MEMORANDUM OPINION AND ORDER

SIDNEY FITZWATER, District Judge

Plaintiff John Bernard ("Bernard"), a former public transit driver, sues defendants ATC Van Com ("ATC"), Dallas Area Rapid Transit ("DART"), and Amalgamated Transit Union Local 1635 ("Local 1635") alleging discrimination based on race, color, age, and disability; violation of due process; and intentional infliction of emotional distress. ACT and DART move to dismiss some of the claims, and DART also moves for summary judgment. For the reasons that follow, the court grants ACT's and DART's motions to dismiss, grants in part DART's motion for summary judgment, and raises sua sponte that DART is entitled to dismissal of the remaining claims and that Local 1635 is entitled to dismissal of certain claims against it.

I

Bernard sues ATC, DART, and Local 1635 for race and color discrimination, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; disability discrimination, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq.; violation of due process; and intentional infliction of emotional distress. Bernard was employed as a driver for DART's Handi-Ride transportation service ("Handi-Ride"). ATC, a private contractor with DART, operated Handi-Ride.

Bernard suffered a heart attack on August 14, 2001 while at work. His doctors released him to perform light duty tasks, and he requested a light duty assignment and a copy of an employee handbook. Both requests were denied, and Bernard's employment was later terminated. Bernard alleges that defendants denied his request for light duty assignment, terminated him, and subjected him to disparate treatment due to his race and color, violated his right to due process by failing to provide him a copy of the employee handbook, and inflicted severe emotional distress by means of extreme and outrageous conduct. He also asserts a claim for disability discrimination and, although he does not specifically aver that defendants discriminated against him because of his age, he alleges that his action arises under "Title VII and the Rehabilitation Act of 1973, . . . the Americans with Disabilities Act of 1990, and/or the Age Discrimination in Employment Act." Compl. ¶ 8. The court therefore treats the complaint as pleading a claim for age discrimination as well.

ATC moves under Fed.R.Civ.P. 12(b)(6) to dismiss all of Bernard's claims except his actions arising under the ADA and § 1981. DART moves under Rule 12(b)(6) to dismiss Bernard's claim for violation of the Rehabilitation Act and under Rule 12(b)(1) to dismiss his claim for intentional infliction of emotional distress, and it moves for summary judgment on all other claims. Bernard has not responded to any of the motions, and they are now ripe for decision.

II

A

ATC contends that Bernard's claims under Title VII and the ADEA must be dismissed because he failed to exhaust his administrative remedies. The court will consider these arguments together because they present the same issue.

1

A person who brings a lawsuit alleging race or color discrimination under Title VII or alleging a violation of the ADEA must first exhaust his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Grace v. Bank of Am., 2003 WL 23095993, at *2, *3 (N.D. Tex. Dec. 23, 2003) (Fitzwater, J.) (citing Julian v. City of Houston, Tex., 314 F.3d 721, 725 (5th Cir. 2002) (ADEA); Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990) (Title VII)). Bernard alleges in his complaint that he satisfied all conditions precedent to jurisdiction by filing charges of discrimination with the EEOC. ATC has appended copies of these charges of discrimination to its motion to dismiss. The charge against ACT does not allege that Bernard was discriminated against on the basis of race, color, or age. In completing the question on "cause of discrimination," Bernard checked only the box for "disability"; he did not check the boxes for "race," "color," or "age." Moreover, his EEOC charge does not mention an act of discrimination that suggests that it was in any way related to his race, color, or age, nor does it provide any factual averments that would reasonably lead the EEOC to investigate a claim of discrimination based on race, color, or age. Cf. Grace, 2003 WL 23095993, at *2 (dismissing age discrimination claim where "age" box on charge of discrimination was not checked and facts alleged did not indicate that discrimination was based on age). The form states: "I believe that I have been discriminated against because of my disability in violation of the Americans with Disabilities Act of 1990." ATC App. 2 (emphasis added). The court concludes that Bernard has not exhausted his administrative remedies as to his claims for race, color, and age discrimination.

2

Although Local 1635 does not move for dismissal of Bernard's Title VII and ADEA claims based on Bernard's failure to exhaust his administrative remedies, the court can take this action sua sponte. See Coates v. Heartland Wireless Communications, Inc., 55 F.Supp.2d 628, 633 (N.D. Tex. 1999) (Fitzwater, J.); Foreman v. Dallas County, Tex., 990 F. Supp. 505, 510 (N.D. Tex. 1998) (Fitzwater, J.) (three-judge court). The court therefore dismisses Bernard's Title VII and ADEA claims against Local 1635 on this basis. If Bernard can establish that he did exhaust his administrative remedies under Title VII and the ADEA as to Local 1635, he may move within 30 days of the date this memorandum opinion and order is filed for relief from this part of the court's decision.

The court dismisses Bernard's race, color, and age discrimination claims under Title VII and the ADEA as to ATC and Local 1635.

B

"For a defendant to prevail on the basis of limitations at the pleadings stage, the plaintiff must normally plead [himself] out of court." Brown v. DaimlerChrysler Corp., 1999 WL 766021, at *1 (N.D. Tex. Sept. 24, 1999) (Fitzwater, J.) (citing Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995)).

Although the Rehabilitation Act does not prescribe a statute of limitations, the Fifth Circuit has applied Texas' two-year limitations period for personal injury actions to discrimination claims under the Rehabilitation Act. See Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982-83 (5th Cir. 1992). The factual allegations that underlie Bernard's claims occurred between August 14, 2001 and December 15, 2001. Although it is difficult to discern from the complaint the exact dates of the allegedly-discriminatory conduct, it is clear that Bernard does not complain of discriminatory treatment after December 2001. The latest Bernard's suit could have been timely filed was December 2003. It was not filed, however, until August 19, 2004. The court concludes that Bernard's claim asserted under the Rehabilitation Act is barred by the statute of limitations.

As with Bernard's race, color, and age discrimination claims under Title VII and the ADEA, the court raises sua sponte that Bernard's claim under the Rehabilitation Act against Local 1635 is also time-barred, and it dismisses the claim against all three defendants. If Bernard can establish that his Rehabilitation Act claim against Local 1635 is not barred by limitations, he may move within 30 days of the date this memorandum opinion and order is filed for relief from this holding of the court's decision.

C

ATC moves to dismiss Bernard's claim for violation of his right to due process. Bernard contends that ATC and DART violated due process by failing to provide him with a copy of the employment handbook when he requested it in order to determine his rights and the procedures he should take. ATC maintains that Bernard's due process claim must be dismissed because he has not pleaded facts that establish that it engaged in state action.

"In order to prove the deprivation of a right protected by the Due Process Clause of the Fourteenth Amendment, a plaintiff must prove state action." Landry v. A-Able Bonding, Inc., 75 F.3d 200, 203 (5th Cir. 1996). "In United States v. Classic the Court held that a person acts under color of state law only when exercising power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Thompson v. Aland, 639 F. Supp. 724, 727 (N.D. Tex. 1986) (Fitzwater, J.) (citation omitted). "Since Classic, the Court has insisted that the conduct that causes the deprivation of a federal right be 'fairly attributable' to the state." Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Bernard's complaint contains no allegations that indicate that ATC is a state actor. In fact, Bernard asserts that ATC is a private contractor to DART. He alleges no facts that suggest that ATC's allegedly discriminatory conduct may be fairly attributable to a public entity. Accordingly, the court dismisses his due process claim against ATC.

D 1

DART maintains that the court lacks subject matter jurisdiction to consider Bernard's claim for intentional infliction of emotional distress because it is barred by governmental immunity. "A state agency cannot be sued for the torts of its employees except as specifically provided in the Texas Tort Claims Act." Reynolds v. Dallas Area Rapid Transit, 2000 WL 1586444, at *2 (N.D. Tex. Oct. 20, 2000) (Lynn, J.) (citation omitted). The Texas Tort Claims Act does not except from immunity claims for intentional torts. Id. (citing Tex. Civ. Prac. Rem. Code § 101.057(2) (Vernon 1997)). Bernard's claim for intentional infliction of emotional distress is an intentional tort claim and must therefore be dismissed. See id.

2

As with Bernard's disability discrimination claim under Rehabilitation Act, the court raises sua sponte that Bernard's intentional infliction of emotional distress claim against Local 1635 is also time-barred, and it dismisses the claim against Local 1635. If Bernard can establish that his intentional infliction of emotional distress claim against Local 1635 is not barred by limitations, he may move within 30 days of the date this memorandum opinion and order is filed for relief from this part of the court's decision.

III

The court turns next to DART's motion for summary judgment. DART contends that it is entitled to summary judgment on all of Bernard's claims because it was not his employer. DART alternatively argues that summary judgment is appropriate on Bernard's Title VII, ADA, and ADEA claims because Bernard did not name DART in an EEOC charge of discrimination. The court considers DART's alternative argument first.

A

DART moves for summary judgment on Bernard's claims under Title VII, the ADA, the ADEA on the ground that Bernard failed to exhaust his administrative remedies because he did not name DART in a timely EEOC charge. Bernard did not name DART as the entity that discriminated against him in either of the two EEOC charges. Generally, a party that is not named in an EEOC charge cannot be sued in a subsequent civil action. Morris v. Drs. Coney, Husbands, McCullough, Oliver, Vines Assocs., P.A., 1998 WL 59484, at *2 (N.D. Tex. Feb. 9, 1998) (Fitzwater, J.) (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989)). The filing of an additional charge to name another party is unnecessary where the additional party has been provided with adequate notice of the charge and been given the opportunity to participate in conciliation proceedings, id. (citing Burrell v. Truman Med. Ctr., Inc., 721 F. Supp. 230, 233-34 (W.D. Mo. 1989)), or where there is a clear identity of interest between the named and unnamed party, id. (citing Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th Cir. 1988)). Peter Brannon, Esquire, Senior Assistant General Counsel for DART, avers in his affidavit that DART neither received notice from the EEOC that Bernard had filed a charge of discrimination against it, nor that DART ever had an opportunity to participate in any conciliatory process related to Bernard's claims. Because Bernard has not responded to DART's motion, he has adduced no evidence to create a genuine issue of material fact whether he provided DART notice and an opportunity to participate in the EEOC proceedings or whether there exists an identity of interest between DART and ATC or Local 1635. See infra at § III(B)(1) (addressing effect of summary judgment nonmovant's failure to respond).

Accordingly, the court grants DART's motion for summary judgment and dismisses Bernard's claims under Title VII, the ADA, and the ADEA against DART.

B

The court turns next to DART's contention that it is entitled to summary judgment on all of Bernard's claims because it was not his employer.

1

Even if DART is not entitled to summary judgment on Bernard's Title VII, ADA, and ADEA claims because he failed to exhaust his administrative remedies, summary judgment is appropriate because there is no genuine issue of material fact that it was not Bernard's employer.

A defendant is not liable under Title VII, the ADEA, or the ADA absent an employment relationship between the plaintiff and the defendant. Kirshner v. First Data Corp., 2000 WL 1772759, at *3 (N.D. Tex. Nov. 30, 2000) (Lindsay, J.) (citing Deal v. State Farm County Mut. Ins. Co. of Tex., 5 F.3d 117, 118 n. 2 (5th Cir. 1993) (Title VII and ADEA); Bloom v. Bexar County, Tex., 130 F.3d 722, 724-25 (5th Cir. 1997) (ADA)). Bernard alleges that DART was his employer. See Compl. ¶ 12. To determine whether an employment relationship exists, the court applies a hybrid economic realities/common law control test. See Deal, 5 F.3d at 118-19 (Title VII and ADEA); Bloom, 130 F.3d at 725 n. 2 (analogizing to Title VII in ADA context). The Fifth Circuit has explained the application of this test as follows:

The right to control an employee's conduct is the most important component of the test. When examining the control component, we have focused on whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule. The economic realities component of our test has focused on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment.

Bernard's failure to respond to DART's motion does not permit the court to enter a "default" summary judgment, but the court may accept as true all of DART's undisputed facts. See Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). Often the failure to respond means that the nonmovant has failed to adduce any evidence to raise a genuine issue of material fact, because "[a] summary judgment nonmovant who does not respond to the motion is relegated to [his] unsworn pleadings, which do not constitute summary judgment evidence." Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)).

DART has adduced evidence that ATC was Bernard's only employer. Chris Langmayer ("Langmayer"), ATC's General Manager, avers that ATC had sole and complete authority over personnel decisions regarding Handi-Ride drivers and the conditions of their employment, that he was the final decisionmaker who decided to terminate Bernard's employment with ATC, and that DART did not have the right to influence the terms and conditions of employment of Handi-Ride drivers. DART also proffers the testimony of Margaret Wise ("Wise"), Assistant Vice President of Employment Services at DART, who states that DART never hired, compensated, provided benefits for, or terminated Bernard. She also avers that DART did not have the right to hire or fire employees or otherwise become involved in the day-to-day personnel decisions associated with management of Handi-Ride drivers, and that it had no involvement in the personnel decisions related to Bernard, including the decision to terminate his employment. Even considering this evidence in a light most favorable to Bernard as the nonmovant, the court holds that a reasonable trier of fact could only find that DART had no direct employment relationship with Bernard.

Nor can Bernard impose liability on DART by contending that ATC and DART are essentially a "single employer" by virtue of the contract to operate Handi-Ride. Under the Fifth Circuit's "single employer" doctrine applied in antidiscrimination actions, "superficially distinct entities may be exposed to liability upon a finding they represent a single, integrated enterprise: a single employer." Kirshner, 2000 WL 1772759, at *4 (quoting Trevino v. Celanese Corp., 701 F.2d 397, 404 (5th Cir. 1983) (Title VII)). This doctrine has typically been applied to parent-subsidiary corporate relationships. See, e.g., Lusk v. Foxmeyer Health Corp., 129 F.3d 773, 777 (5th Cir. 1997) (ADEA). Assuming arguendo that it applies to the instant case, Bernard still cannot create a genuine issue of material fact whether he had an employment relationship with DART. To determine whether two entities are treated as a single employer, the court considers: (1) interrelation of operations, (2) centralized control of labor or employment decisions, (3) common management, and (4) common ownership or financial control. Id. "This analysis ultimately focuses on the question whether [DART] was a final decision-maker in connection with the employment matters underlying the litigation." Id. (citations omitted). There is no evidence in the summary judgment record from which a trier of fact could reasonably find that ATC and DART were a single employer of Bernard. Langmayer and Wise aver that DART and ATC have never had common management, nor have they shared employees, personnel policies, or financial operations.

Bernard has failed to raise a genuine issue of material fact that DART had an employment relationship with Bernard.

2

The court next considers DART's motion as it relates to Bernard's claim for violation of due process. Although DART moves for summary judgment on the ground that it was not Bernard's employer, it does not explicitly address Bernard's due process claim.

The cases DART cites involve claims brought under antidiscrimination statutes and do not contain relevant discussion of due process claims. It is unclear whether DART is entitled to judgment as a matter of law on Bernard's due process claim simply by showing that it was not Bernard's employer. DART has not sufficiently presented its argument regarding Bernard's due process claim as to put him on notice that summary judgment would be granted on this basis if he did not respond. See John Deere Co. v. Am. Nat'l Bank, Stafford, 809 F.2d 1190, 1191-92 (5th Cir. 1987). The court cannot grant summary judgment on a ground that the movant does not raise. See id. at 1192.

The court may, however, grant summary judgment sua sponte if it gives the adverse party proper notice. Mo. Pac. R.R. Co. v. Harbison-Fischer Mfg. Co., 26 F.3d 531, 539 (5th Cir. 1994); Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932 F.2d 442, 445 (5th Cir. 1991). Bernard alleges that DART violated his right to due process when it failed to provide him a copy of the employment handbook, but he does not explain how DART, an entity that was not his employer, may be liable for failing to supply a copy of his employment handbook. Accordingly, to prevent summary judgment on his due process claim against DART, within 30 days after the date this memorandum opinion and order is filed, Bernard must file a response that demonstrates that DART can be held liable for violating his right to due process by failing to provide him a copy of an employment handbook. If he fails to respond, or responds but fails to demonstrate how DART may be liable for a due process violation, the court will dismiss his cause of action under the Fourteenth Amendment.

3

The court next considers Bernard's § 1981 claim against DART. Although the Fifth Circuit has applied Title VII principles to parallel § 1981 actions, see Felton v. Polles, 315 F.3d 470, 483 (5th Cir. 2002), it is unclear whether DART is entitled to summary judgment on Bernard's § 1981 claim merely by demonstrating that it was not his employer. DART has not briefed this issue.

Bernard avers that DART discriminated against him based on his race and color by refusing to permit him to work a light-duty assignment and terminating him. In view of the court's holding that DART was not Bernard's employer regarding his ADA claim, the court raises sua sponte that DART is entitled to summary judgment because Bernard cannot demonstrate that DART — an entity that was not his employer — subjected him to the adverse employment actions alleged.

Accordingly, to prevent summary judgment on his § 1981 claim against DART, Bernard must — within 30 days after the date this memorandum opinion and order is filed — file a response that demonstrates that a reasonable trier of fact could find that DART discriminated against him, in violation of § 1981. If he fails to respond, or responds but fails to demonstrate how DART may be liable under § 1981, the court will dismiss this cause of action.

* * *

ATC's November 3, 2004 motion to dismiss is granted. DART's November 3, 2004 motion to dismiss is granted, and its November 5, 2004 motion for summary judgment is granted in part. The court raises sua sponte that DART is entitled to dismissal of the remaining claims that Bernard asserts against it and Local 1635 is entitled to dismissal of certain claims that Bernard brings against it.

SO ORDERED.