Opinion
CIVIL ACTION NO. 3:00-CV-2172G.
March 28, 2001.
MEMORANDUM ORDER
Before the court is the motion of one of the defendants, Earthgrains Baking Companies, Inc. ("Earthgrains"), to dismiss the complaint against it. The plaintiff David Robison ("Robison" or "the plaintiff") has not responded to the motion. For the reasons discussed below, the motion is granted.
Although the plaintiff has named "The Earthgrains Company" as the defendant in this action, the defendant corporation bringing the instant motion asserts that its proper name is "Earthgrains Baking Companies, Inc." See Original Answer of Earthgrains Baking Companies, Inc. at 1-2.
I. BACKGROUND
Robison began his employment with Earthgrains on June 7, 1994 as a bread mixer. Plaintiff's Original Complaint and Jury Demand ("Complaint") ¶ 7; Original Answer of Earthgrains Baking Companies, Inc. ("Answer") ¶ 7. Later, he worked as a full-time bread mixer, a position he held until the time of his termination by Earthgrains. Complaint ¶ 7; Answer ¶ 7. Robison asserts that, while employed at Earthgrains, he was a member of the defendant Bakery, Confectionery and Tobacco Workers' International Union, AFL-CIO, Local 111 ("the Union"). Complaint ¶ 8. He contends that Earthgrains improperly assessed points against him under a point-based attendance policy, which resulted in the termination of his employment in January 2000. Id. ¶¶ 9-15. Robison further alleges that the Union failed to investigate or contest adequately his termination through the grievance and arbitration procedure prescribed by the applicable collective bargaining agreement between Earthgrains and the Union. Id. ¶¶ 16-20.
Robison filed his complaint on October 3, 2000, asserting the following three causes of action against Earthgrains: (1) a discriminatory termination claim pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (2) an essentially identical claim under the Texas Commission on Human Rights Act ("TCHRA"), Tex. Lab. Code Ann. §§ 21.001 et seq. (Vernon 1996); and (3) a claim that Earthgrains' termination of Robison's employment violated his due process rights under federal and/or state law. See Complaint ¶¶ 23-29.
II. ANALYSIS A. Standard for Dismissal Under Rule 12(b)(6)
FED. R. CIV. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." A motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994) (citations omitted). Before dismissal is granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the non-movant. See Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994) (citation omitted); Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994) (citations omitted); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991).
B. The Title VII Claim
Robison was required, pursuant to 42 U.S.C. § 2000e-5(f)(1), to file his Title VII claim within ninety days of receiving his right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). In the case at bar, Robison alleges that he received his right-to-sue letter on July 3, 2000. Complaint ¶ 22; see also Notice of Right to Sue, attached to Complaint as Exhibit B. However, he did not file the instant suit until October 3, 2000 — 92 days later. See Complaint at 1. Because it appears from the face of the complaint that Robison's Title VII claim is barred by limitations, this claim should be dismissed with prejudice. See Ringgold v. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986) (affirming dismissal of a Title VII claim filed 92 days after delivery to plaintiff's counsel of the right-to-sue letter).
C. The "Due Process" Claim
Robison alleges that Earthgrains' alleged failure to investigate and review his grievance violated his right to due process under the United States Constitution and/or the Texas Constitution. See Complaint § V(B) at 6-7. To the extent Robison intends to rely upon 42 U.S.C. § 1983 and the Due Process Clause of the Fourteenth Amendment to the United States Constitution, or upon the Texas Constitution's due course of law guarantee, this claim is frivolous. Robison has affirmatively pleaded in his complaint that Earthgrains is a private corporation. See Complaint ¶ 4. Because Earthgrains is not a state or federal actor, Robison has no cognizable due process claim against Earthgrains. See Becerra v. Asher, 105 F.3d 1042, 1045 (5th Cir.) (noting "state action" component of the Due Process Clause of the Fourteenth Amendment and the "under color of" state law requirement of § 1983), cert. denied, 522 U.S. 824 (1997); The Republican Party of Texas v. Dietz, 940 S.W.2d 86, 91 (Tex. 1997) (holding that state action is required before a litigant can maintain a claim for deprivation of a right secured by the due course of law guarantee of the Texas Bill of Rights). Accordingly, Robison's due process claim must also be dismissed with prejudice.
D. The Remaining State Law Claim
Federal court jurisdiction exists over an entire action, including state law claims, when the federal and state law claims "`derive from a common nucleus of operative fact' and are `such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.'" Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966)). Yet supplemental jurisdiction over state law claims is a "doctrine of discretion, not of plaintiff's right." Gibbs, 383 U.S. at 726. Consequently, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims." Carnegie-Mellon, 484 U.S. at 350.
When the federal claims are dismissed before trial and only a state law claim remains, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claim and send that claim to a state court. See id. at n. 7. According to the Fifth Circuit, "[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed." Parker Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir. 1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). Here, the federal claims asserted against Earthgrains have been dismissed and only a state law claim remains, namely, Robison's cause of action pursuant to the TCHRA.
Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claim against Earthgrains. See 28 U.S.C. § 1367(c)(3). Robinson's TCHRA claim is therefore dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, Earthgrains' motion to dismiss is GRANTED. Robison's claim pursuant to the TCHRA is DISMISSED without prejudice to its being refiled in state court. All other claims against Earthgrains are DISMISSED with prejudice.