The Western District of Texas recently denied in part and granted in part a Rule 12(b)(6) motion to dismiss in the matter of Doe v. U.T. at San Antonio, No. 20-CV-1039-DAE (W.D. Tex. 9/27/2021). The Plaintiff sued UTSA based on several theories. He also sued two administrators in addition to the school itself. The Plaintiff is Egyptian Moslem. He sued under Title VII, 42 U.S.C. Sec. 1983, the First Amendment (free speech), and the Equal Protection Clause. As I have mentioned here before, it is unwise to sue under everything but the kitchen sink. Suing under so many different statutes and provisions suggests a lack of confidence in your case.
In the end, the court granted the motion to dismiss regarding free speech and the Equal Protection Clause. This being a 12(b)(6) motion to dismiss, the court only looked at the Complaint. In the complaint, the Plaintiff did not allege a comparator employee for equal protection. Neither did he allege discriminatory intent.
Regarding free speech, the court noted in the Fifth Circuit considers qualified immunity to be the norm. Qualified immunity “shields all but the incompetent or those who knowingly violate the law.”
Regarding Title VII and Sec. 1983, the court noted that at the pleading stage, the Plaintiff need not name comparator employees. Doe was alleging that he was treated differently because he is Egyptian and Moslem. He was denied certain meetings. He was placed on administrative leave during an investigation of him. But, non-Egyptian employees were not placed on administrative leave during an EOS investigation. The court denied dismissal on those grounds, saying that at the pleading stage, Doe did not need to identify specific comparator employees, yet.
Regarding Sec. 1983, the court found that the Plaintiff is seeking only prospective relief, such as reinstatement. But, Plaintiff sued the two administrators in their individual capacity, not in their official capacity. There is no relief possible from two administrators in their individual capacities. Therefore, Doe’s pleading fails. The court granted dismissal as to the two administrators in regard to Sec. 1983.
So, the claim based on Title VII remains.