Alusi v. City of Frisco

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SAFEALDEAN ALUSI v. CITY OF FRISCO, TEXAS

Civil No. 4:22-CV-397-SDJ

United States District Court, E.D. Texas, Sherman Division

August 24, 2023

MEMORANDUM OPINION AND ORDER

SEAN D. JORDAN, UNITED STATES DISTRICT JUDGE.

Plaintiff Safealdean Alusi alleges that Defendant City of Frisco, Texas (“the City”) discriminated against him in various ways, ultimately leading to his wrongful termination. Before the Court is the City's Motion to Dismiss and Brief in Support. (Dkt. #10). The Court, having reviewed the motion the relevant briefing, and the applicable case law GRANTS in part.

I. Background

Plaintiff Safealdean Alusi previously worked for the City of Frisco, and more specifically, the Frisco Fire Department. (Dkt. #1 at 4 ¶ 16). After completing a one-year probationary period, Alusi became a permanent firefighter and emergency medical technician (“EMT”) in December 2018. (Dkt. #1 at 4 ¶ 16). However, by July 11, 2019, Alusi had received three “performance note[s]” in response to various instances of alleged deficient performance, and was shortly thereafter moved to a new station, as well as required to restart a training program “to improve his paramedic skills.” (Dkt. #1 at 5 ¶¶ 20-21). Between the fall of 2019 and the summer of 2020, Alusi alleges that he was subject to a hostile work environment, and asserts that he was impermissibly terminated on May 6, 2020, on account of (1) disparate treatment based on his national origin (Iraqi), in violation of Title VII, (2) in retaliation for engaging in protected activity under Title VII (reporting that he was subject to a “hostile work environment”), and (3) in retaliation for filing workers' compensation claims in violation of Texas Labor Code § 451.001 (of which Alusi had filed three). (Dkt. #1 at 13 ¶ 50, 27 ¶ 117, 27-28 ¶ 121, 29 ¶ 130). Alusi also alleges that the City violated his Fourteenth Amendment Equal Protection rights under 42 U.S.C. § 1983. (Dkt. #1 at 29 ¶ 127).^[1] The City has moved to dismiss all of Alusi's claims asserted against it. (Dkt. #10).

II. Legal Standard

Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court has instructed that plausibility means “more than a sheer possibility,” but not necessarily a favorable probability. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

When assessing a motion to dismiss under Rule 12(b)(6), the facts pleaded are entitled to a presumption of truth, but legal conclusions that lack factual support are not entitled to the same presumption. Id. To determine whether the plaintiff has pleaded enough to “nudge[] [his] claims . . . across the line from conceivable to plausible,” a court draws on its own common sense and judicial experience. Id. at 67980 (second alteration in original) (quoting Twombly, 550 U.S. at 570). This threshold is surpassed when a “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

III. Discussion

At the outset, even though unchallenged by the City, the Court notes that Alusi has properly exhausted his Title VII claims by filing a Charge of Discrimination with both the Texas Workforce Civil Rights Division and the Equal Employment Opportunity Commission (“EEOC”) on July 27, 2020, well within the requisite filing period mandated by statute. See 42 U.S.C. § 2000e-5(e)(1) (requiring a charge of discrimination to be filed “within three hundred days after the alleged unlawful employment practice occurred” in cases where “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof”); see also Griffin v. City of Dallas, 26 F.3d 610, 611-12 (5th Cir. 1994) (holding that simultaneous filing of claims with a State agency and the EEOC triggered the three hundred day filing provision 42 U.S.C. § 2000e-5(e)(1)). And in any event, as the City has not challenged whether Alusi properly exhausted his Title VII claims, any such argument is forfeited. See Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1851-52, 204 L.Ed.2d (2019) (holding that Title VII's exhaustion requirement was a forfeitable claim-processing rule).

A. Disparate Treatment Discrimination in Violation of Title VII

i. Hostile Work Environment Claim

Alusi argues that the City harassed him by creating “a hostile work environment based on his national origin.” (Dkt. #1 at 27 ¶ 118). Hostile work environment claims arise where “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment.” Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399 (5th Cir. 2021) (simplified) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

There are five elements a plaintiff must show to prevail on a hostile work environment claim: (1) that he belongs to a protected group; (2) that he was subject to unwelcome harassment; (3) that the harassment complained of was on account of plaintiff's protected status; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that plaintiff's employer knew or should have known of the harassment and failed to take prompt remedial action. Id. at 399400. “In determining whether a workplace constitutes a hostile work environment, courts must consider the following circumstances: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere utterance; and whether it unreasonably interferes with an employee's work performance.” Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (simplified). The Supreme Court has instructed that the instances of unlawful employment practice that comprise a hostile work environment must occur “over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

Here, Alusi has alleged a course of conduct that occurred during his employment with the Frisco Fire Department, beginning in September 2019, and continuing through his termination date of May 6, 2020, that plausibly states a hostile work environment claim and avoids dismissal under Rule 12(b)(6). Alusi asserts that, during this period of time, he was treated differently and in an adverse manner than other firefighters, that he was continually demeaned and harassed by his supervisor, given unnecessary assignments that no other firefighter had been assigned, was accosted by his peers with his supervisor having knowledge of these interactions, and was subjected to hardships in training exercises that he alone was required to bear.

Alusi began his employment with the City of Frisco's Fire Department in December 2017. After completing a probationary period, he became a Firefighter/EMT in December 2018. From his complaint, it appears that Alusi complains of problems beginning in July 2019. At that time, Alusi was assigned to Fire Station 6, where he alleges an incident in which a Lieutenant FF Watkins required Alusi to pull hose off of a fire engine during a heat advisory, and that he was the only Station 6 firefighter required to perform the drill. Alusi felt that he was being “targeted by the Station 6 crew” and, in September 2019, he complained to Battalion Chief Jeff Morrison that he was experiencing a “hostile environment” at Station 6. Alusi maintains that although Morrison assured him that their meeting would be confidential, it became clear that Morrison disclosed Alusi's complaint to the Frisco Firefighter Association and the other firefighters, such that Alusi was considered to be a “rat.”

Following Alusi's complaint to Morrison about his treatment at Station 6, three events occurred in September 2019. First, Morrison advised Alusi that he would no longer be permitted to participate on the Wildland Firefighting Team. According to Alusi, Morrison had not revoked the permission of any other firefighter to participate on the Wildland Firefighting Team. Second, Alusi had expressed interest in serving on the CORE Employee Recognition Committee, a committee responsible for nominating a City employee of the month. In September 2019, Alusi learned that Frisco Fire Chief Mark Piland declined to allow Alusi to participate on the committee. According to Alusi, Piland had not declined any other firefighter's participation on this committee. Finally, in late September Alusi was informed that Morrison had revoked Alusi's previously approved request to travel with the Frisco Fire Honor Guard on October 6, 2019. Alusi was later informed that Morrison also would no longer permit Alusi to participate in the Honor Guard so that Alusi could focus on his new duties as a Paramedic in Charge. According to Alusi, Morrison had not taken similar actions for other firefighters who assumed Paramedic in Charge duties.

In early October 2019, Morrison transferred Alusi to the “A Shift” at Station 7. At that time, Clint Carpenter was Captain of the A-Shift at Station 7. In his first meeting with Carpenter in October 2019, Alusi asserts that Carpenter...