In Jenes v. Secretary of Veterans Affairs, SA-22-CV-00740-OLG, 2023 WL 8582600 (W.D.Tex. Dec. 11, 2023), the court, inter alia, held that plaintiff sufficiently alleged claims of discrimination based on sex (female) and national origin (Russian) under Title VII of the Civil Rights Act of 1964.
From the decision:
Plaintiff has adequately pleaded an adverse employment action. Defendant argues Plaintiff has not pleaded an adverse employment action but in doing so relies on outdated precedent. The Fifth Circuit recently explained that adverse employment actions are not limited to ultimate employment decisions but rather need only affect a term, condition, or privilege of employment. Hamilton v. Dallas Cnty., 79 F.4th 494, 506 (5th Cir. 2023). Plaintiff’s Complaint alleges that she was excluded from workplace activities, denied promotional opportunities, subjected to adverse work schedules, placed on a PIP, removed from direct patient care, and ultimately constructively discharged. These acts constitute an adverse employment action because they affected a term, condition, or privilege of employment.
Plaintiff also pleads she suffered these adverse actions because she is Russian and female. Defendant argues that Plaintiff has not included sufficient factual allegations in her Amended Complaint regarding discrimination on the basis of her Russian and female identities sufficient to make her claims plausible as opposed to merely conceivable. The undersigned disagrees. Defendant cites various cases from the Western District of Texas in support of dismissal. Yet these cases are inapposite. The pleadings in one of the cases contained virtually no allegations regarding discrimination based on a protected characteristic. See Quest v. Bandera Cnty., No. 5:13-CV-00506-DAE, 2013 WL 6835147, at *6 (W.D. Tex. Dec. 26, 2013) (granting motion to dismiss but allowing repleading where the plaintiff alleged she was fired for making a mistake on forms but did not include any allegations about comparators or discrimination on the basis of her age). The other cited case was in a summary judgment posture. Nadeau v. Echostar, No. EP-12-CV-433-KC, 2013 WL 5874279, at *11–12 (W.D. Tex. Oct. 30, 2013) (granting motion for summary judgment on claim of age discrimination for failure to identify any evidence from which jury could infer age discrimination through either direct evidence or comparator evidence).
Plaintiff’s Amended Complaint includes allegations that non-Russian nurses who participated in the TEAM STEPPS class were not subjected to the same adverse actions as Plaintiff. (Am. Compl. [#18], at ¶ 14.) Plaintiff further alleges that she was denied the opportunity to correct any alleged misconduct in the workplace whereas male, non-Russian nurses were permitted to do so, and that male nurses generally received more preferential treatment. (Id. at ¶¶ 29, 41.) Plaintiff specifically identifies two male nurses, Albert Martinez and Ryan Robisheaux, who allegedly engaged in workplace misconduct and violated company policy and who were not treated similarly to Plaintiff or subjected to disciplinary sanctions. (Id. at ¶¶ 31–36, 44.) Although these allegations are fairly general, they are sufficient to state a plausible claim of national origin and sex discrimination at the pleading stage of these proceedings. Plaintiff has not pleaded any facts related to race discrimination, however, so her race discrimination claim should be dismissed. Although Plaintiff’s national origin and sex discrimination claims may go forward, Plaintiff is reminded that to prevail on her claims, she must prove that the non-Russian, male comparators that she identified must be similarly situated to her in all relevant respects.
While the court held that plaintiff sufficiently alleged discrimination in the form of an adverse employment action, she did not sufficiently allege a hostile work environment, since plaintiff did not allege conduct rising to the level of “severe” or “pervasive.”