Opinion
Civil Action No. SA-04-CA-0806 OG (NN).
May 4, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Orlando Garcia United States District Judge
I. Introduction
The matters before the court are defendant Wal-Mart Associates' motion to dismiss (docket entry 4), defendant Wal-Mart Associates' motion to sever (docket entry 11), and defendant Texas Workforce Commission's motion to remand (docket entry 13). I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.II. Statement of the Case
This case and its related actions have a rather long procedural history. On July 29, 2004, plaintiff filed his first action in federal court against defendants Texas Workforce Commission (TWC) and Wal-Mart Associates Incorporated. That complaint contained causes of action for wrongful discharge against defendant Wal-Mart Associates Incorporated and against defendant TWC for negligent misrepresentation. Shortly after said action was filed, plaintiff filed a motion to dismiss his own petition for lack of jurisdiction on August 10, 2004. Honorable District Judge Royal Furgeson entered an order on August 17, 2004, dismissing plaintiff's action without prejudice.Plaintiff then proceeded on his action against the same named defendants in the 216th Judicial District Court of Bandera County, Texas. Notably, it appears that both plaintiff's first federal court and state court actions were filed at the same time as they both contain two file stamps from the respective clerks' offices dated July 29, 2004, and August 2, 2004.
See Docket Entry 1, Notice of Removal, Exhibit 2.
After plaintiff's voluntary motion to dismiss his initial federal court complaint was granted, defendant Wal-Mart Associates, Inc. removed plaintiff's state court action to this federal court. Therein, defendant asserted that removal was appropriate because this court had both diversity and federal question jurisdiction over the action. Although plaintiff filed a response to the notice of removal, he did not request that the action be remanded therein.
Docket Entry 1.
Docket Entry 2.
Since this case has been in federal court, defendant Wal-Mart Associates filed both a motion to dismiss (docket entry 5) and a motion to sever (docket entry 11). Defendant TWC filed a motion to remand the state claim back to the 216th Judicial District Court of Bandera County, Texas (docket entry 13). These are the motions currently pending before the court.
On April 19, 2005, plaintiff filed another action in this court, Lorenz v. Wal-Mart Stores, Inc., SA 05-CA-0319 XR. In the complaint for that case, plaintiff has pled that said action is brought pursuant to Title VII of the Civil Rights Act of 1964 and that plaintiff received his Right to Sue notice from the Equal Employment Opportunity Commission (EEOC) on January 24, 2005. Plaintiff's 2005 action seeks relief against defendant Wal-Mart Stores, Inc. on the basis that said defendant discriminated and retaliated against plaintiff based on his religion, resulting in plaintiff's termination.
Lorenz v. Wal-Mart Stores, Inc., SA 05-CA-0319 XR, Docket Entry 1, ¶ 6a, at 1; Exhibit 1.
III. Analysis
A. Defendant Wal-Mart Associates Incorporated's Motion to Dismiss (Docket Entry 5)
The first motion before the court is defendant Wal-Mart Associates Incorporated's Motion to Dismiss (Docket Entry 5). Defendant Wal-Mart Associates Incorporated ("WMAI") asserts that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 12(b)(1) because plaintiff failed to exhaust his administrative remedies as a mandatory prerequisite to filing his action for relief under Title VII in federal court. Specifically, defendant WMAI contends that plaintiff failed to exhaust his administrative remedies in two respects: first, that
Plaintiff never filed a Charge of Discrimination against Wal-Mart Associates, Inc . . . Accordingly, Plaintiff has not exhausted his administrative remedies with regard to Wal-Mart Associates, Inc., and any claims against Wal-Mart Associates, Inc. should be dismissed for lack of jurisdiction.
Docket Entry 5, ¶ A1, at 3.
The second manner in which defendant WMAI asserts that plaintiff failed to exhaust his administrative remedies is that the "EEOC has not issued Plaintiff a `right to sue' letter; thus, Plaintiff has not exhausted his administrative remedies with regard to his claims against Wal-Mart Stores."
Docket Entry 5, ¶ A2, at 3-4.
1. Applicable legal standards on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
Defendant WMAI has brought its motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). Under Rule 12(b)(1), a plaintiff's claim must be dismissed when the court lacks jurisdiction over the subject matter of that claim. In particular, Rule 12(b)(1) requires the dismissal of a case for want of subject matter jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. A district court may dismiss a case for want of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplement by undisputed facts plus the court's resolution of disputed facts.
See Home Builders Association of Mississippi, Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
2. Is dismissal of the claims against WMAI appropriate ?
Defendant WMAI asserts that dismissal is appropriate pursuant to Rule 12(b)(1) for plaintiff's failure to exhaust his administrative remedies under Title VII of the Civil Rights Act of 1964. Title VII authorizes an aggrieved employee to bring a civil action in federal court only after he or she has exhausted his administrative remedies.
There are two requirements for filing a Title VII action in federal court: 1) the complaint must be filed within the time allotted by Title VII, and 2) the complainant must first have exhausted her administrative remedies. Failure to comply with either of these requirements wholly deprives the district court of jurisdiction over the case; it is the well-settled law of this circuit that each requirement is a prerequisite to federal subject matter jurisdiction. See, e.g. . . . Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) (`The exhaustion requirement . . . is an absolute prerequisite to suit' under § 2000e-16).
42 U.S.C. § 2000e-5.
Tolbert v. US, 916 F.2d 245, 247-248 (5th Cir. 1990).
One way in which the EEOC administrative process may be concluded, and an individual's administrative remedies exhausted, is through the issuance of a Right to Sue notice from the EEOC. Once an employee has participated in, and exhausted, the administrative process, he or she may bring suit in federal court under Title VII.
In his pleadings in the instant action, SA 04-CA-806, plaintiff has not disputed that he failed to receive his Right to Sue notice before filing the action. However, plaintiff pled in his subsequent federal court action, SA 05-CA-319, that he received his Right to Sue notice on January 24, 2005 — approximately six months after he filed his original petition in state court and approximately four months after this action was removed to this court.
See Docket Entry 1; Lorenz v. Wal-Mart Stores, Inc., SA 05-CA-0319 XR, Docket Entry 1, ¶ 6a, Exhibit 1.
In his motion to strike the motion to dismiss, plaintiff asserts that he was not required to exhaust his administrative remedies:
2.1 EEOC administrative remedies are required by law to be exhausted however, in Plaintiff's Original Petition the charges against Defendant Wal-Mart are only for the Wrongful Discharge and denial of Unemployment Benefits, not for Religious Discrimination.
2.2 Plaintiff by law filed a charge separately for discrimination with the EEOC on Mar. 2, 2004, and is very aware of Plaintiff's duty to exhaust administrative remedies to receive a right to sue letter. Plaintiff has no obligation or intention for this case of Wrongful Discharge and Unemployment Benefits to seek from the EEOC the right to sue letter.
Docket Entry 15, at 2-3.
However, plaintiff's Petition does allege that plaintiff was wrongfully discharged as a result of his religious beliefs and religious attire. For example, in his wrongful discharge cause of action, plaintiff asserts, "Defendant Wal-Mart through at-will reasoning removed Plaintiff from position and through at-will reasoning ultimately terminated Plaintiff due to religious attire and crucifix." Plaintiff continues:
See Docket Entry 1, Exhibit 2, ¶ 17, at 5-6.
Id.
Correspondences and verbal confrontation will overwhelmingly show that Defendant Wal-Mart was evidently aware of Plaintiff's concerns of health issues, distressed by department harassment, wage issues, and religious beliefs. Plaintiff's religious beliefs becoming ( sic) the target of Plaintiff's termination to which a singling out is all so evident ( sic).
Id.
Because plaintiff is, in fact, seeking relief for an unlawful termination predicated on religious discrimination, he was required to exhaust his administrative remedies before filing the action. Therefore, defendant's motion to dismiss is meritorious. For this reason, I recommend that defendant's motion to dismiss (docket entry 5) be GRANTED and the claims asserted against defendant Wal-Mart Associates Incorporated DISMISSED.
B. Defendant Wal-Mart Associates Incorporated's Motion to Sever (Docket Entry 11)
In addition to moving to dismiss plaintiff's claims against it, defendant WMAI moved to sever plaintiff's action for judicial review of TWC's administrative claim from his action for wrongful discharge. Defendant WMAI argues:
Plaintiff opposed the motion to sever. Docket Entry 7. Defendant WMAI must have furnished plaintiff with a courtesy copy of the motion as plaintiff filed his opposition to the motion to sever on September 20, 2004, but defendant WMAI did not file the motion to sever until September 27, 2004. See Docket Entries 7, 10, 11.
because Plaintiff's action for judicial review of TWC's administrative claim is separate and distinct from his wrongful discharge claim against Wal-Mart Stores, this Court should sever Plaintiff's action for judicial review of TWC's administrative claim.
Docket Entry 11, at 2.
Plaintiff's original petition delineated only two causes of action — a claim for wrongful termination against defendant WMAI and a claim for negligent misrepresentation against TWC. Since dismissal of plaintiff's claims against WMAI is appropriate for plaintiff's failure to exhaust his administrative remedies, the motion to sever plaintiff's single claim against WMAI from his single claim against TWC is moot. By virtue of dismissing plaintiff's claim against WMAI, his claim against TWC has, effectively, been severed. For these reasons, I recommend that defendant WMAI's motion to sever be DENIED AS MOOT.
Notably, plaintiff filed a response in opposition to the motion to sever asserting that defendant WMAI could not be separated out from the instant action because said defendant was required to be a party defendant by the provision of the Texas Labor Code authorizing judicial review of TWC claim denials. See Docket Entry 7, at 3. In fact, defendant WMAI should be a named defendant in plaintiff's state court action for judicial review. See TX. LABOR CODE § 212.201(a). However, this does not affect the recommendations made herein as plaintiff has failed to exhaust his administrative remedies as to the sole claim pled against defendant WMAI in the instant action.
C. Defendant TWC's Motion to Remand (Docket Entry 13)
The last motion before the court is TWC's motion to remand the single cause of action against it, the claim for negligent misrepresentation (docket entry 13). In its motion, defendant TWC asserts that the cause of action against it, "is based entirely on a state law and should be remanded because no basis exists to override the State's Eleventh Amendment immunity." Defendant WMAI filed a response to TWC's motion to remand which, in essence, merely reurged its motion to sever (docket entry 17). Plaintiff did not file a specific response in support of, or opposition to, TWC's motion to remand — presumably because plaintiff has asserted his belief, albeit without a specific request to remand, that defendant WMAI's removal was improper.
Docket Entry 13, at 2.
See Docket Entry 2.
The Fifth Circuit has made it clear that the Eleventh Amendment does not allow judicial review of TWC decisions in federal court. In Daigle v. Gulf States Utility Company, the Court held, in pertinent part:
Appellant seeks to bring his claim against the TEC for unemployment benefits in federal court arguing that we have pendent jurisdiction. Even assuming there is pendent jurisdiction, pendent jurisdiction may not override the Eleventh Amendment . . . The Eleventh Amendment prohibits a private citizen from bringing suit against a state in federal court unless the state consents . . . The suit against the TEC is a suit against the state since the TEC is an agency of the state of Texas . . . The appellant's claim is thus barred by the Eleventh Amendment unless Texas has waived its sovereign immunity. There is no indication that the state has done so. The Texas unemployment compensation scheme provides for judicial review of the TEC's decisions in its courts . . . But as the Supreme Court pointed out in Pennhurst, a state's consent to be used in its own courts does not constitute consent to such a suit in federal court. Pennhurst, 465 U.S. 89 n. 9. In short, there is nothing to indicate that Texas has waived its immunity from suit in federal court, and the appellant's claim is barred.
Daigle v. Gulf States Utility Co., 794 F.2d 974, 980 (5th Cir. 1986) (internal citations omitted). See also TX.LABOR CODE § 212.204.
Thus, the Eleventh Amendment bars plaintiff's action against TWC in this forum. Consequently, I hereby recommend that defendant TWC's motion to remand (docket entry 13) be GRANTED and this action REMANDED to the 216th Judicial District Court of Bandera County, Texas.
IV. Recommendation
For all the foregoing reasons, I recommend that defendant Wal-Mart Associate Inc.'s motion to dismiss (docket entry 4) be GRANTED, its motion to sever (docket entry 11) be DENIED AS MOOT, and defendant Texas Workforce Commission's motion to remand be GRANTED such that the claim against TWC is REMANDED to the 216th Judicial District Court of Bandera County, Texas. Finally, I recommend that all pending motions, including but not limited to plaintiff's "motion for an order of a non-listed alternative dispute resolution mediation service for the commencement of mediation," be DENIED AS MOOT.
Docket Entry 38.