In Green v. Denis McDonough, Secretary, U.S. Department of Veterans Affairs, 2022 WL 17330852 (W.D.Tex. Nov. 28, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliatory hostile work environment claim.
Initially, the court held that plaintiff sufficiently alleged a causal connection between his engaging in protected activity and the alleged harassment.
On that point, it explained:
Here, the VA challenges whether Green adequately pled facts to establish a causal link between the alleged harassment and his participation in protected activity. In his Second Amended Complaint, Green alleges after he first initiated the EEO process, he was denied administrative leave to attend a conference where he could gain training, education, and re-certification. ECF No. 28, pars. 43-50. Green alleges his supervisor threatened him that if he lost and appealed his EEO complaint, he would be demoted and receive a bad “write-up” in the review process. Id. at pars. 51-57. Green alleges that after his second EEO complaint, his supervisor stated he believed Green’s EEO activity was a “problem for his managers,” referred to Green’s complaints as “ ‘harassment,’ ” and stated Green “spent too much ‘time and energy’ on pursuing his civil rights in the EEO process, and that he should spend that time and energy on his work duties.” Id. at pars. 69-72. Green alleges his supervisor gave him an unfavorable performance review after his third EEO complaint. Id. at pars. 91-106. In addition to these named, Green asserts other instances of reprisal that occurred after his participation in the EEO process.
Based on this, the court concluded that plaintiff “asserts ample factual allegations to connect his participation in the EEO process to the alleged hostile work environment.”
Next, the court held that plaintiff sufficiently alleged that the alleged harassment was “severe or pervasive”:
To establish a cause of action for retaliatory hostile work environment claim, the alleged harassment must be “sufficiently severe or pervasive … [to] create an abusive working environment.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002); see also Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). To determine whether a workplace constitutes a hostile work environment, the totality of the circumstances is considered, 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.” Ramsey, 286 F.3d at 268 (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 23 (1993)). A workplace environment is hostile when it is “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently pervasive to alter the conditions of the victim’s employment.” Alaniz v. Zamora–Quezada, 591 F.3d 761, 771 (5th Cir. 2009); Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 441 (5th Cir. 2011).
The VA cites to cases which determined the issue of pervasiveness and severity at the summary-judgment or directed-verdict stage of litigation. At this stage, in a Federal Rule 12(b)(6) motion, Green is not required to prove or establish severity or pervasiveness as a matter of law or survive a “fact-intensive” inquiry, but must only state a plausible claim for relief. See Griffin, 2011 WL 759476, at *4–5; McCorvey, 2016 WL 8904949, at *8. Viewing the facts and instances of the alleged retaliatory conduct in the light most favorable to Green, he alleges consistent incidents of targeted harassment against him during an established period after his participation in the EEO process which are sufficient to state a plausible claim under the Federal Rule 12(b)(6) standard.
Accordingly, the court denied defendant’s motion.