JESSICA ROGERS v. TARRANT COUNTY COLLEGE DISTRICT (2025)

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Plaintiff Jessica Rogers, who alleges to be “an African American woman who practices a nontraditional faith that does not observe Christmas,” sues her former employer, Defendant Tarrant County College District (“TCCD”), for discrimination and retaliation based on race, in violation of 42 U.S.C. § 1981, and for retaliation and wrongful termination (based on religious and racial discrimination), in violation of Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964. See Dkt. No. 23 (Second Amended Complaint (“SAC”)).

Rogers also alleges a separate cause of action for “Section 1983 Governmental Liability,” explaining that TCCD's alleged “constitutional violations flow[ ] from [ ] customs [that] include deprivation ofPlaintiff's Fourteenth Amendment rights to equal protection and First Amendment rights regarding religious freedom. These customs were the moving force behind the discriminationPlaintiff experienced, as evidenced by the direct connection between TCCD's discriminatorypractices and the adverse employment actions taken against her.” Id. at 9.

And Rogers alleges a breach of contract claim and may continue to assert claims against TCCD for intentional infliction of emotional distress (“IIED”) and defamation.

TCCD moved to dismiss the SAC. See Dkt. No. 25.

Under 28 U.S.C. § 636(b), United States District Judge Sam A. Lindsay referred TCCD's motion to dismiss to the undersigned United States magistrate judge for hearing, if necessary, and to submit proposed findings and recommendations as to the disposition of the motion. See Dkt. No. 26.

Rogers responded to the motion to dismiss. See Dkt. Nos. 28 & 29. TCCD replied. See Dkt. No. 30. Rogers next submitted a filing construed as a surreply, see Dkt. No. 31, which TCCD then moved to strike, see Dkt. No. 32. And, granting TCCD's request, the undersigned held oral argument on the motion to dismiss. See Dkt. Nos. 33-35.

For the reasons set out below, the undersigned recommends that the Court grant the motion to strike the surreply and grant in part and deny in partTCCD's motion to dismiss the SAC.

Legal Standards

Considering a motion under Rule 12(b)(6), the Court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007).

Even so, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough specificity “to raise a right to relief above the speculative level,” id. at 555.

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); cf. Bryant v. Ditech Fin., L.L.C., No. 23-10416, 2024 WL 890122, at *3 (5th Cir. Mar. 1, 2024) (“[J]ust as plaintiffs cannot state a claim using speculation, defendants cannot defeat plausible inferences using speculation.”).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

So, “[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (cleaned up; quoting Twombly, 550 U.S. at 557); see, e.g., Parker v. Landry, 935 F.3d 9, 17 (1st Cir. 2019) (Where “a complaint reveals random puffs of smoke but nothing resembling real signs of fire, the plausibility standard is not satisfied.”).

And, while Federal Rule of Civil Procedure 8(a)(2) does not mandate detailed factual allegations, it does require that a plaintiff allege more than labels and conclusions, and, so, while a court must accept a plaintiff's factual allegations as true, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

Consequently, a threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id.; Armstrong v. Ashley, 60 F.4th 262, 269 (5th Cir. 2023) (“[T]he court does not ‘presume true a number of categories of statements, including legal conclusions; mere labels; threadbare recitals of the elements of a cause of action; conclusory statements; and naked assertions devoid of further factual enhancement.’ ” (quoting Harmon v. City of Arlington, Tex., 16 F.4th 1159, 1162-63 (5th Cir. 2021))).

And, so, “to survive a motion to dismiss” under Twombly and Iqbal, plaintiffs must “plead facts sufficient to show” that the claims asserted have “substantive plausibility” by stating “simply, concisely, and directly events” that they contend entitle them to relief. Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).

Discussion

I. The Court should grant the motion to strike the surreply.

Rogers filed her response as a matter of right to the motion to dismiss. See Dkt. Nos. 28 & 29; N.D. TEX. L. CIV. R. 7.1(e). And, so, the Court should construe her brief filed after TCCD's reply [Dkt. No. 31] as a surreply.

“[N]either the local rules of [this district] court nor the Federal Rules of Civil Procedure allow a party to file a surreply as a matter of right.” Corbello v. Sedgwick Claims Mgmt. Servs., Inc., 856 F. Supp. 2d 868, 890 (N.D. Tex. 2012); see also N.D. TEX. LOC. CIV. R. 7.1. Because the rules do not provide for surreplies as a matter of right, the district court only accepts such filings “in exceptional or extraordinary circumstances.” Lacher v. West, 147 F. Supp. 2d 538, 539 (N.D. Tex. 2001) (mem.).

Gezu v. Charter Commc'ns, 17 F.4th 547, 555-56 (5th Cir. 2021).

“The restrictions against surreplies and against new arguments raised for the first time in a reply brief are imposed by the court and may not be waived by the parties,” and “[t]he court will not permit the parties to continue arguing the merits beyond the scope provided for in the local rules, absent exceptional circumstances, no matter how much they wish to do so.” Lacher, 147 F. Supp. at 540 n.2.

Rogers did not seek leave to file a surreply. And the unauthorized surreply otherwise fails to “identify new issues, theories, or arguments that [TCCD] raised for the first time in its reply brief or attempts [by TCCD] to present new evidence at the reply stage.” Horton v. Med-Sense Guaranteed Ass'n, No. 3:20-cv-3470-L-BN, 2021 WL 3832830, at *3 (N.D. Tex. Apr. 6, 2021) (citations omitted).

The Court should therefore grant the motion to strike the surreply.

II. To the extent that Rogers continues to assert state law torts claims in the SAC, those claims should be dismissed based on TCCD's governmental immunity.

Texas community college districts are not protected by the Eleventh Amendment, [so] claims in federal court against [TCCD] based on federal law are permissible. See Hander v. San Jacinto Junior College, 519 F.2d 273, 278-79, reh. denied, 522 F.2d 204 (5th Cir.1975); Goss v. San Jacinto Junior College, 588 F.2d 96, 98-99 (5th Cir.1979) (“San Jacinto Junior College is an independent ‘political subdivision’ as a matter of Texas statutory and common law. Hander leaves no doubt that [the junior college] has no Eleventh Amendment immunity.”). While [TCCD] may have sovereign immunity from state law tort claims, Jones v. Houston Independent School District, 979 F.2d 1004, 1007 (5th Cir.1992), Texas community colleges are subject to suit in the federal courts.

Chapman v. Dall.Cnty. Cmty. Coll. Dist., No. 3:05-cv-1809-G, 2006 WL 3442057 (N.D. Tex. Nov. 29, 2006) (footnote omitted); see also Hicks v. Dall.Cnty. Cmty. Colls., No. 3:17-cv-809-D, 2017 WL 6628454, at *2 (N.D. Tex. Sept. 18, 2017) (“Texas community college districts, such as [TCCD], are ‘entities of an equivalent character to independent school districts.’ ” (quotingChapman, 2006 WL 3442057, at *3; citation omitted)), rec. adopted, 2017 WL 6621574 (N.D. Tex. Dec. 28, 2017).

And, although federal law claims may proceed against it here, TCCD may use its “governmental immunity” as a shield against state law tort claims to the extent that Rogers still asserts claims for IIED and defamation. See Taylor v. El Centro Coll., No. 3:21-cv-999-D, 2022 WL 102611, at *4 (N.D. Tex. Jan. 10, 2022) (“As a junior college district, [TCCD] enjoys governmental immunity from suit unless immunity is waived. The Texas legislature has partially abrogated governmental immunity via the TTCA, which provides limited waivers of immunity.But the TTCA does not abrogate immunity in any way relevant in this suit.And the waiver found in the TTCA is particularly narrow for junior colleges.Immunity is not waived for negligence or gross negligence, defamation, intentional infliction of emotional distress, negligent hiring, supervision, training, or retention.” (citations and footnotes omitted)); see also Owens v. Dall. Cnty. Cmty. Coll. Dist., No. 3:16-cv-3162-L, 2017 WL 3172748, at *1 & n.1 (N.D. Tex. July 26, 2017) (“Courts and practitioners often use the terms ‘sovereign immunity’ and ‘governmental immunity’ synonymously. The terms, however, are not the same. ‘Sovereign immunity’ pertains to the State of Texas's immunity from suit and liability. On the other hand, ‘governmental immunity’ shields cities, counties, school districts and other political subdivisions of the State from suit and liability. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003) (citations omitted). This action involves Dallas County Community College District, which is a governmental entity created pursuant to the Texas Education Code. See TEX. EDUC. CODE §§ 130.005, 130.176. Accordingly, the court uses the term ‘governmental immunity’ instead of ‘sovereign immunity.’ ”).

III. Like a municipality, TCCD is a state actor, and, so, Section 1983 provides the exclusive remedy for Section 1981 violations asserted against it, but Rogers still fails to allege a plausible claim under Section 1983.

“As a local governmental unit, [a Texas community college district] is treated the same as a municipality.” Mosley v. Hous. Cmty. Coll. Sys., 951 F. Supp. 1279, 1290 (S.D. Tex. 1996) (citingMonell v. Dep't of Soc. Servs., 436 U.S. 658, 659 (1978)).

And, as both are state actors, Section 1981 claims asserted against either may only be considered under Section 1983.

That is, “ ‘the express “action at law” provided by § 1983 for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.’ ”Montgomery-Smith v. George, 810 F. App'x 252, 256 (5th Cir. 2020) (per curiam) (quoting Felton v. Poles, 315 F.3d 470, 482 (5th Cir. 2002)(quotingJett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 735(1989)), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53(2006)).

Under Section 1983, TCCD “may be held liable for a constitutional violation ‘when execution of [its] policy or custom, whether made by its [policymakers] or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.’ ” Cope v. Coleman Cnty., No. 23-10414, 2024 WL 3177781, at *3 (5th Cir. June 26, 2024) (per curiam) (quoting Monell, 436 U.S. at 694).

While an official policy may include “practices so persistent and widespread as to practically have the force of law,” to plausibly “plead that a practice is so persistent and widespread as to practically have the force of law, a plaintiff must do more than describe the incident that gave rise to his injury.” Johnson v. Harris Cnty., 83 F.4th 941, 946 (5th Cir. 2023) (cleaned up).

So, almost without exception, allegations “limited to the events surrounding the plaintiff” herself cannot constitute “an allegation of a de facto policy.” Culbertson v. Lykos, 790 F.3d 608, 629 (5th Cir. 2015).

Instead, “[a] plaintiff can establish a policy by pointing to similar incidents that are sufficiently numerous and have occurred for so long or so frequently that the course of conduct warrants the attribution to the governing body of knowledge that the objectionable conduct is the expected, accepted practice of [municipal] employees.”Robinson v. Midland Cnty., 80 F.4th 704, 710 (5th Cir. 2023) (cleaned up).

Here, Rogers's Section 1983 claims are limited to events specific to her. So she has not plausibly alleged the policy prong of Monell.And her Section 1983 claims against TCCD fail as a matter of law.

IV. The exclusive remedy for Rogers's claims of employment discrimination is the legal framework of Title VII.

To recap, TCCD's governmental immunity shields it from Rogers's state law tort claims (for IIED and defamation); Rogers may only assert a Section 1981 claims against TCCD under Section 1983; but Rogers fails to allege a plausible claim under Section 1983 where the alleged violations are limited to events surrounding just her.

What remains, then, are Rogers's claims based on alleged discrimination in the workplace, primarily under the framework of Title VII, but which include a separate breach of contract claim premised on alleged discrimination: “By discriminating against Plaintiff in connection with the compensation, terms,conditions, and privileges of employment; or limiting, segregating, or classifying Plaintiff in a manner that would deprive or tend to deprive Plaintiff of any employment opportunity orprivilege of employment, such as fair access, with due process, to HR complaint forums,Defendant breached Plaintiff's employment contract.” Dkt. No. 23, ¶ 54.

But a standalone breach of contract claim based on the alleged discrimination is not legally viable in this context. That is because “[T]itle VII provides the exclusive remedy for allegations of employment discrimination in federally funded educational institutions.” Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247-48 (5th Cir. 1997) (citation omitted)); accord Bennett v. Tarrant Cnty. Coll. Dist., No. 3:22-cv-289-B, 2023 WL 1805215, at *8 (N.D. Tex. Feb. 7, 2023) (“Where Title VII provides an exclusive remedy for employment discrimination, state-law claims based in employment discrimination are barred.” (citation omitted)).

And, so, that leaves Rogers's claims for employment discrimination under Title VII and the equivalent Texas statute.See Khalfani v. Balfour Beatty Cmtys., L.L.C., 595 F. App'x 363, 365 n.1 (5th Cir. 2014) (per curiam)(“The legal framework governing claims under [Chapter 21 of the Texas Labor Code] is the same as for claims brought under Title VII.” (citations omitted)).

V. Rogers alleges a plausible (and exhausted)disparate-treatment claim under the legal framework of Title VII.

While the EEOC charge itself is not in the record, Rogers was terminated on March 27, 2023, Dkt. No. 23, ¶ 42, and then filed her EEOC charge on January 8, 2024, id., ¶ 23.

The absence of the charge prevents the Court from examining one aspect of exhaustion – “the scope of the EEOC investigation that could reasonably be expected to grow out of [its] factual statement.”Nuñez-Renck v. Int'l Bus. Machs. Corp., No. 3:23-cv-1308-D, 2024 WL 4995572, at *5 (N.D. Tex. Dec. 5, 2024) (cleaned up); see, e.g., Stingley v. Watson Quality Ford, Jackson, MS, 836 F. App'x 286, 291 (5th Cir. 2020) (per curiam) (“Courts assess whether a claim is like or related to the underlying EEOC charge through a fact-intensive analysis of the statement given by the plaintiff in the administrative charge.”(cleaned up)); cf. Skipper v. FedEx, No. 3:23-cv-212-E-BN, 2023 WL 9065085, at *4-*5 (N.D. Tex. Dec. 8, 2023) (explaining that, as an affirmative defense, a failure to exhaust must appear clearly on the face of the pleadings to serve as a basis for dismissal under Rule 12(b)(6) but that, in the same context, courts also often take judicial notice of EEOC charges that are not part of the pleadings), rec. accepted,2024 WL 41555 (N.D. Tex. Jan. 3, 2024).

But those allegations exhausted by the charge must also not be time barred. And courts in this circuit apply a 300-day statutory period – counting back form the filing of the charge – where, as here, the parties do not dispute its applicability.See Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 549 (5th Cir. 2009).

And, so, the Court should not consider discrete acts that occurred prior to March 14, 2023 (300 days prior to the filing of the charge) unless the continuing violations doctrine could apply.

That doctrine provides one way to reach back to consider allegations prior to March 14, 2023because, “[w]hile acts occurring outside the timely period are typically barred, when a claim is based on a continuing pattern of harassment, rather than a discrete instance, the ‘continuing violation’ doctrine may apply to extend the statute of limitations.” Hellman v. Austin Cmty. Coll. Dist., No. 1:23-cv-1436-DAE, 2025 WL 548276, at *2 (W.D. Tex. Feb. 18, 2025) (citing Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 328 (5th Cir. 2009)).

And, so, “[p]laintiffs alleging hostile work environment – as opposed to plaintiffs alleging discrete violations – are not limited to filing suit based on events within the statutory period because their claims are ‘comprised of a series of separate acts that collectively constitute one unlawful employment practice.’ ” Id. (cleaned up; quoting Stewart, 586 F.3d at 328).

“In other words, ‘[c]laims alleging discrete acts are not subject to the continuing violation doctrine; hostile workplace claims are.’ ”Tompkins v. Amarillo Coll., No. 2:19-cv-27-Z-BR, 2021 WL 4796916, at *5 (N.D. Tex. May 14, 2021) (quoting Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 737(5th Cir. 2017)); accordWilliams v. City of Richardson, No. 3:16-cv-2944-L-BK, 2017 WL 4404461, at *3 (N.D. Tex. Sept. 8, 2017), rec. accepted, 2017 WL 4351535 (N.D. Tex. Sept. 30, 2017); see also Zavala v. Carrollton-Farmers Branch Indep. Sch. Dist., No. 3:16-cv-1034-D, 2017 WL 3279158, at *2 (N.D. Tex. Aug. 2, 2017) (observing that, “[g]iven the absence of binding authority, courts in the Fifth Circuit have assumed that a retaliatory hostile work environment claim can be brought” (citations omitted)).

And Rogers does assert the existence of a hostile work environment. See Dkt. No. 23, ¶¶ 29, 30, & 35.

But that's not enough. Rogers must also allege – or provide factual content from which the Court may infer – that she was subjected to workplace hostility because of either protected status at issue here: her race or her religious practices.See Raj v. La. State Univ., 714 F.3d 322, 330-31 (5th Cir. 2013) (“A hostile work environment claim … necessarily rests on an allegation that an employer has created a working environment heavily charged withdiscrimination.” (cleaned up)); Pfang v. Lamar Inst. of Tech., 685 F. Supp. 3d 425, 444 (E.D. Tex. 2023) (“The ultimate elements of a hostile work environment claim are an employer has created a working environment heavily charged with discrimination.” (cleaned up)); Jasso v. Midland-Odessa Transit Mgmt., Inc., MO:22-CV-00250-DC-RCG, 2023 WL 6474435, at *2 (W.D. Tex. Sept. 19, 2023) (“To survive a motion to dismiss, a plaintiff pleading a claim for hostile work environment must plead two ‘ultimate elements’: 1) an adverse employment action, 2) taken against a plaintiff because of her protected status.” (citingCicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 767 (5th Cir. 2019))).

The isolated incidents that Rogers alleges occurred prior to March 14, 2023 do not accumulate to demonstrates a work environment heavily charged with discrimination based on either Rogers's race or her religion. See Dkt. No. 23, ¶¶ 11-40.

For example, while Rogers alleges that other white coworkers received a position that she expressed interest in or pay increases or promotions that she did not receive, Rogers's assertions in support of these contentions fail to include facts from which the Court may infer that such circumstantial evidence demonstrates a discriminatory motive. See id., ¶¶ 15-22.

That is, “[d]irect or circumstantial evidence may provide plaintiffs with a basis for allegations of racial motivation or animus.” Garibay v. G.T. Sirizzotti, Ltd., No. 5:24-CV-0214-JKP-RBF, 2024 WL 4965637, at *4 (W.D. Tex. Dec. 2, 2024) (cleaned up; citing Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 386 (5th Cir. 2017)). And, “[a]lthough ‘naked allegations’ of discriminatory intent are too conclusory to survive a motion to dismiss, discriminatory motive may be – and commonly is – demonstrated by circumstantial evidence.” Body by Cook, 869 F.3d at 386 (cleaned up). And, so, “[a]n allegation that similarly situated non-minorities received better treatment could create the necessary inference and set the predicate for establishing the section 1981 claim.” Id. (cleaned up).

So the Court should focus on the events that Rogers alleges occurred on March 14, 2023 and later. And, in that timeframe, Rogers alleges that she was terminated shortly after a complaint was filed against her based on her refusal to celebrate Christmas (an alleged violation of her religion):

In a particularly egregious instance, Plaintiff's religious practice of not observingChristmas was used as a basis for an HR complaint that ultimately supported Plaintiff's wrongful termination. Specifically, on or around January 10, 2023, TCCD employee Kim Hutchins, at the direction of [TCCD Chief Operating Officer Susan] Alanis, filed an HR complaint alleging that Plaintiff's refusal to participate in office Christmas celebrations was “disruptive” and “harmful to office morale.”

On or around March 27, 2023, Plaintiff was issued a letter informing her that heremployment with TCCD was being terminated, effective immediately.

Dkt. No. 23, ¶¶ 41 & 42.

Because these exhausted (i.e., timely) allegations offer facts to support the two ultimate elements of a Title VII disparate-treatment claim – an adverse employment action taken against a plaintiff because of a protected status – Rogers has alleged a plausible claim on this showing alone. And she need not, as TCCD argues, also allege facts to support the other elements of a so-called prima facie caseof Title VII discrimination claim, such as the existence of a comparator or “similarly situated employee.” See Dkt. No. 25 at 16-18.

“Title VII's disparate-treatment provision bars employers from intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin.” Ames v. Ohio Dep't of Youth Servs., 605 U.S. ___, 145 S. Ct. 1540, 1545 (2025) (citing 42 U.S.C. § 2000e-2(a)(1)).

On a Title VII claim for intentional discrimination based on an employee plaintiff's race, color, religion, sex, or national origin, the en banc United States Court of Appeals for the Fifth Circuit has explained that,“[a]t the pleading stage, a plaintiff need not plead a prima facie case under the McDonnell Douglas Corp. v. Green framework, 411 U.S. 792 (1973).”Hamilton v. Dall.Cnty., 79 F.4th 494, 502 n.45 (5th Cir. 2023) (en banc; cleaned up).

“McDonnell Douglas is a product of Title VII practice.”Comcast Corp. v. Nat'lAss'n of Afr. Am.-Owned Media, 589 U.S. 327, 340 (2020). And “ ‘[t]he prima facie case under McDonnell Douglas ․ is an evidentiary standard, not a pleading requirement.”Norsworthy v. Hous.Indep. Sch. Dist., 70 F.4th 332, 336 (5th Cir. 2023) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)).

As the United States Supreme Court recently explained, “[i]n McDonnell Douglas, this Court laid out a three-step burden-shifting framework for evaluating claims arising under” Title VII's disparate-treatment provision.Ames, 145 S. Ct at 1545. “Under [the McDonnell Douglasframework's] terms, once a plaintiff establishes a prima facie case of [intentional discrimination based on the employee plaintiff's race, color, religion, sex, or national origin] through indirect proof, the [employer] defendant bears the burden of producing a race-neutral explanation for its action, after which the plaintiff may challenge that explanation as pretextual.” Comcast, 589 U.S. at 340 (cleaned up). “If a plaintiff presents direct evidence of discrimination, the McDonnell Douglas framework does not apply.” Jerge v. City of Hemphill, Tex., 80 F. App'x 347, 350 (5th Cir. 2003).

Underthe McDonnell Douglasframework, for a wrongful-termination claim for which the plaintiff “relies on circumstantial evidence,” the plaintiff is “subject to [a] burden-shifting framework”under which the plaintiff “has the initial burden to establish a prima facie case of discrimination” and “must produce evidence that she (1) is a member of a protected class, (2) was qualified for the position that she held, (3) was subject to an adverse employment action, and (4) was replaced by someone outside of her protected class or treated less favorably than other similarity-situated employees who were not in her protected class.” Harville v. City of Hous., Miss., 945 F.3d 870, 874-75 (5th Cir. 2019) (cleaned up).

“[T]he prima facie case, once established, creates a presumption of discrimination and the burden then shifts to the [employer defendant] to articulate a legitimate, non-discriminatory reason for the adverse employment action,” and, if the employer defendant “is able to articulate a legitimate, non-discriminatory reason for the termination, the burden shifts back to [the plaintiff] demonstrate that the employer's proffered reason is a pretext for discrimination.” Id. at 875 (cleaned up). That is, “the plaintiff must then have a ‘fair opportunity’ to show that the stated justification was in fact pretext for discrimination,” and “[a] plaintiff may succeed [under the McDonnell Douglas framework] either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.”Ames, 145 S. Ct. at 1545 (cleaned up).

The Supreme Court's decision in “McDonnell Douglas concerned the order of proof in an employment-discrimination action when the employee submits no direct evidence of discrimination.” Scott v. U.S. Bank Nat'lAss'n, 16 F.4th 1204, 1210 n.2 (5th Cir. 2021), as revised (Nov. 26, 2021). One Court of Appeals judge recently observed that, “[a]t the outset McDonnell Douglas was no doubt motivated to assist plaintiffs facing a judicial reluctance (there were no jury trials under Title VII at that time) to find discrimination by employers.” McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122, 1144 (10th Cir. 2024) (Hartz, J., concurring). Another has explained that, “[p]rior to McDonnell Douglas, employment discrimination cases were fairly straightforward – the plaintiff had the task of proving improper discrimination by a preponderance of the evidence. The McDonnell Douglas presumption was added to the law to make the plaintiff's task slightly easier.” Wright v. Southland Corp., 187 F.3d 1287, 1301 (11th Cir. 1999) (opinion of only Tjoflat, J.; cleaned up).

But requiring an employee plaintiff to plead a prima facie case under the McDonnell Douglasframework is misplaced because that evidentiary standard “cannot be dispositive at [the pleading] stage” and because “it is not guaranteed [that] McDonnell Douglas will ultimately apply, as discovery may reveal direct evidence.” Scott, 16 F.4th at 1212.

And, correspondingly, the “Supreme Court has held that the McDonnell Douglas standard does not govern at the motion-to-dismiss stage.”Scott, 16 F.4th at 1210 (citing Swierkiewicz, 534 U.S. at 510); accordThomas v. Dall.Indep. Sch. Dist., No. 23-10882, 2024 WL 2874367, at *4-*5 (5th Cir. June 7, 2024).

Rather, at the pleading stage and relevant to a motion to dismiss, “there are two ultimate elements [that] a plaintiff must plead to support a disparate treatment claim under Title VII: (1) an adverse employment action, (2) taken against a plaintiff because of her protected status.”Cicalese, 924 F.3d at 767 (cleaned up). To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, then, “a plaintiff need only plead an adverse employment action, taken against her because of her protected status,” and the Court must analyze whether she has alleged “plausible facts meeting [those] elements of [her] claim.”McLin v. Twenty-First Jud. Dist., 79 F.4th 411, 418 (5th Cir. 2023) (cleaned up).

But the en banc Fifth Circuit has explained that, at the pleading stage,“it is sometimes helpful to frame the analysis [around the prima facie case under the McDonnell Douglas framework] to determine whether a plaintiff has been discriminated against because of a protected characteristic.”Hamilton, 79 F.4th at 502 n.45 (citing Swierkiewicz, 534 U.S. at 510-11, and Olivarez v. T-Mobile USA, Inc., 997 F.3d 595, 600 (5th Cir. 2021), and including a cf. citation to Comcast, 589 U.S. at 340).

A Fifth Circuit panel similarly noted that “the McDonnell Douglas standard does not govern at the motion-to-dismiss stage” but that,because “a plaintiff is still required to plead sufficient facts on all of the ultimate elements of her claim,”“to frame that inquiry, a district court may find it helpful to reference McDonnell Douglas.”Norsworthy, 70 F.4th at 336 (cleaned up).

But, as another Fifth Circuit panel decision noted, “[a]pplying[the McDonnell Douglas] framework [to frame the motion-to-dismiss inquiry] must be done with care, [ ] as a court errs when it require[s] a plaintiff to plead something more than the ‘ultimate elements’ of a claim, or inappropriately heightens the pleading standard by subjecting a plaintiff's allegations to a rigorous factual or evidentiary analysis under the McDonnell Douglas framework in response to a motion to dismiss.” Scott, 16 F.4th at 1210 (cleaned up).

Of course, even where acourt errs in requiring an employee plaintiff “to make allegations that satisfy the McDonnell Douglas standard,”dismissal on a Rule 12(b)(6) motion is appropriate if the employee plaintiff fails to plead one or both of the ultimate elements that“a plaintiff is required to plead: that the [adverse employment action] was taken against her because of her protected status.” McLin, 79 F.4th at 418 (5th Cir. 2023). And, so, even as a tool to assist employee plaintiffs, “McDonnell Douglas can provide no basis for allowing a complaint to survive a motion to dismiss when it fails to allege essential elements of a plaintiff's claim.” Comcast, 589 U.S. at 340-41.

Similarly, at the jury trial stage, a district court should “not frame the jury instructions based upon the intricacies of the McDonnell Douglas burden shifting analysis” but, rather, should instruct the jury only to “consider[ ] the ultimate question of whether [the employer defendant] took the adverse employment action against [the plaintiff] because of her protected status.” Harris v. FedEx Corp. Servs., Inc., 92 F.4th 286, 297 n.8 (5th Cir.2024) (cleaned up).

And the McDonnell Douglasframework “is not the proper vehicle for evaluating a case that has been fully tried on the merits” and, rather, “[p]ost-trial, the [McDonnell Douglas] framework becomes moot.” Id. at 297 (cleaned up).

That courts should not apply the McDonnell Douglas framework at the pleading, jury trial, and post-trial stages makes sense. The Supreme Court has explained that, “[f]or its part, McDonnell Douglas sought only to supply a tool for assessing claims, typically at summary judgment, when the plaintiff relies on indirect proof of discrimination.” Comcast, 589 U.S. at 340 (cited by Hamilton, 79 F.4th at 502 n.45), but has “assume[d] without deciding that the McDonnell Douglas framework applies at the summary-judgment stage of litigation,” Ames, 145 S. Ct. at 1545n.2. As the Supreme Court observed, “[t]he McDonnell Douglas framework aims to bring the litigants and the court expeditiously and fairly to th[e] ultimate question in a disparate-treatment case – namely, whether the defendant intentionally discriminated against the plaintiff.” Ames, 145 S. Ct. at 1545 (cleaned up).

Two Supreme Court justices recently questioned whether courts should even be required to apply the McDonnell Douglas framework on an employer defendant's summary judgment motion. See Ames, 145 S. Ct. at 1548-55 (Thomas, J., concurring, with Gorsuch, J., joining).

Justice Thomas wrote that “the McDonnell Douglas framework lacks any basis in the text of Title VII and has proved difficult for courts to apply” and “was originally developed for courts to use in a bench trial” but “is today the presumptive means of resolving Title VII cases at summary judgment,” which he depicted as a “development [that] has come without [the Supreme] Court ever considering – much less holding – that the framework is an appropriate tool for the summary-judgment task.” Id. at 1548, 1551, 1552 (Thomas, J., concurring; cleaned up).

Justice Thomas contended that, “[f]ar from extending the framework to new contexts, this Court has taken steps to limi[t] the relevancy and applicability of the McDonnell Douglas framework,” holding “that McDonnell Douglas is inapplicable when the plaintiff relies on direct evidence to prove his claim”; “that the framework does not apply in Title VII mixed-motive cases”; “that the framework is inapplicable at the pleading stageand in deciding post-trial motions”; and “that a plaintiff need not satisfy the first step of the framework at trial.”Id. at 1552 (Thomas, J., concurring; cleaned up).

Justice Thomas wrote that he “seriously doubt[s] that the McDonnell Douglas framework is a suitable tool for evaluating Title VII claims at summary judgment.” Id. at 1553 (Thomas, J., concurring).“In [his] view, the framework is incompatible with the summary-judgment standard; it fails to encompass the various ways in which a plaintiff could prove his claim; it requires courts to maintain artificial distinctions between direct and circumstantial evidence; and it has created outsized judicial confusion.”Id. at 1553 (Thomas, J., concurring).

And Justice Thomas opined that, “[i]n a case where [the issue of whether the McDonnell Douglas framework is an appropriate tool for evaluating Title VII claims at summary judgment] is squarely before [the Supreme Court], [he] would consider whether the framework should be used for that purpose” and that, “[i]n the meantime, litigants and lower courts are free to proceed without the McDonnell Douglas framework,” where the Supreme Court “has never required anyone to use it” and where “district courts are well equipped to resolve summary judgment motions without it.” Id. at 1555 (Thomas, J., concurring; cleaned up).

Other Courts of Appeals decisions have over the years described “the McDonnell Douglas burden shifting framework [as] a useful tool to assist plaintiffs at the summary judgment stage so that they may reach trial.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (cleaned up). Panel decisions of the United States Court of Appeals for the Seventh Circuit have observed that “[t]he plaintiff's task in opposing a motion for summary judgment is straightforward: he must produce enough evidence, whether direct or circumstantial, to permit the trier of fact to find that his employer took an adverse action against him because of his race. The structured inquiry introduced by McDonnell Douglas… [was] supposed to facilitate that task,” Morgan v. SVT, LLC, 724 F.3d 990, 997 (7th Cir. 2013), and “is designed to help plaintiffs raise an inference of discrimination during pretrial proceedings,” Diettrich v. Nw. Airlines, Inc., 168 F.3d 961, 965 (7th Cir. 1999).

Of course, as to the law governing Title VII claims in courts in this circuit, neither two justices' concurring opinion nor statements in decisions from outside this circuit override or overrule binding Fifth Circuit panel decisions, much less holdings of the en banc Fifth Circuit.See generallyMi Familia Vota v. Ogg, 105 F.4th 313, 327 (5th Cir. 2024) (“These [four] Justices concurred only in the judgment, not the reasoning, of the plurality, and there is no commonality between those opinions that would allow us, much less unequivocally direct us, to overrule our binding precedents.”); United States v. Vega, 960 F.3d 669, 675 (5th Cir. 2020) (“Published decisions of [the United States Court of Appeals for the Fifth Circuit] remain binding absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or [the] en banc court.” (cleaned up)); Reyes v. City of Farmers Branch, Tex., 586 F.3d 1019, 1024 (5th Cir. 2009) (noting that “three justices a rule do not make”); David L. Horan, The Rules that Govern the Rules that Govern in the Federal Courts of the Fifth Circuit, 67 TEX. B.J. 622, 624 (2004).

But, in any event, under governing Supreme Court and Fifth Circuit law, the Court should not permit an employer defendant to,at the pleading stage, weaponize the McDonnell Douglasframework to obtain dismissal on a Rule 12(b)(6) motion of a Title VII claim for which the employee plaintiff has pleadedsufficient facts to plausibly allege – or from which the Court may reasonable infer – that she suffered an adverse employment action taken against her because of her protected status, regardless of how the alleged facts supporting those two ultimate elements fit within McDonnell Douglas framework. See Cicalese, 924 F.3d at 766-78;cf.Thomas, 2024 WL 2874367, at *5.

And, yet, that is what TCCD asks the Court to do here as to Rogers's Title VII claim alleging that she was terminated because of her protected status on the basis of her religion.

Recommendation

TheCourt should grant the motion to strike the surreply [Dkt. No. 32] and grant in part and deny in part Defendant Tarrant County College District's motion to dismiss Plaintiff Jessica Rogers's second amended complaint [Dkt. No. 25] to the extent that the Court should dismiss with prejudice Rogers's claims other than her Title VII disparate-treatment claim that she was terminated in March 2023 because of her protected status on the basis of her religion.

A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). 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 findings, conclusions, 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 aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE