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holding that the "[p]laintiff's claim of constructive discharge does not state a separate cause of action"
Summary of this case from Hanks v. ShinsekiOpinion
Civil Action No. 3:03-CV-1786-M.
January 27, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Greenville Independent School District's Fed.R.Civ.P. 12(b)(6) Motion to Dismiss Plaintiff's claims of age, race, and gender discrimination arising under federal law. Specifically, Plaintiff alleges that he was constructively discharged due to Defendant's allegedly illegal conduct. Plaintiff also seeks an award of punitive damages based on Defendant's conduct. Upon review of the pleadings, briefs, and applicable law, the Court is of the opinion for the reasons stated below that Defendant's Motion should be GRANTED in part and DENIED in part. Plaintiff is ordered to amend his Complaint, as instructed below, within two weeks of the date of this Order.
The Complaint states Plaintiff's claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). However, Title VII does not provide a cause of action for age discrimination. Such a claim is appropriately alleged under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). To the extent the Court finds that Plaintiff has alleged sufficient facts to support a claim of age discrimination, the Court grants Plaintiff leave to amend his Complaint, within two weeks of the date of this Order, to state the proper statutory basis for his age discrimination claim.
Defendant argues that the Complaint only alleges a claim for age discrimination because paragraph ten of the Complaint states only that Plaintiff was denied employment opportunities due to his age. However, paragraph seven states that Defendant discriminated against Plaintiff due to his age, race, and sex.
BACKGROUND
Plaintiff does not allege any specific facts evincing discrimination in his Complaint; rather, Plaintiff incorporates by reference the facts contained in his Charge of Discrimination, which was signed by Plaintiff on November 4, 2002 and filed with the Equal Employment Opportunity Commission ("EEOC"). The facts contained in the Charge are not a model of clarity. However, the Court is able to cull the following from Plaintiff's Charge.Plaintiff, a Caucasian, was employed by Defendant for two years as principal of Houston Elementary School. He asserts he worked under two superintendents. Plaintiff claims that under the first superintendent, Herman Smith, he received outstanding performance reviews, but that William Smith, an African-American who replaced Herman Smith, discriminated against him. Specifically, he alleges that on September 17, 2001, William Smith stated that an African-American male, who was younger than Plaintiff, would replace Plaintiff as principal.
The Charge does not state when the replacement took place, but it indicates that Plaintiff continued in his position as principal at least until February 2002, when he learned his employment contract would not be extended.
Plaintiff also alleges that on January 24, 2002, he received a "needs improvement" evaluation, which represented a considerable decline from the performance reviews he had received from Herman Smith. Plaintiff contends that the negative review was due in part to a grievance he filed on December 17, 2001, about William Smith's hiring practices. According to Plaintiff, William Smith informed him that no qualified persons had applied for an open school counselor position. However, when Plaintiff reviewed the applications, he claims to have discovered a "highly qualified" Caucasian female candidate, who was over the age of sixty. Plaintiff contends that William Smith intended to overlook her based on her race and age.
The Charge does not state with whom the grievance was filed, but the Court assumes Plaintiff filed it with the school board or other supervisory body.
Plaintiff also alleges that when he took leave from work due to "workers' compensation issues," he was denied pay for his time off. Plaintiff notes, in contrast, that an African-American teacher, apparently on leave for disciplinary reasons, received pay while away from work.
Plaintiff further alleges that on February 18, 2002, he learned his employment contract was not going to be extended, although the contracts of all the other principals within the school district were extended. Plaintiff asserts that he then applied for a principal position at another school within the district, but a less experienced candidate, Ricardo Corrales, was hired instead. Plaintiff alleges no facts regarding the race or age of Corrales. Plaintiff asserts, however, that the individual whom Corrales was replacing, G.E. Vaughn, was a Caucasian male over the age of fifty.
Under the Texas Education Code, teachers, including principals, may be employed under three different types of contracts: probationary, term, and continuing. An individual who has been employed for the first time with the school district or who has not been employed by the district for two consecutive years subsequent to August 28, 1967 is employed under a probationary contract. TEX. EDUC. CODE ANN. § 21.102 (Vernon 2004). Teachers with experience, however, are employed under term or continuing contracts, with term contracts being the most common. See Peaster Indep. Sch. Dist. v. Glodfelty, 63 S.W.3d 1, 3-4 (Tex.App.-Fort Worth 2001, no pet.). Under a term contract, an individual's contract must be renewed by the school board at the expiration of a fixed term. TEX. EDUC. CODE ANN. § 21.102. However, the Term Contract Renewal Act requires the automatic renewal of an individual's term contract unless the school board complies with certain procedural protections. See TEX. EDUC. CODE ANN. § 21.201-.213. Under a continuing contract, an individual is entitled to continue in his or her position, without annual renewal, until he or she resigns or is discharged for good cause. Plaintiff has not stated under which type of contract he was employed.
One other principal's contract may not have been extended. See footnote 7, infra.
It is unclear from the Charge whether Vaughn's contract was extended or not. Elsewhere in the Charge, Plaintiff states that he was the only principal whose contract was not extended. The Charge does not state that Vaughn's contract was not extended; rather, it says only that Vaughn was "moved out" of his position.
Finally, Plaintiff alleges that William Smith discriminated against Plaintiff when he instructed him, in writing, to report to work on a day when he was on leave. Plaintiff contends that William Smith was aware of his planned leave because Plaintiff had submitted a doctor's note to the school district's central office.
Plaintiff does not state in the Charge that he was terminated or provide a date when his employment ceased. However, Plaintiff alleges in his Complaint that he was constructively discharged in July 2002.
STANDARD OF REVIEW
Under Fed.R.Civ.P. 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim that would entitle him to relief. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citingMcConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). When considering a motion to dismiss, the Court accepts as true all well-pled allegations in the Complaint and views them in the light most favorable to the plaintiff. Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993). However, conclusory allegations or legal conclusions set forth as factual conclusions will not prevent dismissal. Id.; Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
In reviewing the adequacy of the Complaint in an employment discrimination context, the Court is guided by the Supreme Court's decision in Swierkiewicz v. Sorema, 534 U.S. 506 (2002). In Swierkiewicz, the Court held that the district court erred in granting the defendant's Rule 12(b)(6) motion when the plaintiff failed to adequately plead a prima facie case of employment discrimination under Title VII and the ADEA. Id. at 508. In so holding, the Court noted that the prima facie case requirement, which originated from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), was an evidentiary standard and not a pleading requirement. Swierkiewicz, 534 U.S. at 510. The Court concluded that the district court should have analyzed plaintiff's Complaint using the notice pleading standard of Fed.R.Civ.P. 8(a)(2), which provides that a Complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." According to the Court, such a statement must simply "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'"Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
ANALYSIS
A. Constructive Discharge Claim
The Court notes at the outset that Plaintiff's claim of constructive discharge does not state a separate cause of action. Such a claim is tied to Plaintiff's claims of age, sex, and race discrimination. In order to prevail on discrimination claims under Title VII or the ADEA, a Plaintiff must prove that he suffered an adverse employment action. Smith v. City of Jackson, Miss., 351 F.3d 183, 196 (5th Cir. 2003) (citing Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002). A plaintiff may satisfy his burden by showing that he was terminated by his employer for an unlawful reason. See, e.g., Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 387 (5th Cir. 2003) (stating that discharge from employment constitutes adverse employment action under Title VII retaliation claim). Rather than proving actual discharge, a plaintiff may demonstrate that he was constructively discharged. See, e.g., McCann v. Litton Systems, Inc., 986 F.2d 946, 950 (5th Cir. 1993) (stating that plaintiff could satisfy prima facie case of age discrimination by demonstrating constructive discharge). A constructive discharge occurs when an employer makes conditions so intolerable than an employee reasonably feels compelled to resign. Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 242 (5th Cir. 1993).
Although Plaintiff alleges constructive discharge, the Court is unable to discern from the Complaint and incorporated Charge that Plaintiff resigned from his position prior to the expiration of his employment contract. What Plaintiff appears to be alleging is that his contract was not extended, and as a result, his employment ceased when the contractual period expired. That is not a constructive discharge. To make out a claim of constructive discharge, Plaintiff must plead specific facts showing he resigned from his position prior to the termination of his employment contract. Plaintiff may amend his Complaint within two weeks of the date of this Order, to allege such facts, if they exist.
Assuming Plaintiff can properly plead a claim of constructive discharge, the Court addresses Defendant's contention that Plaintiff's constructive discharge claim must be dismissed because Plaintiff failed to exhaust his federal and state administrative remedies. Under federal law, prior to bringing a civil action for discrimination under Title VII or the ADEA, a party must file a Charge of Discrimination with the EEOC. 42 U.S.C. § 2000e-5(f); 29 U.S.C. § 626(d). Once a party brings a civil action, the scope of the lawsuit is not limited to the specific allegations contained in the Charge; rather, the lawsuit "'is limited to the 'scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Younger v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990) (quoting Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th Cir. 1970)); see also Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
Defendant contends that because Plaintiff did not mention a constructive discharge claim in his Charge, such a claim was not before the EEOC. As a result, Defendant asserts, the EEOC never considered the claim, and it should be dismissed. In the Court's view, although Plaintiff's Charge did not explicitly mention constructive discharge, such a claim could reasonably be expected to arise out of the allegations in the Charge. In investigating the allegations of age, race, and sex discrimination, the EEOC would have investigated the facts and circumstances giving rise to Plaintiff's claim of constructive discharge. Accordingly, the Court holds that Plaintiff properly exhausted his federal administrative remedies when he filed his Charge.
Defendant further contends that Plaintiff's constructive discharge claim must fail because Plaintiff has not exhausted his state administrative remedies. The Texas Education Code requires exhaustion of state administrative remedies before a party can bring a suit involving the state education laws, and Plaintiff's allegations involve an employment contract governed by such laws. Therefore, Defendant asserts, Plaintiff failed to exhaust his state law remedies by not appealing the non-extension of his contract to the Texas Commissioner of Education.
Under Texas law, a party bringing a civil suit involving the state education laws must first exhaust his state administrative remedies under the Texas Education Code, unless certain exceptions apply. See, e.g., Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 700 (Tex.App.-Waco 2002, pet. withdrawn);Barrientos v. Yselta Indep. Sch. Dist., 881 S.W.2d 159, 160 (Tex.App.-El Paso 1994, no writ). However, the cases cited by Defendant in support of its position discuss only a litigant's obligations when bringing a civil action in state court understate law. See, e.g., Washington v. Tyler Indep. Sch. Dist., 932 S.W.2d 686 (Tex.App.-Tyler 1996, no writ) (held that former primary skills aide was required to exhaust Texas Education Code remedies prior to instituting civil action for state law discrimination and wrongful discharge claims arising from her filing of workers' compensation claims); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825 (Tex.App.-Dallas 1994, writ denied) (held that former teacher was collaterally estopped by Commissioner of Education's prior ruling from asserting state law tort and contract claims arising out of employment contract). These cases are inapplicable to the present case because they involve only questions of state law. Plaintiff is not alleging a violation of state law; rather, he is attempting to vindicate his federal rights. The Court is of the opinion that an appeal to the Texas Commissioner of Education regarding termination of an employment contract is not required by Title VII or the ADEA. Thus, the Court refuses to dismiss any constructive discharge claim Plaintiff may be entitled to assert for failure to exhaust state administrative remedies.
Furthermore, at least one Texas appellate court has held that a school principal was not required to exhaust Texas Education Code remedies prior to bringing a discrimination claim under the Texas Commission on Human Rights Act (CHRA). Vela, 69 S.W.3d at 701-02. In so holding, the court explained:
We have found no case . . . that has decided whether a school district employee's discrimination claim under the CHRA involves the administration of school laws, such that the employee must exhaust the administrative remedies in the Education Code before a trial court has jurisdiction over the CHRA claim. Id. at 701.
If a Texas state court would not require a plaintiff to exhaust the Texas Education Code's administrative remedies prior to exercising jurisdiction over a plaintiff's state law discrimination claim, it seems peculiar that a federal court would require a plaintiff to exhaust the same remedies prior to bringing a federal discrimination claim in federal court.
However, the Court orders Plaintiff to amend his Complaint, within two weeks of the date of this Order, to allege facts explaining when and under what circumstances Plaintiff's employment ceased. Insofar as Plaintiff can properly allege an adverse employment action, the Court addresses Plaintiff's other claims below.
B. Discrimination and Retaliation Claims
It is unclear whether Plaintiff is alleging an ADEA claim based only on discriminatory treatment or also on retaliation. The Charge refers to retaliation, although the Complaint does not. Plaintiff checked the "retaliation" box on the form for the Charge as one of the bases for his claims. He alleges he received a lower performance rating due to the grievance he filed regarding William Smith's alleged hiring preferences. This allegation appears to allege retaliation in substance. Further, the Charge describes Defendant's actions as "discriminatory and retaliatory." Because Plaintiff appears to be alleging a claim of retaliation in addition to his discriminatory treatment claim, the Court will address both claims.
Defendant contends that Plaintiff's claims should be dismissed because Plaintiff has not made out a prima facie case of age, race, or gender discrimination. Plaintiff argues that his Complaint should survive Defendant's Motion because it contains sufficient facts to notify Defendant of his claims.
Defendant does not address Plaintiff's potential retaliation claims.
Under Swierkiewicz, a plaintiff is not required to make out a prima facie case of discrimination or retaliation in order to survive a Rule 12 motion; rather, a plaintiff must simply plead sufficient facts to apprise the defendant of what claims the plaintiff is pursuing. 534 U.S. at 508; see also Shabazz v. Communications Workers of Am./Tex. State Employees Union, 2003 WL 22388570, at *7 (N.D. Tex. Sept. 30, 2003) (Lynn, J.) (holding that Swierkiewicz's rationale is equally applicable to claims of retaliation). The question before the Court, then, is whether Plaintiff has alleged sufficient facts to put Defendant on notice that he is asserting claims of discriminatory treatment and retaliation under Title VII and/or the ADEA.
1. Discrimination Claims
While the Complaint and the incorporated Charge contain many irrelevant and incomplete facts, the Court, nevertheless, is of the opinion that Plaintiff has pled sufficient facts to notify Defendant of his ADEA discrimination claim. Plaintiff alleges he was fifty-seven years old when he filed his Charge. Because he began working as a principal for Defendant approximately two years prior to the filing of his Charge, Plaintiff was at all relevant times a member of the class protected under the ADEA. Plaintiff further alleges that he was notified prior to the termination of his contract that a younger individual would be taking over his position. That allegation sufficiently suggests that Plaintiff is contending his contract was not extended because of Plaintiff's age.
The Court also finds that Plaintiff has alleged sufficient facts to notify Defendant of his Title VII race discrimination claim. Plaintiff alleges that prior to learning his contract would not be extended, he was informed he would be replaced by an individual of another race. Plaintiff's allegation notifies Defendant that Plaintiff is contending that his contract was not extended due, in part, to his race. While the Court expresses no opinion as to the merit of Plaintiff's contention, the Court nonetheless finds that Plaintiff's allegations meet the liberal pleading standard set out by the Supreme Court in Swierkiewicz.
The Court is of the opinion, however, that Plaintiff has failed to sufficiently allege a claim of gender discrimination. Plaintiff does not allege that Defendant took any adverse action against him due to his gender. In fact, Plaintiff does not allege any facts suggesting he was discriminated against in any way due to his gender. Accordingly, the Court dismisses Plaintiff's claim of gender discrimination.
2. Retaliation Claims
To the extent Plaintiff is alleging claims of retaliation under the ADEA and Title VII, the Court finds that Plaintiff's Complaint is deficient. While the Charge alleges that Plaintiff filed a grievance regarding William Smith's hiring practices, neither the Complaint nor the Charge contend that Defendant made an ultimate employment decision against Plaintiff in violation of the ADEA or Title VII. In order for an act to constitute an adverse employment action for purposes of a Title VII retaliation claim, the act must be an ultimate employment decision. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 387 (5th Cir. 2003). Ultimate employment decisions generally relate to hiring, compensation, discharge, the granting of leave, and promotion. Id. Here, Plaintiff alleges that his grievance resulted in an unfavorable performance review. However, the receipt of a negative review does not constitute an ultimate employment decision. See id. at 380, 387 (holding that employer's actions, including issuance of poor performance evaluation and reprimands, did not constitute ultimate employment decisions for purposes of Title VII retaliation claim). Accordingly, Plaintiff's allegations, even if true, do not state a claim for retaliation. Therefore, Plaintiff's retaliation claims should be dismissed, subject to Plaintiff alleging facts connecting his grievance to an ultimate employment decision. Plaintiff may amend his Complaint within two weeks of the date of this Order, to allege facts, if any, demonstrating that an ultimate employment decision resulted from the filing of Plaintiff's grievance.
The Fifth Circuit has held that retaliation claims under the ADEA and Title VII are subject to the same analysis.Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 n. 1 (5th Cir. 2003) (citing Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). Accordingly, this Court addresses Plaintiff's ADEA and Title VII retaliation claims, if any, together.
The filing of a grievance opposing the employment practices of an employer directed towards a fellow employee constitutes protected activity for purposes of Title VII and ADEA retaliation claims. Holt v. JTM Industries, Inc., 89 F.3d 1224, 1226 (5th Cir. 1996) (ADEA); Jones v. Flagship Int'l, 793 F.2d 714, 727 (5th Cir. 1986) (Title VII). While Holt and Jones address only an employee's opposition to employment practices that discriminate against fellow employees, their reasoning is equally applicable in the context of an employer's hiring practices. Because Title VII and the ADEA prohibit an employer from retaliating against an employee who opposes employment practices made unlawful under the respective statutes, 42 U.S.C. § 2000e-3(a); 29 U.S.C. § 623(d), and because employers are prohibited from discriminating against potential job applicants on the basis of age, race, or gender, it follows that an employee may engage in protected activity by opposing an employer's hiring practices. Therefore, Plaintiff's grievance opposing the hiring practices of Defendant may constitute protected conduct under Title VII and the ADEA. Furthermore, the fact that Defendant ultimately hired the potential applicant whom Plaintiff believed was being discriminated against is not fatal to Plaintiff's retaliation claim. An employee alleging retaliation need not prove that his employer was actually engaged in unlawful employment practices, but only that the employee had a reasonable belief that his employer was so engaged. See Payne v. McLemore's Wholesale Retail Stores, 654 F.2d 1130, 1137 (5th Cir. 1981) (holding that employee's reasonable belief that employer was engaged in unlawful employment practices was sufficient to make out prima facie case of retaliation under Title VII).
Moreover, insofar as Plaintiff is asserting a Title VII claim of retaliation based on gender discrimination, such a claim is unsupported by his allegations. The Charge explicitly states that his grievance was filed because Plaintiff was concerned that William Smith was planning to overlook an allegedly qualified applicant due to her age and race. Plaintiff does not contend that William Smith was planning to discriminate against the applicant due to her gender. The Court finds that Plaintiff's allegations fail to provide Defendant with a sufficient factual basis to support such a claim. Plaintiff may amend his Complaint within two weeks of the date of this Order, to allege facts, if any, to support this claim.
C. Punitive Damages Claim
Defendant also argues that Plaintiff's claim for punitive damages must fail because punitive damages are not available to Plaintiff under Title VII or the ADEA.
The Court agrees with Defendant. While Title VII permits an award of punitive damages in cases of intentional discrimination, such an award is not available when the defendant is a government, government agency, or political subdivision. 42 U.S.C. § 1981a(b)(1); see also Oden v. Oktibbeha Cty, Miss., 246 F.3d 458, 465-66 (5th Cir. 2001); Rubinstein v. Adm'rs of Tulane Educ. Fund, 218 F.3d 392, 404 (5th Cir. 2000). The Defendant school district is a government agency. Therefore, Plaintiff cannot prevail on his claim for punitive damages against Defendant under Title VII.
In addition, Plaintiff cannot prevail on his claim for punitive damages under the ADEA. While Congress imbued the courts with broad remedial powers in fashioning remedies under the ADEA, "ADEA remedies are supposed to be compensatory, not punitive."Hansard v. Pepsi-Cola Metro. Bottling Co., Inc., 865 F.2d 1461, 1469 (5th Cir. 1989); see also Brunnemann v. Terra Int'l, Inc., 975 F.2d 175, 178 (5th Cir. 1992) ("A plaintiff suing under the ADEA may recover only pecuniary losses such as wages and fringe benefits."). Thus, Plaintiff may not recover punitive damages from Defendant under the ADEA. The Court therefore dismisses Plaintiff's claim for punitive damages.
CONCLUSION
Having considered Defendant's Motion, the Court GRANTS the Motion as to Plaintiff's Title VII gender discrimination claim and retaliation claims, which the Court dismisses without prejudice, and as to Plaintiff's punitive damages claim, which the Court dismisses with prejudice, and DENIES the Motion as to Plaintiff's other claims. If he wishes to pursue the claims to which these matters relate, Plaintiff may amend his Complaint, within two weeks of the date of this Order, as follows:
(1) to allege the proper statutory basis for his ADEA claims;
(2) to allege facts regarding Plaintiff's departure from his position with Defendant;
(3) to allege facts, if any, that the grievance Plaintiff filed regarding William Smith's hiring practices contained allegations of gender discrimination; and
(4) to allege facts, if any, that the grievance Plaintiff filed regarding William Smith's hiring practices resulted in an ultimate employment decision.
After Plaintiff amends, Defendant may re-urge a Motion to Dismiss with respect to the matters on which repleading has been permitted.