Sampson v. ASC Industries
Filing
13
Memorandum Opinion and Order. The Court orders that the defendant's motion to dismiss 9 be, and is hereby, denied. (See order for specifics) (Ordered by Judge John McBryde on 9/19/2012) (ewd)
U. D I
S. STRI CO URT
CT
NORTHERN DI
STRI OF TEXAS
CT
FI U
I ED
IN THE UNITED STATES DISTRICT
NORTHERN ozsTRz oF TE
cT
XA
FORT WORTH D IVISION
REBECCA BREAUX ,
s
5
J
5
j
5
Plaintiff ,
VS .
ACS IND7STRIES ,
OURT
'
S(
SE 192 2
F
21
CLERK,U. DISTRI COURT
S.
CT
ByDe t
pu y
NO . 4 :12 -CV -282 -A
s
5
g
Defendant .
MEMORANDUM OPINION
and
ORDER
Before the court for decision is the motion of defendant ,
ACS Industries , to dismiss the complaint of plaintiff , Rebecca
Breaux, under Rule 12 ( ( of the Federal Rules of Civil
b) l)
Procedure for lack of subject matter jurisdiction based upon
plaintiff 's alleged failure to exhaust administrative remedies .
A fter having considered such motion , plaintif fs ' response , and
applicable legal authorities , the court has concluded that the
motion should be denied .
1.
Backqround
On May 6, 2012, plaintiff filed her complaint in the abovecaptioned action in this court , alleg ing age discrim ination in
violation of the Age Discrimination in Employment A ct of 1967, 29
U . C . 5 621, ('
S.
'
ADEA') and Section 21.002 of the Texas Labor
'
Code . Compl. at 1-2, 3-4. Defendant filed its answer on June 4,
2012, alleging as an affirmative defense that plaintiff's claims
were barred for l
ack of subject matter jurisdiction due t
o
plaintiff's failure to exhaust her administrative remedies .
Defendant then filed its motion to dismiss and accompanying
append ix on Augu st 3 , 2012 , and plaintiff filed her response and
accompanying appendix on August 24, 2012 .
II .
Plaintiff 's Alleqations
Plaintiff alleged in her complaint that :
Plaintiff was employed by defendant as a comm ission
salesperson for approximately twenty -two years , beginning in
1986 . In early 2011 plaintiff 'captured a multi- illion dollar
m
account from Lockheed.' Compl. at 3, ! 3.3. On or about April
'
18 , 2011, prior to receiving her commission on the Lockheed
account , plaintiff '
'
went out on a leave of absence' and returned
'
around Ma 18, 2011. Id. at 3, ! 3.
y
4. Upon plai
ntiff' return,
s
defendant 'took (
'
herl accounts and gave them to a younger
associate who was i his mi
n
d-zol ' I at !! 3. and 3.
s.' d.
4
5.
2
Next , defendant 'refused to award Plaintiff her commission' for
'
'
the Lockheed account, and urefused to assign Plaintiff any
accounts forci her to resi ' Id. at !! 3. 3.
ng
gn.'
6- 7.
On February 6, 2012, plaintiff filed an EEO charge with the
Equal Opportunity Employment Commission (n
EEOC' alleging
'),
discrimination based on age; however, plaintiff nidentified the
incorrect date of her resignation z' and the EEOC dismissed the
'
charge as untimely and '
'
provided a Notice of Suit Rights to
Plai
ntiff date Februar
d
y
2012.' Id. at ! 3.
'
8.
At the time of her resignation plaintiff was fifty -five
years of age . She was intentionally constructively discharged by
defendant due to her age . Her accounts were taken away from her ,
and g iven to a person approximately thirty years younger . Due to
her age , she was deprived of her commission . Defendant '
s
proffered reasons for engaging in the adverse employment actions
against her were pretextual . Defendant ' treatment of plaintiff
s
constituted discrim ination based on her age in violation of the
ADEA and comparable provisions of the Texas Labor Code .
3
111.
GXOQZYS Of the Motion
Defendant's motion Centers around the fact that plaintiff
izivizllY filed an EEOC Charge containing dates of discrimination
i
that rendered her claim untimely , and the EEOC dismissed the
l
1
I
i
(
charge as such . Defendant alleges that plaintiff did not amend
her original charge, and that the time frame for the alleged
discriminatory events described by plaintiff in her complaint was
not included in her EEOC charge and therefore cannot be
considered by the court .
IV .
Plaintiff ' Response to the Motion
s
Plaintiff ' response to the motion is accompanied by
s
p laintiff ' declaration , in which she stated :
s
1.
On February 6 , 2012 , I appeared at the Dallas
District office of the Equal Employment
Opportunity Commission (
EEOC) and filed a charge
of discrimination against my former employer
Defendant A SC Industries .
2.
At the time I f iled my charge , I had trouble
remembering the exact dates I was placed on
medical leave and resigned from my emplom ent . I
provided the dates to the best of my recollection
at the time .
4
3.
The EEOC issued me a copy of my charge and Notice
of Rights form that indicated my charge was being
dismissed because I had waited too long to file .
4.
When I returned home , I checked my records and
realized I had provided the incorrect dates of my
medical leave and resignation .
5.
I returned to the Dallas office on February 14 ,
2012, explained my error to the intake clerk and
asked if I could re do my charge . She told me I
could not because it was based on the same facts
as the charge I had f iled the week before .
6.
When I asked her what to do to correct the
problem , she prov ided me with two copies of my
initial charge . She crossed out the dates on :0th
copies and put in the correct dates I had given
her . I initialed the changes she made . She date
and time stamped the documents and gave me one of
the cop ies . Attached as App . 005 is a true and
accurate copy of what I was given by the EEOC on
February 14 , 2012 .
7.
When I asked the clerk about receiving another
Dismissal and Notice of Rights, I was told I was
not going to be given another one because the one
I had already received from them was fine .
Resp ., App . at 1-2 . Attached to the declaration is a copy of the
originally f iled Charge of Discrimination, showing that the dates
when the discrimination took place were 'Earliest 03-18-20111 and
'
1
'Latest 04 -18-2011,, id . at 3 , and another copy of the same
'
1
document showing that the dates on the original version were
marked through and that the handwritten date '4/18/115 was added
'
to replace the '03-18 -2011: date and that the handwritten date
'
:
'5/18/111 was added to replace the '04-18-20ll' date. There was
'
1
'
'
*
5
no change in the text of the part of the Charge of Discrimination
that gave the particulars of plaintiff ' complaint of
s
discrim ination . In other words, the text continued to show that
' oln March l8, 2011, I was forced on medical leavel and that
'E
'
, 01n or about April l8, 2011, I was forced to resign due to my
'(
salary being decreased drastically' and ' i)n addition, my
'
'E
accounts were given to a younger male employee who I trained .'
'
Id . at 3 , 5 . There is a 'Received ' stamp on the copy with the
l
'
handwritten date changes showing that it was received by the
Dallas District Office of the EEOC on February 14, 2012 . Id . at
5.
In reliance on 29 C. R. 55 160l.12 ( and 1626.8 (
F.
b)
c),
plaintiff argues that her amendment to the Charge of
Discrim ination was authorized , and that it related back to the
date she originally made the charge .
V.
Analysis
A . Rule 12 ( ( Standard
b) 1)
Rule l2 (
b)
of the Federal Rule of Civil Procedure allows
a party to move to dismiss an action for lack of subject matter
jurisdiction. The Court must dismiss a cause for lack of subject
matter jurisdiction '
'
when the court lacks the statutory or
constitutional power to adjudicate the case.' see Home Builders
'
6
A ss ' of Mississipoi, Inc . v . Citv of Madison , l43 F .3d 1006,
n
-
1010 (
5th Cir. 1998). The burden of establishing subject matter
jurisdiction is on the party seeking to invoke it. Ramminq v.
United states, 28l F . 158, l61 (
3d
5th Cir. 2001).
In deciding a
motion to dismiss pursuant to Rule l2 ( (
b) 1), the Court may
consider:
the complaint alone; ( the complaint supplemented
2)
by undisputed facts evidenced in the record; or
the complaint
supplemented by undisputed facts plus the Court 's resolution of
disputed facts. Id. A Rule 12 ( 1) motion to dismiss should be
b)(
granted only when it appears without a doubt that the plaintiff
can prove no set of facts in support of her claims that would
entitle her to relief . Home Builders Ass ' , l43 F .
n
3d at 1010 .
B . Application of the Standard
In this action ,
is not apparent from the face of the
pleadings and applicable documents that plaintiff failed to
exhaust her adm inistrative remedies , and therefore it is not
apparent that plaintiff cannot state a claim for discrimination
under the ADEA .
Defendant first argues that because plaintiff' first charge
s
with the EEOC was dismissed as untimely , she is barred from
filing suit in this court . Mot . at 4 . Defendant argued that
even though plaintiff explained that she initially prov ided
incorrect dates on the charge, her lremedy was to amend the
l
7
Charge in the EEOC .' Id . Plaintiff responded by stating that
'
she did, in fact, amend the charge by correcting the dates and
initialing the corrections, and submitting the amended charge to
the EEOC . Resp . at 2 .
Defendant ' next argument centers around its contention that
s
plaintiff 'never amended the Charge to correct any alleged
'
'
error ,' although she could--and indeed , should--have done so .'
'
Mot . at 4 . It appears, however, that defendant is m istaken
insofar as plaintiff did return to the EEOC and amend her
original Charge to prov ide the correct dates at one place on the
Charge . Resp . at 2 7 Pl .ls App . at 1-2 , 5 . Thus, because
defendant 's argument relied on a failure to amend contention , the
argument fails.
l
Defendant ' third argument is that the dates when plaintiff
s
contends she was subjected to discrimination are outside the
scope of her original Charge and that, therefore , she is barred
from asserting any claims that occurred after April 18, 2011, the
latest date of discrimination listed in plaintiff ' original
s
charge . Mot . at 5-6 .
Defendant argued that since the date
alleged in plaintiff ' original complaint in the above-captioned
s
l'ec u tsn t a sn j d me t o o teefc o plitf su ei t e' e
'h o r i o p sig u g n n w n h fe t f an if s n h '
l
Th
Pa tcul r 's c i oft Cha ge ofD i c i i ton oft M a c 1 2011 a A prl 1 2011
r i a s' e ton he
r
s rm na i
he r h 8,
nd
i 8,
da es D e e an ' m oton doesnots e t be ba e on pl ntf sus oft e da es buti t a
t . f nd ts
i
em o
sd
ai i f e hos t ,
ns e d
on t ' les'a ' t t'daesus d i t Cha g a o i na l fl d.
he ' i t' nd ' es' t
Ear
La
e n he r e s rgi ly ie
8
action 'falls outside the dates alleged in the EEOC charge , the
'
EEOC was effectively deprived of the opportunity to investigate
and mediate the claim . As such , Plaintiff has failed to exhaust
her adm inistrative remedies .' Mot . at 6 . Once again , however ,
'
defendant has overlooked the fact that plaintiff amended her
original Charge with the EEOC to correct those dates. Further,
plaintiff points out that when plaintiff amended her Charge, the
s
'
EEOC had the opportunity to investigate plaintiff ' claims, 'but
elected to leave the dismissal and notice of right to sue in
place .' Resp . at
'
VI.
Order
Therefore ,
The court ORDERS that defendant ls motion to dismiss be, and
is hereby , denied .
A
SIGNED September 19 , 2 012 .
z'
.
'
'
'
,,
z'
'
,
'
'
A.
K
z
z
'
A
Mc
n ' ed States Dist
'
,
.
ct Judge
1
j
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?