Opinion
Civil Action No. SA-05-CA-0319 OG (NN).
March 1, 2006
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
I. Introduction
The matter before me is Defendant's Rule 12(b) Motion to Dismiss for Failure to State a Claim. By way of the instant motion, defendant seeks dismissal of plaintiff's claims for 1) failure to provide religious accommodation and religious harassment; 2) intentional infliction of emotional distress; and 3) libel and slander.
Docket Entry 18. In note 1 of the motion, defendant states that plaintiff's former employer is Wal-Mart Stores Texas, L.P., and that Wal-Mart Stores Texas, L.P. is the proper party, not Wal-Mart Stores, Inc.
Plaintiff's pro se complaint was filed on May 4, 2005, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. Plaintiff alleges that defendant treated him differently in the terms and conditions of his employment from other employees working at the Wal-Mart Store located at in Boerne, Texas, because of his religious beliefs. Plaintiff further avers that he was wrongfully terminated in violation of Title VII. Plaintiff makes additional claims including emotional distress, failure to provide reasonable religious accommodation, religious harassment, libel and slander.
Plaintiff filed a motion to proceed in forma pauperis on April 19, 2005, Docket Entry 1, that was granted by Order entered on May 4, 2005. Docket Entry 2. The Clerk then filed plaintiff's complaint as Docket Entry 3.
42 U.S.C. § 2000e et seq.
Pursuant Federal Rule of Civil Procedure 12(b)(1) and (b)(6), defendant seeks dismissal of five of plaintiff's claims. Defendant asserts that plaintiff failed to exhaust all the available administrative remedies relative to plaintiff's claims for reasonable religious accommodation and religious harassment. Therefore, the Court lacks subject matter jurisdiction over these claims, and the Court should dismiss these claims. In particular, defendant argues that plaintiff did not include claims for reasonable religious accommodation and religious harassment in the Charge of Discrimination that plaintiff filed with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC"). Defendant additionally asserts that Plaintiff fails to allege facts that sufficiently state claims for intentional infliction of emotional distress, slander, or libel under Texas state law.
Having reviewed the entire record in this case, including the arguments raised by defendants in support of dismissal, all the pleadings on file, and the applicable case and statutory law, I have concluded that defendant's motion to dismiss has merit as to the claims for religious harassment, intentional infliction of emotional distress, slander, and libel. The motion lacks merit as to the claim for religious accommodation. Therefore, it is my recommendation that defendant's motion to dismiss be GRANTED in PART and DENIED in PART.
I have authority 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.
Docket Entry 7.
II. Statement of the Case
Plaintiff is a former employee of defendant. Plaintiff worked at the Wal-Mart Store located at 1381 South Main Street, Boerne, Texas, 78006. Plaintiff began employment at the Boerne Wal-Mart Store on March 10, 2003, in the position of cashier. Plaintiff's last position with defendant, before defendant terminated his employment, was overnight stocker. In this position, plaintiff stocked merchandise onto the store's shelves between the hours of 11:00 p.m. and 8:00 a.m. the following morning.Sometime during August 2003, plaintiff began wearing various religious articles to work at the Wal-Mart Store. The articles included a "priest shirt" with Roman collar, a crucifix with rosary, and a number of crosses. Plaintiff also wore a Middle Eastern or Muslim hat known as a Kaifeyah.
Docket Entry 3, ¶ 7, at 3. Plaintiff began wearing religious articles for approximately 6 months before defendant terminated his employment.
Docket Entry 3, ¶ 7, at 2-3 and Exh. 19-25.
Docket Entry 3, ¶ 7, at 2 and Exh. 24.
On February 23, 2004, Steven Shadrock, a member of management of the Boerne Wal-Mart Store, Texas, notified plaintiff that a customer had complained about plaintiff's attire. Mr. Shadrock informed plaintiff that his attire did not comply with Wal-Mart's dress code policy, and he could no longer wear a priest shirt to work. In a meeting on February 28, 2004, plaintiff was informed that he could not wear the priest shirt, rosaries, and crucifix to work. Plaintiff could wear the Kaffiyeh. Plaintiff refused to change his attire, expressing that his religious belief included wearing a priest shirt and crucifix.
Docket Entry 3, ¶ 8a, at 6.
Docket Entry 3, ¶ 8a, at 6.
On March 1, 2004, defendant terminated plaintiff's employment for failure to comply with the dress code policy of the defendant. In particular, defendant terminated plaintiff's employment for his refusal to refrain from wearing his priest shirt and crucifix to work.
Docket Entry 3, ¶ 8a, at 7.
On March 2, 2004, plaintiff filed a charge of discrimination with the TCHR and the EEOC. In the course of the EEOC investigation, defendant offered affidavits from employees concerning plaintiff's work attire. In the affidavits, the employees referred to plaintiff wearing "inverted crosses" and "satanic symbols." The employees expressed opinions that plaintiff's attire was offensive.
Docket Entry 18, Exh. A and Docket Entry 3, Exh. 39. Plaintiff also filed, in late July 2004, a state court action against the Texas Workforce Commission (TWC) and Wal-Mart Associates, Inc., Case No. 9197-04 in the 216th Judicial District Court of Bandera County, Texas, and separate federal action naming the same defendants, SA-04-CA-0669. Both cases asserted claims against the TWC for negligent misrepresentation and against Wal-Mart for wrongful discharge. Plaintiff filed a motion to dismiss case SA-04-CA-0669, which the District Court granted on August 17, 2004. On September 7, 2004, defendant Wal-Mart removed the state court action, Case No. 9197-04, to this Court where the Clerk assigned it case number SA-04-CA-0806. In an Order entered on May 24, 2005, the District Court granted defendant Texas Workforce Commission's motion to remand to state court the portion of the action against it. In the same Order accepting the recommendation of the Magistrate Judge, the District Court granted defendant Wal-Mart's motion to dismiss the claims against it because plaintiff had failed to exhaust administrative remedies. Plaintiff subsequently filed a notice of appeal of the District Court's Order to the Fifth Circuit where it remains pending. No. 05-50938.
Docket Entry 3, Exh. 28-35.
In a letter dated October 21, 2004, the EEOC informed defendant of the status of its investigation and the evidence compiled to that time. The EEOC investigator reported that plaintiff had a deeply held religious belief that he expressed in both his actions and attire. The investigator further determined that the evidence indicated that plaintiff's shirt was not in violation of the dress code. The investigator explained that customer complaints regarding attire and conduct constitute valid reasons for dismissal "so long as the attire and conduct are not de minimus accommodations for a deeply held religious belief." On January 24, 2005, the EEOC issued plaintiff a Right to Sue letter terminating its processing of the charge without issuing a determination.
Docket Entry 3, Exh. 26.
Docket Entry 3, Exh. 1.
Plaintiff then submitted his complaint to this Court on April 19, 2005. After IFP was granted and service effected, defendant responded to plaintiff's pleading with a motion to strike portions of the complaint. In an Order denying the motion, I determined that plaintiff's complaint contained the following allegations which satisfy the requirements of Rule 8:
Docket Entry 8.
Docket Entry 13.
• plaintiff's alleged religious attire and religious beliefs were chastised by his fellow employees and by Wal-Mart managers;
• defendant refused to provide plaintiff with a reasonable religious accommodation, and specifically, refused to allow plaintiff to perform his duties in a secluded area;
• defendant terminated plaintiff as a result of his religious beliefs;
• defendant enforced the dress code inconsistently, and to plaintiff's disadvantage, as a result of plaintiff's religious beliefs;
• defendant, or its agents, solicited and published negative comments about plaintiff and his religious beliefs;
• defendant denied plaintiff the alleged right to have a witness present during conversations with management.
Docket Entry 3, ¶ 7, at 2; ¶ 8a, at 5-6; 8a, at 8-12.
Docket Entry 3, ¶ 7, at 2-3; ¶ 8a, at 6, 7-8.
Docket Entry 3, ¶ 7, at 3; ¶ 8a, at 6; ¶ 8a, at 7.
Docket Entry 3, ¶ 7, at 3-4.
Docket Entry 3, ¶ 7, at 4.
Docket Entry 3, ¶ 8a, at 5.
In addition, plaintiff's prayer for relief stated:
WHEREFORE, Plaintiff prays that the Court grant the following relief to Plaintiff. Defendant be directed to publicly apologize to Plaintiff, considering Plaintiff's belief as equal as all traditionally held belief systems. And that the Court grant such other relief including damages for Religious Discrimination (Title VII), disparate treatment, emotional distress, libel, slander, punitive ( sic) and costs. Additionally Plaintiff demands trial by jury.
Docket Entry 3, at 21.
Considering the allegations in the complaint and plaintiff's prayer for relief, I concluded that plaintiff had sufficiently given defendant notice of claims for religious discrimination under Title VII, intentional infliction of emotional distress, libel and slander, and the motion to strike lacked merit.
On July 29, 2005, defendant filed a motion to extend time to answer or otherwise respond to the complaint. I summarily granted the motion and gave defendant until August 11, 2005, to answer the complaint.
Docket Entry 14.
Docket Entry 15. Plaintiff objected to the extension of time and seeks a review of the order granting the extension. Docket Entries 16 26.
On August 8, 2005, defendant filed the instant motion seeking to dismiss plaintiff's claims for failure to provide reasonable religious accommodation, religious harassment, intentional infliction of emotional distress, libel, and slander. The motion does not seek the dismissal of the entire action.
Docket Entry 18.
III. Issues Presented
A. Did plaintiff fail to exhaust his administrative remedies, thereby depriving the Court of subject matter jurisdiction, by failing to raise claims against defendant of religious harassment and failure to provide reasonable religious accommodation in his charge of discrimination with the EEOC?
B. Did plaintiff adequately plead facts in his complaint to state a claim for libel and slander pursuant to Texas law?
C. Did plaintiff adequately plead facts in his complaint to state a claim for intentional infliction of emotional distress pursuant to Texas law?
IV. Analysis
1. Dismissal of Claims Pursuant to Rule 12(b)(1) for Lack of Subject Matter Jurisdiction for Failure to Exhaust Administrative Remedies.It is well-settled that federal courts are courts of limited jurisdiction and as such, a presumption arises that a suit lies outside of that limited jurisdiction. Consequently, the burden is on the plaintiff to demonstrate that federal jurisdiction is proper.
See Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
The Federal Rules of Civil Procedure provide that a motion to dismiss for lack of subject matter jurisdiction may be brought by motion prior to filing an answer. Under Rule 12(b)(1), a plaintiff's claim may be dismissed 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 supplemented 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).
Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986).
In pursuing a claim brought under Title VII, a plaintiff must first exhaust his or her administrative remedies by filing a charge with the EEOC before filing a judicial complaint. The exhaustion of administrative remedies in a timely fashion is a prerequisite to federal subject matter jurisdiction. "If the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures the Court should not reach the merits either." Accordingly, the scope of a complaint under Title VII is limited to the scope of the EEOC's investigation that can be "reasonably be expected to grow out of the charge of discrimination."
Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997).
Id.
Thomas v. Texas Dept. of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000).
In this case, defendant contends that plaintiff's charge of discrimination does not claim that defendant harassed plaintiff concerning his religion or failed to make a reasonable accommodation for his religious practice. Defendant argues that the EEOC did not investigate these claims. Therefore, plaintiff cannot raise claims of religious harassment and failure to make reasonable religious accommodation in this action because he has not exhausted his administrative remedies relative to these claims.
Plaintiff's Charge of Discrimination, dated March 2, 2004, sets forth the following particulars:
On March 1, 2004, I was discharged by the overnight managers. The reason cited for my discharge is because my religious attire did not conform with the company's dress code.
I believe I have been discriminated against because of my religion, Universal Belief in violation of Title VII of the Civil Rights Act of 1964, as amended.
Docket Entry 18, Exh. A.
In its letter, dated October 21, 2004, the EEOC investigator apprised defendant of the scope of the investigation to that point. The investigator explained that the documentation in the file showed that plaintiff has a deeply held religious belief which he expresses in his conduct and attire, but he does not try to force his beliefs on others. Further, there was no evidence that plaintiff harassed customers or other employees concerning his religious beliefs. No mention is made in the letter of any evidence or any investigation of a claim that defendant harassed plaintiff concerning plaintiff's religious beliefs. There is nothing else before the Court to suggest that the EEOC's investigation included allegations of religious harassment.
Docket Entry 3, Exh. 26.
Since neither the charge of discrimination nor the EEOC investigation addressed a claim of religious harassment by defendant, plaintiff failed to exhaust his administrative remedies relevant to a such a claim. Accordingly, the Court lacks subject matter jurisdiction over plaintiff's claim of religious harassment.
The investigator further explained that customer complaints about an employee's attire are valid reasons to terminate that employee's employment, unless de minimus accommodations for a deeply held religious belief can be made. Finally, the investigator observed, "The evidence appears to suggest a nexus between Mr. Lorenz's religious accommodation request and his termination." Based on the explanation concerning de minimus accommodations for deeply held religious beliefs and the quoted statement concerning plaintiff's request for accommodation, it is apparent that the EEOC was aware of and investigated plaintiff's claim that he was denied accommodation for his religious beliefs in violation of Title VII.
Docket Entry 3, Exh. 26.
Consequently, when the EEOC issued its Right to Sue Letter, plaintiff had exhausted his administrative remedies relevant to this claim. Accordingly, the Court has subject matter jurisdiction over plaintiff's claim that defendant failed to provide reasonable religious accommodation.
The District Court should GRANT defendant's motion to dismiss plaintiff's claim for relief for religious harassment, and DENY defendant's motion to dismiss plaintiff's claim for failure to provide reasonable religious accommodation.
2. Dismissal of Claims Pursuant to Rule 12(b)(6) for Failure to State a Claim.
Federal Rule of Civil Procedure 12(b)(6), provides that a plaintiff's claim may be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiff's complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss under Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the non-existence of those facts.
Kaiser v. Aluminum Chem. Sales, Inc. v. Avondale Shipyard, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), and Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278 (5th Cir. 1993).
Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
Ledesma v. Dillard Dept. Stores, Inc., 818 F. Supp. 983 (N.D. Tex. 1993).
A. Claims for Libel and Slander
Under Texas law, "[d]efamation is a false statement about a plaintiff published to a third person without legal excuse which damages the plaintiff's reputation. Libel is defamation in written or other graphic form. Slander is orally communicated defamation." To prevail on a cause of action for defamation, a plaintiff must demonstrate that a defendant: (1) published a statement; (2) that was defamatory concerning the plaintiff; (3) while acting with either actual malice, if the plaintiff was a public official or public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement.
Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.App.-Waco 2005) (internal citations omitted).
WFAA-TV, Inc. B. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
Defamatory statements may be either defamation per quod or defamation per se. If the defamation is per quod, the plaintiff must show proof of actual damages, but if the defamation is per se, damage to the plaintiff's reputation or mental anguish is presumed without independent proof of damages.
Southwestern Bell Yellow Pages, Inc. v. Thomas, No. 05-04-01722-CV, 2006 WL 217665 at 2 (Tex.App.-Dallas January 30, 2006).
Moore v. Waldrop, 166 F.3d 380, 384 (Tex.App. 2005).
In this case, plaintiff bases his defamation claim on the affidavits of employees that defendant offered to the EEOC in the course of its investigation of plaintiff's charge of religious discrimination. Plaintiff contends that these affidavits contain statements accusing plaintiff of satanic ideology. He argues that defendant solicited the affidavits and then published them by providing the affidavits to the EEOC.
Docket Entry 3, ¶ 7 at 4 and ¶ 8a at 9-10.
Defendant counters that defendant did not offer any of the affidavits and therefore, did not make any of the alleged defamatory statements. Further, defendant contends that plaintiff has failed to plead that he suffered any pecuniary damage from the alleged statements because he had already been dismissed from his employment at the time. Finally, defendant argues that it did not make the statements, and therefore, is not the proper party even if the affidavits contain defamatory statements.
A review of plaintiff's complaint and the employee affidavits fails to show any statement accusing plaintiff of espousing or subscribing to a satanic ideology. The affidavits describe defendant's attire and at most describe certain of his accouterments as including anarchistic or satanic symbols. Even if these observations could be construed to be defamatory, defendant did not make the statements, and plaintiff does not deny the truthfulness of the statements that he was wearing the symbols. Therefore, viewing plaintiff's allegations in his complaint in the light most favorable to him and drawing all reasonable inferences in his favor, plaintiff cannot prove his claim of libel and slander under either a per se or per quod theory.
Docket Entry 3, Exh. 28 ¶ 5, Exh. 29 ¶ 9, Exh. 30 ¶ 5, Exh. 32 ¶ 3, Exh. 33 ¶ 6, Exh. 34 ¶ 3, Exh. 35 ¶ 5.
Accordingly, the District Court should GRANT defendant's motion to dismiss plaintiff's claims for libel and slander.
B. Claim for Intentional Infliction of Emotional Distress.
Finally, defendant argues that plaintiff's claims for intentional infliction of emotional distress should be dismissed because plaintiff's Title VII cause of action provides an adequate remedy for any mental anguish that plaintiff may have suffered. Plaintiff responds that he did not plead nor intend to plead a claim for intentional infliction of emotional distress: His claim is for mental anguish and emotional distress damages caused by defendant's alleged violations of Title VII. Plaintiff contends that defendant has misconstrued his claim and therefore, defendant's "argument is frivolous in part, and irrelevant to the lawsuit."
See Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (stating the tort of intentional infliction of emotional distress is a "gap filler" and should not be used to thwart legislative limits on statutory claims for mental anguish damages).
Docket Entry 20 at 6.
Through his amended response to defendant's motion to dismiss, plaintiff effectively conceded that he does not intend to present a separate, independent claim for intentional infliction of emotional distress. Accordingly, the District Court should GRANT defendant's motion so as to dismiss any independent claim for intentional infliction of emotional distress which plaintiff may have asserted or which his allegations might otherwise support.
V. Recommendation
For the reasons stated above, I recommend that the District Court GRANT defendant's motion to dismiss plaintiff's Title VII claim for relief for religious harassment; GRANT defendant's motion to dismiss plaintiff's claim for libel and slander; GRANT defendant's motion to dismiss plaintiff's claim for intentional infliction of emotional distress; and DENY defendant's motion to dismiss plaintiff's Title VII claim for failure to provide reasonable religious accommodation.
VI. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to
Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuña v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).