Canon v. The Board of Trustees of State Institutions of Higher Learning of the State of Mississippi
Filing
28
Memorandum Opinion and Order granting 12 MOTION of IHL to Dismiss Plaintiff's Amended and Supplemental Complaint. Signed by District Judge Tom S. Lee on 9/22/15 (LWE)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MICHAEL MOHAMMED CANON
VS.
PLAINTIFF
CIVIL ACTION NO. 3:15CV9TSL-RHW
THE BOARD OF TRUSTEES OF STATE
INSTITUTIONS OF HIGHER LEARNING OF
THE STATE OF MISSISSIPPI; JACKSON
STATE UNIVERSITY; AND TOR A. KWEMBE,
Ph.D., IN HIS INDIVIDUAL CAPACITY,
FOR STATE LAW CLAIMS
DEFENDANTS
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Mohammed Canon, a former employee of
Jackson State University, filed the present action under Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,1 complaining
of national origin discrimination, race discrimination and
retaliation.
Originally, Canon named as defendant “The Board of
Trustees of State Institutions of Higher Learning of the State of
Mississippi d/b/a Jackson State University.”
The Board of
Trustees of State Institutions of Higher Learning of the State of
Mississippi (IHL) promptly moved to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), contending that Jackson State
University (JSU) and IHL are not “one and the same”, as
1
Plaintiff states in a memorandum brief to the court that
“[w]hile the Complaint does not cite the Civil Rights Act of 1964,
42 U.S.C.A. § 2000, et seq., a citation is not necessary since it
is clear that this is the statute under which the action is
brought. Johnson, et al. v. City of Shelby, Mississippi, 135 S.
Ct. 346, 347 (2014).”
plaintiff’s allegations seemed to suggest, but were separate legal
entities, and that IHL was due to be dismissed as plaintiff had
failed to plead any facts involving IHL or suggesting any wrongful
conduct by IHL.
Rather than respond to the motion to dismiss,
plaintiff moved to file an amended complaint.
granted as unopposed.
That motion was
Plaintiff’s amended complaint retained IHL
as a defendant but added JSU as a defendant.
Plaintiff also named
as a defendant Tor A. Kwembe, his supervisor at JSU, against whom
he asserted a state law claim for tortious interference with
contract.2
In his original and amended complaints, Canon, who is of
Iranian national origin, alleges he was employed as a mathematics
instructor at JSU for over twenty-six years.
Kwembe, who is
Nigerian, was hired in 2003 as Chair of the Mathematics
Department.
According to the complaint, before Kwembe was hired,
there had been no issues with Canon’s performance; however, Kwembe
“had an enormous prejudice against Iranians” and “treated
plaintiff differently from other faculty members,” giving him poor
evaluations and claiming, without any basis in fact, that
plaintiff was a poor performer.
Canon alleges that because of
2
On September 21, 2015, plaintiff was granted leave to
file a second amended complaint. By this filing, plaintiff sought
only to append a recently received right to sue letter related to
his third EEOC charge and did not purport to make any other
changes to the second amended complaint.
2
Kwembe’s influence, he was paid less than persons of non-Iranian
origin.
Canon further asserts that after (and as a result of) his
and other faculty members’ complaints about Kwembe’s lack of
qualifications and poor job performance, Kwembe entertained
hostility against Canon and harassed him over petty matters.
Canon alleges he complained to Dean Richard Alo, and to JSU
Provost James Rennick and JSU President Carolyn Meyers, about the
“unfair and biased treatment” to which he was subjected by Kwembe,
and on April 9, 2014, plaintiff filed his first charge of
discrimination with the Equal Employment Opportunity Commission
(EEOC), complaining of wage discrimination, age discrimination and
retaliation.
Canon filed a second charge on September 17, 2014,
asserting that he had received notice from Kwembe that his
contract would not be renewed for the 2014-15 school year.
Canon
claimed his non-renewal was in retaliation for his earlier EEOC
charge.
According to the complaint, Canon appealed his non-renewal
and was reinstated for the 2014-15 school year.
However, in
February 2015, he was notified by Kwembe that his contract would
not be renewed for the 2015-16 school year.
In the meantime, in
mid-October 2014, Canon had received a notice of right to sue on
each of his EEOC charges and had commenced the present action on
January 6, 2015.
After receiving the notice of non-renewal in
February 2015, Canon filed a third EEOC charge, complaining that
3
he was terminated on account of his national origin and in
retaliation for his two prior EEOC charges.
In its present motion to dismiss, IHL argues that Canon’s
complaint against it should be dismissed for failure to state a
claim because it contains no allegations regarding IHL, i.e., it
does not allege that IHL acted, had a duty to act, or had a duty
to supervise the actions of Kwembe, and further because Canon has
failed to exhaust his administrative remedies as to IHL.
Canon
asserts in response to the motion that IHL is a proper defendant
because IHL was his employer.
In fact, however, Canon has not
alleged in his complaint that he was employed by IHL; rather, he
alleges he was employed by JSU.
Moreover, in the court’s opinion,
for reasons explained infra, as a matter of law, there is no basis
for concluding that IHL was his employer; but even if IHL could
possibly qualify as his employer for some purposes, IHL cannot be
considered Canon’s employer for purposes of the claims asserted in
the case at bar and hence is not a proper defendant as Canon has
not alleged that IHL had any involvement whatsoever in the
challenged employment actions.
In addition, IHL is not a proper
defendant as Canon has failed to exhaust as to any claim against
IHL.
Title VII prohibits an “employer” from discriminating against
“any individual ... because of such individual’s race, color,
religion, sex, or national origin....”
4
42 U.S.C.
2000e–2(a).
“As Title VII prohibits discrimination in the employment context,
see 42 U.S.C. § 2000e–2(a), 2000e–5, generally only employers may
be liable under Title VII.”
Turner v. Baylor Richardson Med.
Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (citing Oden v. Oktibbeha
Cnty., Miss., 246 F.3d 458, 462 (5th Cir. 2001)).
This means that
to establish Title VII liability on the part of a particular
defendant, the plaintiff must prove both that the defendant meets
Title VII’s definition of “employer,” i.e., “a person engaged in
an industry affecting commerce who has fifteen or more employees
..., and any agent of such a person....,” Muhammad v. Dallas Cnty.
Cmty. Supervision & Corrs. Dept., 479 F.3d 377, 380 (5th Cir. 2007)
(quoting 42 U.S.C. § 2000e(b)),3 and “that an employment
relationship existed between him and that defendant.”
Karagounis
v. Univ. of Tex. Health Science Center at San Antonio, No. 9750587, 1999 WL 25015, at *2 (5th Cir. 1999) (citing Deal v. State
Farm County Mutual Ins. Co., 5 F.3d 117, 118 (5th Cir. 1993)).4
“In the Fifth Circuit, the basic test for deciding whether an
employment relationship exists between a worker and his putative
3
It appears undisputed that both JSU and IHL satisfy this
definition.
4
Plaintiff has alleged that IHL is a proper defendant in
this case because it employed Kwembe, the discriminating
supervisor. However, whether Kwembe was IHL’s employee is not the
issue. The issue is whether IHL was plaintiff’s employer for in
the absence of an employment relationship between plaintiff and
IHL, IHL cannot be liable to him under Title VII.
5
employer is the ‘hybrid economic realities/common law control’
test.”
Murdock v. City of Houston, Civil Action No. 4:10cv00056,
2011 WL 7109286, at *3 (S.D. Tex. Sept. 21, 2011) (citing Mares v.
Marsh, 777 F.2d 1066, 1067–68 (5th Cir. 1985); Deal v. State Farm
County Mut. Ins. Co. of Texas, 5 F.3d 117, 119 (5th Cir. 1993);
and Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019
(5th Cir. 1990)).
“The right to control an employee's conduct is
the most important component, focusing on the putative employer's
right to hire, fire, supervise, and schedule the work.
The
economic realities component focuses on whether the alleged
employer signed the paycheck, withheld taxes, provided benefits,
and set terms and conditions of employment.”
F.3d at 119).
Id. (citing Deal, 5
It is undisputed that under this test, JSU was
plaintiff’s employer.
The question, though, is whether IHL was
also his employer for purposes of plaintiff’s Title VII claim.
The Fifth Circuit has held that “one way to effectively
bypass [the] requirement” that a Title VII plaintiff prove an
employment relationship with a given defendant “is to prove that
the defendant in question is sufficiently interrelated with
another defendant.
The plaintiff can show that the two defendants
are so integrated so as to be considered a ‘single employer.’”
.
Karagounis, 1999 WL 25015, at *2 (citing Radio and Televison
Broadcast Technicians Local Union 1264 v. Broadcast Service of
Mobile, Inc., 380 U.S. 255 (1965)); Trevino v. Celanese Corp., 701
6
F.2d 397, 403-04 (5th Cir. 1983) (holding that “[S]uperficially
distinct entities may be exposed to liability upon a finding that
they represent a single, integrated enterprise: a single
employer.”).
“The plaintiff can also show that the defendant in
question exercises such control over the labor relations of the
other defendant that they together should be considered ‘joint
employers.’”
Id. (citing Boire v. Greyhound Corp., 376 U.S. 473
(1964); Trevino, 701 F.2d at 403).5
However, in a succession of
cases, the Fifth Circuit has stated that neither of these theories
applies to governmental subdivisions.
See Trevino, 701 F.2d at
404 n.10 (stating that the integrated enterprise or single
employer standard “is not readily applicable to governmental
subdivisions”) (citing Dumas v. Town of Mt. Vernon, 612 F.2d 974,
5
In Karagounis, the court explained these theories,
stating:
It is important to remember that the two theories are
very closely related. When determining whether two
defendants should be considered a single employer, we
look to four factors: (1) interrelation of operations;
(2) centralized control of labor relations; (3) common
management; (4) and common ownership or financial
control. See Trevino, 701 F.2d at 404. The second
factor of this inquiry is by far the most important.
See id. Similarly, when determining whether two
defendants should be considered a joint employer, we
look to the control one defendant has over the other's
labor relations. In other words, the core analysis of
these two inquiries are virtually identical.
Karagounis v. Univ. of Tex. Health Science Center at San Antonio,
No. 97-50587, 1999 WL 25015, at *2 (5th Cir. 1999) (additional
citations omitted).
7
979 n.9 (5th Cir. 1980)); Karagounis, 1999 WL 25015, at *2
(stating that based on the similarities between the single
employer and joint employer theories, “we are constrained by
Trevino to hold that the governmental subdivision rule we applied
within the single employer doctrine also applies to the joint
employer theory”); Turner, 476 F.3d at 344 (holding that “a
government employer ... may not be considered part of an
integrated enterprise under the Trevino framework”); GarrettWoodberry v. Miss. Bd. of Pharmacy, 300 Fed. App’x 289, 291 (5th
Cir. 2008) (stating, based on Dumas, Trevino, Karagounis and
Turner, that “it seems clear that the ‘single employer’ test
should not be applied here, as the Board is a state agency and is
thus a governmental subdivision”).
Notwithstanding that a number
of these opinions have been unpublished and/or that their
statements regarding the inapplicability of the single employer
and/or joint employer theories to governmental entities have been
dicta, district courts in this circuit have held, nearly
uniformly, that these doctrines do not apply to governmental
entities.6
6
See, e.g., Murdock v. City of Houston, Civ. Action No.
4:10–CV–00056, 2011 WL 7109286, at *3 (S.D. Tex. Sept. 21, 2011)
(observing that while Karagounis, an unpublished decision, “is not
binding precedent under the Fifth Circuit's own rules,” and that
“a future panel of that court might easily be persuaded to reach a
contrary result[,] ... until that day arrives, this lower court
bows to the unambiguous holding of our court of appeals, and
recommends that summary judgment be granted” on the basis that the
8
The only exception, it appears, is Patterson v. Yazoo City
Mississippi, 847 F. Supp. 2d 924 (S.D. Miss. 2012), in which Judge
David Bramlette, after determining that there was no binding Fifth
Circuit authority foreclosing application of a single employer
test to governmental entities, concluded there was “no apparent
reason why the Trevino test, or some other analogous test better
suited for its purpose, should not apply to government entities
since there is no question that Congress intended for private and
public employees to enjoy similar protections under Title VII.”
Id. at 939.
See also Patterson v. Yazoo City, Miss., Civ. Action
No. 5:10–CV–00153–DCB–JMR, 2012 WL 930927, at *1 (S.D. Miss. Mar.
19, 2012) (subsequent opinion reiterating conclusions that
“(1) application of the Trevino single-employer test is not
foreclosed by case law and (2) there is no good policy reason why
joint employer doctrine is not applicable to government
subdivisions); Epie v. Owens, Civ. Action No. 3:09–CV–1681–D, 2010
WL 5620959,at * 4 n.1 (N.D. Tex. Dec. 21, 2010) (observing that
the Fifth Circuit has declined to apply the single employer
analysis to governmental agencies or subdivisions and held that
the joint employer test likewise does not apply to governmental
subdivisions); Myers v. Miss. Office of Capital Post-Conviction
Counsel, 720 F. Supp. 2d 773, 778 (S.D. Miss. 2010) (observing
that “the Fifth Circuit does not apply ‘single employer’ analysis
to governmental employers”); Ridha v. Texas A & M Univ. Sys., Civ.
Action No. 4:08–CV–2814, 2009 WL 1406355, at *4 (S.D. Tex. May 15,
2009) (directing the parties to “Fifth Circuit authority holding
that ‘integrated enterprise’ and ‘joint employer’ theories do not
apply to government employers such as the University Defendant.”);
Gogreve v. Downtown Dev. Dist., 426 F. Supp. 2d 383, 389–90 (E.D.
La. 2006) (holding that under Fifth Circuit authority, the “joint
employer” test is not appropriate to analyze the relationship
between governmental subdivisions).
9
[a plaintiff] should not be able to proceed against governmental
entities under a single-employer theory of liability.”).
Judge
Bramlette’s conclusion that the single-employer theory could (and
should) apply to governmental defendants stemmed, in large part,
from a concern that without it, there was no alternative standard
in this circuit for determining “how interrelated political
subdivisions should be treated for the purposes of liability.”
Id. at 936.
See also id. at 939 (stating that “precedent in this
case seems shaped more by the lack of a suitable test than
underlying policy”).
Citing Schweitzer v. Advanced Telemarketing
Corp., 104 F.3d 761 (5th Cir. 1997), he concluded that the “hybrid
economic realities/common law control” test, which focuses on the
right to control, does not apply to the relationship between
multiple employers-defendants but instead applies only to
determine “whether the plaintiff and a single defendant-employer
have an employer-[employee] relationship.”
847 F. Supp. 2d at 933
(“Put simply, the Trevino test applies to the relationship between
multiple employers-defendants, and the hybrid test applies solely
to the relationship between the plaintiff and a single
employer-defendant.”).7
And, since he perceived “no apparent
7
As noted in Patterson, in Schweitzer, the Fifth Circuit
stated:
[T]he hybrid test should be used as an initial inquiry
to resolve, if need be, whether a plaintiff is an
employee of the defendant (or one of the defendants, in
a multi defendant case) for the purposes of Title VII.
10
reason” why the single-employer test should not apply to
governmental entities, he concluded that it could be applied.
Id.
There may be cause to question whether any cogent reason
exists why a governmental entity could not share control with
another over an employee’s work.
See Patterson, 847 F. Supp. 2d
at 933 ; Murdock, 2011 WL 7109286, at *7 (finding “no cogent
reason has been offered why a government entity, like any general
contractor, could not share or co-determine with a private
sub-contractor the control over an employee's work”).
And there
may be validity to the court’s concerns in Patterson regarding the
lack of an alternative test to the single employer or joint
employer test for evaluating whether interrelated governmental
entities could qualify as employers under Title VII.
However,
given that the Fifth Circuit has repeatedly expressed the view
that these theories do not apply to governmental subdivisions,
this court finds that IHL cannot be found to be an “employer”
under either the single employer or joint employer test.
If the plaintiff is found to be an employee of one of
the defendants under the hybrid test, but questions
remain whether a second (or additional) defendant is
sufficiently connected to the employer-defendant so as
to be considered a single employer, a Trevino analysis
should be conducted.
Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761 (5th Cir.
1997), quoted in Patterson v. Yazoo City, Miss., 847 F. Supp. 2d
924, 934 (S.D. Miss. 2012).
11
That said, for reasons which follow, the court is of the opinion
that in view of the allegations in Canon’s complaint and in light
of the specific employment decisions he challenges as violative of
Title VII, as a matter of law, IHL could not be found to be his
employer under any theory.
In Trevino, the court explained the single employer test,
stating:
[S]uperficially distinct entities may be exposed to
liability upon a finding that they represent a single,
integrated enterprise: a single employer. Factors
considered in determining whether distinct entities
constitute an integrated enterprise are (1)
interrelation of operations, (2) centralized control of
labor relations, (3) common management, and (4) common
ownership or financial control.
Courts applying this four-part standard in Title
VII and related cases have focused on the second factor:
centralized control of labor relations. This criterion
has been further refined to the point that “[t]he
critical question to be answered then is: What entity
made the final decisions regarding employment matters
related to the person claiming discrimination?”
Trevino, 701 F.2d at 403-04 (citations omitted).
Though related, IHL and JSU are separate legal entities.
“[T]he individual universities are considered to be
separate agencies themselves.”
(Feb. 7, 1997).
Miss. A.G. Op. Bryant, No. 97-0055
IHL was created by the Mississippi constitution
to oversee Mississippi's state colleges and universities,
including JSU.
Bd. of Trustees of State Institutions of Higher
Learning v. Ray, 809 So. 2d 627, 630 (Miss. 2002); Miss. Const.
Art. 8 § 213–A; see also Jackson HMA, LLC v. Miss. State Dept. of
12
Health, 98 So. 3d 980, 981 (Miss. 2012) (IHL is a constitutionally
created body vested with “management and control” over
Mississippi's institutions of higher learning); Washington v.
Jackson State Univ., 532 F. Supp. 2d 804, 814 (S.D. Miss. 2006)
(JSU is a public university created by statute and placed under
the auspices of IHL) (citing Miss. Code Ann. § 27–125–1, et. seq.
& § 37–101–1).
By legislative enactment, IHL has been given wide
latitude and discretion in decisions concerning its management and
control of the universities and colleges “in areas of finance
allocation, physical facilities, degree programs and policy,
admission standards, employment and student problems.”
Bd. of
Trustees of State Institutions of Higher Learning v. Miss.
Publishers Corp., 478 So. 2d 269, 273-74 (Miss. 1985) (citing
Miss. Code Ann. § 37–101–1 through 15).
With respect to matters
of employment, Mississippi Code Annotated provides that IHL:
shall have the power and authority to elect the heads of
the various institutions of higher learning and to
contract with all deans, professors, and other members
of the teaching staff, and all administrative employees
of said institutions for a term of not exceeding four
(4) years. The board shall have the power and authority
to terminate any such contract at any time for
malfeasance, inefficiency, or contumacious conduct, but
never for political reasons. It shall be the policy of
the board to permit the executive head of each
institution to nominate for election by the board all
subordinate employees of the institution over which he
presides. It shall be the policy of the board to elect
all officials for a definite tenure of service and to
reelect during the period of satisfactory service. The
board shall have the power to make any adjustments it
thinks necessary between the various departments and
13
schools of any institution or between the different
institutions.
Miss. Code Ann. § 37–101–15(f).
“Because of this framework, an
employment contract with a state university ‘cannot exist unless
and until the [IHL] approves a nomination by the university's
president .... [and] this is the only valid avenue for the
creation of a valid contract for employment.’”
Mawson v. Univ. of
Miss. Med. Ctr., Civil Action NO. 3:11CV574-DPJ-FKB, 2012 WL
6649323, at *4 (S.D. Miss. Dec. 20, 2012) (citing Whiting v. Univ.
of S. Miss., 62 So. 3d 907, 916 (Miss. 2011)); Lakshman v. Mason,
486 F. Supp. 2d 574, 580-81 (S.D. Miss. 2006) (holding that IHL
“solely has the power to contract with professors”).
Thus,
plaintiff’s employment contract is with IHL.
However, while by law, only IHL may contract with employees
of state universities, IHL is not directly involved in all
university employment matters.
Rather, as set forth in the IHL
Board of Trustees Policies & Bylaws (Bylaws), while IHL has
established policies and standards relating to university
employment matters and has retained authority over decisions
respecting certain employment decisions, such as “the award of
tenure, the final, involuntary separation of an employee to be
effective during the term of an employment contract, and where
applicable creation, elimination, or modification of categories of
appointments as approved by the Board,” IHL Bylaws 401.0102, it
14
has delegated all other employment decisions – including,
specifically, the non-renewal of non-tenure track faculty - to the
universities.8
IHL Bylaws state:
Universities are authorized to establish faculty
positions designated as nontenure track positions.
Universities may enter into renewable contracts, for
periods up to four years in length, with non-tenure
track faculty members in three separate categories research, teaching, and service - based on the mission
and needs of the institution. Each institution
employing non-tenure track faculty will have a formal
system of annual evaluations to assess each such faculty
member’s performance. Renewal of contracts is not
guaranteed and will be determined by the institution on
the basis of the faculty member’s performance,
availability of funding, and institutional priorities.
Id. at 404.01.
The Bylaws further provide that “[e]ach
institution of higher learning shall be under the management and
control of an Institutional Executive Officer” appointed by IHL,
see IHL Bylaws IHL Bylaw 201.0505, and they prescribe an intrauniversity appeal process for grievances by non-tenured track
faculty relating to employment matters which clearly state that
“the decision of the Institutional Executive Officer shall be
final,” Id. at 405.02.9
8
The Fifth Circuit has held that it is “clearly proper in
deciding a 12(b)(6) motion to take judicial notice of matters of
public record.” Norris v. Hearst Trust, 500 F.3d 454, 461 n.9
(5th Cir. 2007).
9
The Bylaws, at 405.02 state:
If all previous steps have not led to a satisfactory
settlement of a problem, the Chief Personnel Officer
will place it before the university grievance committee.
The committee's purpose is to review the problem
15
Canon’s complaint in this case is that based on his Iranian
national origin and because he complained about Kwembe, his
supervisor at JSU, he was given poor evaluations, subjected to
harassment, paid lower wages, and ultimately, non-renewed for
employment at JSU.
It bears repeating that Canon has not alleged
that IHL was his employer or that IHL was in any way, directly or
indirectly, involved in any of these actions or decisions of which
he complains.
Rather, according to the allegations of his
complaint, Kwembe was the perpetrator of all these alleged wrongs.
Thus, even if a single employer test were applicable, the facts
alleged by Canon foreclose any claim that IHL would qualify as his
“employer” under this test.
For the same reason, neither could IHL be considered an
“employer” under the joint employer test, which is essentially
indistinguishable from the single employer test and ultimately
focuses on the question “which entity made the employment
decisions” regarding the plaintiff employee.
F.3d 606, 617 (5th Cir. 1999).
See Skidmore, 188
Moreover, the Fifth Circuit has
thoroughly and make a decision which is appealable to
the Institutional Executive Officer. Upon completion of
the hearing, the committee will have five (5) working
days in which to make a decision. The decision will be
promptly communicated within five (5) working days to
the employee and the administration in writing. The
decision of the committee will be subject to review by
the Institutional Executive Officer. The decision of
the Institutional Executive Officer shall be final.
16
recently held that “‘establishing a “joint employer” relationship
does not (automatically) create liability in the co-employee for
actions taken by the other employer.’”
Semiconductor, Inc., - F.3d -,
Burton v. Freescale
2015 WL 4742174, at *4 (5th Cir.
2015) (parenthetical added) (quoting Whitaker v. Milwaukee Cnty.,
772 F.3d 802 (7th Cir. 2014)).
Rather, “a joint employer must
bear some responsibility for the discriminatory act to be liable
for [a] ... violation.”
Id.
See Whitaker, 777 F.3d at 803 (where
Milwaukee County and state’s Department of Human Services were
alleged to be “joint employers,” the court found that Milwaukee
County could not be liable because it “had no involvement in” the
employment decisions underlying the plaintiff's claims and “no
authority to override those decisions”).
As there is no
allegation or basis for an allegation that IHL had any involvement
in the employment decisions at issue in this case, it can have no
liability to plaintiff under Title VII.
Even if plaintiff had arguably alleged a basis for concluding
that IHL was his employer as to the claims asserted herein, the
court would still find that dismissal was in order as he did not
exhaust his administrative remedies as to IHL prior to filing
suit.
“A plaintiff alleging workplace discrimination must exhaust
his administrative remedies before he may sue under ... Title
VII....”
Castro v. Texas Dept. of Criminal Justice, 541 Fed.
App’x 374, 379 (5th Cir. 2013); see also Taylor v. Books A
17
Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002) (“Employment
discrimination plaintiffs must exhaust administrative remedies
before pursuing claims in federal court.
Exhaustion occurs when
the plaintiff files a timely charge with the EEOC and receives a
statutory notice of right to sue.”).
The Fifth Circuit has “recognize[d] a general rule that ‘a
party not named in an EEOC charge may not be sued under Title
VII.’”
E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir.
2014) (quoting Way v. Mueller Brass Co., 840 F.2d 303, 307 (5th
Cir. 1988)).
This naming requirement serves to put the named
party on notice of a claim against it before a lawsuit is filed,
thus permitting that party to resolve the claim by conciliation
and voluntary compliance.
Id. at 482 (citation omitted).
“When
applying that general rule, however, courts liberally construe
Title VII's naming requirement so as to not frustrate claimants
with needless procedural roadblocks.”
Id. at 481 (citations
omitted).
In Simbaki, the court, undertaking to lay out exactly the
exceptions to the named-party requirement, set forth two standards
for determining whether an unnamed party may be sued under Title
VII.
The first test is whether there is a “sufficient
identity-of-interest between the named and the unnamed party so
that the unnamed party could be sued in court despite not being
named in the charge.”
Id. at 482 (citing Glus v. G.C. Murphy Co.,
18
562 F.2d 880 (3d Cir. 1977)).
The second test recognizes that
“certain parties with actual notice of the EEOC proceedings may
also be sued[,]” so that “if ‘an unnamed party has been provided
with adequate notice of the charge, under circumstances where the
party has been given the opportunity to participate in
conciliation proceedings aimed at voluntary compliance,’ the
purpose of the named-party requirement has been accomplished, and
‘the charge is sufficient to confer jurisdiction over that
party[,]’” Id. at 483 (quoting Eggleston v. Chicago Journeymen
Plumbers' Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir.
1981)).
IHL clearly takes the position in its motion that Canon, as
is plain from the face of his complaint, did not name IHL as a
respondent in any of his three EEOC charges and thus failed to
exhaust as to IHL, therefore entitling IHL to be dismissed from
this lawsuit.
Plaintiff’s response does not even acknowledge,
much less address this contention or suggest any basis upon which
it might reasonably be found that he did exhaust.
Accordingly,
the court finds that IHL is entitled to be dismissed on account of
plaintiff’s failure to exhaust.10
10
While there is some uncertainty whether dismissal of a
Title VII claim for failure to exhaust should be under Rule
12(b)(1) or Rule 12(b)(6), it is clear that cases filed in the
Fifth Circuit are subject to dismissal for failure to exhaust
under Rule 12. Chhim v. University of Houston Clear Lake, – Fed.
Supp. 2d –, 2015 WL 5252673, at *6 n.8 (S.D. Tex. Sept. 9, 2015)
(citations omitted).
19
In conclusion, based on all of the foregoing, the court
concludes that IHL’s motion to dismiss is well taken.
Accordingly, it is ordered that the motion is granted.
SO ORDERED this 22nd
day of September, 2015.
/s/Tom S. Lee
UNITED STATES DISTRICT JUDGE
20
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