Bailey v. Dall. Cnty. Sch.

EARL BAILEY, Plaintiff, v. DALLAS COUNTY SCHOOLS, DENNIS JOHNSON, JANICE SMITH,AARON HOBBS, and ROOSEVELT ARMSTRONG, Defendants.

Civil Action No. 3:16-CV-1642-M

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

December 9, 2016

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to Special Order No. 3-251, this pro se case was automatically referred for full case management. Before the Court for recommendation is Defendants' Motion to Dismiss Pursuant to Rule 12(b)(1) or 12(b)(6), filed July 1, 2016 (doc. 23). Based upon the relevant filings and applicable law, the motion should be GRANTED.

I. BACKGROUND

On December 4, 2015, Earl Bailey (Plaintiff) filed this pro se case against Dallas County Schools and its personnel (collectively Defendants) in the Eastern District of Texas, specifically alleging claims of employment discrimination under Title VII of the Civil Rights Act of 1964. (See doc. 1.)¹ He claims that he was "forced to resign" from his position as a bus driver with Dallas County Schools in February 2013 after his manager, Roosevelt Armstrong² (Armstrong), told him that he was not "running his route right." (Id. at 8.)³ Because Armstrong and the bus dispatcher contended thatPlaintiff threatened Armstrong during their interaction, Plaintiff was asked about this conversation by Assistant Superintendent Aaron Hobbs (Hobbs) and Plaintiff's supervisor, Janice Smith (Smith). (Id.) He denied making any threatening remarks but was allegedly "railroaded" by Smith, Hobbs, and Armstrong into resigning. (Id. at 9.) He also claims that the area director, Dennis Johnson (Johnson), "did not handle [his] case right and forced [him] to resign." (Id. at 8.) Plaintiff appears to allege that his "forced" resignation was motivated by his "health problems for which [he] takes medication" including "cancer, nerve condition, and anxiety." (doc. 1 at 8-9.) He does not allege that he filed a complaint with the Equal Employment Opportunity Commission (EEOC) or that he received a "right to sue" letter.

On July 1, 2016, Defendants moved to dismiss the complaint under Rule 12(b)(1) for lack of subject matter jurisdiction, and alternatively, under Rule 12(b)(6) for failure to state a claim. (doc. 23.) With a timely-filed response and reply, this motion is ripe for consideration. (docs. 26, 27.)

II. RULE 12(b)(1)

Defendants move to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction based on the failure to exhaust administrative remedies. (doc. 24 at 4-5.)

A. Legal Standard

A motion to dismiss under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Such a motion "may be raised by a party, or a by a court on its own initiative at any stage in the litigation, even after trial and the entry of judgment." Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006). A court must dismiss the action if it determines that it lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(h)(3); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). The dismissal "is not a determination of the merits," however, and "it does notprevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).

A district court may dismiss for lack of subject matter jurisdiction based on: (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. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (en banc). A motion to dismiss based on the complaint alone presents a "facial attack" that requires the court to merely decide whether the allegations in the complaint, which are presumed to be true, sufficiently state a basis for subject matter jurisdiction. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1998). "If sufficient, those allegations alone provide jurisdiction." Id. When evidence is presented with the motion to dismiss, the attack is "factual." Williamson, 645 F.2d at 413. In that case, "no presumptive truthfulness attaches to [the] plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id. A factual attack may occur at any stage of the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless of the nature of attack, the party asserting federal jurisdiction continually carries the burden of proof to show it exists. Ramming, 281 F.3d at 161.

Here, Defendants rely solely on the complaint to support their motion to dismiss, so they present a facial attack that does not require the resolution of factual matters outside the pleadings. See Williamson, 645 F.2d at 412-13.

B. Title VII

Title VII makes it unlawful for employers to discriminate against individuals with respect to their "compensation, terms, conditions, or privileges of employment, because of [their] race, color,religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Before an individual can pursue a Title VII claim in federal court, he must exhaust his available administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). This typically means that the complainant must first file the charge with the EEOC within 180 days after the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e)(1); Edelman v. Lynchburg College, 535 U.S. 106, 109 n. 1 (2002). In a "deferral state" like Texas, the charge must be filed within 300 days of the alleged unlawful act. Martin v. Lennox Int'l Inc., 342 F. App'x 15, 18 (5th Cir. 2009) (per curiam).

The Fifth Circuit recognizes there is a split in the circuit on "whether a Title-VII prerequisite, such as exhaustion, is merely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject matter jurisdiction." Pacheco v. Mineta, 448 F.3d 783, 788 n.7 (5th Cir. 2006); see also Baker v. McHugh, No. 15-41439, 2016 WL 7046615 at *3 (5th Cir. Dec. 2, 2016) (per curiam). While both the Supreme Court and the Fifth Circuit sitting en banc have held that the EEOC filing deadlines are not jurisdictional, neither has decided the issue of whether exhaustion is a jurisdictional prerequisite or merely a condition precedent to suit. See id. (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Coke v. Gen. Adjustment Bureau, 640 F.2d 584, 595 (5th Cir. 1981)). Different Fifth Circuit panels have reached differing conclusions on the issue. Compare, e.g., Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990) ("It is the well-settled law of this circuit that each [Title VII] requirement is a prerequisite to federal subject matter jurisdiction.") with Young v. City of Houston, 906 F.2d 177, 180 (5th Cir. 1990) ("A failure of the EEOC prerequisite does not rob a court of jurisdiction."). Based on the rule in this circuit that "one panel may not overrule the decision—right or wrong—of a prior panel, absent en banc reconsideration or a superseding contrary decision of the Supreme Court," In re Dyke, 943 F.2d 1435, 1442 (5th Cir.1991), exhaustion is a condition precedent rather than a jurisdictional prerequisite to maintaining a Title VII action.⁴ Gates v. City of Dallas, Tex., No. 3:96-CV-2198-D, 1997 WL 405144 at *1 (N.D. Tex. July 15, 1997) (citing Sanchez, 431 F.2d at 460); see also Carter v. Burlington N. Santa Fe LLC, No. 4:15-CV-366-O, 2015 WL 11022766 at *3 (N.D. Tex. Oct. 9, 2015) (citing Gorman v. Verizon Wireless Tex., LLC, 753 F.3d 165, 170 (5th Cir. 2014)).

When the failure to exhaust is a condition precedent rather than a jurisdictional prerequisite, a motion to dismiss based on such a failure is properly filed pursuant to Rule 12(b)(6) rather than Rule 12(b)(1). See id.; see also Mishra v. Bank of America, No. 3:14-CV-1521-M, 2016 WL 944133 at *6 (N.D. Tex. Feb. 16, 2016), adopted by, 2016 WL 1060311 (N.D. Tex. Mar. 11, 2016) (explaining that the timely filing and exhaustion of an EEOC charge is a condition precedent to bringing suit on an employment discrimination claim under Title VII). Defendants' motion to dismiss Plaintiff's claims under Rule 12(b)(1) will therefore be considered under Rule 12(b)(6).

III. RULE 12(b)(6)

Rule 12(b)(6) allows motions to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under the 12(b)(6) standard, a court cannot look beyond the face of the pleadings. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); see also Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). It is well-established that "pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981). Nonetheless, regardless of whether the plaintiff is proceeding pro se or is represented by counsel, pleadings must show specific, well-pleaded facts, notmere conclusory allegations to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker, 75 F.3d at 196. "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the alleged] facts is improbable, and 'that a recovery is very remote and unlikely.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citation omitted). Nevertheless, a plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555; accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasizing that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). The alleged facts...