Swanson v. R.R. Comm'n of Tex.

HELEN SWANSON, Plaintiff,

v.RAILROAD COMMISSION OF TEXAS, Defendant.

CIVIL ACTION NO. C-11-80

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

Dated: May 24, 2011.

ORDER

On this day came on to be considered Defendant Railroad Commission of Texas's Motion to Dismiss. (D.E. 11.) For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED, and this action is hereby DISMISSED WITHOUT PREJUDICE.

I. Factual Background

Plaintiff Helen Swanson filed this action in this Court on March 24, 2011. (D.E. 1.) She filed an Amended Complaint on April 27, 2011, which is now the live pleading in this matter. (D.E. 9.)

In her Amended Complaint, Plaintiff states that she was employed as an administrative assistant by Defendant in Corpus Christi, Texas for more than sixteen years. Plaintiff states that she experienced serious medical problems in May 2009, requiring her to be absent from work and to request Family and Medical Leave Act ("FMLA") leave from "early June through on or about June 21, 2009." She states that she returned to work on June 22, 2009, remaining employed until July 6, 2009, at which time she was "constructively discharged." She claims that she was unaware of the reason for the discharge at the time. (D.E. 9 at 2.)

Plaintiff alleges that she submitted all documentation required under the FMLA to account for her period of absence. Her treating physician, Gerald W. Boynton, M.D., certified that Plaintiff was unable to work because she was unable to walk or talk on the telephone. (D.E. 9 at 3.) Plaintiff alleges that Defendant rejected Dr. Boynton's medical opinions, and designated her absences in June 2009 as "leave without pay." She states that she was charged with one period of "leave without pay" in early June 2009, and a second on June 24, 2009, even though she claims to have worked that day. Plaintiff thus contends that Defendant discharged her because of her two periods of "leave without pay." (D.E. 9.)

On the basis of these allegations, Plaintiff claims that Defendant discriminated and retaliated against her due to her use of FMLA leave. She also claims age and disability discrimination, under "federal and state law." (D.E. 9 at 3-6.)¹ Plaintiff seeks monetary damages, in the form of "lost wages and benefits in the past and future, liquidated damages, costs, attorney's fees, pre-judgment interest and post-judgment interest." (D.E. 9 at 6.)

II. Procedural Background

Defendant filed a Motion to Dismiss on April 22, 2011. (D.E. 6.) Because Plaintiff subsequently filed an Amended Complaint, the Court denied as moot Defendant's Motion to Dismiss. (D.E. 10.) On May 11, 2011, Defendant filed the Motion to Dismiss presently before the Court, seeking dismissal pursuant to FederalRules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. 11.) Plaintiff responded on May 20, 2011. (D.E. 12.)

III. Discussion

A. Rule 12(b)(1) Standard

It is well established that, "[w]hen a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). Therefore, the Court first considers Defendant's Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

When a party challenges a court's subject matter jurisdiction under Rule 12(b)(1), it can make either a "facial attack" or a "factual attack." As the Fifth Circuit has explained, "[a] 'facial attack' on the complaint requires the court merely to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion. A 'factual attack,' however, challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered. Moreover, a 'factual attack' under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist." Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (internal citations omitted); see also Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981) ("Simply stated, if the defense merely files a Rule 12(b)(1) motion, the trial court is required merely to look to the sufficiency of the allegations in the complaint becausethey are presumed to be true. If those jurisdictional allegations are sufficient the complaint stands. If a defendant makes a 'factual attack' upon the court's subject matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials. In the latter case a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction."); Moussazadeh v. Texas Dep't of Crim. Justice, 2009 WL 819497, at *7 (S.D. Tex. Mar. 26, 2009) (discussing difference between factual and facial attacks).

In this case, Defendant makes a facial attack, as it does not submit affidavits, testimony, or other evidentiary materials in support of the Rule 12(b)(1) motion, and this motion is made at an early stage of the proceedings on a purely legal basis. As such, the Court must "merely . . . see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Menchaca, 613 F.2d at 511.

B. Claims Barred by Sovereign Immunity

Defendant argues that Plaintiff's claims of age and disability discrimination, whether brought under the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), or the Texas Commission on Human Rights Act ("TCHRA") are barred by sovereign immunity, as Defendant is undisputedly a state agency. As such, these claims should be dismissed for lack of jurisdiction. (D.E. 11 at 35.) Defendant similarly contends that Plaintiff's FMLA "self-care" claim is also barred by sovereign immunity. (D.E. 11 at 5-6.) Plaintiff disagrees with several aspects of Defendants' argument, though concedes others. (D.E. 12.)

1. ADEA Claim

Plaintiff asserts a claim of age discrimination, under "federal and state law." (D.E. 9 at 5.) Federal age discrimination claims are brought under the ADEA. 29 U.S.C. § 623.² Defendant argues that it has sovereign immunity with respect to Plaintiff's age discrimination claim. (D.E. 11 at 3.) Plaintiff concedes that sovereign immunity bars her claim under the ADEA. (D.E. 12 at 22.)

The Supreme Court specifically held in Kimel v. Florida Bd. of Regents that "in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private individuals." 528 U.S. 62, 92 (2000). The Court explained, "the ADEA does contain a clear statement of Congress' intent to abrogate the States' immunity, but that the abrogation exceeded Congress' authority under § 5 of the Fourteenth Amendment." Id. at 67; see also Simmons v. Texas Dep't of Crim. Justice, 34 Fed. Appx. 152, 2002 WL 496409, at *1 (5th Cir. Mar. 21, 2002) (citing Kimel); Williams v. Dallas Area Rapid Transit, 242 F.3d 315, 317 (5th Cir. 2001) (citing Kimel, and explaining that "because the ADEA is not a proper exercise of Congress's power under the Fourteenth Amendment, the statute cannot abrogate a state's sovereign immunity without an express waiver by the state."); Jones v. Performance Service Integrity, 492 F. Supp. 2d 590, 598 (N.D. Tex. 2007) ("Jones brings an ADEA violation claim and a retaliation claim under the ADEA. Congress cannot abrogate Eleventh Amendment immunity through the ADEA.") (citing Kimel).

There is no dispute between the parties that Defendant Railroad Commission of Texas is a state agency (D.E. 9 at 1; D.E. 11) and Texas law clearly establishes Defendantas such. See, e.g., Tex. Nat. Res. Code § 81.051(a) (establishing responsibilities of Railroad Commission of Texas); In re Reichmann Petroleum Corp., 2009 WL 915280, at *5 (S.D. Tex. Mar. 31, 2009) ("The Texas Natural Resources Code provides for the establishment of the Railroad Commission of Texas, a state agency which has jurisdiction over all oil and gas wells in the State of Texas.").³

In light of the fact that Defendant is a state agency entitled to sovereign immunity, that the ADEA does not waive state sovereign immunity, and that Plaintiff seeks monetary damages under the ADEA, this claim must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1).

2. ADA Claim

Plaintiff asserts a disability discrimination claim, which may be brought under the ADA. 42 U.S.C. § 12112(a) ("No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."). Once again, Defendant claims sovereign immunity. (D.E. 11 at 3-4.) As with Plaintiff's age discrimination claim, Plaintiff concedes that Defendant has sovereign immunity with respect to the ADA. (D.E. 12 at 22.)

As with claims under the ADEA, it is well established that disability discrimination claims under the ADA are barred by the Eleventh Amendment. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 360 (2001) ("We decide here whether employees of the State of Alabama may recover money damages by reason of the State's failure to comply with the provisions of Title I of the Americans with Disabilities Act of 1990 . . . . We hold that such suits are barred by the Eleventh Amendment.")⁴ ; Tennessee v. Lane, 541 U.S. 509, 521 (2004) ("In Garrett, we concluded that Title I of the ADA was not a valid exercise of Congress' § 5 power to enforce the Fourteenth Amendment's prohibition on unconstitutional disability...