Opinion
6:23-CV-00332-ADA-JCM
10-12-2023
AMANDA STEWART, et al, Plaintiffs, v. CONNALLY INDEPENDENT SCHOOL DISTRICT, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendant Connally Independent School District's First Amended Motion to Dismiss (ECF No. 12), Plaintiffs' Response (ECF No. 16), and Defendant's Reply (ECF No. 17). For the reasons described below, the Court RECOMMENDS the Defendant's Motion be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Plaintiffs Amanda Stewart and Brian Biezenski are former employees of Defendant Connally Independent School District. Pls.' Second Am. Compl. (ECF No. 11) at ⁋ 4, 5. At the relevant times, Stewart was a teacher at Connally ISD and Biezenski was the Vice Principal at Connally Junior High School. Id.
At some point before May of 2018, Connally ISD hired John Simpson. Id. at ⁋10. In May of 2018, Plaintiffs allege that “Simpson began sending nude pictures of himself and his wife to AMANDA STEWART.” Id. at ⁋12. Stewart told Simpson to stop but he continued sending her inappropriate, sexual messages. Id. One of these messages included a “very graphic video of . . . him and his wife having sex.” Id.
On May 22, 2018, Biezenski reported Simpson's sexual harassment of Stewart and other faculty members to Principal Thurman Brown. Id. at ⁋13. Biezenski recorded the conversation and sent an email to Brown the next day summarizing the meeting. Id. at ⁋ 13, 14. The very next day, Biezenski “was placed on administrative leave and escorted out of the building by campus police.” Id. at ⁋15. Biezenski alleges the administrative leave was retaliation for reporting Simpson for sexually harassing Stewart. Id.
Plaintiffs allege that rather than address the sexual harassment, Connally ISD promoted Simpson to Vice Principal. Id. at ⁋16. Simpson then escalated his sexual harassment. On one occasion, “[Simpson] came to [Stewart's] class while lessons were in progress and began sending nude pictures and inappropriate messages” to Stewart. Id. at ⁋ 17. The next day Simpson asked Stewart to come to the bathroom with him, presumably to engage in sexual activities. Id. at ⁋ 18.
Based on these facts, Plaintiffs filed complaints with the Equal Employment Opportunity Commission and received Notice of Right to Sue letters. Id. at ⁋ 1. Stewart sued Connally ISD under Title VII for a hostile work environment and Simpson for intentional infliction of emotional distress. Defs.' Notice of Removal (ECF No. 1) at 12-13. Biezenski sued Wesley Holt and Brown for intentional infliction of emotional distress. Id. at 13. Copies of Plaintiffs' Notice of Right to Sue letters were attached to the Original Petition. Id. at 15-16. Plaintiffs first filed their lawsuit on December 12, 2022. Id. at 7.
Connally ISD removed this case to this Court, asserting federal question jurisdiction. Id. at 2. Defendants then filed Motions to Dismiss. ECF No. 3; ECF No. 8. In response, Plaintiffs filed an Amended Complaint. ECF No. 9. Then, Plaintiffs filed a Second Amended Complaint. ECF No. 11. Connally ISD then filed a Motion to Dismiss Plaintiffs' Second Amended Complaint, which is currently before the Court. Def.'s Mot. Plaintiffs responded to the Motion. Pls.' Resp.
II. LEGAL STANDARD
To avoid dismissal for failure to state a claim under Rule 12(b)(6), a plaintiff must plead enough facts to state a plausible claim to relief on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court accepts all well-pleaded facts as true and will view them in a light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The court determines whether the plaintiff has stated both a legally cognizable and plausible claim; the court should not evaluate the plaintiff's likelihood of success. Lone Star Fund V. (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Based on the assumption that all the allegations in the complaint are true, the factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. A court, however, need not blindly accept each allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions masquerading as factual conclusions. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); see Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
When the plaintiff pleads factual content that allows the court to reasonably infer that the defendant is liable for the alleged misconduct, then the claim is plausible on its face. Iqbal, 556 at 678. The plausibility standard, unlike the “probability requirement,” requires more than a sheer possibility that a defendant acted unlawfully. Id. A pleading offering “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.
III. ANALYSIS
A. Stewart's claims
Connally ISD argues that Stewart's claims should be dismissed for three reasons: (1) Stewart has not adequately alleged facts showing that the harassment she experienced was so pervasive or severe that it altered the conditions of employment and created an abusive working environment; (2) Stewart's allegations do not support her assertion that Simpson was her supervisor; and (3) Stewart has not adequately alleged facts showing that Connally ISD knew of ongoing sexual harassment but failed to take prompt, remedial action. Def.'s Mot. at 9, 10, 12. Plaintiff responds that she pled facts supporting the challenged elements.
1. Stewart adequately alleges facts showing that the harassment she experienced created an abusive working environment.
To establish a prima facie case of harassment alleging a hostile work environment, the employee must establish that (1) she belongs to a protected group; (2) she was subject to unwelcome harassment; (3) the harassment was based on a protected characteristic; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to promptly take remedial action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). For harassment to affect a term, condition, or privilege of employment, the harassment “must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). When determining whether harassment is sufficiently hostile, courts are to look at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. at 787-88. Simple teasing, offhand comments, and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment. Id. at 788.
Here, Stewart has alleged that Simpson sent nude pictures of himself and his wife to Stewart starting in May of 2018. Pls.' Second Am. Compl. at ⁋12. Stewart asked Simpson to stop, but the messages continued. Id. Simpson also sent Stewart “a very graphic video . . . of him and his wife having sex.” Id. The unwanted nude pictures continued even after Biezenski reported the harassment to Principal Brown. Id. at ⁋16. In fact, on November 1, 2018, Simpson came to Stewart's “class while lessons were in progress and began sending nude pictures and inappropriate messages” to her. Id. at ⁋ 17. The next day, Simpson asked Stewart to come to the bathroom with him, presumably to engage in sexual activities. Id. at ⁋18.
Connally ISD describes Simpson's alleged conduct as “lasting only a few months, involving a few incidents, and consisting primarily of messaging.” Def.'s Mot. at 9. Connally ISD's view of the facts does not view them in the light most favorable to Stewart as this Court is required to do. In re Katrina Canal Breaches Litig., 495 F.3d at 205. First, Stewart alleges that the harassment lasted from May 2018 through at least November 2018 which is longer than “only a few months.” Pls.' Second Am. Compl. At ⁋ 12, 18.
Second, Connally's position that the conduct only involved “a few incidents” is too narrow a reading of Stewart's allegations. Stewart alleges that the inappropriate messages were ongoing from May 2018 through at least November 2018. Id. Stewart did not allege the number of inappropriate messages sent by Simpson. Only that Simpson continually sent her inappropriate messages and sexually explicit photos.
Third, Connally's position that harassment “consisting primarily of messaging” and unwanted sexually explicit photographs and videos cannot constitute a hostile work environment is unsupported by case law. Connally ISD argues that, in the absence of physical contact, it becomes harder for a plaintiff to show that conduct is objectively offensive. Def.'s Mot. at 9 citing Shepherd v. Comptroller of Pub. Acct. of State of Tex., 168 F.3d 871, 874 (5th Cir. 1999). This is true. For example, in Shepherd the alleged harasser commented on the plaintiff's nipples, simulated looking under her dress, attempted to look down her clothing several times, touched her arm several times, rubbed one of his hands from plaintiff's shoulder down to her wrist, and offered to let plaintiff sit in his lap. Shepherd, 168 F.3d at 872. Importantly, the harasser “never propositioned her, asked her out on a date, or suggested that he would like to sleep with her.” Id. Apart from the harassment, the plaintiff “engaged in friendly discussions with [the harasser] on almost a daily basis and had a friendly relation with him at work and outside of work.” Id. Accordingly, the Fifth Circuit concluded that the comments were boorish and offensive but were not severe and did not interfere unreasonably with a reasonable person's work performance. Id. at 874.
The case at bar is distinguishable. Here, Stewart alleges that Simpson propositioned her and suggested multiple times that he would like to sleep with her. Additionally, Shepherd did not involve a coworker repeatedly sending the plaintiff unwanted nude, sexually explicit photos of himself and his wife engaging in sexual activities.
The case at bar is more similar to the more recent Fifth Circuit case Abbt v. City of Houston, 28 F.4th 601 (5th Cir. 2022). In Abbt, the plaintiff's supervisor received an anonymous email containing “an intimate, nude video of Abbt that she had made privately for her husband and had saved on her personal laptop.” Abbt, 28 F.4th at 604. The supervisor watched the nude video multiple times over the next several years and forwarded the email to another supervisor. Id. at 604-05. The Fifth Circuit emphasized the repeated viewing of the video in holding that “a reasonable person could consider the repeated viewing of her intimate, nude video by her coworkers to be sufficiently severe to constitute sexual harassment. Such invasive and violative conduct goes well beyond a ‘mere offensive utterance.'” Id. at 608. Those facts are much more similar to repeatedly sending unwanted, explicit nude photographs of oneself to a coworker. See also Moore v. Cricket Commc'ns, Inc., 764 F.Supp.2d 853, 858 (S.D. Tex. 2011) (holding that a supervisor's “display of [a] nudge photograph of himself to [the plaintiff] was hostile, abusive, and indeed outrageous,” and “so egregious as to alter the conditions of employment and destroy [the plaintiff's] equal opportunity in the workplace.”). Stewart has, therefore, adequately plead that the harassment affected a term, condition, or privilege of her employment.
Connally ISD also argues in a footnote that Stewart “never otherwise bothers to allege the conduct was unwelcome.” Def.'s Mot. at 10 n. 8. Even a narrow reading of Stewart's Complaint renders that argument nonsensical. Stewart's entire claim is based on the “serious mental health problems” she suffered as a result of the unwanted sexual harassment. Pls.' Second Am. Compl. At ⁋ 20. After considering the totality of the circumstances, Stewart clearly alleges that the conduct was unwelcome and Connally ISD's argument to the contrary borders on asinine.
2. Stewart failed to adequately allege Simpson was her supervisor.
Connally ISD argues that, as a matter of law, Simpson was not Stewart's supervisor after being promoted to vice principal. Def.'s Mot. at 10-12. Stewart's response on this matter is lacking. Rather than addressing the merits of Connally ISD's arguments, Stewart simply asserts that when Simpson was promoted to assistant principal, “Stewart certainly was an employee, directly under the supervision” of Simpson. Pls.' Resp. at 4.
An “employee is a ‘supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” Vance v. Ball State Univ., 570 U.S. 421, 424 (2013). Here, Stewart's Complaint only contains conclusory allegations that Simpson was her supervisor. Her Complaint mentions the word “supervisor” only twice. Once, she alleges that Simpson's promotion made him Stewart's immediate supervisor. Pls.' Compl. At ⁋ 16. The second mention of the word has nothing to do with Stewart's claims. The Complaint does not contain any allegations about the extent to which an assistant principal is empowered to take tangible employment actions against teachers. Instead, it simply asserts that Simpson was Stewart's supervisor. Accordingly, Stewart has failed to adequately allege any facts which could support a conclusion that Simpson was her supervisor.
3. Stewart has adequately alleged that Connally ISD knew of ongoing sexual harassment and failed to take prompt remedial action.
Connally ISD argues that Stewart failed to adequately allege that Connally ISD knew of ongoing sexual harassment but failed to take prompt, remedial action. Def.'s Mot. at 12. Connally ISD specifically argues that “Stewart has offered no facts to support a plausible claim of a report, negligence in discovering harassment, or a failure to remedy.” Id. at 13. Stewart's response relies primarily on former actions taken by Simpson at different jobs. Pls.' Resp. at 2. Those allegations are irrelevant to this Title VII suit. Stewart does allege, however that Biezenski “reported the sexual harassment complaints about John Simpson that he received” from Stewart to Principal Brown. Pls.' Second Am. Compl. At ⁋ 13. Biezenski recorded the conversation and sent a follow up email documenting the substance of the meeting to Principal Brown. Id. at ⁋ 1314. Stewart alleges that rather than address or investigate the report, Connally ISD hid its head in the sand and promoted Simpson to Vice Principal. Id. at ⁋ 16.
To plead a Title VII hostile work environment claim based on conduct by a fellow employee, a plaintiff must allege that the employer knew or should have known of the harassment and failed to promptly take remedial action. Watts, 170 F.3d at 509. Additionally, “an employee must take advantage of corrective opportunities provided by the employer.” Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 437 (5th Cir. 2005) citing Woods v. Delta Beverage Grp., Inc., 274 F.3d 295, 300 n.3 (5th Cir. 2001). Nonetheless, if it becomes objectively obvious that the employer has no real intention of stopping the harassment, the plaintiff is not obligated to go through the wasted motion of reporting the harassment. Id. citing Woods, 274 F.3d at 300-01.
Here, Stewart alleges that her supervisor, Principal Brown, had actual knowledge that Simpson was sexually harassing Stewart as of May 22, 2018. Pls.' Am. Compl. at ⁋ 13. Stewart further alleges that, rather than address the allegations, Simpson was promoted. Id. at ⁋ 16. This is a clear allegation that the employer knew about the sexual harassment and failed to promptly take remedial action. See Bookman v. AIDS Arms, Inc., Civ. No. 3:14-CV-814-B, 2014 WL 4968189, at *4 (N.D. Tex. Oct. 3, 2014) (holding that a plaintiff adequately stated a claim by informing management of the harassment and no remedial measure was taken against those allegedly engaged in the offensive conduct).
Connally ISD apparently believes that Stewart should have complained to the Board of Trustees for Stewart to have satisfied her obligations. Defs.' Mot. at 14. Connally ISD, however, cannot have its cake and eat it too. Earlier in its Motion, Connally ISD argues that the “Texas Education Code also makes clear that a principal, not an assistant principal, is responsible for approval of campus teacher assignments, evaluation and promotion of campus personnel, and recommendations for termination, suspension, and non-renewal of teachers.” Id. at 12 citing Tex. Educ. Code § 11.202. Either the principal is responsible for promotions, or he is not. And if the principal is responsible for promotions, is aware of sexual harassment, fails to recommend suspension or termination of a teacher who has sexually harassed a coworker, and promotes that teacher, clearly a plaintiff has adequately alleged that the employer has failed to promptly take remedial action.
Additionally, it is clear from the above discussion that Stewart's allegations give rise to the inference that any attempt to take advantage of Connally ISD's corrective opportunities would have been a complete waste of time given Principal Brown's decision to promote Simpson rather than investigate the claims of sexual harassment against him. Harvill, 433 F.3d at 437. Accordingly, Stewart has adequately plead a claim for a hostile work environment based on sexual harassment under Title VII and the Court should deny Connally ISD's Motion to Dismiss her claims.
The Court notes that Connally ISD improperly provides extra-complaint factual information and requests the Court to consider it. The Court respectfully declines Connally ISD's request and considers only the facts contained on the face of the Plaintiffs' Second Amended Complaint.
B. Biezenski's claims are barred by limitations.
Connally ISD argues that Biezenski's Title VII retaliation claim, Biezenski's only claim in the live pleading, is barred by limitations. Def.'s Mot. at 15. Biezenski does not address this argument, or any other argument raised in Connally ISD's Motion to Dismiss Plaintiffs' Second Amended Complaint. See generally Pls.' Resp.
A plaintiff must bring an action under Title VII within ninety days of receipt of a right to sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Biezenski's letter was issued on September 13, 2022. Pls.' Resp., Ex. B. Plaintiffs' Original Petition was filed on December 12, 2022, and did not contain a claim by Biezenski under Title VII. Defs.' Notice of Removal (ECF No. 1), Ex. A at 7-14. The first time Biezenski raised his Title VII retaliation claim was in Plaintiffs' First Amended Complaint which was filed on May 31, 2023. ECF No. 9. Biezenski, therefore, waited 260 days after his notice of right to sue letter to sue under Title VII was issued. This is far longer than the statutorily prescribed ninety days. Accordingly, Biezenski's Title VII claim is barred by limitations and the Court should dismiss Biezenski's claims against Connally ISD.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS the Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 12) be GRANTED IN PART AND DENIED IN PART. Should the Court adopt this Report and Recommendation, Amanda Stewart's claim against Connally ISD will remain and Biezenski's claim against Connally ISD will be dismissed.
V. OBJECTIONS
The parties may wish to object to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.