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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DIANN H. ANGUS,

Plaintiff

v.

CHAD F. WOLF, ACTING 

DIRECTOR OF THE 

DEPARTMENT OF 

HOMELAND SECURITY,

Defendant

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 Case No. 1:20-cv-00242-LY-SH

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

Before the Court is a Motion to Dismiss filed by Defendant Chad F. Wolf, Acting Director of 

the Department of Homeland Security, on June 22, 2020 (Dkt. 12), along with the response and 

reply briefs. The District Court referred all motions in this case to the undersigned Magistrate 

Judge for disposition and Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), Federal 

Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United States 

District Court for the Western District of Texas. Dkt. 15.

I. Background

Plaintiff Diann Angus, proceeding pro se, is a federal employee who unsuccessfully applied 

for three job openings posted by Immigration and Customs Enforcement (ICE), an agency within 

the Department of Homeland Security (DHS). In 2012, Plaintiff applied for the positions of 

Intelligence Research Specialist and Intelligence Assistant. Dkt. 1 ¶¶ 17, 23. To fill vacant 

positions, ICE prepares a “certificate” for each category of eligible candidate. Dkt. 12 at 2. Plaintiff

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asked to be placed on the “Schedule A” certificate for each position. Dkt. 1 ¶¶ 17, 23. Applicants 

for federal positions may be eligible for listing on a Schedule A certificate if they have a certified 

mental or physical disability or satisfy other criteria. See 5 C.F.R. § 213.3101; id. § 213.3102(u).

Instead, for each position, Plaintiff was placed on the competitive service “merit” selection

certificate. Dkt. 12-1 ¶ 6. Her applications were forwarded to the selecting official, Special Agent 

in Charge for San Antonio Homeland Security Investigations Jerry Robinette. Dkt. 12-1 ¶ 6.

Plaintiff was not selected for either position. Dkt. 1 ¶ 21, 27. 

In 2013, Plaintiff filed a formal complaint with the ICE Equal Employment Opportunity Office

(“EEO”), alleging that her non-selection was the result of discrimination based on her sex, age, 

physical or mental disability, and in retaliation for prior EEO activity. Id. at 1 & ¶ 27; Dkt. 12-2; 

Dkt. 12-3 at 1. ICE EEO subsequently investigated Plaintiff’s allegations. Dkt. 1 ¶ 32; Dkt. 12-3.

Although Plaintiff initially requested a hearing before the Equal Employment Opportunity 

Commission (“EEOC”), she withdrew the request and asked that her case be remanded to DHS for

a Final Agency Decision. Dkt. 1 ¶¶ 35, 39. In January 2019, DHS issued a Final Agency Decision 

concluding that ICE did not discriminate against Plaintiff and dismissed Plaintiff’s complaint as 

untimely. Id. ¶ 44; Dkt. 12-4. Plaintiff appealed to the EEOC’s Office of Federal Operations, which 

affirmed the ruling. Id. ¶ 45; Dkt. 12-5 at 4. 

In 2016, Plaintiff applied to ICE for a third time, this time for the position of an Investigative 

Research Specialist. Dkt. 1 ¶ 46. Again, Plaintiff was not selected. Id. ¶ 47. In 2017, Plaintiff filed 

a second formal complaint with ICE EEO, alleging age and sex discrimination and retaliation. Id.

¶ 48; Dkt. 12-6 at 2. Plaintiff alleges that the EEO investigator engaged in improper tactics during 

the investigation, did not allow her to respond to witness statements, and failed to timely provide 

the investigation report. Dkt. 1 ¶¶ 50-54. Plaintiff requested a hearing before the EEOC, but

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subsequently withdrew the request to file an action in federal district court. Id. ¶ 55; Dkt. 12-6 at 

2. On February 19, 2020, the DHS issued a Final Agency Decision affirming the dismissal of 

Plaintiff’s case based on her intent to file a federal action. Dkt. 1 ¶ 56; Dkt. 12-6 at 2-3.

On March 6, 2020, Plaintiff filed suit, alleging that her non-selection for the three positions 

was the result of multiple forms of illegal discrimination in ICE’s hiring process and retaliation 

for her participation in protected activities. Dkt. 1. In her 49-page complaint, Plaintiff asserts 

fifteen overlapping “counts” against Defendant. Her allegations can be condensed into the 

following claims: (1) disability discrimination under Title II of the Americans with Disabilities 

Act (“ADA”); (2) failure to properly process and investigate her previous equal employment 

opportunity complaints; (3) sex discrimination under Title VII of the Civil Rights Act of 1964 

(“Title VII”); (4) age discrimination under the Age Discrimination in Employment Act of 1967 

(“ADEA”); and (5) retaliation under Title VII. Defendant seeks dismissal of all Plaintiff’s claims 

under Federal Rule of Civil Procedure 12(b)(6). Dkt. 12.

II. Legal Standard

Rule 12(b)(6) allows a party to move to dismiss an action for failure to state a claim on which 

relief can be granted. In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, 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 (5th Cir. 2007) (internal 

quotation marks omitted). The Supreme Court has explained that a complaint must contain 

sufficient factual matter “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 misconduct alleged.” Id. at 678. 

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While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 

not need detailed factual allegations, a plaintiff’s obligation to provide 

the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of 

action will not do. Factual allegations must be enough to raise a right 

to relief above the speculative level, on the assumption that all the 

allegations in the complaint are true (even if doubtful in fact).

Twombly, 550 U.S. at 555 (cleaned up). The court’s review is limited to the complaint, any 

documents attached to the complaint, and any documents attached to the motion to dismiss that 

are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays 

Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

Pro se complaints are construed liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 

519, 520-21 (1972). However, a party’s pro se status does not offer her an “impenetrable shield, 

for one acting pro se has no license to harass others, clog the judicial machinery with meritless 

litigation, and abuse already overloaded court dockets.” Farguson v. Mbank Houston, N.A., 808 

F.2d 358, 359 (5th Cir. 1986).

III. Analysis

Defendant arguesthat Plaintiff’s ADA claims should be dismissed because (1) there is no cause 

of action for failure to place an applicant on a Schedule A certificate; (2) Plaintiff failed to exhaust 

her administrative remedies for her disparate impact claim before filing suit; and (3) Plaintiff has 

not adequately pled the elements of her disability discrimination claims. Defendant further argues 

that Plaintiff’s claims related to the agency’s investigation and processing of her EEO complaint 

should be dismissed because they fail to state any recognized cause of action. Finally, Defendant

argues that Plaintiff’s discrimination claims under Title VII and the ADEA along with her 

retaliation claim should be dismissed because Plaintiff has not adequately pled facts to support her 

claims.

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A. ADA Claims (Counts 1, 2, 3, 8, 9, 13, and 14)

Plaintiff asserts that Defendant violated the ADA by discriminating against her in the hiring 

process due to her alleged disability. Specifically, Plaintiff alleges that Defendant should have 

placed her on a Schedule A certificate rather than on a competitive service selection certificate of 

eligible candidates for the open ICE positions. Dkt. 1 ¶¶ 2-3. Plaintiff further alleges that 

Defendant’s “common practice” of forwarding only a competitive service selection certificate to 

selecting officials violates the federal hiring rules and disparately impacts Schedule A candidates 

with disabilities. Id. ¶¶ 1, 59, 61, 63.

1. Schedule A

As stated above, Schedule A is an affirmative action hiring authority that allows for noncompetitive appointments. See 5 C.F.R. § 213.3102(u). A selecting official is not required to hire 

or give preference to an individual simply because she appears on a Schedule A certificate.

MacDonald v. Cohen, 233 F.3d 648, 653 (1st Cir. 2000) (finding that Schedule A authority does 

not require agency to give position to disabled applicant in non-competitive process without regard 

to qualifications relative to other applicants). Indeed, a federal employer is not required to use

Schedule A in its hiring process at all. Id.; Hylton v. Calabria, Civil Action No. 17-2023 (RDM), 

2020 WL 6134673, at *8 (D.D.C. Oct. 19, 2020) (noting that “the regulatory language is 

permissive; it does not require agencies to hire a disabled applicant through non-competitive 

processes”). Because the use of Schedule A hiring authority is optional, there is no independent 

cause of action based on a federal employer’s failure to create a Schedule A certificate. WardJohnson v. Glin, Civil Action No. 1:19-cv-00534(CJN), 2020 WL 2770018, at *9 (D.D.C. May 28, 

2020) (holding that failure to follow an affirmative action plan such as Schedule A does not state 

a claim on its own); see also Sessions v. Rusk State Hosp., 648 F.2d 1066, 1071 (5th Cir. 1981) 

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(holding that Title VII does not require an employer to prefer a minority applicant over an equally 

qualified nonminority applicant). To the extent that Plaintiff’s claims are based solely on 

Defendant’s failure to place her on a Schedule A certificate rather than a competitive service 

certificate, Plaintiff has failed to state a claim on which relief can be granted.

2. Disparate Impact Discrimination

The Court next addresses Plaintiff’s disparate impact claims appearing in Counts 1, 2, 3, 8, 9, 

13, and 14 of her Complaint.

a. Failure to Exhaust Administrative Remedies

Before a plaintiff can file an ADA claim in federal court, she must exhaust her administrative 

remedies. Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017). To exhaust 

administrative remedies, a federal employee plaintiff must file a discrimination charge with the

EEO division of her agency. Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006).1 Claims alleged 

in the discrimination charge, or those that reasonably could have grown out of the charge, will be 

considered exhausted. Id. at 789.

Defendant argues that Plaintiff failed to include any reference in her 2013 complaint to the 

disparate impact claims she is pursuing in this lawsuit.

2 Thus, Defendant asserts that the disparate 

impact claims relating to the 2012 non-selections should be dismissed for failure to exhaust.

1 Until recently, there was a split within the Fifth Circuit Court of Appeals regarding whether a failure to 

exhaust administrative remedies is merely a prerequisite to suit (allowing dismissal without prejudice to 

refiling), or whether it is jurisdictional in nature. See Pacheco, 448 F.3d at 788 n.7. In 2019, the United 

States Supreme Court resolved this issue, holding that Title VII’s charge-filing instruction is not 

jurisdictional. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019) (“Prerequisites to suit like Title VII’s 

charge-filing instruction are not of that character; they are properly ranked among the array of claimprocessing rules that must be timely raised to come into play.”).

2 Plaintiff’s disparate impact disability claim relates only to her 2013 complaint; her 2017 complaint does 

not mention disability discrimination. See Dkt. 12-6 at 3 (stating claim as “[w]hether ICE subjected 

Complainant to discrimination based upon sex [], age [], and reprisal []”).

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A disparate impact claim challenges facially neutral employment practices that have a 

disproportionately adverse effect on minorities and are otherwise unjustified by a legitimate 

rationale. Ricci v. DeStefano, 557 U.S. 557, 577 (2009). In her 2013 EEO complaint, Plaintiff 

states that “my complaint is for non-selection based on sex, age, individual with a Targeted 

Disability and retaliation.” Dkt. 12-2 at 4. Plaintiff’s complaint focuses on her non-selection after

making the merit certification list. She does not mention any alleged disparate impact suffered 

generally by qualified applicants with disabilities due to Defendant’s failure to use Schedule A 

certificates in the certification process. Id. In investigating Plaintiff’s complaint, the ICE Office of 

Diversity and Civil Rights stated that the scope of its inquiry would be limited to “whether 

complainant . . . was subjected to discrimination . . . when the agency did not select her” for the 

positions. Dkt. 12-3 at 1. The Final Agency Decision also stated that the claims at issue were based 

on disparate treatment relating to Plaintiff’s non-selection for the open ICE positions. Dkt. 12-4 at 

7, 10.

Plaintiff’s 2013 EEO Complaint was based only on Plaintiff’s allegations of disparate 

treatment in her non-selection. She did not identify any neutral employment policy or practice 

affecting applicants generally, but instead alleged disparate treatment in Defendant’s selection 

decision. Therefore, she has failed to exhaust her administrative remedies for her ADA disparate 

impact claims. The Court recommends that Plaintiff’s disparate impact claims in Counts 1, 2, 3, 8, 

9, 13, and 14 of her Complaint be dismissed due to her failure to exhaust administrative remedies.

b. Plaintiff’s Claim of Disparate Impact Discrimination Fails on the Merits 

Even if Plaintiff had exhausted this claim, it would be denied on the merits. To state a claim 

for disparate impact discrimination, a plaintiff must: (1) identify the challenged employment 

practice or policy and pinpoint the defendant’s use of it; (2) demonstrate a disparate impact on a 

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protected group; and (3) demonstrate a causal relationship between the identified practice and the 

disparate impact. Gonzales, 176 F.3d at 839 n.26. In the ADA context, a plaintiff may satisfy the 

second prong of her prima facie case by demonstrating an adverse impact on herself rather than on 

an entire group. Id.

In her Complaint, Plaintiff alleges that Defendant engaged in the “common practice” of 

electing not to use a Schedule A certificate if a Schedule A applicant qualified for the merit 

selection certificate. This allegation satisfies the first element of a disparate impact claim. Dkt. 1 

¶¶ 1, 2, 27, 47, 58, 59. Plaintiff, however, does not allege facts sufficient to satisfy the second and 

third elements. Plaintiff asserts, without support, that Defendant’s challenged employment practice 

“has led to fewer Individuals with Disabilities being hired” and “has had an adverse impact on a 

protected class.” Id. ¶¶ 74, 113. She offers statistical data unrelated to the challenged employment 

practice. Id. ¶ 65-67, 72, 124. She alleges no facts showing that Defendant’s hiring process 

disparately impacts individuals with disabilities as a group. Id.

Plaintiff also fails to provide facts showing that she personally suffered any adverse impact 

from Defendant’s employment policy regarding Schedule A certificates. Defendant included 

Plaintiff on the competitive selection certificates, and her applications were forwarded to the 

selecting official for consideration despite Defendant’s decision not to use a Schedule A certificate. 

Dkt. 12-1 ¶ 6. The only adverse impact Plaintiff alleges is her non-selection for the ICE positions. 

Id. ¶ 72. Plaintiff offers no facts linking her non-selection to Defendant’s policy regarding 

Schedule A certificates. Plaintiff has alleged no facts to demonstrate an adverse impact that was 

suffered either by her personally or by individuals with disabilities generally related to Defendant’s 

election not to use Schedule A certificates. She thus has failed to allege a plausible disparate impact 

claim.

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3. Disparate Treatment Based on Disability

The ADA prohibits employers from discriminating against any qualified individual based on

disability in the application and hiring process. 42 U.S.C. § 12112(a). Thus, to state a claim for 

disparate treatment in hiring under the ADA, a plaintiff must establish three elements: (1) at the 

time she sought employment, she had a disability within the meaning of the ADA; (2) she was 

qualified for the position; and (3) she was not hired because of her disability. Rodriguez v. Conagra 

Grocery Prods. Co., 436 F.3d 468, 474 (5th Cir. 2006). 

In her Complaint, Plaintiff alleges that she has a disability within the meaning of the ADA. 

Dkt 1 at 1-2. Plaintiff also alleges that she was qualified for the ICE positions for which she applied

and cites to her career experience in support of that conclusion. Dkt. 1 at ¶¶ 65, 67, 121, 122. 

Plaintiff, however, does not allege that she was not hired because of her disability. Instead, she

alleges that Defendant has failed to use affirmative action plans for applicants with disabilities

generally. Id. at ¶¶ 61, 63, 74, 113, 155. Because Plaintiff has neither pled that her non-selection 

was based on her disability nor alleged that she suffered any other adverse employment action due 

to her disability, she has failed to state a plausible claim for disparate treatment disability

discrimination under the ADA. The Court therefore recommends that the disparate treatment 

claims in Counts 1, 2, 3, 8, 9, 13, and 14 be dismissed.

B. Claims Relating to Alleged Failure to Investigate (Counts 4, 5, 6, 7, and 15)

In several of her claims, Plaintiff alleges that Defendant failed to properly process and 

investigate her EEO complaints. Specifically, she alleges that Defendant delayed processing and 

investigating her complaints (Dkt. 1 ¶ 76-80 (Count 4)); erroneously documented its processing 

and investigation (Dkt. 1 ¶ 83-87 (Count 5)); failed to cooperate in discovery and witness 

disclosures (Dkt. 1 ¶ 89-91 (Count 6)); disobeyed the EEOC administrative judge’s orders (Dkt. 1 

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¶ 95-107 (Count 7)); and improperly injected itself into the EEO investigation (Dkt. 1 ¶¶ 157-59

(Count 15)). Defendant argues that there is no recognized cause of action for the alleged 

investigative failures and activities of which Plaintiff complains. Dkt. 12 at 17-18.

Title VII does not confer a right of action for improper investigation or processing of a federal

administrative employment discrimination complaint. See Daniels v. Caldera, 237 F.3d 631, 2000 

WL 1701699, at *3 (5th Cir. 2000) (finding no compelling justification for an “improper complaint 

processing” cause of action under Title VII); see also Newsome v. EEOC, 37 F. App’x 87, 2002 

WL 971379, at *3 (5th Cir. Apr. 22, 2002) (affirming Rule 12(b)(6) dismissal of Title VII claims 

against EEOC for deprivation of rights); Gibson v. Mo. Pac. R.R., 579 F.2d 890, 891 (5th Cir. 

1978) (holding that Title VII confers no right of action against the EEOC for improper 

investigation or processing of an employment discrimination charge); Ramseur v. Perez, 962 

F. Supp. 2d 21, 29 (D.D.C. 2013) (holding that there is no cause of action under Title VII for delay 

or interference in the administrative process). The Court therefore recommends that Counts 4, 5, 

6, 7, and 15 be dismissed for failure to state a claim.

C. Title VII Claim for Disparate Treatment Based on Sex (Count 10)

Plaintiff labels Count 10 of her Complaint as “Sex Discrimination-Female.” Dkt. 1 ¶ 127. She 

alleges that women are underrepresented in ICE’s workforce, and that ICE hired four men and one 

woman for the open positions for which Plaintiff applied. Id. ¶¶ 129-31. Defendant argues that 

Plaintiff fails to allege facts sufficient to state a claim for sex discrimination. Dkt. 12 at 18.

To state a claim for sex discrimination under Title VII, a plaintiff must show that (1) she is a 

member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an 

adverse employment action; and (4) others similarly situated but outside the protected class were 

treated more favorably. Alvarado v. Tex. Rangers, 492 F.3d 605, 611 (5th Cir. 2007). Here, 

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Plaintiff satisfies the first three elements, but not the fourth. Dkt. 1 at 1-2; id. ¶¶ 65, 67, 121-22, 

128. Plaintiff alleges that four individuals were selected from the 2012 certificate, one of whom 

was female. Dkt. 1 ¶ 129. Plaintiff further alleges that one of the 2012 selectees, John Williams, is 

outside her protected class and questions Williams’ qualifications. Dkt. 1 at ¶¶ 116-19. Nowhere 

does Plaintiff claim that she was similarly situated to Williams or any other comparator outside 

her protected class. Nor does Plaintiff allege that her non-selection was the result of discriminatory 

animus against her based on sex.

Because Plaintiff has not pled facts showing that others similarly situated but outside her 

protected class were treated more favorably by Defendant in its selection process, she has failed 

to state a plausible claim for sex discrimination under Title VII. See Pichardo v. Centene Co., No.

7:19-cv-00085, 2020 WL 1308047, at *8 (S.D. Tex. Mar. 16, 2020) (dismissing sex discrimination 

claim). The Court recommends that Count 10 be dismissed for failure to state a claim.

D. ADEA Claim (Count 11)

Plaintiff labels Count 11 of her complaint “Age Discrimination.” Dkt. 1 ¶ 133. She alleges that 

women over 50 years of age are underrepresented in the ICE workforce, and that four individuals 

selected for the intelligence positions she sought were “approximately 20 or more years younger 

than the plaintiff.” Id. ¶¶ 19, 133-34. Plaintiff further alleges that one of the selectees, Janie Cantu, 

was “personal friends” with the selecting official and was considered improperly because she lived 

outside the geographic area for the announcement. Id. ¶¶ 87, 135-37. 

The public sector provisions of the ADEA state that all personnel actions affecting individuals 

age 40 and over shall be made free from any discrimination based on age. 29 U.S.C. § 633a(a). 

For federal employees, the ADEA prohibits any age discrimination in a personnel decision, not 

just with respect to end results. Babb v. Wilkie, 140 S. Ct. 1168, 1176 (2020). To state a claim for 

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age-related disparate treatment discrimination, a plaintiff must show that (1) she was within the 

protected class; (2) she was qualified for the position; (3) she suffered an adverse employment 

decision; and (4) she was replaced by someone younger or treated less favorably than similarly 

situated younger employees. Smith v. City of Jackson, 351 F.3d 183, 196 (5th Cir. 2003).

Plaintiff’s Complaint contains allegations sufficient to satisfy the first three elements of her 

claim for age discrimination. Dkt. 1 at 1-2, ¶¶ 65, 67, 121-22, 133. She has not, however, satisfied 

the fourth element. Plaintiff does not allege that she was similarly situated to any of the younger 

selectees for the intelligence positions, or that consideration of her age played any part in DHS’s 

selection process. She makes no allegation that age was considered in any of ICE’s selection 

decisions. Instead, Plaintiff admits that the individual selected for the Intelligence Assistant 

position with “within the plaintiff’s age group” and was selected due to a pre-existing personal 

relationship with the selecting official. Id. ¶ 135-36.

Because Plaintiff has not pled facts to show that ICE considered her age in its selection process 

or treated similarly situated, younger applicants more favorably, Plaintiff has failed to state a 

plausible claim for age discrimination under the ADEA. The Court therefore recommends that 

Count 11 be dismissed for failure to state a claim.

E. Title VII Claim for Retaliation (Count 12)

Finally, Plaintiff brings a claim for retaliation under Title VII. Plaintiff alleges that her nonselection for the ICE positions was the result of her previous engagement in protected activities, 

namely, serving as a witness in an EEO investigation and filing an EEO complaint. Dkt. 1 at 1-2; 

id. ¶ 4, 139, 141-47. Plaintiff alleges that selecting official Robinette and Peggy Brake, Supervisory 

Human Resources Specialist, retaliated against her by not considering her for the open intelligence 

positions in 2012. Id. ¶ 145.

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In order to establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged 

in an activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal 

link exists between the protected activity and the adverse employment action. McCoy v. City of 

Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). An adverse employment action consists of 

ultimate employment decisions, such as hiring, granting leave, discharge, promotion, or 

compensation. Pegram v. Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). A causal link exists 

when the employer’s action was based in part on knowledge of the employee’s protected activity.

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). A plaintiff need not prove that her 

protected activity was the sole factor motivating the adverse employment decision. See Long v. 

Eastfield Coll., 88 F.3d 300, 305 n.4 (5th Cir. 1996).

Plaintiff has pled sufficient facts to state a claim for retaliation under Title VII. Plaintiff alleges 

that she engaged in activities protected by Title VII in 2010, satisfying the first element. Dkt. 1 

¶ 4, 123, 142-43, 145. She also alleges that Robinette was aware of those activities. Id. She satisfies 

the second element of a retaliation claim by alleging that an adverse employment action occurred 

when she was not selected for either of the positions for which she applied in 2012. Id. ¶ 21, 27; 

Dkt. 12-1 ¶ 6. As for the third element, Plaintiff alleges that Robinette made a statement during 

the 2013 EEO investigation that displayed animus toward her participation in protected activities. 

Id. ¶ 141-42; Dkt. 13-3 at 2. She further alleges that Robinette’s statement shows a causal link 

between her protected activity and his decision not to hire her in 2012. Id. ¶ 143-45; Medina, 238 

F.3d at 684 (finding the causal link element satisfied where plaintiff showed decisionmaker had 

prior knowledge of EEO complaint and it was not wholly unrelated to the adverse employment 

action). The Court recommends that Defendant’s motion to dismiss Plaintiff’s retaliation claim 

(Count 12) be denied.

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IV. Recommendation

Based on the foregoing, the undersigned RECOMMENDS that Defendant’s Motion to 

Dismiss (Dkt. 12) is GRANTED IN PART and DENIED IN PART. The Court 

RECOMMENDS that the District Court DENY Defendant’s Motion as to Plaintiff’s Title VII 

retaliation claim (Count 12), and GRANT the Motion and DISMISS with prejudice Plaintiff’s 

ADA claims (Counts 1, 2, 3, 8, 9, 13, and 14); her claims relating to failure to investigate (Counts 

4, 5, 6, 7, and 15); her Title VII claim for sex discrimination (Count 10); and her ADEA claim 

(Count 11).

V. Warnings

The parties may file objections to this Report and Recommendation. A party filing objections 

must specifically identify those findings or recommendations to which objections are being made. 

The District Court need not consider frivolous, conclusive, or general objections. See Battle v. 

United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written 

objections to the proposed findings and recommendations contained in this Report within fourteen 

(14) days after the party is served with a copy of the Report shall bar that party from de novo 

review by the District Court of the proposed findings and recommendations in the Report and, 

except on grounds of plain error, shall bar the party from appellate review of unobjected-to 

proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. 

§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 

79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

SIGNED on December 22, 2020.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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