Opinion
NO. 3-02-CV-1580-D
November 15, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Frank M. Pearce, Human Relations Director of the Texas Department of Protective Services, has filed a motion to dismiss pursuant to Rules 12(b)(1) (6) of the Federal Rules of Civil Procedure. For the reasons stated herein, the motion should be granted.
I.
Plaintiff Sophia Rodriguez, a 53-year old Hispanic female, was employed by the Texas Department of Protective and Regulatory Services as a recruiter. (Plf. Compl. at 4, ¶ 9 Exh. 1). On or about March 1, 2001, plaintiff was transferred to another department and replaced by a worker under 40 years of age. ( Id.). Plaintiff alleges that the conditions of her new job were intolerable and led to her constructive discharge on March 30, 2001. ( Id.; Plf. Resp., Exh. 1).
On January 25, 2002, plaintiff filed a formal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Plf. Compl., Exh. 1). Her sole complaint was discrimination on the basis of age. ( Id.). The EEOC conducted no investigation and issued a Right to Sue letter. ( Id. at 3, ¶ 8). On July 25, 2002, plaintiff filed suit in federal district court for national origin discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). The only defendant named in the complaint is Frank M. Pearce, Human Relations Director of the Texas Department of Protective Services. Defendant waived service of summons and filed a motion to dismiss. As grounds for his motion, defendant contends that: (1) he cannot be sued for discrimination in his individual capacity; (2) plaintiff's ADEA claim is barred by Eleventh Amendment immunity; and (3) plaintiffs Title VII claim is barred by limitations and for failure to exhaust administrative remedies. Plaintiff has filed a response to the motion and this matter is ripe for determination.
Plaintiff completed an EEOC Intake Questionnaire on September 25, 2001. (Plf. Resp., Exh. 1).
II.
In her response, plaintiff concedes that defendant is not liable in his individual capacity and that she failed to present her Title VII national origin discrimination claim to the EEOC. Plaintiff therefore agrees to the dismissal of those claims. (Plf. Resp. at 1-2, ¶¶ I II).
However, plaintiff argues that she is entitled to prosecute her ADEA claim against the defendant in his official capacity. The court disagrees. In Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the Supreme Court held that states and state agencies could not be sued under the ADEA without an express waiver of sovereign immunity. See Kimel, 528 U.S. at 91 (ADEA's application to states and state agencies was neither valid exercise of Congress's power under Fourteenth Amendment nor valid abrogation of Eleventh Amendment); Ross v. Texas Dep't of Criminal Justice, 2001 WL 1335873 at *3 (N.D. Tex. Oct. 25, 2001) (Fitzwater, J.). Texas has not waived sovereign immunity with respect to age discrimination claims under the ADEA. Consequently, plaintiff cannot maintain such a claim against the Texas Department of Protective Services.
RECOMMENDATION
Defendant's motion to dismiss should be granted. All claims against defendant should be dismissed with prejudice.