Lucenio v. Hous. Indep. Sch. Dist.

• Decision Date: 16 February 2022
• Docket Number: Civil Action 4:21-cv-00650
• Parties: Sheneka Lucenio, Plaintiff, v. Houston Independent School District, Defendant.
• Court: U.S. District Court — Southern District of Texas

Sheneka Lucenio, Plaintiff,
v.
Houston Independent School District, Defendant.

Civil Action No. 4:21-cv-00650

United States District Court, S.D. Texas, Houston Division

February 16, 2022

MEMORANDUM AND RECOMMENDATION

Christina A. Bryan United States Magistrate Judge

Defendant Houston Independent School District (HISD) filed a first Motion to Dismiss on July 7, 2021. ECF No. 16. Just prior to filing her Response in Opposition (ECF No. 20), Plaintiff Sheneka Lucenio (Lucenio) filed a Second Amended Complaint (ECF No. 19), making the Second Amended Complaint the live pleading in the case. After filing a Reply to Lucenio's opposition to the first Motion to Dismiss (ECF No. 22), HISD filed a Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 23). Therefore, the Court RECOMMENDS that HISD's first Motion to Dismiss (ECF No. 16) be DENIED as moot.^[1]

The matter currently pending before the Court is HISD's Rule 12(b) Motion to Dismiss Plaintiff's Second Amended Complaint. ECF No. 23. Plaintiff filed a Response (ECF No. 25) and Defendant filed a Reply (ECF No. 26). Having considered the pleadings, the parties' filings, and the law, the Court RECOMMENDS Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint (ECF No. 23) be GRANTED in part and DENIED in part.

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I. Background Plaintiff Sheneka Lucenio (“Lucenio”), is African-American and a veteran of the United

States Armed Forces. ECF No. 19 ¶ 28, 32. Lucenio was employed as a Senior Technology Project Manager for Defendant Houston Independent School District (“HISD”). Id. ¶ 9. Lucenio began her employment with HISD in June 2015. Id. ¶ 9. She alleges that beginning in March 2016 and through the date of her termination in June 2019, she observed at HISD a favorable bias and treatment toward co-workers who were not African-American. Id. ¶ 10. According to Lucenio, in 2016 HISD offered promotions to two non-African-American employees without considering Lucenio, despite her superior qualifications. Id. ¶ 10. Lucenio also alleges that from 2016 to 2018, she was subjected to hostile and unfavorable treatment that went unaddressed by HISD despite complaints she made to supervisors. Id. ¶¶ 11, 14-16.

In May 2018, Lucenio filed an internal grievance alleging an HISD employee targeted and harassed her due to her race. Id. ¶ 17. No. corrective action was taken in response to the grievance and the employee retired in August 2018. Id. ¶ 17. Furthermore, in July 2018, Lucenio appeared as a witness in the investigation of a co-worker's grievance and EEOC complaint brought against a former “HISD CTO” for alleged racial discrimination and harassment of HISD employees. Id. ¶ 18. Lucenio substantiated the co-worker's allegations. Id. Lucenio alleges that in retaliation for her participation in the investigation, HISD removed her from a work project in November 2018 and refused to assign her to any new projects. Id. ¶¶ 19-20. From January 2019 through June 2019, Lucenio applied to seven separate positions within HISD but was denied promotion each time. Id. ¶ 21. Ultimately, on or about June 10, 2019, HISD informed Lucenio that she was terminated effective June 30, 2019 due to a reduction in force (“RIF”). Id. ¶ 23.

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Following the notice of her termination in June 2019, Lucenio filed a grievance against two HISD employees for wrongful termination and failure to reassign her to a position after she was removed from her project in November 2018. Id. ¶ 26. HISD performed an investigation of the grievance. Id. ¶ 26. Lucenio alleges that during HISD's investigation, she was advised by a third-party investigator not to pursue federal and state claims. Id. On December 23, 2019, Lucenio filed a charge of discrimination against HISD with the EEOC. Id. ¶ 7.^[2]

In May 2020, Lucenio submitted an application in response to an HISD job posting and was informed that she would not be considered for the position due to her pending EEOC charge against the district. Id. ¶ 28. Lucenio received a right to sue letter from the EEOC on January 15, 2021 and filed suit against HISD within 90 days of receiving the letter. Id. ¶ 7. Lucenio's Second Amended Complaint asserts the following claims against HISD: 1) racial discrimination under Title VII and 42 U.S.C. § 1981; 2) retaliation under Title VII and 42 U.S.C. § 1981; 3) constitutional and federal law violations under 42 U.S.C. § 1983; 4) failure to provide a veteran's employment preference under Texas Government Code § 657.003; 5) failure to provide a veteran's employment preference under 5 U.S.C. § 2108; and 6) discrimination under 34 U.S.C. § 12601. Id. ¶¶ 29-59. HISD now moves pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss all claims.

II. Legal Standards

A. Standards for dismissal under Rule 12(b)(1)

Rule 12(b)(1) authorizes a defendant to dismiss for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged the court “is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case.” Montez v.Dep't of the Navy,

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392 F.3d 147, 149 (5th Cir. 2004); Krim v. PcOrder.com, 402 F.3d 489, 494 (5th Cir. 2005). The court may consider any of the following in resolving a Rule 12(b)(1) motion: “(1) the complaint alone; (2) the complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008); see also Schaeffler v. United States, 889 F.3d 238, 242 (5th Cir. 2018). The plaintiff bears the burden of establishing subject matter jurisdiction. Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014). If the plaintiff fails to meet his burden, the case must be dismissed. Id.

B. Standards for dismissal under Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the conduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. Alexander v. AmeriPro Funding, Inc., 848 F.3d 698, 701 (5th Cir. 2017) (citing Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). However, the court does not apply the same presumption to conclusory statements or legal conclusions. Iqbal, 556 U.S. at 678-79.

Generally, the Court may consider only the allegations in the complaint and any attachments thereto in ruling on a Rule 12(b)(6) motion. However, the court may take judicial notice of public documents, and may also consider documents a defendant attaches to its motion to dismiss under 12(b)(6) if the documents are referenced in the plaintiff's complaint and are central to plaintiff's claims. See Norris v. Hearst Trust, 500 F.3d 454, 461 (5th Cir. 2007);

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Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000); King v. Life Sch., 809 F.Supp.2d 572, 579 n.1. (N.D. Tex. 2011).

III. Analysis

A. Lucenio's Texas Veteran's Employment Preference claim should be dismissed.

Lucenio alleges that she is an honorably discharged veteran of the U.S. armed forces and that HISD failed to provide her with a veteran's employment preference in violation of Texas Government Code § 657.003. ECF No. 19 ¶¶ 53-55.^[3] HISD argues that the statute applies only to employment or appointment to state agencies and therefore Lucenio's claim under § 657.003 must be dismissed for lack of subject matter jurisdiction. ECF No. 23 at 10-11. HISD further argues for dismissal because Section 657.003 of the Texas Government Code does not provide for a private right of action. Id. at 11.

Section § 657.003 of the Texas Veteran's Employment Preference Act (TVEPA) entitles qualifying veterans to preference over other applicants for the same position, who do not have a greater qualification, when the veteran is seeking employment with, or appointment to, a state agency. See Tex. Gov't Code § 657.003(a). “State agency” is defined as a “board, commission, council, committee, department, office, agency or other governmental entity in the executive, legislative, or judicial branch of state government, including an institution of higher education as defined by Section 61.003, Education Code.”^[4] Tex. Gov't Code § 657.001(1). Independent school districts to not fall within the definition of “state agency” for purposes of the TVEPA. Under Texas law, independent school districts enjoy a large amount of political autonomy from the State, the Texas Education Agency, and the State Board of Education. San Antonio Indep. Sch. Dist. v. McKinney,

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936 S.W.2d 279, 282 (Tex. 1996). Each independent school district is governed by a board of trustees that is granted “the exclusive power and duty to govern and oversee the management of the public schools of the district” and may adopt any rules or bylaws necessary to carry out their statutory powers. Id. (citing Tex. Educ. Code §§ 11.151(b), (d)). Therefore, independent school districts are not under the guidance of the State of Texas's Commissioner of Education and the Texas Education Agency. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 328-30 (5th Cir. 2002) (noting the “significant autonomy of local school districts” from state oversight and control). Indeed, the Texas Supreme Court has held that “[a]lthough . . . independent school districts are creatures of the state and receive substantial funds for their operation from the state, they are independent...