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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

BRYNNE SOUKUP,

 Plaintiff,

v.

FRONTIER AIRLINES, INC. and FLIGHT 

SERVICES & SYSTEMS, LLC,

 Defendants.

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Civil Action No. 1:20-cv-648-RP

PLAINTIFF BRYNNE SOUKUP’S RESPONSE AND OPPOSITION TO 

DEFENDANT FLIGHT SERVICES & SYSTEMS, LLC’S MOTION TO DISMISS 

COMES NOW BRYNNE SOUKUP, Plaintiff in the above-styled action, and files this 

Response to Defendant FLIGHT SERVICES & SYSTEMS, LLC’s (“FSS”) Motion to Dismiss 

and Brief in Support (Def. Mot. to Dismiss and Br. in Supp., Oct. 7, 2020, ECF No. 19) (“Motion 

to Dismiss”).

I.

SUMMARY

FSS’s Motion to Dismiss should be denied in its entirety.

Plaintiff’s First Amended Complaint and Demand for Jury Trial (Pl. First Am. Compl., Jul. 

21, 2020, ECF No. 7) (“Amended Complaint”) pleads sufficient factual matter to support 

Plaintiff’s disparate impact claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), as 

amended, and the Texas Labor Code (“TCHRA”) against FSS. The nonconclusory factual 

statements in the Amended Complaint, accepted as true, allow for the reasonable inference that 

Plaintiff suffered an adverse employment action by FSS because of her gender identity. 

The Amended Complaint further pleads sufficient factual matter to support Plaintiff’s 

retaliation claims under Title VII and TCHRA against FSS. The nonconclusory factual statements 

in the Amended Complaint, accepted as true, allow for the reasonable inference that Plaintiff 

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suffered an adverse employment action because she alerted FSS to her reasonable, good faith belief 

that she was the target of unlawful discrimination.

Finally, the Amended Complaint contains sufficient factual matter to support Plaintiff’s 

hostile work environment claims under Title VII and TCHRA against FSS. The nonconclusory 

factual statements in the Amended Complaint, accepted as true, allow for the reasonable inference 

that Plaintiff suffered severe or pervasive harassment because of her gender identity, which FSS 

was aware of yet failed to adequately remedy. Moreover, Plaintiff exhausted all administrative 

remedies for this claim, which fell within the scope of her administrative charge before the EEOC.

II.

ANALYSIS

To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted 

as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do not suffice” to meet 

this standard. Id. 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.

A. PLAINTIFF’S SEX DISCRIMINATION CLAIMS UNDER TITLE VII AND TCHRA.

Title VII and TCHRA both prohibit employment discrimination because of sex, which 

includes discrimination because of gender identity. 42 U.S.C. § 2000e-2(a)(1); TEX. LAB. CODE § 

21.051; Bostock v. Clayton County, Georgia, 140 S.Ct. 1731 (2020).

The “two ultimate elements a plaintiff must plead to support a disparate treatment claim 

under Title VII [are]: (1) an adverse employment action, (2) taken against a plaintiff because of 

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her protected status." Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) 

(quoting Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013)).

As an initial matter, FSS’s Motion to Dismiss appears to misinterpret the precedents of this 

Court, and other federal courts, in suggesting that “a [Title VII] plaintiff who fails to identify...a 

comparator or similarly-situated employee has failed to plead sufficient facts in support of a 

discrimination claim.” Mot. to Dismiss 10-11; see also Morris v. Town of Indep., 827 F.3d 396, 

401 (5th Cir. 2016) (“With respect to the ‘similarly situated employees’ requirement, a plaintiff 

must show that [she] was treated less favorably than others under nearly identical circumstances.) 

Plaintiff does not understand the authority cited by FSS as supporting the existence of such a per 

se pleading requirement whereby, in order to survive a motion under Rule 12(b)(6), a Title VII 

plaintiff must affirmatively identify an employee from outside their protected class whom they 

were treated less favorably than under nearly identical circumstances. See Crankshaw v. City of 

Elgin, No. 1:18-CV-75-RP, 2019 WL 3883565, at *10 (W.D. Tex. Jan. 14, 2019) (granting Rule 

12(b)(6) motion where, in addition to not identifying a comparator, sex discrimination Plaintiff’s 

complaint alleged she was replaced by another female employee, and employer granted 

accommodations to another female employee); Williams v. Health Texas Provider Network, No. 

3:16-CV-391-M-BK, 2017 WL 2608813, at *4 (N.D. Tex. June 1, 2017), report and 

recommendation adopted, No. 3:16-CV-391-M-BK, 2017 WL 2616952 (N.D. Tex. June 15, 2017) 

(granting Defendant’s 12(b)(6) motion where discrimination Plaintiff, in addition to not 

identifying a comparator, further did “not tie any...instances to harassment that occurred based on 

his gender” and “did not allege that he was subject to sexist comments, jokes, name-calling, and 

the like.”)

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Accordingly, while Plaintiff is required to show that she was treated less favorably than 

such similarly-situated employees in establishing a prima facie case of discrimination—which has 

“some relevance” at the motion to dismiss stage—the omission of such an employee from her 

Amended Complaint does not constitute a fatal “pleading failure” as FSS seems to suggest. Mot. 

To Dismiss 11; Jenkins v. Louisiana Workforce Comm'n, 713 F. App'x 242, 244 (5th Cir. 2017); 

In her Amended Complaint, Plaintiff pleads the following relevant factual material

supporting her sex discrimination claim:

• “Plaintiff is a transgender woman, and transitioned from her assigned male sex 

to align with her female gender identity prior to the events described herein.” 

(Pl. Am. Compl. ¶ 9).

• “In September 2017, Plaintiff began working as a General Manager for FSS, a 

staffing and ground services provider for commercial airlines.” (Id. at ¶ 10).

• “On February 16, 2018, FSS promoted Plaintiff to Regional Director of 

Operations.” (Id. at ¶ 11).

• “In late-2018/early-2019, Plaintiff’s subordinates reported several incidents of 

harassing and derogatory behavior by Frontier’s Regional Manager concerning 

Plaintiff and Plaintiff’s gender identity. For instance, one subordinate reported 

that the Regional Manager unjustifiably derided Plaintiff’s job performance and 

remarked that Plaintiff was a “he-she” and a “waste of space.” In a separate 

incident, a different subordinate reported that the Regional Manager again 

derided Plaintiff’s job performance and arbitrarily outed her as transgender to 

the subordinate, stating, “You know [Plaintiff] is transgender, right?” (Id. at ¶ 

15).

• “On February 25, 2019, Plaintiff learned she was being demoted, transferred to 

a location 500 miles away from her home in Austin, Texas, and placed on a 90-

day “probationary period”, during which if Plaintiff failed to meet certain 

undefined “performance standards and expectations”, her employment would 

be terminated.” (Id. at ¶ 21).

• “Plaintiff’s job performance throughout her tenure with Defendants was stellar, 

and she had no disciplinary history.” (Id. at ¶ 22).

These nonconclusory facts support a straightforward claim alleging an adverse 

employment action taken by FSS against Plaintiff which was motivated by discriminatory animus. 

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Plaintiff pled that she is a transgender woman who, having previously transitioned (i.e. had gender 

reassignment surgery to appear more ‘feminine’), quickly rose through FSS’s ranks until her 

transgender status was outed (i.e. made publicly known) at FSS by a colleague. Soon thereafter,

she was promptly demoted, transferred, placed on probation, and ultimately terminated due to no 

fault of her own and despite her stellar qualifications and performance. These facts, taken as true, 

permit a reasonable inference that FSS reacted to the revelation of Plaintiff’s transgender status by 

taking the described adverse employment actions against her.

Accordingly, Plaintiff has pled sufficient factual material to support her sex discrimination 

claim, and FSS’s Motion to Dismiss should be DENIED with respect to this claim.

D. PLAINTIFF’S RETALIATION CLAIMS UNDER TITLE VII AND TCHRA.

Both Title VII and the TCHRA prohibit an employer from retaliating against an employee 

for opposing unlawful discrimination. 42 U.S.C. § 2000e-3(a); TEX. LAB. CODE § 21.055. To 

establish a prima facie case of retaliation, the “plaintiff bears the initial burden to show: ‘(1) that 

[she] engaged in activity protected by Title VII, (2) that an adverse employment action occurred, 

and (3) that a causal link existed between the protected activity and the adverse action.” Badgerow 

v. REJ Properties, Inc., 974 F.3d 610, 618–19 (5th Cir. 2020) (quoting Ackel v. Nat'l Commc'ns, 

Inc., 339 F.3d 376, 385 (5th Cir. 2003)).

To satisfy the first element, a Plaintiff’s protected activity must, “at a minimum, alert the 

employer to the employee's reasonable belief that unlawful discrimination is at issue.” Alamo 

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018) (citing Exxon Mobil Corp. v. 

Rincones, 520 S.W.3d 572, 586 (Tex. 2017)). Moreover, the Fifth Circuit has recognized that as 

to claims of sexual harassment, there is a “gray area between actual violation and perceived 

violation” in which a reasonable but mistaken belief about the unlawfulness of certain conduct

may be held. EEOC v. Rite-Way Serv., Inc., 819 F.3d 235, 242 (5th Cir. 2016).

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In her Amended Complaint, Plaintiff pleads the following relevant factual material 

regarding her retaliation claim:

• “In late-2018/early-2019, Plaintiff’s subordinates reported several incidents of 

harassing and derogatory behavior by Frontier’s Regional Manager concerning 

Plaintiff and Plaintiff’s gender identity. For instance, one subordinate reported that 

the Regional Manager unjustifiably derided Plaintiff’s job performance and 

remarked that Plaintiff was a “he-she” and a “waste of space.” In a separate 

incident, a different subordinate reported that the Regional Manager again derided 

Plaintiff’s job performance and arbitrarily outed her as transgender to the 

subordinate, stating, “You know [Plaintiff] is transgender, right?”” (Pl. Am. 

Compl. ¶ 25, July 21, 2020, ECF No. 7).

• “In January 2019, Plaintiff complained to FSS’s leadership and Frontier’s Human 

Resources Department about the Regional Manager’s derogatory harassment.” Id.

at 16.

• “On February 25, 2019, Plaintiff learned she was being demoted, transferred to a 

location 500 miles away from her home in Austin, Texas, and placed on a 90-day 

“probationary period”, during which if Plaintiff failed to meet certain undefined 

“performance standards and expectations”, her employment would be terminated. 

Id. at 21.

• Plaintiff’s job performance throughout her tenure with Defendants was stellar, and 

she had no disciplinary history.” Id. at 22.

• “After Plaintiff refused to accept the unjustified demotion, transfer, and probation, 

her employment was terminated.” Id. at 23.

These nonconclusory facts, and the reasonable inferences gathered therefrom, assert 

plausible and straightforward claims of retaliation under Title VII and TCHRA. First, the Amended 

Complaint alleges that she alerted FSS’s leadership to her belief that she was the target of unlawful 

discrimination based on the conduct described by Mr. Woodard by submitting a complaint in 

January 2019. Moreover, even if Plaintiff was ultimately incorrect in her belief that Mr. Woodard’s 

conduct was unlawful, her claims does not therefore become ripe for dismissal; she should 

nonetheless be permitted to gather evidence to determine whether her reasonable, if mistaken, 

belief about the unlawfulness of Mr. Woodard’s conduct may support her retaliation claim.

Moreover, the Amended Complaint allows for a reasonable inference that the subsequent adverse 

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employment action resulted from her protected activity. Plaintiff specifies that she filed her 

complaint in January 2020 and was informed of her demotion, transfer, and probation soon 

thereafter on February 25, 2019.1 Moreover, Plaintiff’s Amended Complaint specifies that she 

brought her complaint directly to FSS’s management: not a co-worker or a low-level supervisor 

without supervisory authority, or an individual who may or may not have communicated this 

information to the ultimate decisionmakers regarding her employment: but the ultimate 

decisionmakers themselves.

Accordingly, FSS’s argument that the Amended Complaint fails to allege a plausible claim

of retaliation is without merit as Plaintiff has pled sufficient factual material in this regard.

C. PLAINTIFF’S HOSTILE WORK ENVIRONMENT CLAIM UNDER TITLE VII AND TCHRA

I. Plaintiff exhausted all administrative remedies regarding her hostile work 

environment claims by timely bringing them before the EEOC.

“In order to seek judicial relief under Title VII, an employee must first exhaust any 

administrative remedies.” Crankshaw v. City of Elgin &Thomas Mattis, No. 1:18-CV-75-RP, 2019 

U.S. Dist. LEXIS 183500, at *10 (W.D. Tex. Jan. 14, 2019) (Pitman, J.). “A rule of reason permits 

the scope of a Title VII suit to extend as far as, but no further than, the scope of the EEOC 

investigation which could reasonably grow out of the administrative charge.” Fine v. GAF Chem. 

Corp., 995 F.2d 576, 578 (5th Cir. 1993).

FSS argues that Plaintiff failed to raise her hostile work environment claim in her

administrative charge, and therefore, failed to exhaust her administrative remedies for this claim.

However, Plaintiff asserted her hostile work environment claim during the administrative process 

as early as her initial administrative charge before repeatedly asserting it thereafter.

 1 Although Plaintiff concedes that the Court is limited in what information it can consider in ruling on FSS’s 12(b)(6) 

motion, Plaintiff would specify that this complaint is dated January 21, 2019—35 days before Plaintiff received news 

of Defendants’ decision.

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Plaintiff’s charge repeatedly described the severe and pervasive harassment she endured 

while employed by Defendants, including being called a “he-she” and being outed as transgender 

by David Woodard to multiple employees. Her charge further described, in detail, her attempts to 

comply with relevant U.S. Supreme Court precedent concerning hostile work environment claims 

by taking advantage of preventative or corrective opportunities provided by Frontier and to 

otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington 

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). 

Nonetheless, even if the allegations in Plaintiff’s charge were insufficient to bring her 

hostile work environment claim within the scope of the EEOC investigation, Plaintiff thereafter 

placed this claim directly and unambiguously within the scope of the investigation by asserting it

directly to the EEOC and to both Defendants. In her rebuttal to FSS’s EEOC statement of position, 

attached hereto as Exhibit 1, Plaintiff dedicated an entire section therein toward outlining her 

hostile work environment claims against Defendants, explicitly using the term “hostile work 

environment” repeatedly while so doing. See Ex. 1, § II. Plaintiff contemporaneously sent a copy 

of this response to both Defendants’ counsel upon filing it with the EEOC. See Exhibit 2. 

Accordingly, Plaintiff’s hostile work environment claims not only fell within the scope of the 

EEOC investigation as it could have reasonably grown out of her administrative charge, but the 

EEOC investigation actually did grow from her administrative charge to encompass these claims.

When the federal investigator dismissed Plaintiff’s administrative charge, thereby 

exhausting her administrative remedies for the allegations contained therein, Plaintiff had already: 

(1) unambiguously informed the EEOC that her charge contained a hostile work environment 

claim; (2) provided a detailed description of her hostile work environment to the EEOC based on 

the facts contained in her charge so as to allow for a complete administrative investigation of that 

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claim2; (3) further unambiguously informed both Defendants that her charge contained a hostile 

work environment claim, and provided a detailed description thereof based on the facts in her 

charge, so as to allow Defendants ample opportunity to provide a response. The notion that 

Plaintiff, notwithstanding these efforts, nonetheless failed to assert these claims during the 

administrative process simply because her charge did not overtly claim a hostile work 

environment—which all parties appear to agree was unnecessary—defies logic.

2. Plaintiff’s has properly pled her hostile work environment under Title VII and the 

TCHRA.

To establish an actionable hostile work environment claim against FSS based on the 

conduct of David Woodard, whom Plaintiff concedes was not an employee of FSS, Plaintiff must 

ultimately show: “(1) she belongs to a protected group; (2) she was subjected to unwelcome 

harassment; (3) the harassment was based on [her protected status]; (4) the harassment was 

sufficiently severe or pervasive to affect a term, condition, or privilege of employment; and (5) 

[FSS] knew or should have known of the harassment and failed to take prompt remedial action.”

Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001); Lauderdale v. Texas Dep’t of Criminal 

Justice, Inst. Div., 512 F.3d 157, 163 (5th Cir. 2007) (internal quotation marks omitted); Faragher 

v. City of Boca Raton, 524 U.S. 775, 788 (1998); Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 

320, 321–22 (5th Cir. 2019) (“Because the ultimate focus of Title VII liability is on the employer’s 

conduct—unless a supervisor is the harasser, a plaintiff needs to show that the employer knew or 

should have known about the hostile work environment yet allowed it to persist...Customers are 

one example of third-party harassers.”.).

 2 Plaintiff’s rebuttal statement was on file with the EEOC for almost ten (10) months before the agency dismissed her 

charge against FSS. At no point did the EEOC express any concern whatsoever that the hostile work environment 

claim detailed therein had not been raised in Plaintiff’s administrative charge.

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Courts “consider the totality of the circumstances in determining whether an environment 

is hostile. Relevant factors include: (1) the frequency of the discriminatory conduct; (2) its severity; 

(3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) 

whether it unreasonably interferes with the employee’s work performance.” Faragher v. City of 

Boca Raton, 524 U.S. 775, 787-788 (1998).

In her Amended Complaint, Plaintiff pled the following relevant factual material regarding 

her hostile work environment claim:

• “In late-2018/early-2019, Plaintiff’s subordinates reported several incidents of 

harassing and derogatory behavior by Frontier’s Regional Manager concerning 

Plaintiff and Plaintiff’s gender identity. For instance, one subordinate reported 

that the Regional Manager unjustifiably derided Plaintiff’s job performance and 

remarked that Plaintiff was a “he-she” and a “waste of space.” In a separate 

incident, a different subordinate reported that the Regional Manager again 

derided Plaintiff’s job performance and arbitrarily outed her as transgender to 

the subordinate, stating, “You know [Plaintiff] is transgender, right?”” (Pl. Am. 

Compl. ¶ 25, July 21, 2020, ECF No. 7).

• “In January 2019, Plaintiff complained to FSS’s leadership and Frontier’s 

Human Resources Department about the Regional Manager’s derogatory 

harassment.” Id. at 16.

• “On February 25, 2019, Plaintiff learned she was being demoted, transferred to 

a location 500 miles away from her home in Austin, Texas, and placed on a 90-

day “probationary period”, during which if Plaintiff failed to meet certain 

undefined “performance standards and expectations”, her employment would 

be terminated. 

• “Plaintiff’s job performance throughout her tenure with Defendants was stellar, 

and she had no disciplinary history.” Id. at 22.

• “After Plaintiff refused to accept the unjustified demotion, transfer, and 

probation, her employment was terminated.” Id. at 23.

Although FSS dedicates a significant portion of its Motion to Dismiss arguing that David 

Woodard is not an employee of FSS, and likewise, it cannot be vicariously liable under Title VII 

for his conduct, Plaintiff does not presently dispute these points. In contrast, Plaintiff asserts that 

“Defendants discriminated against Plaintiff in connection with the terms, conditions, and 

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privileges of her employment by, inter alia...perpetuating a severe and pervasive hostile work 

environment toward Plaintiff because of her transgender status.” As this allegation pertains to FSS, 

Plaintiff anticipates that discovery will further demonstrate its liability for perpetuating said hostile 

work environment because it: (1) knew about the conduct of Woodard; yet (2) failed to appropriate 

remedial action. In support of this hostile work environment claim against FSS, Plaintiff’s has pled 

factual material which, taken as true, allows for a reasonable inference that FSS’s management 

had actual knowledge of Woodard’s conduct, but opted to demote, transfer, and ultimately 

terminate Plaintiff rather than take appropriate remedial action.

Finally, Plaintiff has sufficiently pled sufficient factual material evidencing severe or 

pervasive harassment to support her hostile work environment claim. Specifically, Plaintiff has 

alleged that David Woodward, on at least two different occasions, disclosed sensitive and 

exceedingly private information about Plaintiff’s transgender statusto multiple direct subordinates 

of Plaintiff—whom Plaintiff was expected to supervise and interact with on a daily basis—for no 

conceivable reason other than to humiliate her and interfere with her ability to supervise them. 

Plaintiff contends that these facts, taken as true, far exceed the types of “simple teasing” or 

“offhand comments” which generally are insufficient to support a claim for hostile work 

environment. See Faragher at 787-788.

Accordingly, Plaintiff has pled sufficient factual material regarding her hostile work 

environment claim, and FSS’s Motion to Dismiss with respect to this claim should be DENIED.

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III.

CONCLUSION

Based on the foregoing, Plaintiff respectfully requests that the Court deny FSS’s Motion 

to Dismiss in its entirety.

Respectfully submitted, 

ROSS • SCALISE LAW GROUP 

1104 San Antonio Street 

Austin, Texas 78701 

T: (512) 474-7677 

F: (512) 474-5306 

/s/ Trenton Lacy

Daniel B. Ross 

State Bar No. 00789810 

dan@rosslawgroup.com 

Trenton Lacy 

State Bar No. 24106176 

trenton@rosslawgroup.com 

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

By my signature below, I hereby certify that a true and correct copy of the foregoing 

instrument was served upon all parties of record to this suit in accordance with the Federal Rules 

of Civil Procedure on Wednesday, October 21, 2020:

Via e-mail: myers@chaffe.com; mcintire@chaffe.com; bush@chaffe.com;

CHAFFE McCALL, LLP

Sarah Voorhies Myers

Amy L. McIntire

H. Michael Bush

ATTORNEYS FOR DEFENDANT FLIGHT SERVICES & SYSTEMS, LLC

Via e-mail: kmiers@littler.com; agray@littler.com;

LITTLER MENDELSON P.C. 

Kimberly R. Miers 

Andrew Gray 

ATTORNEYS FOR DEFENDANT FRONTIER AIRLINES, INC.

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