Plaintiff had a "medical restriction limiting his physical ability," and photographed and recorded him at work [Dkt. 38 at 6]. For approximately three years prior to his termination, Plaintiff worked with TWU's human resources department, including Yardley, "complaining of the harassment he was receiving at the hands of Patten" [Dkt. 38 at 6]. After working with human resources, Patten's hostility toward Plaintiff increased as evidenced by Plaintiff's work assignments that were reduced "below his grade" [Dkt. 38 at 6]. Plaintiff claims he was ultimately terminated because of Patten's alleged ethnic animus and in retaliation for prosecuting his Title VII claims [Dkt. 38 at 10].

On August 29, 2018, while he was still employed by TWU, Plaintiff "submitted a leave request for September 21 and 22, 2018," which was denied with instructions to re-submit on two separate "blue slips" for each individual day requested off [Dkt. 38 at 7]. Plaintiff then failed to show up to work on September 21 and 22, 2018, apparently without first receiving approval, based on his perception of "Patten's practice of leave being allowed upon at least 15-day notice" [Dkt. 38 at 7]. Less than two weeks later, on October 5, 2018, Plaintiff's employment was terminated by Ramirez "with Sheeder accompanying him" [Dkt. 38 at 7]. The termination letter states Plaintiff "failed to follow vacation leave policy and that he acted with insubordination, neglecting his duties and leaving the facility uncovered" [Dkt. 38 at 7]. Plaintiff states his termination was pretextual and that his two leave requests for September 21 and 22, 2018, "provided enough information to place TWU and the Individual Defendants on notice of a probable basis for FMLA leave" [Dkt. 38 at 8]. Thus, Plaintiff contends "TWU, Yardley and Patten failed to comply with the operational requirements of FMLA" [Dkt. 38 at 8]. Plaintiff also contends TWU, Yardley, and Patten knew about Plaintiff's updated work restrictions; Patten was admonished about FMLA compliance regarding Plaintiff in 2017; Patten knew Yardley was speaking with Plaintiff regarding an update to Plaintiff's medical certification; and Patten and Yardley were in communication with Plaintiff regarding his work restrictions [Dkt. 38 at 9-10]. Thus, Plaintiff claims he was terminated from his employment in retaliation for his FMLA claim [Dkt. 38 at 10].

On May 1, 2020, Defendants filed their Second Motion to Dismiss—the instant motion [Dkt. 40]. Therein, Defendants generally argue the entirety of Plaintiff's claims should be dismissed under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction, for qualified immunity, and for failure to state a claim. Plaintiff filed a Response on June 1, 2020 [Dkt. 43], Defendants filed a Reply on June 23, 2020 [Dkt. 44], and Plaintiff filed a Sur-reply on June 30, 2020 [Dkt. 45]. On October 1, 2020, the Court ordered Plaintiff to file a Rule 7(a) reply addressing the Individual Defendants’ assertion of qualified immunity, stating, "Plaintiff has failed, at present, to clarify each Individual Defendants’ alleged conduct and respond with specific, concrete facts demonstrating each Individual Defendant is not entitled to a qualified-immunity defense" [Dkt. 46]. Thus, Plaintiff was instructed to

clearly plead the facts regarding each of the Individual Defendants’ personal involvement in the alleged violations of Plaintiffs’ constitutional rights under 42 U.S.C. § 1983, as well as all specific facts illustrating that each of the Individual Defendants, in their own right, failed to act reasonably in light of clearly established law with respect to each listed action.

[Dkt. 46 at 4]. Plaintiff filed his Rule 7(a) Reply on October 22, 2020 [Dkt. 47], and Defendants filed their Response to the Rule 7(a) Reply on October 26, 2020 [Dkt. 48]. The Second Motion to Dismiss is ripe for the Court's consideration.

APPLICABLE LEGAL STANDARD

Rule 12(b)(1)

Defendants move to dismiss Plaintiff's First Amended Complaint, in part, on Eleventh Amendment immunity grounds [Dkt. 40 at 12-15]. "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). A Rule 12(b)(1) motion to dismiss allows a party to challenge the exercise of the Court's subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). The Court will accept all "wellpleaded allegations in the complaint as true" and "construe those allegations in the light most favorable to the plaintiff." Truman v. United States , 26 F.3d 592, 594 (5th Cir. 1994). The party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss. Ramming , 281 F.3d at 161. Whether a government, its entities, or its representatives in their official capacity have immunity to suit presents a threshold, jurisdictional question that courts appropriately consider on a Rule 12(b)(1) motion. See Truman , 26 F.3d at 594. As such, the Court takes up Defendants’ assertion of Eleventh Amendment immunity first in its analysis herein.

Rule 12(b)(6)

Defendants further move to dismiss the remaining claims in Plaintiff's First Amended Complaint under Rule 12(b)(6) based on qualified immunity and failure to state a claim [Dkt. 40 at 15-25]. A Rule 12(b)(6) motion to dismiss argues that, irrespective of jurisdiction, the complaint fails to assert facts that give rise to legal liability of the defendant. See FED. R. CIV. P. 12(b)(6). The Federal Rules of Civil Procedure require that each claim in a complaint include a "short and plain statement ... showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). Each claim must include enough factual allegations "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the plaintiff's complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City of Aberdeen , 681 F.3d 215, 219 (5th Cir. 2012) (citation omitted). The Court may consider "the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint." Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 387 (5th Cir. 2010) (citation omitted). The Court must then determine whether the complaint states a claim for relief that is plausible on its face. Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ " Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (quoting FED. R. CIV. P. 8(a)(2) ) (alteration omitted).

In Iqbal , the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and disregard conclusory allegations, for they are "not entitled to the assumption of truth." Iqbal , 556 U.S. at 664, 129 S.Ct. 1937. Second, the Court "consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief." Id. "This standard ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or elements.’ " Morgan v. Hubert , 335 F. App'x 466, 470 (5th Cir. 2009) (citation omitted). This evaluation will "be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. "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. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Where, as here, the plaintiff also purports to assert claims under 42 U.S.C. § 1983, the complaint "must state specific facts, not simply legal and constitutional conclusions." Fee v. Herndon , 900 F.2d 804, 807 (5th Cir. 1990). EVIDENTIARY OBJECTION

Both Plaintiff and Defendants submit declarations—the Berry Declaration [Dkt. 43-1] and the Yardley Declaration [Dkt. 40-1]. These declarations are not relevant to the Court's analysis under 12(b)(1), so the Court must only determine whether the declarations can be considered under 12(b)(6).² The Parties predominantly raise the declarations in connection with Plaintiff's Title VII failure to promote claim. Accordingly, the Court takes up the declarations and corresponding objection to the Yardley declaration in the Title VII failure to promote section.

2 At the 12(b)(1) stage, a district court can dismiss a claim "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States , 74 F.3d 657, 659 (5th Cir. 1996) (quoting Voluntary Purchasing Groups, Inc. v. Reilly , 889 F.2d 1380, 1384 (5th Cir. 1989) ). The only issue that implicates the Court's subject-matter jurisdiction, and thus 12(b)(1), is Plaintiff's § 1983 claims against the Individual Defendants in their official capacities [Dkt. 40 at 13-15]. As the Court details infra , however, the Court finds it does not lack subject-matter jurisdiction over these claims because Plaintiff seeks reinstatement. The two declarations do not alter this analysis.

ANALYSIS

To reiterate, Plaintiff asserts five claims in his live pleading: (1) under § 1983 for prospective relief against the Individual Defendants in their official capacities; (2) under § 1983 for monetary damages against the Individual Defendants in the individual capacities; (3) under Title VII against Defendant TWU; (4) under the FMLA for prospective relief against Defendant TWU and the Individual Defendants in their official capacities; and (5) under the FMLA for monetary damages against the Individual Defendants in their individual capacities. Defendants contend each of these claims should be dismissed. The Court will discuss each in turn.

I. Plaintiff's § 1983 Claims Against the Individual Defendants

Section 1983 provides that any person who, under color of state law, deprives another of "any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. 1983. To state a claim under § 1983, a plaintiff must: "(1) allege a violation of rights secured by the Constitution or laws of the United States[;] and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Leffall v. Dallas Ind. Sch. Dist. , 28 F.3d 521, 525 (5th Cir. 1994).

i. Eleventh Amendment Immunity – Official Capacity

The Individual Defendants argue they are entitled to Eleventh Amendment immunity as to Plaintiff's § 1983 claim against them in their official capacities [Dkt. 40 at 13-15]. Plaintiff, pointing to the Court's instruction that he file an amended complaint and clarify the relief sought, specifically whether he seeks reinstatement, disagrees [Dkt. 43 at 16-19].

In the prior recommendation adopted by the District Court, the Court outlined "a request for reinstatement is sufficient to bring a case within the Ex parte Young exception to Eleventh Amendment immunity, as it is a claim for prospective relief designed to end a continuing violation of federal law." Nelson v. Univ. of Tex. at Dallas , 535 F.3d 318, 324 (5th Cir. 2008). And as set forth in the Court's prior report, "[t]he Eleventh Amendment bars claims against a state [or a state agency] brought pursuant to 42 U.S.C. § 1983." Byrum v. City of Plano , No. 4:11CV60, 2011 WL 2214004, at *1 (E.D. Tex. May 10, 2011) (citing Aguilar v. Tex. Dep't of Crim. Justice , 160 F.3d 1052, 1054 (5th Cir. 1998) ), report and recommendation adopted , No. 4:11CV60, 2011 WL 2224435 (E.D. Tex. June 7, 2011). However, as made clear by the Fifth Circuit in Nelson , prospective relief under § 1983 against a state official in his or her official capacity may proceed under the Ex Parte Young exception. 535 F.3d at 324. To properly assert an Ex Parte Young lawsuit, a lawsuit must: "(1) be brought against state officers who are acting in their official capacities; (2) seek prospective relief to redress ongoing conduct; and (3) allege a violation of federal, not state, law." Williams On Behalf of J.E. v. Reeves , 954 F.3d 729, 736 (5th Cir. 2020). As the Fifth Circuit has concluded, Ex parte Young is "an appropriate vehicle for pursuing reinstatement to a previous job position[.]" Corn v. Mississippi Dep't of Pub. Safety , 954 F.3d 268, 276 (5th Cir. 2020) ; see also Anderson v. Valdez , 913 F.3d 472, 479 (5th Cir. 2019).

In the February 28, 2020 Report and Recommendation, the undersigned noted there was "some confusion at present regarding whether Plaintiff in fact seeks prospective relief" because he simultaneously stated "his previous position is impractical and unworkable" and asserted an "action to reinstate Plaintiff and provide him access to promotion opportunities" [Dkt. 36 at 9]. Accordingly, the undersigned recommended Plaintiff "be afforded an opportunity to replead" but recommended dismissal of his § 1983 claim against TWU [Dkt. 36 at 9-10]. Now, Plaintiff's First Amended Complaint affirmatively pleads he seeks "prospective relief against the Individual Defendants in their official capacities" under § 1983 and seeks reinstatement to his prior position [Dkt. 38 at 11, 23]. Facially, Plaintiff's reinstatement claim is not barred by the Eleventh Amendment. See Jones v. Tex. Juvenile Justice Dep't , 646 F. App'x 374, 376 (5th Cir. 2016) (vacating the district court's judgment to the extent the district court dismissed the plaintiff's § 1983 claim seeking reinstatement against a state official in his official capacity); Anderson v. Tex. , No. 2:14-CV-426, 2015 WL 12942407, at *8 (S.D. Tex. 2015) (noting that a reinstatement request under § 1983 falls within the Ex Parte Young exception).

Defendants argue, notwithstanding Plaintiff's clarification, his request for reinstatement and leave is barred by his judicial admission in his earlier pleading that "reinstatement of Plaintiff in his previous position is impractical and unworkable" [Dkt. 40 at 13-14]. "A judicial admission is a formal concession in the pleadings or stipulations by a party or counsel that is binding on the party making them." Martinez v. Bally's Louisiana, Inc. , 244 F.3d 474, 476 (5th Cir. 2001). "Normally, factual assertions in pleadings and pretrial orders are considered to be judicial admissions conclusively binding on the party who made them." White v. ARCO/Polymers, Inc. , 720 F.2d 1391, 1396 (5th Cir. 1983) ; see also Zamorano v. Zyna LLC , No. SA-20-CV-00151-XR, 2020 WL 2316061, at *4 n.8 (W.D. Tex. May 11, 2020) (noting the same principle). But inconsistent pleadings do not constitute unequivocal judicial admissions. True Believers Ink 2, Corp. v. Russell Brands, LLC. , No. 4:18-CV-00432, 2019 WL 4039888, at *2 (E.D. Tex. Aug. 27, 2019). And "when a party has amended an earlier pleading, allegations and statements in earlier pleadings are not considered judicial admissions." Devore v. Lyons , No. 3:16-CV-01083-BN, 2016 WL 6277810, at *5 (N.D. Tex. Oct. 25, 2016) (declining to accept a statement in the original complaint as a judicial admission when the amended complaint was properly filed). The February 28, 2020 Report and Recommendation detailed Plaintiff's apparent inconsistent pleadings but afforded Plaintiff an opportunity to replead. Plaintiff now clarifies he seeks reinstatement in his properly filed amended complaint. Plaintiff's Amended Complaint entirely supersedes his prior complaint. Bosarge v. Mississippi Bureau of Narcotics , 796 F.3d 435, 440 (5th Cir. 2015). No judicial admission can be found here, and dismissal of Plaintiff's § 1983 claim seeking reinstatement on this basis is not warranted. See Devore , 2016 WL 6277810, at *5 (declining to accept a statement in the original complaint as a judicial admission when the amended complaint was properly filed).

Defendants further argue Plaintiff's requests for declaratory and injunctive relief are not limited to reinstatement, and that Plaintiff's requests for retroactive employment leave, for retroactive employment benefits, to "make whole the plaintiffs adversely affected," and an injunction are each barred by the Eleventh Amendment [Dkt. 40 at 14-15]. "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland , 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Upon a close review of Plaintiff's live pleading, Plaintiff asks the Court to order "the Individual Defendants in their official capacities to reinstate Plaintiff in his position"; enjoin the Individual Defendants "in their official capacities from engaging in any act of deprivation of civil rights employment discrimination, or retaliation against [Plaintiff] or his witnesses and other Black employees of TWU"; enjoin the Individual Defendants in their official capacities under 29 U.S.C. § 2617(1)(B) "to rehire the Plaintiff retroactive to his date of termination, to his position as Power Plant Operator or an equivalent position"; enjoin the Individual Defendants in their official capacities under 29 U.S.C. § 2617(1)(B) by directing them to "place Plaintiff on employment leave, retroactive for September 22, 2018"; and enjoin the Individual Defendants in their official capacities under 29 U.S.C. § 2617(1)(B) by ordering them "to reinstate all of Plaintiff's employment benefits, including, but not limited to, his health insurance, retroactive to his date of termination" [Dkt. 38 at 24-25].³ The Court retains jurisdiction over Plaintiff's claims properly characterized as prospective relief, including specifically Plaintiff's claim for reinstatement/rehire; but the Eleventh Amendment does shield the Individual Defendants in their official capacity from any claims for retrospective relief, including money damages, and also any claims for prospective relief that are "the functional equivalent of money damages, i.e. , it is measured in terms of a monetary loss resulting from a past breach of a legal duty[.]" Webster v. Bd. of Supervisors of Univ. of Louisiana System , No. 13-6613, 2015 WL 4459211, *8 (E.D. La. July 21, 2015) (quoting Summit Med. Assocs. P.C. v. Pryor , 180 F.3d 1326, 1337 (11th Cir. 1999) ) (internal quotation marks and alterations omitted). To that end, this Court has already dismissed each of Plaintiff's claims for money damages against the Individual Defendants in their official capacity [Dkt. 37 at 2]; and, to the extent Plaintiff's requested declaratory and injunctive relief is retroactive or retrospective and would result in an award of money damages, such claims are barred by Eleventh Amendment immunity and have previously been dismissed. In this same vein, if the "prospective relief" sought would result in an award of money damages against the Individual Defendants in their official capacities, it is also barred by the Eleventh Amendment. Thus, Plaintiff's requests to receive retroactive benefits or to be made whole are barred. In addition, to the extent Plaintiff seeks relief on behalf of other "plaintiffs," he lacks standing to pursue such request. See Kumar v. Frisco Indep. Sch. Dist. , 443 F. Supp. 3d 771, 781 (E.D. Tex. 2020) ("[A] litigant, ordinarily, ‘must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’) (quoting U.S. Dep't of Labor v. Triplett , 494 U.S. 715, 721, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) ); Jones v. Tyson Foods, Inc. , 971 F. Supp. 2d 671, 682 (N.D. Miss. 2013) ("Plaintiff has not demonstrated that any exception to the general prohibition against third-party standing would apply in this case.").⁴ Plaintiff may not assert any injunctive or other relief on behalf of others; Plaintiff may seek injunctive and declaratory relief, but only as proper prospective relief accompanying his request for reinstatement/rehire.

3 Of note is Plaintiff's assertion that the requested equitable relief is "mandatory" under the FMLA. 29 U.S.C. § 2617 states in relevant part: "Any employer who violates section 2615 of this title shall be liable to any eligible employee affected ... for such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). The same statute further provides that those employers who violate § 2615 "shall be liable to any eligible employee affected ... for damages equal to" certain "wages, salary, employment benefits, or other compensation[.]" Id. § 2617(a)(1)(A). "Although reinstatement is the preferred equitable remedy" for a FMLA violation, the Fifth Circuit has affirmed an award of front pay when the parties "stipulated that reinstatement was not feasible." Downey v. Strain , 510 F.3d 534, 544 (5th Cir. 2007). Courts have similarly awarded back pay under the FMLA. See, e.g., Roberson v. Iberia Comprehensive Cmty. Health Ctr., Inc. , No. 6:19-CV-00067, 2020 WL 1930467, at *15 (W.D. La. Apr. 21, 2020) ; Newcomb v. Corinth Sch. Dist. , No. 1:12-CV-00204-SA-DAS, 2015 WL 1505839, at *8 (N.D. Miss. Mar. 31, 2015) (characterizing § 2617 as "FMLA's back pay provision"). Upon the present briefing and at this stage, there is no basis for categorically dismissing Plaintiff's requested relief.

4 Notably, Plaintiff has also not filed a motion for class certification.

In sum, Defendants’ request to dismiss Plaintiff's § 1983 claim against the Individual Defendants in their official capacities as to Plaintiff's requests for reinstatement/rehire should be denied. Any requests for retroactive or retrospective relief, which would result in money damages, were previously dismissed by this Court and are not permitted to be reinvigorated. Any requests under § 1983 for prospective relief which are the functional equivalent of money damages must also be dismissed as barred by Eleventh Amendment immunity.

ii. Preemption by Title VII – Official and Individual Capacity

As an additional basis for dismissal of the § 1983 claims (as to both their official and individual capacities), the Individual Defendants argue Plaintiff's § 1983 claims are preempted by Title VII because the § 1983 claims rely "on the same set of facts and theory as his Title VII claims—discrimination on the basis of his race" [Dkt. 40 at 19]. Stated differently, the Individual Defendants assert that because Plaintiff's alleged constitutional violations arise out of the same facts as his employment discrimination claims, Title VII preempts his § 1983 claims. In support of this proposition, the Individual Defendants cite two cases from the Fifth Circuit. In the first, the Fifth Circuit concluded that "the rights created by section 704(a) [of Title VII] may not be asserted within the remedial framework of section 1983." Irby v. Sullivan , 737 F.2d 1418, 1428 (5th Cir. 1984). "Section 704(a) of Title VII prohibits an employer from acting against an employee in retaliation for the filing of a discrimination charge by the employee." Irby , 737 F.2d at 1425-26. In the second case, the Fifth Circuit said it held in Irby "that a violation of Title VII cannot support a § 1983 suit." Grady v. El Paso Cmty. Coll. , 979 F.2d 1111, 1113 (5th Cir. 1992). But the Fifth Circuit in recent years has made clear that a plaintiff may bring a Title VII action and also separately assert a § 1983 claim for violations of constitutional rights, illuminating the precise scope of Irby and preemption. Consider in Southard v. Texas Bd. of Criminal Justice , where the Fifth Circuit reaffirmed its prior decision in Johnston v. Harris Cty. Flood Control Dist. that when "unlawful employment practices encroach, not only on rights created by Title VII, but also on rights that are independent of Title VII, Title VII ceases to be exclusive." 114 F.3d 539, 549 (5th Cir. 1997) (quoting Johnston v. Harris Cty. Flood Control Dist. , 869 F.2d 1565, 1576 (5th Cir. 1989) ) (emphasis added). In doing so, the Southard Court rejected its prior, inconsistent holding that a § 1983 claim is preempted by Title VII because "the plaintiffs alleged the same conduct to support a claim under both statutes." 114 F.3d at 549-50. In other words, the Johnston rule controls when "the allegedly discriminatory conduct violated rights under Title VII and rights independent of Title VII, the same facts create[ ] claims under both remedies"—Title VII and § 1983. Id. at 549 (emphasis added). This principle was subsequently reaffirmed. See Evans v. City of Houston , 246 F.3d 344, 356 n.9 (5th Cir. 2001) (rejecting the district court's conclusion that Title VII preempted a claim under § 1983 because the Southard Court clarified the applicable law); Robertson v. Bd. of Sup'rs of Louisiana State Univ. Agric. & Mech. Coll. , 273 F.3d 1108 (5th Cir. 2001) ("Parker does not hold that Title VII is the exclusive remedy for race based employment discrimination."); Jones v. City of Port Arthur , No. 1:12-CV-287, 2012 WL 6853909, at *4-5 (E.D. Tex. Dec. 5, 2012) (discussing at length the Fifth Circuit precedent regarding the interaction between Title VII and 42 U.S.C. § 1983 ); Mangalvedkar v. Taylor, No. 4:14-CV-00493-ALM (E.D. Tex. Oct. 9, 2015), ECF No. 38 at 8-9, report and recommendation adopted , No. 4:14-CV-00493 (E.D. Tex. Oct. 29, 2015), (ECF No. 40).

Thus, the Individual Defendants’ request to dismiss Plaintiff's § 1983 claims on the basis that they are preempted by Title VII should be denied. See Zamora v. City of Houston , No. 4:07-CV-4510, 2008 WL 3852416, at *3 (S.D. Tex. Aug. 15, 2008) (citing Southard and concluding the plaintiffs, who were public-sector employees, satisfied their pleading requirements by asserting claims under both Title VII and § 1983 ); Sylvie v. City of Dallas , No. 3:01-CV-1549, 2002 WL 1155857, at *3 (N.D. Tex. May 29, 2002) (analyzing Southard and concluding the plaintiff "may assert causes of action under both Title VII and § 1983 against Defendants based upon the same set of facts and allegations of racial discrimination").

iii. Vicarious Liability – Official and Individual Capacity

The Individual Defendants also argue that Plaintiff's § 1983 claims as to certain defendants should be dismissed "because there is no vicarious liability" [Dkt. 40 at 19]. In support, Defendants cite two cases. In Coleman v. Houston Indep. Sch. Dist. , the Fifth Circuit concluded "individual liability under § 1983 may not be predicated on the vicarious liability doctrine of respondeat superior." 113 F.3d 528, 534 (5th Cir. 1997) (emphasis added). Next, in Doe v. Taylor Indep. Sch. Dist. , the Fifth Circuit stated, "supervisory officials may not be found vicariously liable for the actions of their subordinates under § 1983." 15 F.3d 443, 452 (5th Cir. 1994). It is unclear whether Defendants move for dismissal of both individual and official capacity claims, or only individual capacity claims based on vicarious liability; the Court addresses each.

The general propositions cited by Defendant as to respondeat superior are correct; it is well-settled that respondeat superior and other theories of vicarious liability do not apply to actions brought under § 1983. See Connick v. Thompson , 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011) (finding a municipality could not be held liable under § 1983 absent proof that its failure to adequately train its employees rose to the level of deliberate indifference to the rights of its citizens); Ashcroft v. Iqbal , 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (concluding government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior ). Thus, under § 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability; the doctrine of respondeat superior does not apply to such actions. See Carnaby v. City of Houston , 636 F.3d 183, 189 (5th Cir. 2011) (explaining that, under § 1983, a government official may be held liable solely for his own conduct). Only the direct acts or omissions of government officials, not the acts of subordinates, will give rise to individual liability under § 1983. As set forth more fully infra , the Court concludes that the Individual Defendants in their individual capacities are entitled to qualified immunity on Plaintiff's § 1983 claims; as such, these claims are subject to dismissal and the Court need not address vicarious liability as an additional basis for dismissal of the individual capacity claims against the Individual Defendants.

This leaves only consideration of the official capacity claims. The Western District of Texas previously considered an analogous scenario to that presented here. Bagwell v. Livingston , No. SA-15-CV-584-DAE-HJB, 2016 WL 393553 (W.D. Tex. Feb. 1, 2016). In Bagwell , the plaintiff asserted a § 1983 claim against the defendants in their official capacities only, seeking only declaratory and prospective injunctive relief. Id. at *1. These defendants, in reliance on the well-settled theory that vicarious liability did not apply to actions brought under § 1983, moved for dismissal. Id. The Court found the defendants could not avail themselves of this doctrine in their official capacities, stating "[a]s long as the relief sought against state officials in their official capacities is ‘declaratory or injunctive in nature and prospective in effect,’ a Section 1983 claim asserting a violation of the plaintiff's federal constitutional rights may proceed in federal court." Id . at *2 (quoting Nigen Biotech, L.L.C. v. Paxton , 804 F.3d 389, 394 (5th Cir. 2015) ) (emphasis added). This is precisely the relief Plaintiff seeks against the Individual Defendants in their official capacities [Dkt. 38 at 2]. Plaintiff's official capacity claims against the Individual Defendants under § 1983 survive dismissal.

As with Eleventh Amendment immunity and the application of Ex Parte Young , this same principle applies to official capacity claims under the FMLA. Houston v. Tex. Dep't of Agric. , No. H-18-4431, 2020 WL 6700615, at *3 (S.D. Tex. Oct. 12, 2020) (permitting a claim under the FMLA against a state official in his official capacity that seeks reinstatement, as such a claim "is not barred by the Eleventh Amendment because of the Ex Parte Young exception").

iv. Qualified Immunity – Individual Capacity

The Individual Defendants next argue they are entitled to qualified immunity in their individual capacity as to Plaintiff's § 1983 claims [Dkt. 40 at 15-19]. The Court expressly notes that the Individual Defendants do not move for dismissal of Plaintiff's FMLA claims based on qualified immunity; as such, the Court makes no findings related to qualified immunity herein on such claims. Plaintiff disagrees that the Individual Defendants are entitled to qualified immunity, generally arguing "[a]ny reasonable official working for a university would understand or know of the existence of § 1983 and the FMLA" and that the Individual Defendants did not act objectively reasonable because "a reasonable official would understand that what they were doing violated § 1983 and FMLA rights" [Dkt. 43 at 20-21]. Rather than provide any authority in support, Plaintiff merely reasserts allegations in his First Amended Complaint [Dkts. 43 at 21-24; 47 at 4-14]. The Individual Defendants rejoin that Plaintiff fails to carry his burden to rebut their qualified immunity defense [Dkts. 44 at 4-5; 48 at 2]. The Court agrees.

As already set forth in the Court's prior report, qualified immunity is a defense available to government officials in their individual capacities. Johnston v. City of Houston , 14 F.3d 1056, 1059 (5th Cir. 1994). It protects "government officials performing discretionary functions" from liability for civil damages so long as their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citing Procunier v. Navarette , 434 U.S. 555, 565, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978) ). Here, the Individual Defendants are entitled to qualified immunity unless Plaintiff can show "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Mayfield v. Currie , 976 F.3d 482, 486 (5th Cir. 2020) (quoting Whitley v. Hanna , 726 F.3d 631, 638 (5th Cir. 2013) ). A district court has discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). But if a court first determines that the right was not clearly established at the time of the challenged conduct, "a court should forebear resolving" whether the official violated a statutory or constitutional right. Brown v. Coulston , 463 F. Supp. 3d 762, 774 (E.D. Tex. 2020) (quoting Camreta v. Greene , 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ) (emphasis in original).

The Court begins with the second prong of the qualified-immunity analysis and considers "whether the law so clearly and unambiguously prohibited defendant's conduct that ‘every reasonable official would understand that what he is doing violates the law.’ " Coulston , 463 F. Supp. 3d at 773 (quoting Morgan v. Swanson , 659 F.3d 359, 371 (5th Cir. 2011) (en banc)) (emphasis in original) (alterations omitted). More specifically, under the "clearly established" standard for qualified immunity, there must be "controlling authority—or a ‘robust consensus of persuasive authority’—that defines the contours of the right in question with a high degree of particularity." Coulston , 463 F. Supp. 3d at 773 (quoting Morgan , 659 F.3d at 371-72 ). In other words, "existing precedent must have placed the statutory or constitutional question confronted by the official beyond debate." Sims v. Covington , No. H-14-2145, 2016 WL 3144158, at *4 (S.D. Tex. June 6, 2016) (quoting Mullenix v. Luna , 577 U.S. 7, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam)).

Plaintiff's claims against the Individual Defendants in their individual capacities appear to be rooted in the Fourteenth Amendment's Equal Protection Clause and in the FMLA [Dkts. 38 at 12-14; 43 at 21]. The Supreme Court has repeatedly urged courts "not to define clearly established law at a high level of generality." Mullenix v. Luna , 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Ashcroft v. al-Kidd , 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). Yet that is precisely what Plaintiff asks the Court to do here. Plaintiff merely generally alleges "[a]ny reasonable official working for a university would understand or know of the existence of § 1983 and the FMLA" and that the Individual Defendants did not act objectively reasonable because "a reasonable official would understand that what they were doing violated § 1983 and FMLA rights" [Dkt. 43 at 20-21]. Standing alone, this allegation is insufficient to overcome qualified immunity; as such, the Court ordered Plaintiff to file a Rule 7(a) Reply. Specifically, the Court warned Plaintiff that he "failed, at present, to clarify each Individual Defendants’ alleged conduct and respond with specific, concrete facts demonstrating each Individual Defendant is not entitled to a qualified-immunity defense" and thus ordered Plaintiff to file a Rule 7(a) Reply delineating how "each of the Individual Defendants, in their own right, failed to act reasonably in light of clearly established law" [Dkt. 46 at 3-4]. Despite this opportunity, Plaintiff declined to delineate such specific, concrete facts or to provide precedent in the Supreme Court or this circuit that demonstrates the Individual Defendants’ conduct violated clearly established law. Instead, Plaintiff merely recited the same factual allegations in his First Amended Complaint. See Bailey v. Mansfield Indep. Sch. Dist. , 425 F. Supp. 3d 696, 724 (N.D. Tex. 2019) ("[T]he [Rule 7(a)] reply must be tailored to the assertion of qualified immunity and fairly engage its allegations.") (quoting Schultea v. Wood , 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc)); Vincent v. City of Sulphur , 805 F.3d 543, 547 (5th Cir. 2015) ("Abstract or general statements of legal principle untethered to analogous or near-analogous facts are not sufficient to establish a right ‘clearly’ in a given context; rather, the inquiry must focus on whether a right is clearly established as to the specific facts of the case.").

In addition, the Fifth Circuit recently affirmed a district court's grant of summary judgment because the plaintiff "cited nary a pre-existing or precedential case," which "alone doom[ed] his case[.]" Vann , 884 F.3d at 310. Likewise, Plaintiff, despite more than one opportunity to do so, has pointed to no precedential case demonstrating a statutory or constitutional right that was clearly established and that was not defined at a high level of generality. See, e.g., Stephen v. Palestine Police Dep't , No. 6:18CV652, 2020 WL 2739887, at *9 (E.D. Tex. Jan. 27, 2020) (recommending the defendant be entitled to qualified immunity because the plaintiff only alleged, in a conclusory fashion, a violation of the Equal Protection Clause), report and recommendation adopted , No. 6:18-CV-00652, 2020 WL 2739606 (E.D. Tex. May 26, 2020) ; Bryant v. Tex. Dep't of Aging & Disability Services , 781 F.3d 764, 771 (5th Cir. 2015) (awarding a state official in her individual capacity qualified immunity for the plaintiff's FMLA claim when the plaintiff failed to cite "to a single judicial opinion holding that employees on FMLA leave have a right to be free from phone calls"); Harville v. Tex. A & M Univ. , 833 F. Supp. 2d 645, 655 (S.D. Tex. 2011) (awarding state officials qualified immunity in their individual capacities for the plaintiff's FMLA claim because the plaintiff did not "show that the defendants’ conduct violated a ‘clearly established federal right’ ").

For this reason, Plaintiff's § 1983 claims against the Individual Defendants in their individual capacities should be dismissed. See Coulston , 463 F. Supp. 3d at 777 (concluding the inability to identify precedent establishing the defendant's actions violated clearly established law doomed the plaintiff's case); Morris v. City of Fort Worth , No. 4:19-CV-638-A, 2020 WL 870228, at *4 (N.D. Tex. Feb. 21, 2020) ("Plaintiff has not made any attempt to show that the law as to use of the taser under similar circumstances was clearly established at the time the officers used the taser on her."); Shemwell v. Cannon , 352 F. Supp. 3d 690, 701 (N.D. Tex. 2019) (dismissing a § 1983 claim after noting the plaintiff has failed to present a case "where an officer acting under similar circumstances ... was held to have violated the Fourth Amendment by detaining or arresting a person similarly-situated to plaintiff").⁵ In sum, Plaintiff's § 1983 against the Individual Defendants in their individual capacities seeking monetary damages should be dismissed with prejudice.

5 As the Court noted in its order directing a Rule 7(a) Reply, a court can dismiss a claim following an order for a Rule 7(a) Reply "if the required detail was not forthcoming" [Dkt. 46 at 4]. See Reyes v. Sazan , 168 F.3d 158, 161 (5th Cir. 1999) ("Plaintiffs did not allege their claims against the supervisory defendants with particularity. Their pleading was little more than a bare conclusion, and the district court ... should first have ordered a reply, and if the required detail was not forthcoming, dismiss the complaint."). Plaintiff, despite this instruction, failed to plead with particularity.

II. Plaintiff's FMLA Claims Against TWU and Individual Defendants

Plaintiff seeks prospective relief under the FMLA against Defendant TWU and the Individual Defendants in their official capacities, as well as monetary damages under the FMLA for monetary damages against the Individual Defendants in their individual capacities. Defendants move for dismissal of Plaintiff's FMLA claims on two bases: (1) that Plaintiff has failed to adequately plead an interference claim and (2) that Plaintiff has failed to state an FMLA retaliation claim.⁶

6 Defendants do not move for dismissal of Plaintiff's FMLA claims against either TWU or the Individual Defendants in their official capacities on the basis of Eleventh Amendment immunity or qualified immunity. As already discussed, Eleventh Amendment immunity and the application of Ex Parte Young apply to official capacity claims under the FMLA. Houston v. Tex. Dep't of Agric. , No. H-18-4431, 2020 WL 6700615, at *3 (S.D. Tex. Oct. 12, 2020) (permitting a claim under the FMLA against a state official in his official capacity that seeks reinstatement, as such a claim "is not barred by the Eleventh Amendment because of the Ex Parte Young exception").

"The FMLA has two distinct sets of provisions, which together seek to meet the needs of families and employees and to accommodate the legitimate interests of employers." Elsensohn v. St. Tammany Parish Sheriff's Office , 530 F.3d 368, 372 (5th Cir. 2008) (per curiam) (internal quotation marks omitted). The first set of provisions are prescriptive and provide a series of substantive rights. See id. ; Hunt v. Rapides Healthcare Sys., LLC , 277 F.3d 757, 763 (5th Cir. 2001), abrogated on other grounds by Wheat v. Fla. Par. Juvenile Justice Comm'n , 811 F.3d 702 (5th Cir. 2016). "The FMLA allows eligible employees to take up to twelve weeks of leave in any one-year period to address a family member's or the employee's own serious health condition." Bryant v. Tex. Dep't of Aging & Disability Servs. , 781 F.3d 764, 768 (5th Cir. 2015) (citing 29 U.S.C. § 2612(a)(1)(C)-(D) ). Claims for violations of these prescriptive rights are brought under § 2615(a)(1), which makes it unlawful for an employer to interfere with, restrain, or deny the exercise or attempted right of FMLA rights. See Haley v. Alliance Compressor LLC , 391 F.3d 644, 649 (5th Cir. 2004).

The second set of provisions in the FMLA are proscriptive in nature and "bar employers from penalizing employees and other individuals for exercising their rights." Elsensohn , 530 F.3d at 372. "The proscriptive FMLA rights include an employee's right not to be discriminated or retaliated against for having exercised the right to take FMLA leave." Haley , 391 F.3d at 649. Claims for violations of these proscriptive rights are brought under 29 U.S.C. § 2615(a)(2). Id.

i. FMLA Interference

The "FMLA's interference provision makes it ‘unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,’ any substantive FMLA right." Stanton v. Jarvis Christian Coll. , 417 F. Supp. 3d 811, 826 (E.D. Tex. 2019) (quoting 29 U.S.C. § 2615(a)(1) ), report and recommendation adopted , No. 6:18-CV-00479-JDK, 2019 WL 6034975 (E.D. Tex. Nov. 13, 2019). To establish a prima facie case of interference under the FMLA, a plaintiff must show: "(1) [he] was an eligible employee; (2) [his] employer was subject to FMLA requirements; (3) [he] was entitled to leave; (4) [he] gave proper notice of [his] intention to take FMLA leave; and (5) [his] employer denied [him] the benefits to which [he] was entitled under the FMLA." Crankshaw v. City of Elgin , No. 1:18-CV-75-RP, 2019 WL 3883565, at *7 (W.D. Tex. Jan. 14, 2019) (quoting Caldwell v. KHOU-TV , 850 F.3d 237, 245 (5th Cir. 2017) ). Defendant focuses on Plaintiff's alleged failure to plead element four: proper notice. Defendants argue Plaintiff fails to state a claim for FMLA interference because Plaintiff calls for the Individual Defendants "to intuit that his request for time off was an FMLA request," which is insufficient [Dkts. 40 at 24; 44 at 8]. And that the "interference" alleged by Plaintiff's interference claim was an inability to recognize his leave as an FMLA event, which cannot survive dismissal [Dkt. 40 at 24]. Plaintiff, in response, contends Defendants were required to further inquire whether Plaintiff qualified for FMLA, that notice is a fact issue that precludes dismissal, and that failure to comply with the notice requirements interfered with his potential exercise of his FMLA rights [Dkt. 43 at 32-33].

The FMLA requires an employee seeking leave to provide enough information "sufficient to reasonably apprise [the employer] of the employee's request to take time off for a serious health condition." Satterfield v. Wal–Mart Stores, Inc. , 135 F.3d 973, 977 (5th Cir. 1998). Whether a plaintiff has provided "notice that is sufficient to reasonably apprise" the employer that his or "her request to take time off could fall under the FMLA" depends on "what is ‘practicable’ based on the facts and circumstances of each individual." Lanier v. Univ. of Tex. Sw. Med. Ctr. , 527 F. App'x 312, 316 (5th Cir. 2013). Indeed, there is no requirement that an employee explicitly state they request "FMLA leave." Id. As federal regulations delineate, "[a]n employee shall provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request." 29 C.F.R. § 825.303(b). Under certain circumstances, "[a]n employer may have a duty to inquire further if statements made by the employee warrant it[.]" Lanier , 527 F. App'x at 316. "While an employer's duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant." Miles-Hickman v. David Powers Homes, Inc. , 589 F. Supp. 2d 849, 874 (S.D. Tex. 2008) (quoting Satterfield , 135 F.3d at 980 ).

Plaintiff submitted a leave request for September 21 and 22, 2018, on August 29, 2018. And after those requests were denied, Plaintiff resubmitted the requests—one as a sick leave request and the other as vacation. Plaintiff does not plead that he requested FMLA leave. Rather, Plaintiff claims his two leave requests for September 21 and 22, 2018, combined with prior events, "provided enough information to place TWU and the Individual Defendants on notice of a probable basis for FMLA leave" [Dkt. 38 at 8]. More specifically, Plaintiff contends that, at the time of his August 29, 2018 request, TWU, Yardley, and Patten knew about Plaintiff's updated work restrictions; Patten was admonished about FMLA compliance regarding Plaintiff in 2017; Patten knew Yardley was speaking with Plaintiff regarding an update to Plaintiff's medical certification; and Patten and Yardley were in communication with Plaintiff regarding his work restrictions [Dkt. 38 at 9-10]. To be sure, an "employer is not required to be clairvoyant." Satterfield , 135 F.3d at 980 (quoting Johnson v. Primerica , No. 94 Civ.4869(MBM)(RLE.), 1996 WL 34148, at *5 (S.D.N.Y. Jan. 30, 1996) ). But "[t]he question of whether Plaintiff provided [his] employer with sufficient notice under the FMLA is more appropriately determined by summary judgment evidence." Ruiz v. Edcouch-Elsa Indep. Sch. Dist. , No. 7:13-CV-443, 2014 WL 1385877, at *4 (S.D. Tex. Apr. 9, 2014) (citing Miles–Hickman v. David Powers Homes, Inc. , 589 F. Supp. 2d 849, 873-74 (S.D. Tex. 2008) ). At the motion to dismiss stage, Plaintiff has plausibly pleaded notice. See Gonzalez , 577 F.3d at 603. The Court should deny Defendants’ Motion to Dismiss as to Plaintiff's FMLA interference claim.

ii. FMLA Retaliation

Regarding FMLA retaliation, Plaintiff alleges in his live pleading that he was retaliated against by being terminated after Defendants failed and refused "to recognize [his] FMLA rights" and "engage their HR authority to intervene to protect [his] rights" after he "prosecut[ed his] FMLA claims" [Dkt. 38 at 10, 22]. Defendants acknowledge Plaintiff was terminated but argue "Plaintiff has failed to allege he engaged in any protected activity under the FMLA because he failed to request FMLA" and "does not plead facts to support the causal link required for his [FMLA] retaliation claim" [Dkt. 40 at 24-25].

"Retaliation claims for exercising FMLA rights are subject to the McDonnell Douglas burden-shifting framework." Amedee v. Shell Chem., L.P. , 953 F.3d 831, 835 (5th Cir. 2020). "To make a prima facie case of retaliatory discharge, the employee must show that ‘(1) he engaged in a protected activity, (2) the employer discharged him, and (3) there is a causal link between the protected activity and the discharge.’ " Id. (quoting Tatum v. S. Co. Servs. , 930 F.3d 709, 713 (5th Cir. 2019) ). "When evaluating whether the adverse employment action was causally related to the FMLA protection, the court shall consider the ‘temporal proximity’ between the FMLA leave, and the termination." Mauder v. Metro. Transit Auth. of Harris County, Tex. , 446 F.3d 574, 583 (5th Cir. 2006) (citation omitted). Although a "plaintiff does not have to show that the protected activity is the only cause of [his or] her termination," a plaintiff is "required to show that the protected activity and the adverse employment action are not completed unrelated." Id. Plaintiff has stated a claim for FMLA retaliation that is plausible on its face. Regarding a "protected activity," Plaintiff alleges that he "submitted a leave request for September 21 and 22, 2018," which was denied with instructions to re-submit on two separate "blue slips" for each individual day requested off [Dkt. 38 at 7]. Plaintiff then failed to show up to work on September 21 and 22, 2018, based on "Patten's practice of leave being allowed upon at least 15-day notice" [Dkt. 38 at 7]. Less two weeks later, on Octoberthan two weeks later, on October 5, 2018, Plaintiff's employment was terminated because he purportedly "failed to follow vacation leave policy and ... acted with insubordination, neglecting his duties and leaving the facility uncovered" when he did not show up to work on September 21 and 22, 2018 [Dkt. 38 at 7]. These allegations give rise to a plausible FMLA protected activity at this stage. See Besser v. Tex. Gen. Land Office , 834 Fed.Appx. 876, 882 (5th Cir. 2020) (per curiam) (agreeing with the district court that whether the plaintiff's "absences qualifies as protected FMLA leave" for the purpose of a FMLA retaliation claim "is a fact issue better addressed by a motion for summary judgment or at trial").

Regarding a causal link, "when the temporal proximity is ‘very close’ proximity alone suffices to establish causation in a prima facie case of retaliation [in the FMLA context]." Besser , 834 Fed.Appx. at 884 (citing Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ). Indeed, this Court recently concluded that a gap between an FMLA request and subsequent termination of twenty-one days "is at least some evidence that the two events are related." Stanton v. Jarvis Christian Coll. , 477 F.Supp.3d 561, 571 (E.D. Tex. 2020) ; see also Williams v. Marietta , No. 18-1144, 2020 WL 4433314, at *6 (W.D. La. July 31, 2020) (concluding a gap of approximately three months constituted "temporal proximity"). Here, the temporal proximity is even less—fourteen days. See Walpool v. Frymaster, L.L.C. , No. 17-0558, 2017 WL 5505396, at *4 (W.D. La. Nov. 16, 2017) (concluding an allegation of termination four days after FMLA leave was approved was sufficient to establish a causal connection and survive a motion to dismiss). Thus, Court should deny Defendants’ Motion to Dismiss as to Plaintiff's FMLA retaliation claim.

III. Plaintiff's Title VII Claims Against Defendant TWU

Defendants argue Plaintiff relies on conclusory allegations and otherwise failed to plead the prima facie elements to support each of his Title VII theories—failure to promote, hostile work environment, retaliation, and termination [Dkt. 40 at 20-24]. Broadly, Title VII prohibits employers from "discharg[ing] an individual, or otherwise discriminat[ing] against any individual ... because of such individual's race[.]" 42 U.S.C. § 2000e-2(a)(1). Although "a plaintiff need not make out a prima facie case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim," a plaintiff must still "raise [his] right to relief above the speculative level[.]" Raj v. Louisiana State Univ. , 714 F.3d 322, 331 (5th Cir. 2013).

i. Failure to Promote

As stated earlier, both Plaintiff and Defendants each submit declarations in conjunction with Plaintiff's failure to promote claim. Plaintiff objects to the Yardley Declaration, arguing "Defendants improperly attempt to morph their second Rule 12 objections into summary judgment" [Dkt. 43 at 13]. Defendants do not object to the Berry Declaration [Dkt. 44]. The Court declines to consider the declarations at the 12(b)(6) stage. Defendants argue the Yardley Declaration is properly considered at the motion to dismiss stage because the declaration is referred to in Plaintiff's Amended Complaint and is central to Plaintiff's claims [Dkt. 40 at 20 n.6]. Contrary to this contention, the Yardley Declaration is not referenced in the Amended Complaint, and Plaintiff objects to its consideration [Dkt. 43 at 13]. "When a party presents ‘matters outside the pleadings,’ the Court has ‘complete discretion’ to either accept or exclude the evidence for purposes of determining the motion." Carroll v. Team One Logistics/Bus. Transp. Sols. , No. 3:19-CV-1770-G (BH), 2020 WL 5520606, at *3 (N.D. Tex. Aug. 10, 2020) (quoting Isquith ex rel. Isquith v. Middle S. Utils., Inc. , 847 F.2d 186, 196 n.3 (5th Cir. 1988) ), report and recommendation adopted , No. 3:19-CV-1770-G (BH), 2020 WL 5513442 (N.D. Tex. Sept. 11, 2020). In order to ensure that the Parties have a reasonable opportunity to present evidence, the Court in its discretion declines to consider the declarations in connection with the failure to promote claim.

"In a failure-to-promote case such as this, a plaintiff establishes a prima facie case of race-based discrimination by demonstrating that (1) [he or] she is a member of the protected class; (2) [he or] she sought and was qualified for a position for which applicants were being sought; (3) [he or] she was rejected for the position; (4) the employer hired a person outside of the plaintiff's protected class or continued to seek applicants with the plaintiff's qualifications." McMullin v. Mississippi Dep't of Pub. Safety , 782 F.3d 251, 258 (5th Cir. 2015) (citing Williams-Boldware v. Denton Cty., Tex. , 741 F.3d 635, 643 (5th Cir. 2014) ). As to the second element, a plaintiff "must show that ‘he applied for’ the position sought." Thomas v. Tregre , 913 F.3d 458, 463 (5th Cir. 2019). Here, Plaintiff fails to plead "details of the job positions for which he applied[.]" See Nura v. Tyson Foods, Inc. , No. 2:19-CV-111-Z-BR, 2019 WL 6970792, at *3 (N.D. Tex. Nov. 14, 2019) (recommending dismissal for failure to state a claim to the extent the plaintiff alleged a failure-to-promote claim under Title VII), report and recommendation adopted , No. 2:19-CV-111-Z-BR, 2019 WL 6915712 (N.D. Tex. Dec. 19, 2019). Defendants argue this is dispositive and warrants dismissal of Plaintiff's failure to promote claim [Dkt. 40 at 20]. But recent Fifth Circuit authority makes clear the inquiry is not as straightforward. "When no application was made, a plaintiff must ‘show that such an application would have been a futile gesture.’ " Jenkins v. Louisiana Workforce Comm'n , 713 F. App'x 242, 245 (5th Cir. 2017) (quoting Shackelford v. Deloitte & Touche, LLP , 190 F.3d 398, 406 (5th Cir. 1999) ). This showing "usually requires a showing that the applicant for the promotion was deterred by a known and consistently enforced policy of discrimination." Id. Alternatively, if "the position was not publicized," a plaintiff "must show that the company had a duty or reason to consider her for the position." Johnson v. Louisiana , 351 F.3d 616, 622 (5th Cir. 2003).⁷ Plaintiff's Amended Complaint details the positions of Supervisor of Power Plant Operations and Assistant Director of Plant Utilities that were eventually offered to Patten and Sheeder, respectively [Dkt. 38 at 18]. Plaintiff details these employment decisions were not advertised "within the facility" and that he was not recruited or offered "the opportunity to apply for the positions" [Dkt. 38 at 18]. Plaintiff details his qualifications, including forklift operator, freon recovery certificates, his enrollment in a HVAC certification program, and his courses at two colleges [Dkt. 38 at 18]. Thus, although Plaintiff's Amended Complaint does not plead that he applied to the positions of Supervisor of Power Plant Operations or Assistant Director of Plant Utilities, Plaintiff, at this stage, has pleaded sufficient facts giving rise to a reasonable inference that at least one position was not publicized and the company had a reason to consider him for the position. See Johnson , 351 F.3d at 622. And although Plaintiff does not specifically detail the precise dates the positions were open, Defendants concede that at least one of the positions was opened before Plaintiff's employment was terminated on October 5, 2018 [Dkts. 38 at 1, 18-20; 40 at 20]. Accordingly, the Court should deny Defendants’ Motion to Dismiss as to Plaintiff's failure to promote claim under Title VII.⁸

7 Defendants cite a Western District of Texas case for the proposition that Plaintiff must avail himself of the formal application process [Dkt. 40 at 20]. As an initial matter, the cited case was issued seven years before the Fifth Circuit's recent instruction in Jenkins. See Jaso v. Civigenics, Inc. , No. DR-08-CV-001-AML-VRG, 2010 WL 11506380, at *14 (W.D. Tex. Jan. 6, 2010), report and recommendation adopted , No. DR-08-CV-001-AML/VRG, 2010 WL 11506419 (W.D. Tex. Mar. 26, 2010). But more importantly, counsel for Defendants omitted the entire statement of law in the opinion: "absent some circumstance created by the employer that renders it pointless or impossible to officially seek a position , an employee is required to avail herself of the employer's formal application process in order to satisfy the application prong of the claim." See id. This qualifying language is consistent with the Fifth Circuit's instruction in Jenkins.

8 The Court in so finding makes no determination whatsoever regarding the merits of this claim and whether any such claim would survive summary judgment if the declarations and/or other evidence were considered; the Court merely finds Plaintiff has sufficiently pleaded to survive Rule 12.

ii. Hostile Work Environment

Defendants similarly argue Plaintiff's hostile work environment claim should be dismissed because "Plaintiff has failed to allege actions by TWU or Individual Defendants that tie to his race or that are sufficiently severe or pervasive to alter his employment and create an abusive environment" [Dkts. 40 at 21; 44 at 7]. Plaintiff, in response, primarily points to his allegations regarding Patten and a noose that was "hung over the TWU's Power Plant bathroom" [Dkt. 43 at 29-30].

"The creation of a hostile work environment through harassment ... is a form of proscribed discrimination." Equal Employment Opportunity Comm. v. Boh Bros. Constr. Co., LLC , 731 F.3d 444, 452 (5th Cir. 2013). "The plaintiff must establish the following elements of a hostile working environment claim: (1) that he belongs to a protected class; (2) he was subject to unwelcome harassment; (3) the harassment was based on the protected status; (4) that the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action." Thomas v. Beaumont Indep. Sch. Dist. , 166 F. Supp. 3d 714, 730 (E.D. Tex. 2015) (citing Hernandez v. Yellow Transp., Inc. , 670 F.3d 644, 651 (5th Cir. 2012) ). "To affect a term, condition, or privilege of employment, the harassing conduct ‘must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ " Id. (quoting Aryain v. Wal–Mart Stores of Tex., LP , 534 F.3d 473, 479 (5th Cir. 2008) ). "To be actionable, the alleged harassment must have created an environment that a reasonable person would find hostile or abusive. Whether an environment is hostile or abusive depends on the totality of the circumstances, including factors such as the frequency of the conduct, its severity, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee's work performance." Id. (citing Septimus v. Univ. of Houston , 399 F.3d 601, 611 (5th Cir. 2005) ). A plaintiff must allege a connection between his race and the harassment alleged. Raj , 714 F.3d at 331.

Here, Plaintiff alleges he experienced a hostile work environment by Patten: "placing or allowing a noose to be hung over the Power Plant's bathroom door"; demanding him to "engage in physical activities beyond his medical restrictions"; "calling him lazy"; making him "perform demeaning tasks outside of his job description"; "photographing and recording him at the workplace"; and making him "fill-in for co-workers that wanted leave" but denying him "leave under the same conditions" [Dkt. 38 at 20]. TWU, Yardley, and Benavides, according to Plaintiff, "are complicit in the hostile work environment" because they knew about and "actively interfaced with" Plaintiff about this conduct "for over two years prior to" termination of his employment [Dkt. 38 at 21].

Again, the central focus of Plaintiff's hostile work environment claim is his allegation regarding a hangman's noose [Dkt. 43 at 29]. "A hangman's noose is a loath[ ]some symbol of hatred in its most evil form, a relic of a terrible historical legacy of slavery, oppression, and mass murder, akin to the devilish symbols of a burning cross or a Nazi swastika." Brown v. Peterson , No. 7:03 CV 0205, 2006 WL 349805, at *9 (N.D. Tex. Feb. 3, 2006). "Under the proper circumstances, the presence of a noose at the workplace might constitute an ‘extremely serious’ event causing a discriminatory change in the terms and conditions of one's employment." Brooks v. Firestone Polymers, LLC , 70 F. Supp. 3d 816, 861 (E.D. Tex. 2014) (quoting Hudson v. Cleco Corp. , 539 F. App'x 615, 620 (5th Cir. 2013) ). "[T]he presence of a noose can certainly be considered harassment by African–American employees." Brooks , 70 F. Supp. 3d at 861 (quoting Cargo v. Kan. City S. Ry. Co. , No. 05-2010, 2012 WL 1014707, at *6 (W.D. La. Mar. 22, 2012) ) (alteration omitted). As such, "allegations and evidence of an incident involving a noose and of racial epithets and other discriminatory behavior rise to a highly egregious level of harassment and humiliation." Adams v. United Ass'n of Journeymen , 469 F. Supp. 3d 615, 657 (M.D. La. 2020) (citing Abner v. Kansas City Southern R. Co. , 513 F.3d 154, 163 (5th Cir. 2008) ; Fennell v. Marion Indep. Sch. Dist. , 804 F.3d 398, 409 (5th Cir. 2015) ).

In Martin v. Am. Midstream Partners, LP , the Eastern District of Louisiana recently dismissed the plaintiff's hostile environment claim at the motion to dismiss stage because that plaintiff's "factual allegations ... [solely] consist of his finding the alleged noose, reporting it to his supervisor, and the supervisor's failure to investigate the incident further." 386 F. Supp. 3d 733, 739 (E.D. La. 2019). Here, by contrast, Plaintiff alleges conduct in addition to the noose. Plaintiff pleads, among other allegations, that Defendants altered work conditions and tasks, made demeaning comments, and photographed and recorded him while he was working [Dkt. 38 at 5-6]. And unlike in Martin , Plaintiff does not allege his supervisor "untied the rope as soon as he saw it." 386 F. Supp. 3d at 739. Rather, to the contrary, Plaintiff pleads that the noose remained over the power plant's bathroom door and that Patten "joked about it" [Dkt. 38 at 6, 20], making the instant case more akin to Brown , where the Northern District of Texas denied a motion to dismiss for failure to state a claim when the plaintiff alleged "his music was derogatorily referred to as ‘jungle music’; that a ‘hanging noose’ was displayed in his workplace; and that a supervisor confronted him about the whereabouts of ‘his’ noose." See 2006 WL 349805, at *13. Accordingly, and in line with the holding of Brown , the Court should deny Defendants’ Motion to Dismiss as to Plaintiff's hostile work environment claim under Title VII; such claim is more properly considered through summary judgment.

iii. Retaliation (Reassignment as an Adverse Employment Action)

Defendants next argue only that Plaintiff "fails to establish that his alleged assignment of different job duties was a material adverse action" and further fails to provide any case law demonstrating "reassignment" is an independent claim under Title VII [Dkts. 40 at 22; 44 at 7]. Plaintiff's allegation related to "reassignment" appears under the heading in his live complaint for retaliation and termination. To assert a Title VII claim for retaliation, "a plaintiff bears the initial burden to show: "(1) that [he] engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action." Badgerow v. REJ Properties, Inc. , 974 F.3d 610, 618-19 (5th Cir. 2020) (quoting Ackel v. Nat'l Commc'ns, Inc. , 339 F.3d 376, 385 (5th Cir. 2003) ); see also Brown v. A.W. Brown-Fellowship , No. 3:18-CV-03259-X, 2020 WL 6889015, at *3 (N.D. Tex. Nov. 24, 2020). Looking first to the second element, reassignment has been asserted as an adverse employment action. See, e.g., Stringer v. N. Bolivar Consol. Sch. Dist. , 727 F. App'x 793, 804 (5th Cir. 2018) ; Picard v. Louisiana ex rel. Dep't of Justice , 931 F. Supp. 2d 731, 739 (M.D. La. 2013). However, in the context of a Title VII claim for retaliation, "[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating." Welsh v. Fort Bend Indep. Sch. Dist. , 941 F.3d 818, 824 (5th Cir. 2019) (quoting McCoy v. City of Shreveport , 492 F.3d 551, 551 (5th Cir. 2007) ). But "an employment action that ‘does not affect job duties, compensation, or benefits’ is not an adverse employment action." Welsh , 941 F.3d at 824 (quoting Pegram v. Honeywell, Inc. , 361 F.3d 272, 282 (5th Cir. 2004) ); see also McCoy v. City of Shreveport , 492 F.3d 551, 559 (5th Cir. 2007).

To the extent Plaintiff's retaliation claim is premised on reassignment, such claim fails and should be dismissed. However, Plaintiff has further pleaded that he was terminated following the filing of his EEOC complaint. Plaintiff's live pleading details his complaint with the EEOC and alleges TWU "knew or should have known about" the complaint [Dkt. 38 at 21]. See Stewart v. AutoRevo, LTD. , No. 3:17-CV-00019-S, 2018 WL 3597526, at *5 (N.D. Tex. July 25, 2018) (concluding at the motion to dismiss stage that the plaintiff suffered an adverse employment action under the ADA when he was fired); Garcia v. MAC Equip., Inc. , No. H-09-902, 2011 WL 4345205, at *9 (S.D. Tex. Sept. 15, 2011) (concluding the plaintiff, for the purpose of a Title VII retaliation claim, was "clearly subjected to an adverse employment action when he was fired"). The third element of a Title VII claim for retaliation is "a causal link existed between the protected activity and the adverse action." Badgerow , 974 F.3d at 618-19. "To establish the causation prong of a retaliation claim, the employee should demonstrate that the employer knew about the employee's protected activity." Equal Employment Opportunity Comm'n v. EmCare, Inc. , 857 F.3d 678, 683 (5th Cir. 2017) (quoting Manning v. Chevron Chem. Co. , 332 F.3d 874, 883 (5th Cir. 2003) ) (alteration omitted) (emphasis added). "Generally, this requires some showing that the decisionmaker—the individual ‘who actually made the decision or caused the decision to be made’—was aware of the activity." EmCare, Inc. , 857 F.3d at 683 (quoting Russell v. McKinney Hosp. Venture , 235 F.3d 219, 227 (5th Cir. 2000) ).

Accepting all well-pleaded facts as true and viewing "those facts in the light most favorable to" Plaintiff, as the Court must do, Plaintiff has raised his right to relief above the speculative level. See Bowlby , 681 F.3d at 219. The Court should deny Defendants’ Motion to Dismiss as to Plaintiff's retaliation claim under Title VII to the extent it is premised on his termination; to the extent it is premised on reassignment, such claim fails.

iv. Termination

Defendants finally argue Plaintiff's Title VII claim for wrongful termination should be dismissed because Plaintiff has failed to plead a person outside his protected class has replaced him [Dkt. 44 at 7-8]. In response, Plaintiff argues he is not required to show that people outside his protected class were not fired [Dkt. 43 at 30-31]. Plaintiff contends he has stated a claim for Title VII termination that is plausible on its face because "he was replaced by someone outside his protected class, e.g. , Caucasian" [Dkt. 43 at 31]. Defendants rejoin that "this fact as alleged relates to his promotion claim and cannot be cited for purposes of his termination claim" and he "neither alleges that he was replaced by someone outside the protected class or that others similarly situated were treated more favorably" [Dkt. 44 at 8].

To establish a prima facie case for a wrongful termination claim under Title VII, a plaintiff must demonstrate that he or she "(1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his [or her] protected group or was treated less favorably than other similarly situated employees outside the protected group." Willis v. Cleco Corp. , 749 F.3d 314, 320 (5th Cir. 2014) (quoting McCoy v. City of Shreveport , 492 F.3d 551, 556 (5th Cir. 2007) ). Plaintiff points to paragraphs five through sixteen on page eighteen in his Amended Complaint [Dkt. 43 at 31 at n.86]; nowhere therein does Plaintiff allege he was replaced by someone outside his protected group [Dkt. 38 at 18-19]. Plaintiff does, however, plead that he was "terminated solely because of the discriminatory actions of Defendants in treating him differently from other non-Black co-workers, because of the ethnic animus manifested by Patten on several prior occasions and in retaliation for prosecuting Title VII and FMLA claims" and further that he was treated "differently from other non-Black co-workers" because "[n]o other similarly situated employees within the facility were required to comply with the Central Plant Vacation Leave Policy, made to fill out separate blue slips for each day of requested leave or find their own fill-in replacements when taking leave" [Dkt. 38 at 10]. Plaintiff further details Caucasian employees, Patten and Sheeder, who were "less qualified" and had "less longevity" than Plaintiff but were nonetheless promoted over him [Dkt. 38 at 18]. Indeed, Plaintiff claims he was "the most qualified and senior person within Power Plant Operations" [Dkt. 38 at 18]. Plaintiff has "plausibly alleged that a similarly situated employee outside [his] protected class was treated more favorably." See Hinojosa-Schroeter v. McCarthy , No. 5:19-CV-1297-JKP-HJB, 2020 WL 5750007, at *5 (W.D. Tex. Sept. 25, 2020). Plaintiff, at this stage, has pleaded sufficient facts giving rise to a reasonable inference that he "was treated less favorably than a similarly-situated white employee." See Hardmon v. U.L. Coleman , No. 17-1118, 2020 WL 1536452, at *4 (W.D. La. Mar. 31, 2020) (denying a motion to dismiss as to the plaintiff's race discrimination claim under Title VII). Accordingly, the Court should deny Defendants’ Motion to Dismiss as to Plaintiff's wrongful termination claim under Title VII.⁹

9 Plaintiff again requests leave to amend "if any component of Plaintiff's Amended Complaint is found to be insufficient" [Dkt. 43 at 35]. In a prior order, the Court stated,"[t]he Parties shall jointly submit a proposed scheduling order and exchange their initial disclosures under Rule 26(a)(1) within fourteen (14) days of the District Court's final determination of the immunity claims" [Dkt. 35 at 4]. The Court herein recommended the Individual Defendants’ assertions of qualified immunity be granted. Plaintiff had an opportunity to satisfactorily plead these claims in his original complaint, his live pleading, and his Rule 7(a) Reply; he did not. Accordingly, this case should proceed without further amendment as to the dismissed claims.

To be clear, this recommendation is by no means a finding on the merits; the Court finds it most appropriate to consider Plaintiff's remaining claims at the summary judgment stage, if such motion or motions are filed, alongside any evidence submitted.

CONCLUSION AND RECOMMENDATION

Based on the foregoing, the Court recommends that Defendants’ Second Motion to Dismiss [Dkt. 40] be GRANTED IN PART and DENIED IN PART . Plaintiff D'Andre F. Berry's § 1983 claims against the Individual Defendants in their individual capacities should be DISMISSED WITH PREJUDICE on the basis of qualified immunity. Plaintiff's § 1983 claim against the Individual Defendants in their official capacities as to Plaintiff's requests related to reinstatement/rehire should survive; all other relief requested in connection with such claim has already been dismissed or should be DISMISSED WITHOUT PREJUDICE as barred by Eleventh Amendment immunity. Plaintiff's FMLA and Title VII claims should remain at the motion to dismiss stage.

Within fourteen (14) days after service of the magistrate judge's report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds , 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

Within fourteen days of the District Court's consideration of this Report and any adoption, the Parties shall jointly submit a proposed scheduling order, exchange their initial disclosures, and communicate with the Court to schedule a Rule 16 management conference. See [Dkt. 35].