Bender v. Gibson et al

Filing 71

SUPPLEMENTAL MEMORANDUM OPINION AND ORDER: The parties are directed to inform the court of the number of days (allowing six hours per day of testimony) it will take to try this case if it is not resolved by settlement and to provide the court with dates in each of the three listed months in which they can be available to try this action. The parties shall provide this information in writing to the court by 4/17/2017. (Ordered by Judge Sam A Lindsay on 3/27/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOHN A. BENDER,
Plaintiff,
v.
DAVID J. SHULKIN, M.D.,
Secretary of Veteran’s Affairs,1
Defendant.

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Civil Action No. 3:14-CV-2595-L

SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
On March 23, 2017, the court issued an amended memorandum opinion and order in this case
granting in part and denying in part Defendant’s Motion for Summary Judgment. See Doc. 69. With
respect to Plaintiff John A. Bender’s claims against Defendant for violations of the Texas
Commission on Human Rights Act (“TCHRA”), Texas Labor Code § 21.001 et seq., the court noted
that it had “serious concerns as to whether Bender, a federal employee, can even assert state law
employment discrimination claims against the Veterans Administration” and that further briefing on
this matter was required, “as neither party addressed this issue.” Am. Mem. Op. & Order at 2, note
2. In that vein, the court stated as follows:
Although not raised by Defendant, the court sua sponte raises for summary
judgment purposes whether Plaintiff, as a federal employee, can assert state law
employment discrimination claims against the VA in light of existing Supreme Court
and Fifth Circuit precedent. In particular, the Supreme Court has held that Title VII
provides the exclusive remedy for claims of employment discrimination filed against
the federal government, since “Congress intended [Title VII] to be exclusive and pre-

1

On February 13, 2017, David J. Shulkin, M.D., replaced Robert A. McDonald as the Secretary of Veteran’s
Affairs. Accordingly, the court has altered the caption to reflect that the proper named Defendant is David J. Shulkin,
M.D. See Fed. R. Civ. P. 25(d), which provides that a public official’s successor is automatically substituted as a party.
Supplemental Memorandum Opinion and Order - Page 1

emptive” regarding federal employment. Brown v. General Servs. Admin., 425 U.S.
820, 829, 835 (1976). The Fifth Circuit and lower federal courts in this circuit have
applied the Supreme Court’s decision in Brown to dismiss federal employees’ federal
and state statutory and common law claims arising out of an employment relationship
when these claims were joined with Title VII claims. See Smith v. Harvey, 265 F.
App’x 197, 200 (5th Cir. 2008) (citations omitted) (affirming dismissal of all federal
non-Title VII claims and all state law claims); Rowe v. Sullivan, 967 F.2d 186, 189
(5th Cir. 1992) (citation omitted); Irwin v. Veterans Admin., 874 F.2d 1092, 1095
(5th Cir. 1989) (citation omitted); Porter v. Shinseki, 650 F. Supp. 2d 565, 571 (E.D.
La. 2009) (citations omitted). Further, the court notes that pursuant to the doctrine
of sovereign immunity, federal courts do not have jurisdiction over suits against the
United States absent a statutory waiver of sovereign immunity. United States v.
Mitchell, 445 U.S. 535, 538 (1980). The court is not aware of any waiver of
sovereign immunity by the United States with respect to lawsuits under the TCHRA.
In light of this precedent, the court directs Plaintiff to state whether authority
exists for him to assert his state-law claims of employment discrimination against
Defendant, and to provide the court with this authority in a written response not to
exceed five (5) pages. The deadline for Plaintiff to file his response is March 29,
2017. Defendant shall not reply unless directed to do so by the court. Following
receipt of Plaintiff’s written response, the court will determine whether its current
ruling on Defendant’s Motion for Summary Judgment, supra, requires amendment
or supplementation with respect to Plaintiff’s state law employment discrimination
claims.
Id. at 31-32 (original emphasis).
In response to the court’s directive, on March 23, 2017, Plaintiff filed “Plaintiff’s Statement
Regarding Texas Labor Code Claims” (Doc. 70), acknowledging that Title VII is the exclusive
remedy for employment discrimination claims brought by a federal employee, and stipulating to the
dismissal of Plaintiff’s state-law discrimination and retaliation claims. Thus, this court lacks
jurisdiction to entertain any state-law claims.
In light of Plaintiff’s concession and stipulation of dismissal, the court hereby vacates all
rulings in its amended memorandum opinion and order pertaining to Plaintiff’s state-law

Supplemental Memorandum Opinion and Order - Page 2

discrimination and retaliation claims under the Texas Labor Code, which are hereby dismissed
without prejudice for want of jurisdiction.
In addition, the court vacates footnote 10 of the amended memorandum opinion and order
and replaces footnote 10 with the following text:
“House nigger” or “house negro” is a “pejorative term for a black person, used to
compare someone to a house slave of a slave owner from the historic period of legal
slavery in the United States.” https://en.wikipedia.org/wiki/House_Negro. Further,
references by Milligan and a colleague to reading a book called “The Monkey,”
happening at the same meeting where Carroll called Bender a “house nigger,” is
sufficient for a reasonable jury to conclude that the term “monkey” was being used
as a derogatory term for the African-American employees attending the meeting.
See, e.g., Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000), abrogated on
other grounds by Burlington Northern, 548 U.S. 53 (2006)) (A triable issue was
raised with regard to hostile work environment where, inter alia, supervisors referred
to African-American employees as “monkeys.”). Finally, a reasonable juror could
easily conclude that Gregg’s threat to kill Bender, immediately after telling Bender
that “all the niggers” would be gotten rid of, is severe enough to constitute a hostile
work environment.
Remaining for trial are Plaintiff’s Title VII hostile work environment claim and retaliation
claim, with the exception of those portions of the retaliation claim the court has dismissed.2 All
portions of the court’s amended memorandum opinion and order, filed March 23, 2017 (Doc. 69),
that are not amended, modified, or replaced herein, remain in full effect.
This action will be three years old on July 18, 2017. Given the age of this case, it will be
tried in July, August, or by mid-September 2017. The parties are directed to inform the court of the
number of days (allowing six hours per day of testimony) it will take to try this case if it is not
resolved by settlement and to provide the court with dates in each of the three listed months in which
2

The court granted Defendant’s Motion for Summary Judgment on Plaintiff’s claim that the following acts
constituted unlawful retaliation under Title VII: exclusion from meetings; denial of advance leave; loss of computer
privileges; loss of a key; the order to attend meetings with all members of the Quad; and Milligan’s disparaging
comments to Bender’s new supervisor. See Mem. Op. & Order at 22, note 8. The court dismissed these claims with
prejudice. Id. at 31.
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they can be available to try this action. The parties shall provide this information in writing to the
court by April 17, 2017.
It is so ordered this 27th day of March, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

Supplemental Memorandum Opinion and Order - Page 4