Akorede v. Tex. Dep't of Assistive Rehab. Servs. & Tex. Workforce Comm'n

WANDA A. AKOREDE, Plaintiff, v. TEXAS DEPARTMENT OF ASSISTIVE REHABILITATION SERVICESand TEXAS WORKFORCE COMMISSION, Defendants.

CIVIL ACTION H-16-3518

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

ENTERED: August 8, 2017

August 7, 2017

OPINION AND ORDER

Pending before the Court in the above referenced cause, removed from the 133^rd Judicial District Court of Harris County, Texas, alleging intentional age discrimination in violation of the Texas Labor Code § 21.051 and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 6223, et seq., including hostile work environment and retaliation under both statutes, and Texas common law¹ are (1) Defendant Texas Workforce Commission's² ("TWC's")motion to dismiss (instrument #8) because Plaintiff Wanda A. Akorede's ("Plaintiff's" or "Akorede's") claims are barred by the Eleventh Amendment and (2) Plaintiff's motion to remand under 28 U.S.C. § 1447(c)(#14).

Plaintiff's Original Petition (#1-3) andFirst Amended Original Petition's (#4's) Factual Allegations

It is undisputed that Defendant TWC is an agency of the State of Texas.³

Plaintiff Wanda A. Akorede, an African American female over the age of 40 and a resident of Texas, worked for the State of Texas for approximately nine and a half years, beginning in September 2007, when she was hired as a Vocational Rehabilitation Counselor I. In 2013 Plaintiff's manager, Mr. Ekere Williams ("Williams"), began harassing her by transferring to her the entire Comprehensive Rehabilitation Services ("CRS") case load, even though she already was managing the full Vocational Rehabilitationcase load. Several months later the CRS case load was transferred out of the department, but Williams' harassment continued and intensified, including his violations of TWC policies and procedures by denying her leave requests after leave had already been approved. On September 11, 2014 she filed an administrative complaint against Williams for his abusive behavior. On or about October 28, 2014 TWC ruled in her favor and disciplined Williams for his conduct.

Williams then "began a systematic and persistent crusade to get Plaintiff terminated from her employment." #4, p. 4. First he began reviewing all of her work on completed cases in an effort to find errors for which he could discipline her, something he had not done to any other employees. On July 22, 2015, he commenced a disciplinary action against her, claiming that she had wrongfully issued payments amounting to approximately $400.00. Williams continued to exclude Akorede from meetings and to reverse her closed cases, even though her work was at least equal to or better than that of her co-workers. He also placed her on a disciplinary plan to receive more training, again under his review.

On September 10, 2012, Akorede filed a complaint with the Equal Employment Opportunity Commission ("EEOC), claiming retaliation based on age, race, and gender. She filed her state court action on September 20, 2016, alleging age discrimination in violation of the ADEA and retaliation in violation of the TCHRA,and served the petition and citation for personal service on the Secretary of State's Office on November 4, 2016. At that point she was a Vocational Rehabilitation Counselor V. Defendant timely removed the case on November 29, 2016, based on federal question jurisdiction under the ADEA. On January 24, 2017, TWC filed its motion to dismiss Plaintiff's First Amended Complaint. Akorede filed her Second Amended Complaint (#12), without leave of Court, on February 9, 2017, and then an untimely motion to remand (#14) pursuant to 28 U.S.C. § 1447(c) the next day, 73 days after TWC's Notice of Removal. Plaintiff's three pleadings present essentially the same conclusory statements of fact, but the last one, her Second Amended Complaint, eliminated her ADEA claims, leaving only retaliation under the TCHRA.

The First Amended Original Petition presents two Counts: the first for "intentionally discriminat[ing] against Plaintiff because of her age in violation of the ADEA by continually harassing her and refusing to give Plaintiff merit pay increases or consider her for promotion but . . . gave younger employees in less favorable employment positions merit increases (#4, p. 5); second, "for retaliation in violation of § 21.055 of the TCHRA" after she "filed a charge of age, race, and gender discrimination with the EEOC and the TCHRA on September 10, 2015," which she claims still continues.

After reviewing the record and the applicable law, the Court agrees with TWC and concludes that as a matter of law, this suit isbarred by the Eleventh Amendment and sovereign immunity and must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) for the reasons stated below.

Standard of Review

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. "'A case is properly dismissed under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case.'" Taylor v. Texas Southern Univ., Civ. A. No. 12-CV-01975, 2013 WL 3157529, at *2 (S.D. Tex. June 20, 2013), citing Home Builder's Assoc. of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5^th Cir. 2014). The party asserting that subject matter jurisdiction exists, here TWC, must bear the burden of proof by a preponderance of the evidence for a 12(b)(1) motion. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5^th Cir. 2008); Ramming v. United States, 281 F.3d 158, 161 (5^th Cir. 2001), cert denied sub nom. Cloud v. U.S., 536 U.S. 960 (2002).

It has long been recognized that the Eleventh Amendment⁴ barsclaims under the TCHRA and ADEA against a State not only in actions in which the State is actually named as the defendant, but also in certain actions against state agents and state instrumentalities. Taylor v. Texas Southern Univ., 2013 WL 3157529, at *2.

In reviewing a motion under 12(b)(1) the court may consider (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404, 413 (5^th Cir. 1981). This case falls into the first category, the complaint alone.

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5^th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5^th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3,citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5^th Cir. 1995). The challenge here is a facial attack.

If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5^th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5^th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing Garcia, 104 F.3d at 1261. "Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist." Evans v. Tubbe, 657 F.2d 661, 663 (5^th Cir. 1981). Inresolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address the merits of the suit, has significant authority "'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11^th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5^th Cir. 1986).

A court's dismissal of a case for lack of subject matter jurisdiction is not a judgment on the merits and does not bar the plaintiff from pursuing his claim in a court that has jurisdiction. Ramming, 281 F.3d 158, 161 (5^th Cir. 2001), cert denied sub nom. Cloud v. U.S., 536 U.S. 960 (2002).

Applicable Law

Eleventh Amendment Immunity

Eleventh Amendment immunity must be addressed and resolved before the court reaches the merits of a suit. United States v. Tex. Tech. Univ., 171 F.3d 279, 285-86 & n.9 (5^th Cir. 1999). The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The...