UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 

RAYMOND PFANG, §

§

Plaintiff, §

§

versus § CIVIL ACTION NO. 1:23-CV-93

§

LAMAR INSTITUTE OF TECHNOLOGY, §

§

Defendant. §

MEMORANDUM AND ORDER

Pending before the court is Defendant Lamar Institute of Technology’s (“LIT”) Partial

Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (#6). 

Plaintiff Raymond Pfang (“Pfang”) filed a response to LIT’s motion (#12), and LIT filed a reply

(#13). Having considered the motion, the submissions of the parties, the record, and the

applicable law, the court is of the opinion that LIT’s motion should be denied. 

I. Background1

Pfang alleges he is of Chinese descent and is a naturalized citizen of the United States. 

He received his MBA from the University of Greenwich in London, England, and his Ph.D. in

Management from the University of Surrey Business School in Guildford, England. Before

immigrating to the United States in 2011, Pfang was employed as the Director of Operations for

Infocheck Ltd., UK, was the founding CEO of NES HealthCare, UK, and later was the Program

Director for the MA in Global Management, Senior Lecturer and Director, Regents Business

1 The facts recited in this opinion are taken from Pfang’s Original Complaint (#1). At this stage,

the court does not make any factual findings or determinations; rather, the court accepts Pfang’s

well-pleaded facts as true for the purpose of deciding the present motion. See, e.g., Leal v. McHugh, 731

F.3d 405, 410 (5th Cir. 2013) (noting that at the 12(b)(6) stage, the court must construe all facts in favor

of the non-moving party); Lytle v. Bexar County, 560 F.3d 404, 409 (5th Cir. 2009) (citing Scott v.

Harris, 550 U.S. 372, 378 (2007)), cert. denied, 559 U.S. 1007 (2010).

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Forum, all at Regent’s University Business School in London, England. Once in the United

States, and prior to his employment with LIT, Pfang was employed from 2013 through 2021 in

administrative positions varying from Dean, Assistant Dean, and Assistant to the President, at

Tarrant County College in Fort Worth, Texas, and Palo Alto College in San Antonio, Texas. 

Plaintiff applied for the position of Associate Vice President of Education Support at LIT

on October 29, 2021. The President of LIT at that time was Dr. Lonnie Howard (“Howard”). 

Howard, according to Pfang, emailed him the next day, informing him that he was “impressed

with his cover letter and curriculum vitae.” On November 2, 2021, Howard flew to San Antonio,

Texas, to interview Pfang. Pfang alleges that on that same day, Howard not only offered him the

position of Associate Vice President of Education Support, but also offered him the additional post

of Special Assistant to the President. Pfang accepted both positions, believing he would be a

member of Howard’s “Executive Team,” which would require him to work with Howard and

other LIT Administrators. 

Pfang contends that during his interview, Howard told him he would mentor Pfang to the

position of president of a college or university, impressing upon Pfang that he had successfully

mentored three other individuals to that position. Pfang received a written offer on November 15,

2021, which Pfang accepted. Pfang began his employment with LIT on December 1, 2021, but

was terminated from his position by LIT Provost Angela Hill (“Hill”) on April 21, 2022. 

According to Pfang, shortly after he began his employment with LIT, another Associate

Vice President (“AVP”) unexpectedly resigned from her position as AVP for Workforce and

Strategic Initiatives. Pfang alleges that Howard asked him to oversee the duties of the former

AVP on a temporary basis until a replacement could be hired. Plaintiff states that he led the

2

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search and developed a short list of candidates for the open AVP position. Rather than hire a

replacement to fill the vacant position, however, Howard, according to Pfang, terminated the

search and decided not to fill the position. Pfang alleges specifically that Howard asked him to

take over the position and he complied with the request. Including his responsibilities as AVP for

Workforce and Strategic Initiatives, Pfang oversaw several departments including Marketing,

Institutional Effectiveness, Assessment and Research, Grants, New Program Development, the

LIT Foundation, professional truck driver training, and the staff associated with these

departments. Plaintiff alleges he received no additional pay for assuming the new duties and,

despite his request for additional assistance, he received none. 

Howard also asked Pfang to “reorganize the administrative structure of the campus from

top to bottom.” According to Pfang, over a period of weeks, he began talking with other

Executive Team members and certain LIT staff, and ultimately provided Howard with his

proposal, which included written explanations of the reason for realignment. Around this same

time, Dr. Byron Prince (“Prince”), one of Pfang’s direct reports as AVP of the Workforce

Department, told Pfang that Howard had asked Prince to prepare a proposed reorganization chart

of the Workforce Department, showing Prince as the AVP of the department. Pfang avers that

he was surprised to learn this because he was the current AVP of the Workforce Department and

Howard knew that, under Pfang’s reorganization proposal, Pfang would remain as AVP of that

department. According to Pfang, he ultimately remained as AVP of the Workforce Department

and continued as Prince’s supervisor. Pfang contends that this was the first instance in which

Howard undermined his respect and authority in his position as Prince’s supervisor. Pfang

specifically alleges that both Howard and Prince are African American.

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Around February 15, 2022, Howard named Hill as LIT’s Vice President of Instruction and

Provost. Pfang specifically alleges that Hill is also African American and “had far less experience

to serve in these positions” as compared to Pfang. After Hill’s appointment, Howard informed

Pfang that he would now report directly to Hill. Pfang states that all the other members of the

President’s Executive Team also began reporting directly to Hill, with the exception of Rudy

Gonzales (“Gonzales”), who was the Vice-President of Finance and Operations. The other

members of the President’s Executive Team were Gonzales, Veronica Garcia (“Garcia”) as

Associate Vice-President, Ken Mason (“Mason”), and Andrea Stephenson (“Stephenson”).2

According to Pfang, both Gonzales and Garcia are Hispanic, while Mason and Stephenson are

Caucasian. 

Plaintiff alleges that Howard conducted an Executive Team meeting the next day. During

the meeting, and in front of the other Executive Team members, Pfang asserts that Howard

mentioned to him and Garcia that “if being at LIT did not fit into their career plans, he would be

willing to make a call,” presumably to assist in finding them other jobs. According to Pfang, in

what appeared to be a goodwill gesture, Howard also offered to waive the obligation for them to

repay their relocation allowances. Pfang contends that he “had no idea” why Howard would make

the comment and/or offer, particularly during an Executive Team meeting. The following

morning, according to Pfang, he emailed Howard thanking him for the offer. Thereafter, Howard

called and assured Pfang that he did not want him to leave his employment with LIT.

On or around February 15, 2022, Howard spoke at a convocation town-hall meeting of

LIT’s campus faculty and staff. During this meeting, and without prior consultation with Pfang,

2

 Plaintiff does not identify the positions Mason and Stephenson held. 

4

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Howard announced that the position of Special Assistant to the President was vacant and open for

anyone who was interested in applying. Plaintiff was “shocked and surprised” to learn this in a

public forum as this was one of the original two positions for which he was hired and received an

$8,000.00 stipend. Pfang construed this announcement by Howard to mean he was being removed

from the position. After the meeting, Pfang emailed Howard and advised him that because he was

no longer the Special Assistant to the President, he should no longer receive the stipend for the

position. Pfang also spoke with Gonzales, the CFO, about surrendering the stipend. Gonzales

informed Pfang that the President told him it was not necessary for Pfang to surrender the stipend. 

Howard ultimately never filled the position and continued to refer to Pfang as the Special Assistant

to the President up to the time of Pfang’s termination.

In line with his duties as AVP of Workforce and Strategic Initiatives, Pfang emailed

Howard on December 7, 2021, with a list of possible classes and programs that would benefit LIT. 

Two of the recommendations were an aviation maintenance program and a private pilot’s

associates degree. Thereafter, Pfang emailed the City of Beaumont Regional Airport manager and

proposed a meeting to discuss the possible development of these two programs.3 Plaintiff copied

Hill, his now direct supervisor, on the email to keep her apprised of his plans to meet regarding

the development of these programs. Pfang received no response from Hill and scheduled the

meeting for March 10, 2022, at the Beaumont Regional Airport. Pfang, along with Tiffany

Williams-Parker (“Williams-Parker”), who is African American, attended the meeting for LIT.4

3 Pfang previously met with Chris Meaux at the City of Beaumont Regional Airport in connection

with his daughter’s search for a new flight school in Beaumont. 

4

 Pfang does not identify the position Williams-Parker held with LIT.

5

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On March 14, 2022, Pfang emailed Howard, Hill, and others describing the exploratory

discussions he and Williams-Parker had at the March 10, 2022, meeting. Pfang mentioned that

he would like to give the airport representatives a tour of the campus and arrange a meeting with

Howard, Hill, and Gonzales during that time. Howard responded by email stating that he was not

telling Pfang not to explore a new program but to make sure that the time investment with airport

collaboration was worth the effort. Pfang responded via email stating he would speak to Hill and

Williams-Parker about Howard’s directive and agree to a way forward.

After speaking with Hill and Williams-Parker, Pfang emailed Howard on March 17, 2022,

and asked if he would agree to meet with the Beaumont Regional Airport Manager and the Interim

City Manager about the collaboration on their tour of the LIT campus. According to Pfang,

Howard agreed to the meeting and also suggested that Pfang invite the permanent City Manager

to “help pave the way for further strategic collaboration with the City of Beaumont.” Pfang

assumed from this response that Howard was on board with his efforts.

The meeting and tour were scheduled on the calendars of Howard, Hill, and Gonzales for

March 31, 2022. Pfang emailed Hill on March 29, 2022, to update her on the campus tour and

remind her that she and Gonazales would be meeting with the airport representatives at 1:00 p.m.

on March 31, 2022. Hill responded to the email, stating, “OK.” According to Pfang, at no time

during the period of March 17, 2022, to March 31, 2022, did Howard or Hill mention to Pfang

that he should not schedule the tour and meeting. Pfang also avers that, during this time, neither

Howard nor Hill informed him that he was mishandling his attempts to get the programs up and

running or that he was exceeding his authority. 

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Around this same time, on March 10, 2022, Pfang in the normal course of his duties as

supervisor of the Workforce Department, conducted a meeting of his Workforce Department staff,

which included a number of people, including Prince and Williams-Parker. At this meeting, in

front of all the staff present, Prince raised his voice to Pfang over various matter saying, in part,

that he and Pfang were having a “pissing contest” over matters on which they disagreed. After

the meeting, Pfang emailed Prince and informed him that his behavior was “aggressive and

disrespectful.” Pfang also advised Prince that, “[a]s your supervisor, please note that my

expectation is for you and the team to exhibit a positive and cooperative work attitude which will

help foster collegiality and collaboration to achieve LIT’s vision and Workforce objectives.” 

According to Pfang, Prince responded to the email “being disrespectful” and listed multiple

criticisms of Pfang, as follows:

Lastly, my work ethics and attitude has contributed to $1 million dollars in grants

funding within two years. So, the “fostering” and “collaboration” to achieve LIT’s

vision and Workforce objectives has been achieved prior to your installation in

December 2021. (Emphasis added).

Prince asked for a meeting for the two of them to discuss the issues with Howard, Hill, and

Gonzales. 

On March 18, 2022, Pfang met with Howard, Hill, and a representative from the HR

Department regarding Prince. In the meeting, Howard asked Hill and Pfang to meet with Prince

regarding any outstanding issues. That meeting took place on March 21, 2022, wherein Hill met

with Pfang and Prince about their March 10, 2022, meeting and resulting emails. Pfang contends

that Hill did not support him during this meeting. In a March 22, 2022, email to Pfang and

Prince, Hill summarized the meeting and stated the following:

7

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[M]uch needed clarification regarding your alleged use of inappropriate language

(i.e. ‘pissing contest’) and behavior (‘raised voices/yelling’) during a DWA

meeting (March 10) attended by Dr. Pfang and two other LIT colleagues. 

However, you denied these allegations but did express concern about a lack of

communication regarding the DWA MOU. This was not intentional and I have

asked Dr. Pfang to ensure all employees in the Workforce Department are kept

well informed. 

Pfang maintains that the response and email show Hill clearly accepted Prince’s denial of his

behavior at the March 10, 2022, meeting with Pfang and other staff, and approved Prince’s

criticism of Pfang.

Later the same day, Pfang emailed Hill asking her to review a warning Pfang drafted as

Prince’s direct supervisor that he wanted to give to Prince. In the email, Pfang informed Hill he

wanted to run the warning by her before he sent it and explained that Beth Knape (“Knape”), the

Director of Human Resources, had already reviewed the content. Hill responded to Pfang, asking

Pfang to call her, and stated, “Our conversation with Byron yesterday closed this matter and a

verbal warning (double jeopardy) is not needed at this time.” Pfang then called Hill, as requested,

and Hill again stated that a verbal warning was not necessary. Pfang felt unsupported by Hill in

his effort to discipline Prince for his behavior and failure to follow through with Pfang’s

instructions as his supervisor. Pfang alleges that the matter was clearly not over as Howard and

Prince “teamed up” shortly thereafter to publicly criticize and humiliate him.

On April 1, 2022, Howard asked Pfang to come to his office. Pfang alleges he had no

prior notice of the meeting and, when he arrived, Hill, Gonzales, Prince, and Parker-Williams

were all present. Pfang ultimately learned that Howard called the meeting so that he and Prince

could raise multiple criticisms regarding Pfang in front of the other members of the Executive

Team. During the meeting, Howard allowed Prince to criticize Pfang for mishandling the first

8

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meeting with the representatives at the Beaumont Regional Airport and to tell Pfang, in front of

the group, that he did not know how to deal with community business leaders. According to

Pfang, Prince had little, if any, personal involvement in the airport meetings and was not in charge

of developing new programs for LIT. Despite this, Howard allowed Prince to criticize Pfang

openly as if Prince were Pfang’s supervisor. Howard also commented and criticized Pfang by

reading various emails on which Pfang was not copied. Pfang alleges that the emails appeared to

be from Prince to Howard. Having no knowledge of the emails, Pfang found it difficult to

respond to the criticisms lodged by Prince and Howard. Pfang states that Howard showed little,

if any, support for him in the meeting. At the end of the meeting, Howard merely told Pfang that

he and Prince needed to learn to get along. Pfang was completely humiliated in the meeting and

believed Prince had the backing of Howard, as shown by Howard’s acceptance of Prince’s

criticisms of him as if Prince and Pfang were on the same level in the LIT hierarchy. 

A few days later, on April 4, 2022, Hill announced to Pfang and his staff that she was

going to conduct an “investigative meeting” with them. Pfang had no knowledge of the subject

matter but suggested to Hill that he not be in attendance so his staff would feel free to talk about

whatever was being investigated. Accordingly, Pfang did not attend the meeting, and Hill never

informed him of the subject matter or the results of the meeting.

Shortly thereafter, Pfang was in attendance at a President’s Executive Team meeting with

Howard, Hill, Gonzales, and possibly others. During the meeting, the airport maintenance

program was discussed. Howard remarked about how it came together quickly and that Pfang

mismanaged it. Howard asked the group, “Yes or no; do you agree?” Howard went to each

person in the meeting and asked the same question to which Hill replied, “Yes.” Gonzales

9

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appeared to struggle with his response but agreed, “Yes.” When Howard asked Pfang, he stated

it was managed as well as it could be. Howard then said that he had heard what he needed, asked

Hill and Gonzales to stay behind, and dismissed Pfang from the meeting. 

On April 12, 2022, Hill met with Pfang and gave him a verbal warning for his purported

“mismanagement of the aviation program proposal to external stakeholders.” The verbal warning

included Pfang’s purported failure to keep her informed of “potential external opportunities and

meetings prior to confirming LIT’s participation.” According to Pfang, Hill’s accusations were

not accurate. Hill followed the verbal warning with an email to Pfang confirming the verbal

warning. Pfang complains that the verbal warning came after Hill refused to allow Pfang to give

Prince a verbal warning for being disrespectful and failing to follow Pfang’s instructions. Pfang

further complains that the verbal warning came after Howard “polled” Hill and Gonzales for their

opinion on whether the aviation program proposal had been mismanaged. In the meeting with

Hill, Pfang stated that he always kept her informed, the meetings were purely exploratory, and

he made no commitments on behalf of LIT to anyone. Pfang also told Hill that the person who

needed the verbal warning was Prince. After the meeting, Pfang went to the Human Resources

Department at LIT and spoke with Knape about the meeting with Hill and the issuance of a verbal

warning. Plaintiff alleges that prior to April 1, 2022, and the issuance of the verbal warning, he

had no indication that his job performance was perceived as lacking. In fact, Pfang contends that

after Howard appointed Hill as Provost, he was given increasingly greater responsibilities by

Howard. Pfang alleges that at the time of his termination, he had a much larger portfolio of

responsibilities than any other member of the President’s Executive Team.

10

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The next morning, Pfang responded to Hill’s email and copied Knape. Pfang advised Hill

that he made no commitments for LIT regarding the aviation program and any meetings were

purely exploratory. Pfang also attached emails to show that he kept Hill informed of his meetings

with external stakeholders. Pfang told Hill he did not deserve a verbal warning, but that Prince

did because of his disrespectful and inappropriate behavior on March 10, 2022. Pfang also

lamented to Hill that “instead of addressing the issues with [Prince] and supporting me in initiating

the disciplinary process, you have instead undertaken to undermine my authority and ignored

[Prince’s] repeated blatant failure to fully comply with my instructions.” Pfang also stated in the

email to Hill that her discipline of him, as an Asian immigrant, was “unjust and inappropriate.” 

Pfang stated further that, in contrast, Hill interfered in allowing Pfang to discipline Prince, an

African American non-immigrant, despite Prince’s:

1. Unprofessional and crude behavior;

2. Not following the established administrative channels, going straight to

President Howard and [Hill] with complaints; 

3. Reluctantly and unsatisfactorily completing assigned duties;

4. Publicly insulting his superior’s management style and accusing him of

unjustified misdemeanors;

5. [N]ot be[ing] given a verbal warning by [Hill] [but] instead [she regarded

her] conversation with [Prince as having] “closed this matter;” and

6. [B]ehavior [] not be[ing] [discussed] in front of five of his colleagues as

[Pfang’s] ha[d] been.

Pfang told Hill that he hoped his grievance could be resolved in an equitable and fair manner with

the retraction of the verbal warning and a written apology. Finally, Pfang advised Hill that in

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“view of you and Dr. Howard’s being of the same race as Dr. Prince, I request this matter be

referred to the Chancellor’s Office to be investigated fairly, without racial prejudice.” 

Pfang alleges that Hill retaliated against him on April 13, 2022, when she wrote a series

of emails to Pfang and others regarding a vehicle accident involving an LIT Truck Driving

Instructor and an LIT vehicle which occurred on March 16, 2022.5In this email, Hill asked Pfang

if he had informed her directly of the accident. Pfang states he responded the next day stating,

“I too cannot recall and do not think I specifically informed you; I shall do so in the future.” 

Pfang notes that it was clear from other emails that Hill was made aware of the accident on March

31, 2022. 

Later, on April 14, 2022, Hill called a meeting with Pfang and others to get an “overview”

of the accident. Pfang alleges that this was the beginning of an investigation that would ultimately

lead to his termination for the purported reason that Pfang failed to tell Hill about the accident as

soon as he was notified of it. During this meeting, Howard and Hill discovered that the LIT

employee who was involved in the accident was not covered by LIT’s insurance and neither were

any of the other employee driving instructors. Howard and Hill also learned that there was no

procedure in place to ensure that new employee drivers were added to LIT’s insurance policies. 

According to Pfang, insurance coverage was an area of responsibility of VP Gonzales, who was

also a member of the President’s Executive Team. Pfang alleges that these errors by Gonzales

were of much greater import to LIT than the date when Pfang informed Hill of the accident, yet

5 Pfang concedes that Truck Driving Instruction fell within the Workforce Department that was

part of his job responsibilities. He states that when he became aware of the accident on March 17, 2022,

he believed he was following proper procedure when he asked his executive assistant to inform Bishell

Appu (“Appu”), Accounting Associate Finance, who was responsible for insurance/risk management and

is also African American, of the incident. According to Pfang, Appu reported to Gonzales, the VP and

CFO.

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Gonzales was never criticized, disciplined, or terminated for the errors. Pfang contends that these

errors could have been far costlier to LIT than Pfang’s alleged error in failing to notify Hill

“timely” of the accident. In the meeting, Gonzales was simply told to obtain insurance coverage

immediately on all LIT drivers. 

On April 18, 2022, Hill responded to Pfang’s grievance saying she declined to retract her

verbal warning and provide a written apology. Hill further stated that the matter relating to the

mismanagement of the aviation program “is closed.” Hill copied the Human Resource Director

“for further review and to address your concerns.”

On the same day, Hill asked Pfang to reconstruct a timeline of events relating to the March

16, 2022, accident, showing to whom and by whom notice of the accident was given. Pfang

prepared the timeline as instructed. On April 21, 2022, Howard and Hill held a “factfinding”

meeting relating to the accident, chaired by Gonzales. The meeting included Executive Team

members and others. At the meeting, Howard stated that those who were Directors and below had

properly informed their supervisors of the accident. Pfang contends that, in making this statement,

Howard implied that the Associate Vice President (Pfang), and Vice Presidents (Hill and

Gonzales) failed to do so; yet ultimately, it was only Pfang who was terminated.

After the “factfinding” meeting, Hill and Gonzales came to Pfang’s office. Hill gave Pfang

a letter explaining what a serious matter it was that he failed to inform her of the accident at the

time it happened.6 Hill stated in the letter that this failure constituted “a failure to follow protocol

and demonstrates poor judgment.” Hill concluded the letter by saying that a copy of the written

6 Pfang points out, ironically, that Hill brought Gonzales with her as a witness, the LIT Vice

President and member of the President’s Executive Team who failed to obtain insurance for all of LIT’s

truck driver employees, while Pfang was the one terminated for failing to inform Hill of the accident

immediately. 

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reprimand would be placed in Pfang’s personnel file. According to Pfang, the letter did not refer

to any continuing poor performance by Pfang, nor did it mention termination. Attached to the

letter, however, was a severance and release agreement. Hill advised Pfang that he could sign the

severance agreement and receive two months’ severance pay or he would be terminated. Hill also

informed Pfang that he had until the following day to make a decision. Pfang did not resign and

was terminated effective April 21, 2022. 

Pfang states that although he filed a grievance against Hill for racial discrimination with

LIT’s Human Resources Department, Hill terminated his employment before there was time to

investigate his complaint. Knape contacted Pfang the day following his termination, at which time

Pfang advised her that he had been terminated. Knape stated she was not aware of his termination,

and she later called Pfang back to inform him she was still going to conduct an investigation into

his grievance pursuant to LIT policy. Knape asked for Pfang’s participation, but Pfang declined

on the advice of his attorney. Pfang’s attorney was later informed that Knape found no evidence

to support Pfang’s claim of racial discrimination. 

LIT filed its pending partial motion to dismiss on April 25, 2023. LIT argues that Pfang’s

claims should be dismissed because: (1) Pfang failed to plead sufficient facts that a similarly

situated comparator existed and was treated more favorably; (2) Pfang failed to plead sufficient

facts that his alleged harassment was based on race; and (3) LIT’s Eleventh Amendment immunity

and sovereign immunity bar Pfang’s procedural due process, substantive due process, and breach

of contract claims, as well as his claim for declaratory relief.7In response, Pfang withdraws his

claims for breach of contract, his due process claims, and his request for declaratory relief. As

7

 LIT concedes Pfang has alleged sufficient facts to plead a claim for Title VII retaliation. 

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to Pfang’s other claims, he argues that (1) he pleaded sufficient facts regarding his discipline and

ultimate termination, as the only Asian administrator among LIT’s leadership, giving examples

of non-Asian administrators who were treated more favorably and (2) he pleaded sufficient facts

regarding the harassment and hostile work environment that he endured, as the only Asian

administrator among LIT’s leadership, with examples of non-Asian administrators who were

treated more favorably. LIT filed a Reply contending that (1) Pfang’s VII discrimination claim

fails because he cannot show that he was disciplined or terminated because of his race and (2) his

Title VII hostile work environment claim fails because he cannot show that he suffered race-based

harassment. 

II. Analysis

A. Dismissal for Failure to State a Claim under Rule 12(b)(6)

A motion to dismiss for failure to state a claim upon which relief can be granted under Rule

12(b)(6) of the Federal Rules of Civil Procedure tests only the formal sufficiency of the statement

of a claim for relief and is “appropriate when a defendant attacks the complaint because it fails to

state a legally cognizable claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001),

cert. denied, 536 U.S. 960 (2002); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding

that in order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face”); Spano ex rel. C.S. v.

Whole Foods, Inc., 65 F.4th 260, 262 (5th Cir. 2023) (quoting Innova Hosp. San Antonio, Ltd.

P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th Cir. 2018)); Coleman

E. Adler & Sons, L.L.C. v. Axis Surplus Ins. Co., 49 F.4th 894, 896 (5th Cir. 2022); IberiaBank

Corp. v. Ill. Union Ins. Co., 953 F.3d 339, 345 (5th Cir. 2020); Walker v. Beaumont Indep. Sch.

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Dist., 938 F.3d 724, 734 (5th Cir. 2019). Such a motion is “not meant to resolve disputed facts

or test the merits of a lawsuit” and “instead must show that, even in the plaintiff’s best-case

scenario, the complaint does not state a plausible case for relief.” Sewell v. Monroe City Sch. Bd.,

974 F.3d 577, 581 (5th Cir. 2020); Oyekwe v. Rsch. Now Grp., Inc., 542 F. Supp. 3d 496, 502

(N.D. Tex. 2021); 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND

PROCEDURE § 1356 (3d ed. 2019). In ruling on such a motion, the court must accept the factual

allegations of the complaint as true, view them in a light most favorable to the plaintiff, and draw

all reasonable inferences in favor of the plaintiff. Hernandez v. Mesa, 582 U.S. 548, 550 (2017);

Ramirez v. Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021), cert. denied, 142 S. Ct. 2571 (2022);

IberiaBank Corp., 953 F.3d at 345 (citing Leal v. McHugh, 731 F.3d 405, 410 (5th Cir. 2013));

Walker, 938 F.3d at 735. The court, however, does not “strain to find inferences favorable to the

plaintiff[ ]” or “accept conclusory allegations, unwarranted deductions, or legal conclusions.” 

Southland Sec. Corp. v. INSpire Ins. Sols., Inc., 365 F.3d 353, 361 (5th Cir. 2004); accord

Ruvalcaba v. Angleton Indep. Sch. Dist., No. 20-40491, 2022 WL 340592, at *3 (5th Cir. Feb.

4, 2022); Modelist v. Miller, 445 F. App’x 737, 739 (5th Cir. 2011); Jones v. Dickerson, No. CV

H-19-3876, 2020 WL 6504456, at *2 (S.D. Tex. Nov. 5, 2020).

“[T]he plaintiff’s complaint [must] be stated with enough clarity to enable a court or an

opposing party to determine whether a claim is sufficiently alleged.” Oscar Renda Contracting,

Inc. v. Lubbock, 463 F.3d 378, 381 (5th Cir. 2006) (citing Elliott v. Foufas, 867 F.2d 877, 880

(5th Cir. 1989)), cert. denied, 549 U.S. 1339 (2007); Ramming, 281 F.3d at 161; Pathology Lab’y

Inc. v. Mt. Hawley Ins. Co., 552 F. Supp. 3d 617, 621 (W.D. La. 2021). The “[f]actual

allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp.

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v. Twombly, 550 U.S. 544, 555 (2007); accord Spano ex rel. C.S., 65 F.4th at 262; King v.

Baylor Univ., 46 F.4th 344, 355 (5th Cir. 2022); Davis v. Tex. Health & Hum. Servs. Comm’n,

761 F. App’x 451, 454 (5th Cir. 2019); Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 533 (5th

Cir. 2016), cert. denied, 137 S. Ct. 1374 (2017). “Where the well-pleaded facts of a complaint

do not permit a court to infer more than the mere possibility of misconduct, the complaint has

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Walker, 938 F.3d at 734

(quoting Iqbal, 556 U.S. at 678); accord King, 46 F.4th at 355. Hence, “a complaint’s allegations

‘must make relief plausible, not merely conceivable, when taken as true.’” Walker, 938 F.3d at

734 (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009));

see King, 46 F.4th at 355; Longoria ex rel. M.L. v. San Benito Indep. Consol. Sch. Dist., 942

F.3d 258, 263 (5th Cir. 2019) (“Though the complaint need not contain ‘detailed factual

allegations,’ it must contain sufficient factual material to ‘allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” (quoting Iqbal, 556 U.S. at

678)). 

Generally, the court may not look beyond the four corners of the plaintiff’s pleadings. 

Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999); see King, 46 F.4th at 356;

Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.), cert. denied, 567 U.S. 936 (2012); Hicks v.

Lingle, 370 F. App’x 497, 498 (5th Cir.), cert. denied, 562 U.S. 1111 (2010). The court may,

however, consider matters that are outside the pleadings if those materials are matters of public

record. Cox v. Richards, 761 F. App’x 244, 248 (5th Cir. 2019) (holding the district court’s

consideration of publicly available records in plaintiff’s prior court proceedings on a 12(b)(6)

motion to dismiss was proper); Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (citing Norris

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v. Hearst Tr., 500 F.3d 454, 461 n.9 (5th Cir. 2007)); Fin. Acquisition Partners LP v. Blackwell,

440 F.3d 278, 286 (5th Cir. 2006) (citing Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995)). 

Furthermore, the court may consider “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); see

Innova Hosp. San Antonio, L.P., 892 F.3d at 726 (“[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.’” (quoting Wolcott v. Sebelius,

635 F.3d 757, 763 (5th Cir. 2011))); Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 (5th Cir.

2012); Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011). A court may also review

documents “attached to a response to a motion to dismiss when [they are] sufficiently referenced

in the complaint and [their] authenticity is unquestioned.” Am. Gen. Life Ins. Co. v. Mickelson,

No. H-11-3421, 2012 WL 1355591, at *2 (S.D. Tex. Apr. 18, 2012) (citing Walch v. Adjutant

Gen.’s Dep’t of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008) (relying on documents that were

“explicitly referenced in the complaint, acknowledged in the answers, and attached to [Plaintiff]’s

opposition to the Defendants’ motions to dismiss”)); see Blakely v. Andrade, 360 F. Supp. 3d 453,

472 (N.D. Tex. 2019); United States ex rel. Colquitt v. Abbott Lab’ys, 864 F. Supp. 2d 499, 531

n.9 (N.D. Tex. 2012); Keel v. Wal-Mart Stores, Inc., No. 1:11-CV-248, 2012 WL 488248, at *2

(E.D. Tex. Jan. 11, 2012), adopted by No. 1:11-CV-248, 2012 WL 469862 (E.D. Tex. Feb. 14,

2012).

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A factual assertion or theory of liability not set forth in the complaint is not properly before

the court on a motion to dismiss. See Law v. Ocwen Loan Servicing, L.L.C., 587 F. App’x 790,

793 n.2 (5th Cir. 2014) (“Review of a Rule 12(b)(6) dismissal is, by its very nature, limited to the

allegations and theories set forth in the complaint that the district court had before it when granting

the motion to dismiss.”); Vandelay Hosp. Grp. LP v. Cincinnati Ins. Co., No. 3:20-CV-1348-D,

2020 WL 5946863, at *1 n.3 (N.D. Tex. Oct. 7, 2020) (“This court has repeatedly held that,

when ruling on a motion to dismiss, the court does not consider additional facts that are alleged

in a response brief but not in the complaint.” (collecting cases)); Mohamed v. Irving Indep. Sch.

Dist., 252 F. Supp. 3d 602, 620 n.10 (N.D. Tex. 2017) (rejecting plaintiff’s attempt to introduce

a theory of liability for the first time in response to defendant’s motion to dismiss); Elton Porter

Marine Ins. Agency v. Markel Am. Ins. Co., No. H-11-4432, 2012 WL 2050254, at *2 (S.D. Tex.

June 6, 2012) (“[I]t is insufficient to allege further facts in the response to the motion to dismiss;

the factual matter must be contained in the pleadings themselves.”).

“[A] motion to dismiss under rule 12(b)(6) ‘is viewed with disfavor and is rarely granted.’” 

Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire &

Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)); accord IberiaBank Corp., 953 F.3d at 345; Leal,

731 F.3d at 410. “The question therefore is whether in the light most favorable to the plaintiff

and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” 

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000); accord Thompson v.

City of Waco, 764 F.3d 500, 503 (5th Cir. 2014) (noting that at the 12(b)(6) stage the court’s task

“is to determine whether the plaintiff [has] stated a legally cognizable claim that is plausible, not

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to evaluate the plaintiff’s likelihood of success”); Leal, 731 F.3d at 410. “In other words, a

motion to dismiss an action for failure to state a claim ‘admits the facts alleged in the complaint,

but challenges plaintiff’s rights to relief based upon those facts.’” Ramming, 281 F.3d at 161-62

(quoting Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992)); accord

Yazdi v. Lafayette Par. Sch. Bd., No. 6:18-CV-00510, 2020 WL 5876703, at *2 (W.D. La. Sept.

30, 2020); Lopez-Flores v. Ibarra, No. 1:17-CV-00105, 2018 WL 6577955, at *2 (S.D. Tex.

Mar. 12, 2018).

A Rule 12(b)(6) motion to dismiss must be read in conjunction with Rule 8(a) of the

Federal Rules of Civil Procedure. Twombly, 550 U.S. at 555. Accordingly, a district court

should not dismiss a complaint for failure to state a claim unless a plaintiff has failed to plead

“enough facts to state a claim to relief that is plausible on its face.” Id. at 570; accord King,

46 F.4th at 355; IberiaBank Corp., 953 F.3d at 345 (quoting Iqbal, 556 U.S. at 678); Zastrow v.

Hous. Auto Imps. Greenway Ltd., 789 F.3d 553, 559 (5th Cir. 2015); Leal, 731 F.3d at 410;

Wilson, 667 F.3d at 595. “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.” Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014) (quoting Iqbal, 556

U.S. at 678); accord King, 46 F.4th at 355-56; Thompson, 764 F.3d at 503; Harold H. Huggins

Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Walker, 938 F.3d at 735 (quoting

Iqbal, 556 U.S. at 678); accord King, 46 F.4th at 356. “Factual allegations that are ‘merely

consistent with a defendant’s liability, stop short of the line between possibility and plausibility

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of entitlement to relief,’ and thus are inadequate.” Walker, 938 F.3d at 735. “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” 

Shaw v. Villanueva, 918 F.3d 414, 415 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 678); accord

King, 46 F.4th at 356 (“[C]ourts ‘do not accept as true conclusory allegations, unwarranted factual

inferences, or legal conclusions.’” (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.

2005))); Gibson v. Tex. Dep’t of Ins.–Div. of Workers’ Comp., 700 F.3d 227, 233 (5th Cir. 2012). 

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557); Shaw, 918 F.3d at

419.

“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.” Iqbal, 556 U.S. at 679; Shaw, 918 F.3d at 419; Collins v.

Robinson Indep. Sch. Dist., No. W-21-CV-00657, 2022 WL 2019294, at *1 (W.D. Tex. June 6,

2022). In other words, to state a cognizable cause of action, the complaint must allege sufficient

facts to “nudge” the claims “across the line from conceivable to plausible.” Twombly, 550 U.S.

at 570; Leal, 731 F.3d at 410; see Walker, 938 F.3d at 734 (quoting Grubbs, 565 F.3d at 186). 

Generally, at the 12(b)(6) stage, a plaintiff is simply required to inform the defendant of the factual

basis of his complaint in order to avoid dismissal for failure to state a claim. See Johnson v. City

of Shelby, 574 U.S. 10, 11-12 (2014) (citing FED. R. CIV. P. 8(a)(2)); Groden v. City of Dallas,

826 F.3d 280, 283 (5th Cir. 2016).

B. Title VII Claims

Title VII provides that “[i]t shall be an unlawful employment practice for an employer—(1)

to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

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individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1); see Bostock v. Clayton County, ___ U.S. ___, 140 S. Ct. 1731, 1738 (2020);

Tex. Dep’t of Hous. & Cmty. Affs. v. Inclusive Cmtys. Project, Inc., 576 U.S. 519, 531 (2015);

Equal Emp. Opportunity Comm’n v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 771 (2015);

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348 (2013); Vance v. Ball State Univ., 570

U.S. 421, 426 (2013). “The purposes of Title VII are to achieve equality of employment

opportunity and to make persons whole for injuries suffered on account of unlawful employment

discrimination.” Floca v. Homcare Health Servs., Inc., 845 F.2d 108, 111 (5th Cir. 1988) (citing

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)); see Nassar, 570 U.S. at 342; Equal

Emp. Opportunity Comm’n v. First Metro. Fin. Serv., Inc., 449 F. Supp. 3d 638, 646 (N.D. Miss.

2020).

1. Disparate Treatment8

Employment discrimination cases are not subject to a heightened pleading standard. 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002); Cicalese v. Univ. of Tex. Med. Branch,

924 F.3d 762, 767-68 (5th Cir. 2019); Briceno-Belmontes v. Coastal Bend Coll., No.

2:20-CV-00114, 2022 WL 673854, at *4 (S.D. Tex. Mar. 5, 2022). The Supreme Court has

made it clear that a plaintiff in an employment discrimination case need not plead a prima facie

case in his complaint. See Swierkiewicz, 534 U.S. at 508; see also Wright v. Union Pac. R.R.

8

In the Partial Motion to Dismiss, LIT states Pfang variously refers to his claims as being for race,

national origin, and ethnicity discrimination, harassment, and retaliation. For simplicity’s sake, LIT refers

to the claims as alleging race discrimination, race-based harassment, and race-based retaliation. Pfang,

in his Response, adopts the use of the term race to include all three. The court will do the same. 

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Co., 990 F.3d 428, 433 (5th Cir. 2021); Cicalese, 924 F.3d at 766 (quoting Raj v. La. State

Univ., 714 F.3d 322, 331 (5th Cir. 2013)). “Rather, a plaintiff need only follow Rule 8’s

command that a complaint contain a ‘short and plain statement of the claim showing that the

pleader is entitled to relief.’” Hernandez v. Rotorcraft Servs. Grp., Inc., No. 4:21-cv-00392-O,

2021 WL 3812158, at *4 (N.D. Tex. June 22, 2021) (quoting FED. R. CIV. P. 8(a)(2)). “Rule 8

thus sets out a ‘low bar’ to evaluate the sufficiency of a claim, requiring only that a plaintiff’s

pleadings ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.’” Taylor v. S. LA Contractors, LLC, No. 6:22-0217, 2022 WL 16570086, at *3-4

(W.D. La. Sept. 30, 2022) (quoting Gilbert v. Outback Steakhouse of Fla. Inc., 295 F. App’x

710, 713 (5th Cir. 2008)), adopted by No. 6:22-0217, 2022 WL 16558732 (W.D. La. Oct. 31,

2022); see Bell Atl. Corp., 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957));

Sanchez Oil & Gas Corp. v. Crescent Drilling & Prod., Inc., 7 F.4th 301, 309 (5th Cir. 2021)

(quoting Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015)). So long

as a pleading alleges facts upon which relief can be granted, it states a claim even if it “fails to

categorize correctly the legal theory giving rise to the claim.” Sanchez Oil & Gas Corp., 7 F.4th

at 309 (quoting Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013)).

Rule 8 reflects the basic philosophy of the Federal Rules that “simplicity, flexibility, and

the absence of legalistic technicality are the touchstones of a good procedural system.” 5

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1217

(4th ed. 2014). At the pleading stage, Pfang need only “plead sufficient facts on all of the ultimate

elements of a disparate treatment claim to make her [his] case plausible.” Cicalese, 924 F.3d at

766 (quoting Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016) (emphasis

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added), cert. denied, 137 S. Ct. 1339 (2017)). The United States Court of Appeals for the Fifth

Circuit has identified the “two ultimate elements a plaintiff must plead to support a disparate

treatment claim under Title VII: (1) ‘an adverse employment action,’ (2) taken against a plaintiff

‘because of [his] protected status.’” Id. at 767 (quoting Raj, 714 F.3d at 331).

Where a plaintiff’s employment discrimination claim relies on circumstantial evidence,

however, “it can be ‘helpful to reference’ [the McDonnell Douglas] framework when the court is

determining whether a plaintiff has plausibly alleged the ultimate elements of the disparate

treatment claim.” Id. (quoting Chhim, 836 F.3d at 470-71). Of course, the McDonnell Douglas

framework is an “evidentiary standard, not a rigid pleading requirement.” Hernandez, 2021 WL

3812158, at *4 (quoting Puente v. Ridge, 324 F. App’x 423, 427 (5th Cir. 2009)). Nevertheless,

courts have recently dismissed claims on the grounds that they could not plausibly support one or

more elements of a prima facie case under Title VII. See, e.g., Olivarez v. T-mobile USA, Inc.,

997 F.3d 595, 600 (5th Cir.) (affirming the district court’s dismissal of a Title VII claim where

the plaintiff “failed to plead any facts indicating less favorable treatment than others ‘similarly

situated’ outside of the asserted protected class” and did not provide “any facts about any

comparators at all”), cert. denied, 142 S. Ct. 713 (2021); Gaumond v. City of Dallas, No. 3:21-

CV-00624-E, 2023 WL 2061170, at *4 (N.D. Tex. Feb. 15, 2023) (dismissing the plaintiff’s Title

VII claims because he failed to specify a protected class and did not identify a comparator

employee); Johnson v. Fed. Info. Sys., SA-22-CV-00796-XR, 2022 WL 4298458, at *6-7 (W.D.

Tex. Sept. 16, 2022) (concluding that the plaintiff’s Title VII claims should be dismissed because

she neither identified a comparator employee nor alleged that she was replaced by someone outside

of her race or sex). 

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In other instances, courts have been wary to dismiss the action at the pleading stage. See

Cicalese, 924 F.3d at 768 (vacating the district court’s grant of a motion to dismiss because the

court had “erred by holding [the plaintiffs] to a heightened pleading standard” in part by

“scrutinizing whether [the plaintiffs’] fellow employees were really ‘similarly situated’”);

Thompson, 764 F.3d at 506 (“[F]urther assessment of [the plaintiff’s] claim is fact-intensive and

better suited for the summary-judgment or trial stage.”); Lucenio v. Hous. Indep. Sch. Dist., No.

4:21-cv-00650, 2022 WL 658838, at *15 (S.D. Tex. Feb. 16, 2022) (“[S]crutinizing whether [the

plaintiff’s] white co-workers were truly ‘similarly situated’ to her is more suited for the summary

judgment phase.” (citing Cicalese, 924 F.3d at 768)), adopted by No. 4:21-cv-00650, 2022 WL

658719 (S.D. Tex. Mar. 4, 2022). 

Here, LIT argues that, even accepting Pfang’s allegations as true, he cannot possibly

recover on his Title VII discrimination claims because he “fails entirely to plead any facts at all,

much less ones sufficient to make his Title VII discrimination claim plausible, addressing prong

four of that claim—that is, that ‘he was treated less favorably because of his membership in that

protected class than were other similarly situated employees who were not members of the

protected class, under nearly identical circumstances.’” The court is not convinced that dismissal

is proper on the ground that Pfang has failed to allege he is similarly situated to an employee of

a different race, who was treated more favorably. As outlined above, Pfang was a Vice President

and a member of the President’s Executive Team, supervised by both Howard and Hill. The

comparators he alleges are (1) Gonzales, also a Vice President/CFO and member of the President’s

Executive Team, who was supervised by both Howard and Hill, and (2) Prince, while formally

designated as Pfang’s subordinate, was allegedly treated by leadership as Pfang’s equal, if not his

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superior, who was also supervised by both Howard and Hill. Pfang alleges both employees

committed infractions that were at least as serious, if not worse, than those allegedly committed

by Pfang, yet neither was disciplined nor terminated. Pfang alleges that Gonzales is Hispanic and

Prince is African American, while Pfang is Asian. In his complaint to Human Resources, Pfang

specifically alleges he was discriminated against based on his race and ethnicity. In light of these

allegations, and given the intense factual inquiry required to determine whether employees are

similarly situated, the court declines to dismiss Pfang’s Title VII claim alleging disparate

treatment. See Cicalese, 924 F.3d at 768 (“The court’s analysis of the complaint’s

allegations—scrutinizing whether Appellants’fellow employees were really ‘similarly situated’ and

whether Jacobs’s and Tyler’s derogatory statements about Italians amount to ‘stray remarks’—was

more suited to the summary judgment phase.”). 

2. Harassment/Hostile Work Environment

“A hostile work environment exists ‘when 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 working environment.’” Stewart v. Miss. Transp.

Comm’n, 586 F.3d 321, 328 (5th Cir. 2009) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 116 (2002)); see also Hudson v. Lincare, Inc., 58 F.4th 222, 229 (5th Cir. 2023). To

establish a prima facie case of a racially hostile work environment based on the actions of a

supervisor with immediate or successively higher authority over the employee, a plaintiff must

show that:

(1) he belongs to a protected class;

(2) he was subject to unwelcome harassment;

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(3) the harassment was based on race; and

(4) the harassment affected a term, condition, or privilege of employment.

See Johnson v. PRIDE Indus., Inc., 7 F.4th 392, 399-400 (5th Cir. 2021); Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 650 (5th Cir. 2012); Frank v. Xerox Corp., 347 F.3d 130, 138 (5th

Cir. 2003); Celestine v. Petroleos De Venezuella SA, 266 F.3d 343, 353-54 (5th Cir. 2001); Watts

v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). When a supervisory employee is involved,

once the plaintiff satisfies these four elements, an “employer is subject to vicarious liability to a

victimized employee.” Watts, 170 F.3d at 509 (quoting Faragher v. City of Boca Raton, 524 U.S.

775, 807 (1998)); see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998); Ackel v. Nat’l

Comm., Inc., 339 F.3d 376, 383 (5th Cir. 2003).9 With respect to allegations of racial harassment

committed by a co-worker, the plaintiff must also satisfy a fifth element, “that the employer knew

or should have known of the harassment in question and failed to take prompt remedial action.” 

Watts, 170 F.3d at 509 n.3 (citing Williamson v. City of Houston, 148 F.3d 462, 464 (5th Cir.

1998)); Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.), cert. denied,

528 U.S. 963 (1999).

To affect a term, condition, or privilege of employment, “the work environment must be

‘both objectively and subjectively offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so.’” Allen v. Our Lady of the Lake

Hospital, Inc., No. 22-30546, 2023 WL 3267840, *3 (5th Cir. May 5, 2023) (quoting Hernandez,

9 Although the Supreme Court’s decisions in Faragher and Ellerth deal with claims of sexual

harassment, their reasoning is equally applicable to claims of racial harassment. See Walker v. Thompson,

214 F.3d 615, 626 n.13 (5th Cir. 2000); Allen v. Mich. Dep’t of Corrections, 165 F.3d 405, 411 (6th Cir.

1999); Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1269 (10th Cir. 1998).

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670 F.3d at 651 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1988)); see also

Lauderdale v. Tex. Dep’t of Crim. Just., Institutional Div., 512 F.3d 157, 163 (5th Cir. 2007). 

“In determining whether an environment is hostile or abusive, the court must look to the totality

of the circumstances.” Lauderdale, 512 F.3d at 153. Factors to consider in determining whether

a particular work environment is hostile are: (1) the frequency of the discriminatory conduct; (2)

the severity of the discriminatory conduct; (3) whether the conduct is physically threatening or

humiliating, or merely an offensive utterance; and (4) whether the conduct interferes with the

employee’s work performance. Allen, 2023 WL 3267840, *3 (citing Harvill v. Westward

Commc’ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005)); see also E.E.O.C. v. WC&M Enters.,

Inc., 496 F.3d 393, 399 (5th Cir. 2007). 

As noted above, “a plaintiff need not make out a prima facie case of discrimination in

order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Whitlock v. Lazer

Spot, Inc., 657 F. App’x 284, 286 (5th Cir. 2016) (citing Raj, 714 F.3d at 331) (racially motivated

hostile work environment and discriminatory discharge context). Pfang is not required to plead

facts that support all the elements of his Title VII claim; he only needs to plead the “ultimate

elements” of the claim. See Cicalese, 924 F.3d at 767; see also Golden v. McDonough, No. 1:21-

cv-129-TBM-RHWR, 2022 WL 1714485, at *3 (S.D. Miss. Mar. 29, 2022). The ultimate

elements of a hostile work environment claim are “. . . an employer has created a ‘working

environment heavily charged with . . . discrimination.’” Golden, 2022 WL 1714485, at *3 (citing

Raj, 714 F.3d at 330–31) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)

(superseded by statute on other grounds))). Finally, Pfang’s allegations, when taken as true, must

be sufficient to allow the court to draw a reasonable inference that LIT could be liable for the

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misconduct alleged. Coleman, 745 F.3d at 763 (quoting Iqbal, 556 U.S. at 678); accord King,

46 F.4th at 355-56; Thompson, 764 F.3d at 503; Harold H. Huggins Realty, Inc., 634 F.3d at

796.

Here, LIT argues that Pfang has not pleaded all the necessary elements of his

hostile-work-environment claim. Specifically, LIT contends that the incidents Pfang relies upon

to support this claim do not reflect a “racial motive.” Viewing the facts alleged in the light most

favorable to Pfang, and considering the totality of the circumstances as alleged, the court finds

Plaintiff has sufficiently pleaded a claim for hostile work environment. 

Pfang avers that the harassment was conducted by Howard, Hill, and Prince, all African 

American, over his entire tenure at LIT, albeit a short one, and that he is Asian. First, Plaintiff

refers to an April 1, 2022, meeting wherein Howard asked Pfang to come to his office. Pfang was

given no prior notice of the meeting and discovered Hill, Gonzales, Prince and Parker-Williams

were also in attendance. During this meeting, Pfang alleges Howard allowed Prince, Pfang’s

subordinate, to criticize him openly for mishandling the meeting with the Beaumont Regional

Airport representatives. Howard permitted Prince to tell Pfang and the others present that Pfang

did not know how to deal with community business leaders. As alleged by Pfang, Prince had little

involvement in the airport meetings and was not in charge of developing new programs. Pfang

alleges that during the same meeting, Howard also commented and criticized him while reading

from various emails on which Pfang had not been copied. Pfang alleges the emails appeared to

be from Prince to Howard. Pfang specifically contends that he felt no support from Howard in

this meeting and was humiliated. 

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Pfang next alleges that in a meeting around April 4, 2022, with Howard, Hill, Gonzales,

and possibly others present, Howard made remarks about the airplane maintenance program. 

Howard commented publicly to the group that it came together quickly and that Pfang mismanaged

its development. Pfang next describes how Howard then polled the individuals in attendance about

their opinion, seeking their public comment on how Pfang handled the program, questioning each

one individually while Pfang was forced to listen. Pfang states that after hearing what he wanted,

Howard dismissed him from the meeting, while asking Hill and Gonzales to stay behind. 

Pfang also complains about the April 12, 2022, incident in which Hill issued Pfang a verbal

warning for his purported “mismanagement of the aviation program proposal to external

stakeholders.” Hill told Pfang the verbal warning included his failure to keep her informed of

“potential external opportunities and meetings prior to confirming LIT’s participation.” Pfang

states the accusations were not accurate but, regardless, the verbal warning was followed up by 

an email, all after Hill refused to permit Pfang to give Prince, his subordinate, a verbal warning

for being disrespectful and failing to follow Pfang’s instructions. Pfang informed Hill of his

opinion that her discipline of him, as an Asian immigrant, was “unjust and inappropriate,” in

contrast to her interference in preventing Pfang from disciplining Prince, an African American

non-immigrant. In light of his concerns, Pfang filed a grievance with the Human Resources

Department complaining of racial discrimination and requested that the Chancellor’s office conduct

an independent investigation.10

10 As previously stated, Pfang told Hill, “. . . in view of you and Dr. Howard’s being of the same

race as Dr. Prince, I request this matter be referred to the Chancellor’s Office to be investigated fairly,

without racial prejudice.”

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Finally, after Pfang filed the grievance, Hill began her alleged retaliatory investigation into

Pfang regarding his lack of timely communication with her regarding the LIT vehicle accident. 

This investigation consisted of emails to Pfang making inquiries regarding his communication, an

April 14, 2022, meeting held with Pfang and others to get an “overview” of the accident, followed

by several other meetings held by Hill, with others present, to determine whether Pfang gave her

notice. Although the investigation resulted in the discovery that Gonzales failed to obtain

insurance for any of the LIT drivers, it was Pfang who was ultimately terminated. 

Although it is a close call, looking to the totality of the circumstances, the court finds that

Pfang has plausibly alleged a claim for hostile work environment. The allegation of a coordinated

effort by Howard, Hill, and Prince, all African American, to harass and publicly humiliate Pfang,

the only Asian, may give rise a reasonable inference that the conduct was based on race. This is

supported by Plaintiff’s contemporaneous grievance to the Human Resources Department and his

request that the Chancellor’s Office conduct an independent investigation due to his concerns about

racial discrimination and harassment. Again, “[t]he issue is not whether [Pfang] will ultimately

prevail, but whether [he is] entitled to offer evidence to support [his] claim.” Ferrer v. Chevron

Corp., 484 F.3d 776, 780 (5th Cir. 2007). 

III. Conclusion

Consistent with the foregoing analysis, LIT’s Motion to Dismiss for Failure to State a

Claim (#6) is DENIED.

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