DEFENDANT FRONTIER AIRLINES, INC.’S MOTION TO DISMISS

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

BRYNNE SOUKUP,

Plaintiff,

vs.

FRONTIER AIRLINES, INC. AND 

FLIGHT SERVICES & SYSTEMS, LLC,

Defendants.

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

DEFENDANT FRONTIER AIRLINES, INC.’S 

MOTION TO DISMISS AND BRIEF IN SUPPORT

Defendant Frontier Airlines, Inc. (“Frontier”), files this Motion to Dismiss Plaintiff Brynne 

Soukup’s (“Plaintiff”) First Amended Complaint (“Complaint”)1 under Federal Rule of Civil 

Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In support of 

this Motion, Frontier states as follows:

I.

INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiff asserts claims of gender identity discrimination and retaliation against Frontier, 

and Defendant Flight Services and Systems, LLC (“FSS”), under Chapter 21 of the Texas Labor 

Code. In addition, Plaintiff asserts claims of gender identity discrimination and retaliation against 

FSS under Title VII. Plaintiff’s claims stem from allegations that she is a transgender woman, and 

that she was subject to “several incidents of harassing and derogatory behavior” by Frontier’s 

Regional Manager, and her eventual termination of employment after her complaints about this 

alleged conduct to Frontier and FSS.2 Plaintiff alleges that Frontier and FSS are joint employers, 

 1 ECF No. 7. 

2 ECF No. 7, ¶¶ 15-23.

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and that this conduct constitutes discrimination and retaliation in violation of the Texas Labor 

Code and Title VII. 

As set forth below, Plaintiff’s claims against Frontier are insufficient as a matter of law, 

and the Court should dismiss such claims against Frontier. 

II.

SUMMARY OF FACTUAL ALLEGATIONS3

Plaintiff alleges that:

• She was a General Manager for FSS, before FSS promoted her to Regional Director 

for Operations.4

• FSS hired Plaintiff, and paid her wages throughout her employment;5

• Plaintiff received training from, and was expected to follow the policies and 

procedures of, both FSS and Frontier;6

• Plaintiff worked in close association with Frontier;7

• Frontier’s employees had the right to terminate and end the assignment of specific 

FSS workers;8 and 

• Plaintiff was economically dependent upon Frontier’s business.9

Over the course of late 2018, and in early 2019, Plaintiff alleges that her subordinates 

reported incidents involving harassing and derogatory behavior by Frontier’s Regional Manager 

concerning Plaintiff’s gender identity. Plaintiff states that she complained to FSS and to Frontier 

 3 The factual allegations set forth herein are taken from the Complaint, and are presumed to be true solely for purposes 

of this motion. Frontier denies some of these allegations and reserves the right to challenge these allegations during 

the course of this case.

4 ECF No. 7, ¶¶ 10-11. 5 Id. at ¶ 12. 6 Id.

7 Id.

8 Id.

9 Id. at ¶ 14.

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about this conduct in January 2019. Frontier then investigated Plaintiff’s complaints.10

On February 25, 2019, Plaintiff learned that she was being “demoted, transferred . . . and 

placed on a 90-day ‘probationary period.”11 After refusing to accept this change, Plaintiff’s 

employment was terminated.12

Plaintiff filed suit against Frontier under the above-referenced causes of action, and 

thereafter amended her Complaint to add FSS as a defendant.13 As a prerequisite to filing this 

lawsuit, Plaintiff filed an EEOC Charge in April 2019, in which she made the following statement 

under penalty of perjury: “FSS was requiring me to accept a transfer to New Orleans, LA. Per a 

correspondence dated February 25, 2019 from [a Human Resources Manager for FSS] I had until 

March 10, 2019 (13 days) to agree to the transfer or else I would be terminated.”14 By comparison, 

Plaintiff’s Amended Complaint does not include this key allegation.

15

III.

ARGUMENT

A. Standard for dismissal under FED. R. CIV. P. 12(b)(6)

The Court is familiar with this Motion’s review 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). In deciding a 12(b)(6) 

motion, a “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) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid 

Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to 

dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide 

 10 Id. at ¶ 17. 11 Id. at ¶ 21. 12 Id. at ¶ 23. 13 See generally, Id. 14 See Gray Decl., Exhibit A, (Plaintiff’s Charge of Discrimination filed with the EEOC) (emphasis added). In 

considering a motion to dismiss, a court may consider an EEOC Charge, as it is central to a plaintiff’s claims. See

Wellington v. Tex. Guaranteed, No. A-13-CA-077-SS, 2014 U.S. Dist. LEXIS 69208, at *7-8 (W.D. Tex. May 20, 

2014); see also In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (“But because the defendants 

attached the contracts to their motions to dismiss, the contracts were referred to in the complaints, and the contracts 

are central to the plaintiffs’ claims, we may consider the terms of the contracts in assessing the motions to dismiss.”).

15 See ECF No. 7, ¶ 23 (merely stating that “her employment was terminated”). 

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the plaintiff’s grounds for entitlement to relief—including factual allegations that 

when assumed to be true ‘raise a right to relief above the speculative level.’” 

Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). That is, 

“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, 

129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570).

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. “The tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal conclusions. 

Threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may 

rely on the complaint, its proper attachments, “documents incorporated into the 

complaint by reference, and matters of which a court may take judicial notice.” 

Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and 

internal quotation marks omitted). A court may also consider documents that a 

defendant attaches to a motion to dismiss “if they are referred to in the plaintiff's 

complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 

394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the wellpleaded facts in the complaint, it may not consider new factual allegations made 

outside the complaint. Dorsey, 540 F.3d at 338.

Teague v. Williamson Cty., No. 1:18-CV-1098-RP, 2020 U.S. Dist. LEXIS 87695 (W.D. Tex. 

May 19, 2020) (motion to dismiss was granted-in-part and denied-in-part). 

B. Plaintiff failed to plead facts to show that Frontier was her employer16

As a threshold matter, Plaintiff has not, nor can she establish that she had an employment 

relationship with Frontier. Determining whether Frontier is an “employer” under the Texas Labor 

Code involves a two-step process. Muhammad v. Dallas County Cmty. Supervision & Corr. Dep’t, 

479 F.3d 377, 380 (5th Cir. 2007). First, Frontier must fall within the statutory definition of an 

“employer.” Id. Title VII defines an “employer” as a “person engaged in an industry affecting 

commerce who has fifteen or more employees . . ., and any agent of such a person . . . .” 42 U.S.C. 

 16 Plaintiff states in her Complaint, and Frontier does not dispute, that the law governing claims under Chapter 21 of 

the Texas Labor Code and Title VII is identical. Thus, to the extent authority is applicable to an analysis under Title 

VII, it likewise applies to Plaintiff’s claims under the Texas Labor Code. 

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§ 2000e(b). Frontier does not dispute at this time that it falls within this definition. 

Second, an employment relationship must exist between Frontier and Plaintiff.

Muhammad, 479 F.3d at 380. To determine whether an employment relationship exists within the 

meaning of Title VII and the Texas Labor Code, the Fifth Circuit applies a “hybrid economic 

realities/common law control test.” Id. The most important component of this test is “the right to 

control the employee’s conduct.” Id. (alterations omitted). When examining the control 

component, the Fifth Circuit focuses on whether the alleged employer has the right to hire, fire, 

supervise, and set the work schedule of the employee. Id. The economic realities component of the 

test focuses on whether the alleged employer paid the employee’s salary, withheld taxes, provided 

benefits, and set the terms and conditions of employment. Id.

Here, despite her attempts to do so, Plaintiff has not pleaded facts sufficient to show that 

Frontier exhibited any of the relevant indicia of an employment relationship. Indeed, courts have 

repeatedly determined that entities like Frontier are not employers, under similar circumstances. 

First, Plaintiff is clear in her allegations that FSS hired her, and FSS promoted her to Regional 

Director of Operations.17 Plaintiff further admits that FSS, not Frontier, required her to accept a 

transfer, or else face termination of her employment.18 While Plaintiff alleges that she worked 

“close” with, and “often” at the direction of Frontier employees, such allegations do not establish 

control over an employee when the ultimate authority to hire, fire, or promote lies elsewhere. See 

Reith v. TXU Corp., No. 4:05-CV-33, 2006 U.S. Dist. LEXIS 16813 (E.D. Tex. Apr. 4, 2006) 

(dismissing claims against putative joint employer, and holding that “[w]hile TXU had some 

control over setting Plaintiff's schedule and supervising him,” the co-defendant had actual 

 17 ECF No. 7, ¶¶ 10-12. 18 See Gray Decl., Ex. A (“FSS was requiring me to accept a transfer to New Orleans, LA. Per a correspondence dated 

February 25, 2019 from [a Human Resources Manager for FSS] I had until March 10, 2019 (13 days) to agree to the 

transfer or else I would be terminated.”).

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authority to fire or transfer him). What is more, Plaintiff cannot establish, nor does she allege, that 

Frontier set her work schedule, maintained a personnel file for her, or maintained medical records 

on her. See Barnes v. Colonial Life & Accident Ins. Co., 818 F. Supp. 978, 981 (N.D. Tex. 1993) 

(dismissing claims against alleged employer who did not set work schedules, keep a personnel file, 

or maintain medical records on Plaintiff).

That Plaintiff was allegedly required to comply with Frontier policies and procedures does 

little to sway the needle firmly planted on the side of FSS. See Deal v. State Farm County Mut. 

Ins. Co., 5 F.3d 117, 119 (5th Cir. 1993) (plaintiff’s conclusory assertion that State Farm’s 

employee handbook covered plaintiff deemed “not sufficient to establish an employment 

relationship”). The same is true for Plaintiff’s allegations that “Frontier’s employees had the right 

to terminate and end the assignment of specific FSS workers.”19 Note here that Plaintiff does not

allege that Frontier’s employees had authority to terminate the employment of FSS workers, but 

rather, that they had authority to terminate their assignment (with Frontier). Such an allegation 

does not establish an employment relationship. See Reith 2006 U.S. Dist. LEXIS 16813.

Similarly, Plaintiff’s allegation that Frontier was “among FSS’s largest and most influential 

clients” does nothing to establish the economic realities portion of the test.20 Plaintiff admits that 

FSS paid her wages throughout her employment, and makes no allegations that Frontier “paid [her] 

salary, withheld taxes, provided benefits, or set the terms and conditions of [her] employment.”21

Mayes v. Kelly Servs., Inc., No. 4:03-CV-091-A, 2004 U.S. Dist. LEXIS 29675 (N.D. Tex. Feb. 

11, 2004), aff’d 108 Fed. Appx. 932 (5th Cir. 2004) (finding for Onstar, where economic realities 

favored Onstar, and Onstar did not terminate plaintiff’s employment). Thus, no basis exists to find 

 19 ECF No. 7, ¶ 12. 20 Id. at ¶ 14. 21 Id. ¶ 12.

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that the economic realities point to Frontier as Plaintiff’s employer. 

The court in Reith v. TXU Corp., assessed whether the plaintiff had an employment 

relationship with TXU Corp. (“TXU”) under remarkably similar circumstances. 2006 U.S. Dist. 

LEXIS 16813 (E.D. Tex. Apr. 4, 2006). There, the court found that no employment relationship

existed, based on the following factors that are each directly mirrored in Plaintiff’s allegations:

• TXU did not pay the plaintiff, withhold taxes on his behalf, or offer him 

benefits;22

• The plaintiff was largely trained and supervised by TXU;23

• While TXU had authority to determine when it no longer needed the 

plaintiff’s services, it did not have authority to hire, fire, or promote;24 and

• After the plaintiff complained of harassment by a TXU employee, TXU was 

not the entity which offered to transfer the plaintiff to a different location.25

Id. at *10-11. Ultimately, the court in Reith found that the plaintiff was not an employee of TXU. 

Id. at *12. Here, the analysis is the same: individuals who are not hired by the putative employer, 

do not receive remuneration for their services from the putative employer, and whose terms and 

conditions of employment are not dictated by the putative employer, do not have an employment 

relationship. On this basis, Plaintiff’s own allegations establish that she was an employee of FSS, 

and not Frontier.

C. Plaintiff failed to state a plausible disparate treatment claim against Frontier

Despite using the buzzwords for the elements and conclusory allegations, Plaintiff failed 

to state a plausible claim of disparate treatment discrimination on the basis of gender identity. In 

 22 Compare with ECF No. 7, ¶ 12 (“FSS . . . paid her wages throughout her employment”). 23 Compare with Id. (Plaintiff “received extensive training from Frontier” and “on-the-job corrections and 

admonishments were delivered by Frontier’s employees to FSS employees.”). 24 Compare with Id. (Frontier had the right to “terminate and end the assignment” of FSS employees); Gray Decl., Ex. 

A (Plaintiff was hired by, promoted by, and terminated by, FSS).

25 Compare with Gray Decl., Ex. A (FSS “was requiring [Plaintiff] to accept a transfer” after Plaintiff’s complaints of 

harassment).

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order to survive a motion to dismiss in this context, “a plaintiff need not make out a prima facie

case of discrimination under McDonnell Douglas.” Cicalese v. Univ. of Texas Med. Branch, 924 

F.3d 762, 766 (5th Cir. 2019). Yet Plaintiff must “plead sufficient facts on all of the ultimate 

elements of a disparate treatment claim to make [her] case plausible.” Id. “[T]here are two ultimate 

elements a plaintiff must plead to support a disparate treatment claim under [the Texas Labor 

Code]: (1) an adverse employment action, (2) taken against a plaintiff because of her protected 

status.” Id. at 767. To establish these elements, Plaintiff must allege sufficient facts to “nudge [her] 

claims across the line from conceivable to plausible.” Id. (quoting Twombly, 550 U.S. at 547).

Notwithstanding Plaintiff’s allegations of a hostile work environment (which are discussed 

in detail, infra subsection D), Plaintiff does not make a single allegation that would establish an 

adverse employment action by Frontier, taken against her because of her gender identity. Rather, 

Plaintiff merely pleads that “Defendants discriminated against Plaintiff in connection with the 

terms, conditions, and privileges of her employment by, inter alia, terminating or causing the 

termination of Plaintiff’s employment because of her transgender status.”26 Plaintiff makes a vague 

allegation against “Defendants,” but fails to make any factual allegation of an adverse employment 

action taken by Frontier.

As established above, Plaintiff admitted in her Charge of Discrimination that FSS—not

Frontier—required her to accept a transfer, or else face termination of her employment.27 Thus, 

Plaintiff’s only remaining allegation against Frontier in the Amended Complaint could be that 

Frontier allegedly “caus[ed] the termination of Plaintiff’s employment because of her transgender 

 26 ECF No. 7, ¶ 30. 27 See Gray Decl., Ex. A (“FSS was requiring me to accept a transfer to New Orleans, LA. Per a correspondence dated 

February 25, 2019 from [a Human Resources Manager for FSS] I had until March 10, 2019 (13 days) to agree to the 

transfer or else I would be terminated.”).

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status.”28 Yet, the Complaint is devoid of any facts (as opposed to this lone subjective and vague 

statement) to support any actions taken by Frontier with respect to Plaintiff’s employment with 

FSS. There are no factual allegations that Frontier discussed Plaintiff’s transfer or termination 

(before or after it occurred) with FSS, that Frontier offered FSS any input into these decisions 

carried out by an FSS employee, or that Frontier was even aware that Plaintiff was being 

transferred. 

To this point, there are no fact-based allegations whatsoever that Frontier and FSS have 

ever discussed any issues pertaining to Plaintiff, her complaints, her employment with FSS, her 

termination from FSS, or any other issue. Plaintiff has likewise failed to set forth a single 

comparator whom she believes was treated more favorably than herself, or was not transferred or 

terminated under nearly identical circumstances. See Williams v. Health Texas Provider Network, 

No. 3:16-CV-391-M-BK, 2017 U.S. Dist. LEXIS 92449, at *5 (N.D. Tex. June 1, 2017), report 

and recommendation adopted, 2017 U.S. Dist. LEXIS 92458 (N.D. Tex. June 15, 2017) 

(dismissing sex-based discrimination claim when plaintiff failed to point to any female 

comparators treated more favorably than himself); see also Alkhawaldeh v. Dow Chem. Co., 851 

F.3d 422, 427 (5th Cir. 2017) (affirming summary judgment against plaintiff on discrimination 

claim when plaintiff failed to identify a single comparator outside of his protected class). It cannot 

therefore be said that Frontier was responsible for any adverse employment action against Plaintiff, 

much less that such action that was on the basis of her gender identity. Accordingly, Plaintiff’s 

disparate treatment claim against Frontier should be dismissed for failure to state a claim. 

 28 ECF No. 7, ¶ 30.

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D. Plaintiff failed to exhaust her administrative remedies with respect to her hostile 

work environment claim against Frontier

Plaintiff also purports to bring a claim of discrimination against Frontier, for “perpetuating 

a severe and pervasive hostile work environment toward Plaintiff because of her transgender 

status.” Yet this allegation was not presented to the EEOC. Rather, Plaintiff’s EEOC Charge only 

claims that she believes she has been “discriminated against because of sex in violation of Title 

VII of the Civil Rights Act of 1964, as amended, and the Texas Labor Code,” and “ retaliated 

against for opposing unlawful discrimination in violation of Title VII of the Civil Rights Act of 

1964, as amended, and the Texas Labor Code.”29 Plaintiff’s EEOC Charge does not allege that she 

was subject to a hostile work environment, nor does she state that she made any complaints to that 

effect. Rather, Plaintiff states that she “reported this disparate treatment,” and “the abovereferenced discrimination.”30

To exhaust administrative remedies, a hostile work environment claim should be raised in 

the plaintiff’s EEOC charge. See Wilson v. City of San Antonio, No. SA-07-CA-0321, 2008 U.S. 

Dist. LEXIS 127403, at *11 (W.D. Tex. Aug. 6, 2008). A claim that is not explicitly raised in an 

EEOC charge is not necessarily subject to dismissal, but the Plaintiff is only considered to have 

exhausted the claim if it could “reasonably be expected to grow out of the charge of 

discrimination.” McClain v. Lufkin Induss, Inc., 519 F.3d 264, 273 (5th Cir. 2008) (quoting 

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970). Such a claim must be “like 

or related to allegation[s] contained in the [EEOC] charge and growing out of such allegations 

during the pendency of the case before the Commission.” Sanchez, 431 F.2d at 466. “Courts should 

 29 See Gray Decl., Ex. A. 30 See Id.

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not condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would thwart 

the administrative process and peremptorily substitute litigation for conciliation.” Wilson, 2008 

U.S. Dist. LEXIS 127403 (citing McClain, 519 F.3d at 273).

“Ordinarily a stand-alone hostile work environment claim must be sufficiently presented 

in the EEOC charge and cannot be expected to grow out of a discrimination claim without 

additional allegations related to hostile work environment.” Crain v. Judson Indep. Sch. Dist., No. 

SA-16-CV-832, 2018 U.S. Dist. LEXIS 183777, at *46 (W.D. Tex. Oct. 26, 2018). Courts have 

regularly declined to find the exhaustion requirement met with respect to hostile work environment 

claims where the plaintiff alleged only specific and non-severe instances of discrimination in their 

EEOC charge. For example, in Hill v. Dep’t of Veterans Affairs, the Fifth Circuit found that the 

administrative charges alleging three specific discriminatory events—the non-renewal of the 

plaintiff's clinical privileges, the decision to place him on involuntary leave, and his constructive 

discharge—were not reasonably likely to cause an investigation of a hostile work environment. 

No. 08-60532, 2009 U.S. App. LEXIS 2814, at *9-10 (5th Cir. Feb. 12, 2009) (per curiam); 

compare with Cooper v. Wal-Mart Transp., LLC, 662 F. Supp. 2d 757, 773 (S.D. Tex. 2009) 

(finding that seven pages of handwritten notes attached to the EEOC charge, which included a 

variety of racially-themed statements attributed to defendants’ personnel, indicated that a hostile 

work environment claim was in play, and a reasonable investigator presented with such a long 

series of incidents would include a hostile work environment within the investigation’s scope). 

Bechard v. VIA Metro. Transit is also on point. No. 10-CA-285, 2010 U.S. Dist. LEXIS 106253 

(W.D. Tex. Oct. 5, 2010). There, the plaintiff alleged “only three discrete instances of 

discrimination and retaliation,” which were discriminatory based on the plaintiff’s race and gender, 

and in retaliation for filing internal complaints of discrimination and for filing her first EEOC 

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charge. Id. at *5-6. The Court held that a hostile work environment claim could not be reasonably 

expected to grow out of these allegations. Id. at *6. Specifically, the Court found that the neither 

of the administrative charges filed alleged any facts relating to the factors of the hostile work 

environment test, such as whether the conduct was physically threatening or humiliating, or 

whether the conduct interfered with the employee’s work performance. Id.; see also Wilson, 2008 

U.S. Dist. LEXIS 127403 (holding similarly, based on plaintiff’s EEOC charge failing to allege 

similar the key factors of a hostile work environment claim).

As with Bechard, Plaintiff’s EEOC Charge does not reference a hostile work environment, 

nor does she make any reference to alleged conduct that is severe and pervasive, that is physically 

threatening or humiliating, or otherwise interfered with her performance.

Plaintiff did not administratively exhaust her hostile work environment claim against 

Frontier, and it therefore must be dismissed. 

E. Plaintiff failed to state a plausible hostile work environment claim against Frontier

Even assuming that Plaintiff did exhaust her administrative remedies, she nevertheless 

failed to state a plausible hostile work environment claim against Frontier. To state a claim, 

Plaintiff must allege she: “(1) belongs to a protected group; (2) was subjected to unwelcome 

harassment; (3) the harassment complained of was based on [her belonging to the protected group]; 

(4) the harassment complained of affected a term, condition, or privilege of employment; (5) the 

employer knew or should have known of the harassment in question and failed to take prompt 

remedial action.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012). 

Certainly, such a claim requires allegations of severe and pervasive conduct to alter the 

conditions of employment. Penn. State Police v. Suders, 542 U.S. 129, 133 (2004). In determining 

whether the environment has become hostile, courts will look at the “frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 

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offensive utterance; and whether it unreasonably interferes with an employee’s work 

performance.” Hernandez, 670 F.3d at 651. Yet as with her other allegations, Plaintiff fails to 

provide any factual basis or support to show severe and pervasive conduct, excepting her use of 

the term itself. Instead, Plaintiff makes two allegations of harassing conduct: Frontier’s Regional 

Manager “derided Plaintiff’s job performance and remarked that Plaintiff was a ‘he-she’ and a 

‘waste of space,’” and also “again derided Plaintiff’s job performance and arbitrarily outed her as 

transgender to [Plaintiff’s] subordinate, stating ‘You know [Plaintiff] is transgender, right?’”31

These two alleged incidents do not establish “severe” conduct. Although the statements, if 

true, would be inappropriate and distasteful, Plaintiff has not alleged that Frontier’s Regional 

Manager interfered with her job responsibilities, nor that she felt physically threatened by this 

conduct. The work environment must also be “permeated” with “discriminatory intimidation, 

ridicule, and insult.” Lee v. Reg’l Nutrition Assistance Inc., 471 Fed. App’x 310, 311 (5th Cir. 

2012). Plaintiff’s two alleged and isolated incidents cannot therefore support her claim, in that they 

are not “pervasive.” See, e.g., Id. (affirming dismissal based on three separate incidents the court 

considered “isolated,” where a coworker used a racial epithet to refer to plaintiff, the same 

coworker said that plaintiff’s skin “was too dark to be seen without the benefit of sunlight,” and 

another employee drew a tombstone on a chalkboard with “R.I.P” and plaintiff’s initials.); Malin 

v. Orleans Par. Commc'n Dist., 718 Fed. App'x 264, 273 (5th Cir. 2018) (upholding a 12(b)(6) 

dismissal because a reasonable person would not believe that a coworker describing her sex life 

six times was severe or pervasive enough to create an actionable hostile work environment). On 

these facts, it is not plausible that a reasonable person would believe this alleged conduct was 

objectively pervasive or severe. See Malin, 718 Fed. App’x at 272-273.

 31 Id. at ¶ 15.

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Further, Plaintiff failed to plausibly allege that Frontier “knew or should have known of 

the harassment in question and failed to take prompt remedial action.” Hernandez, 670 F.3d at 

651. Instead, Plaintiff admits that Frontier was aware of the alleged harassing conduct, by virtue 

of Frontier’s “complete and thorough investigation.”32 Whether Frontier informed Plaintiff of who 

was contacted in connection with the investigation, or the nature of the company’s remedial 

actions, is irrelevant to this inquiry. See Harvill v. Westward Commc’ns., L.L.C., 433 F.3d 428, 

437-438 (5th Cir. 2005) (finding prompt remedial action based on an investigation, despite 

company not confronting the alleged harasser, or interviewing witnesses). Rather, Plaintiff’s 

admission that the Company did in fact undergo an investigation is evidence of prompt remedial 

action. Id.; see also Cavalier v. Clearlake Rehabilitation Hosp., Inc., 306 Fed. App'x 104, 107 (5th 

Cir. 2009) (defendant took prompt remedial action after it “assigned a human resources 

investigator to look into Cavalier’s written complaint.”). 

Lacking these two ultimate elements of a hostile work environment claim, Frontier cannot 

be held liable. Thus, Plaintiff’s claim against Frontier on this basis should be dismissed. 

F. Plaintiff failed to state a plausible retaliation claim against Frontier

Plaintiff also alleges that Defendant Jones retaliated against her for complaining about 

alleged discrimination. To prove a prima facie case of retaliation under the Texas Labor Code, the 

“plaintiff must show that: (1) [she] engaged in an activity protected by Title VII; (2) [she] was 

subjected to an adverse employment action; and (3) a causal link exists between the protected 

activity and the adverse employment action.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 

2014). Here, the analysis of Plaintiff’s claim of retaliation against Frontier is similar to her claim 

of discrimination based on disparate treatment: under both causes of action, Plaintiff must prove 

 32 Id. at ¶ 17.

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that Frontier subjected her to an adverse employment action, and she must prove a link between 

that adverse employment action and her gender identity. 

For purposes of brevity, Frontier will not repeat its discussion of that analysis again in this 

section, but instead, incorporates the foregoing briefing by reference. In summary, however, 

Plaintiff’s Complaint fails to adequately plead that Frontier took any adverse employment action, 

or was otherwise involved in “her demotion, transfer, probation, and eventual termination.” As 

such, her retaliation claim against Frontier must fail. 

IV.

CONCLUSION

Plaintiff has not pled sufficient facts to create a plausible inference of discrimination or 

retaliation by Frontier. As a result, Frontier is entitled to dismissal of all claims asserted in 

Plaintiff’s First Amended Complaint, and Frontier requests that the Court issue an order dismissing 

all of Plaintiff’s claims against Defendant Frontier Airlines, Inc.

Dated: August 4, 2020

Respectfully submitted,

/s/ Kimberly R. Miers

Kimberly R. Miers

State Bar No. 24041482

Andrew Gray

State Bar No. 24106023

LITTLER MENDELSON P.C.

100 Congress Avenue, Suite 1400

Austin, Texas 78701

512.982.7250

512.982.7248 – facsimile 

kmiers@littler.com

agray@littler.com

ATTORNEYS FOR DEFENDANT

FRONTIER AIRLINES, INC.

Case 1:20-cv-00648-RP Document 10 Filed 08/04/20 Page 15 of 16
DEFENDANT FRONTIER AIRLINES, INC.’S MOTION TO DISMISS

AND BRIEF IN SUPPORT Page 16

CERTIFICATE OF SERVICE

On the 4th day of August 2020, I electronically submitted the foregoing document with the 

Clerk of Court for the U.S. District Court, Western District of Texas, Austin Division, using the 

Electronic Case Filing system of the Court. I hereby certify that I have served all counsel of record 

via the Court’s e-filing system as follows:

Via Email: trenton@rosslawgroup.com

Daniel B. Ross

Trenton Lacy

ROSS SCALISE LAW GROUP

1104 San Antonio Street

Austin, Texas 78701

/s/ Andrew Gray

Andrew Gray 

4827-0164-7044.2 057446.1023

Case 1:20-cv-00648-RP Document 10 Filed 08/04/20 Page 16 of 16