Russell v. Christus Spohn Health System Corporation
Filing
13
ORDER granting 5 Partial Motion to Dismiss for Lack of Subject Matter Jurisdiction. Court DISMISSES the Plaintiff's claim for age, race, and religious discrimination under the Texas Labor Code.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CECIL RAY RUSSELL,
§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:13-CV-160
§
CHRISTUS SPOHN HEALTH SYSTEM §
CORPORATION; dba CHRISTUS SPOHN §
HOSPITAL-CORPUS CHRISTI,
§
§
Defendant.
§
ORDER
Plaintiff, Cecil Russell (Russell), brought this employment case for violations of
the Texas Labor Code regarding age, race, and religious discrimination as well as
retaliation for having brought a previous discrimination claim. He has also sued under 42
U.S.C. § 1981 for deprivation of equal rights under the law, reciting a hostile work
environment and retaliation.
D.E. 1-1, pp. 6-7.
Before the Court is Defendant
CHRISTUS Spohn Health System Corporation’s (CHRISTUS’) “Partial Motion to
Dismiss for Lack of Subject Matter Jurisdiction” (D.E. 5). At issue is whether Russell
exhausted his administrative remedies, triggering this Court’s jurisdiction over the Texas
Labor Code claims for discrimination. For the reasons set out below, the Motion is
GRANTED.
FACTS
The Charge of Discrimination addressed to the City of Corpus Christi Human
Relations Commission (CCHRC) and copied to the Equal Employment Opportunity
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Commission (EEOC) and Texas Workforce Commission (TWC) that is attached to
Russell’s state court petition1 is dated November 4, 2011 (November Charge). D.E. 1-1,
p. 10.
In the categorization section, the November Charge states that it alleges
discrimination based on retaliation between May 4, 2011 and November 4, 2011, with the
box for “continuing action” checked. In the “Particulars” portion of the November
Charge, Russell explains that he is being harassed, retaliated against, or “discriminated
against based on (or in) retaliation.” D.E. 1-1, pp. 10-11. There is no mention of age,
race, or religion—only that he had filed an EEOC Charge that was denied.
Russell amended the November Charge twice. He added that he was terminated
for work performance issues—that do not result in discharge of other employees—as
being “in retaliation for having filed several charges of discrimination.” D.E. 1-1, p. 12.
In an “Addendum to Charge,” Russell complained of a “Chronological Coaching Record”
as additional evidence of “harassment and retaliation.” D.E. 5-5, p. 1. His narrative says
nothing about age, race, national origin, or religion. Id.
The November Charge resulted in a right to sue letter issued by the TWC on
February 22, 2013. D.E. 1-1, p. 13. Russell claims to have received that letter on
February 25, 2013 and filed this action within the required 60-day period on April 25,
2013. D.E. 1-1, pp. 3-4.
Prior to the November Charge, Russell had filed another Charge of Discrimination
(May Charge) on May 4, 2011. The description of that charge included race, religion,
1
The case was removed to this Court pursuant to federal question jurisdiction, 28 U.S.C. § 1331, on the basis of
the equal protection claim asserted pursuant to 42 U.S.C. § 1981.
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national origin, and age discrimination as well as retaliation through conduct attributable
to Defendant from July 21, 2008, through the date of the Charge, as a “continuing
action.” D.E. 5-2, p. 3. He complains in his “Particulars” that he is subjected to disparate
treatment in disciplinary issues, leave requests, studies, and recreational reading for
unlawful discriminatory reasons and in retaliation for two previous discrimination claims.
D.E. 5-2, pp. 3-4. The EEOC denied any relief on July 29, 2011 and it is undisputed that
Russell allowed the deadline for filing suit to pass. D.E. 10, p. 3, 10-2.
DISCUSSION
CHRISTUS argues that, by failing to file suit regarding the age, race, national
origin, and religion discrimination allegations contained in the May Charge within the
time limit for doing so, and by failing to include such claims in the November Charge for
EEOC disposition, Russell is precluded from basing this lawsuit on allegations of age,
race, or religious discrimination and events that occurred prior to May 4, 2011. As will
be discussed more fully below, CHRISTUS is correct in its recitation and application of
the general jurisdictional requirement of exhaustion of administrative remedies and
timely filing with respect to Texas Labor Code violations.
Russell defends against the application of this rule on three bases: (1) that he did,
in fact, exhaust all administrative remedies by presenting his age, race, and religious
discrimination claims to the appropriate administrative agencies; (2) that all of his claims
should be considered together, dating back to July 21, 2008, as part of a “continuing
action;” and (3) that his discrimination claims reasonably “grow out of” his claim of
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retaliation.
D.E. 10, p. 2.
However, Russell’s first briefed argument is whether
CHRISTUS may even make its challenge in the form of a Rule 12(b) motion to dismiss.
A. The Motion to Dismiss Is Procedurally Proper.
Russell’s challenge to CHRISTUS’ use of a motion to dismiss fails. First, he
relies on an outdated standard of review—whether he “can present facts in support of his
claim that would entitle him to relief.”
D.E. 10, p. 5 (citing Tuchman v. DSC
Communication Corp., 14 F.3d 1061, 1067 (5th Cir. 1994) (relying on Conley v. Gibson,
355 U.S. 41, 45–46, 78 S.Ct. 99, 102 (1957) and Doe v. Hillsboro Indep. School Dist., 81
F.3d 1395, 1401 (5th Cir. 1996), rev’d en banc, 113 F.3d 1412 (5th Cir. 1997)). And he
claims that such a motion may not be used to resolve fact issues or the merits of the case.
The test of pleadings under Rule 12(b)(6) is devised to balance a party’s right to
redress against the interests of all parties and the court in minimizing expenditure of time,
money, and resources. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
1966 (2007). The Twombly court expressly “retired” the old test stated in Conley v.
Gibson that a complaint would not be dismissed “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” Twombly, 127 S.Ct. at 1969 (quoting Conley, supra). The revised standard for
determining whether a complaint states a cognizable claim has been outlined by the
United States Supreme Court in Twombly, supra and Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937 (2009).
Factual allegations are required, sufficient to raise the entitlement to relief above
the level of mere speculation. Twombly, 127 S.Ct. at 1965. Those factual allegations
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must then be taken as true, even if doubtful. Id. In other words, the pleader must make
allegations that take the claim from “conclusory” to “factual” and beyond “possible” to
“plausible.” Id., 127 S.Ct. at 1966. The Twombly court stated, “[W]e do not require
heightened fact pleading of specifics, but only enough facts to state a claim to relief that
is plausible on its face.” 127 S.Ct. at 1974.
A motion to dismiss for failure to state a claim upon which relief can be granted
can be based not only on a plaintiff’s claims but on matters that support an affirmative
defense, such as limitations.
Even if some allegations support a claim, if other
allegations negate the claim on its face, then the pleading does not survive the 12(b)(6)
review.
A complaint is subject to dismissal for failure to state a claim
if the allegations, taken as true, show the plaintiff is not
entitled to relief. If the allegations, for example, show that
relief is barred by the applicable statute of limitations, the
complaint is subject to dismissal for failure to state a claim;
that does not make the statute of limitations any less an
affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a
particular ground for opposing a claim may be the basis for
dismissal for failure to state a claim depends on whether the
allegations in the complaint suffice to establish that ground,
not on the nature of the ground in the abstract.
Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21 (2007).
When a statute creates a jurisdictional requirement that the claimant does not
satisfy, dismissal is appropriate. See, Taylor v. United States Treasury Dep't, 127 F.3d
470, 475 (5th Cir. 1997) (discussing the difference between statutory and jurisprudential
exhaustion requirements and the jurisdictional import of the distinction); Premiere
Network Services, Inc. v. SBC Communications, Inc., 440 F.3d 683, 686 n. 5 (5th Cir.
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2006) (same). The Texas Labor Code has established such a jurisdictional requirement:
that a claimant must exhaust administrative remedies before bringing an action for
employment discrimination. Hernandez v. City of Corpus Christi, 820 F.Supp.2d 781,
793 (S.D. Tex. 2011) (citing Lueck v. State, 325 S.W.3d 752, 761 (Tex. App.—Austin
2010, pet. denied)).
In determining whether Russell exhausted his administrative remedies in a
challenge to jurisdiction, “under Rule 12(b)(1), the court may consider any of the
following: ‘(1) the complaint alone; (2) the complaint supplemented by the undisputed
facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus
the court's resolution of disputed facts.’ ” Walch v. Adjutant General's Dept. of Texas,
533 F.3d 289, 293 (5th Cir. 2008) (quoting Robinson v. TCI/US West Communications
Inc., 117 F.3d 900, 904 (5th Cir. 1997)). The Motion to Dismiss is procedurally proper
and this Court may construe and determine disputed facts in order to dispose of it.
B. The Administrative Remedies Were Not Exhausted.
The exhaustion of administrative remedies under Chapter 21 begins with the
required filing of a charge of discrimination with the TWC. See Tex. Lab. Code Ann. §
21.201; Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010). A plaintiff
must: (1) file a complaint with the TWC within 180 days of the alleged discriminatory
practice; (2) permit TWC to dismiss the complaint or resolve it within 180 days before
filing suit; and (3) file suit no later than two years after the complaint is filed. Tex. Lab.
Code §§ 21.201–202, 208, 256; Rice v. Russell–Stanley, L.P., 131 S.W.3d 510, 513 (Tex.
App.—Waco 2004, pet. denied).
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The plaintiff's administrative remedies are demonstrated to have been exhausted
by his or her entitlement to a right-to-sue letter, which ends the exclusive jurisdiction of
the TWC. Rice, 131 S.W.3d at 513; City of Houston v. Fletcher, 63 S.W.3d 920, 923
(Tex. App.—Houston [14th Dist.] 2002, no pet.); Tex. Lab. Code Ann. §§ 21.208, 252.
The November Charge, on its face, does not raise claims for discrimination based on age,
race, or religion. D.E. 1-1, p. 10. While those claims were raised in the May Charge,
they expired pursuant to the statute of limitations of Tex. Labor Code § 21.256 because
they were filed on April 25, 2013 (D.E. 1-1, p. 3), more than two years after filing the
administrative complaint on May 4, 2011.
Russell suggests that dismissal is inappropriate because a limitations defense is
subject to waiver, estoppel, and equitable tolling, citing Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 102 S.Ct. 1127 (1982). That said, he fails to direct this Court to any
factual allegations or facts in the record that would properly raise or support the
application of waiver, estoppel, or equitable tolling.
C. Russell Cannot Bootstrap the May Charge to the November Charge as a
“Continuing Action.”
Russell invokes the “continuing action” doctrine. The doctrine does not help
Russell here. The “continuing action” doctrine allows a claimant to reach back more than
the statutory period to complain of early acts that were part of a discriminatory or
retaliatory process, but were not sufficient to put the claimant on notice of the nature of
the claim at the time. Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir.
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1985); Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30, 41-42 (Tex. App.—Austin 1998,
pet. denied).
More specifically, to fall within the doctrine, the claimant must show (1) that some
“independent actionable conduct” occurred during the statutory period, and (2) that he or
she did not know and could not reasonably be expected to have realized that the earlier
discrimination related to the same claim was itself actionable until within 180 days of the
date of filing the charge of discrimination.
Glass, supra.
Such a doctrine has no
application here, where the claimant had sufficient notice to have actually filed a claim
for the prior conduct within the statutory time applicable to that conduct and where the
earlier conduct is not related to the same discriminatory theory complained of in the
charge.
Moreover, while Russell checked the “continuing action” box on the form for the
November Charge, he specifically listed the start date of the acts complained of as May 4,
2011—the date of the May Charge. He did not allege that any discriminatory acts prior
to May 4, 2011 were at issue in his November Charge for retaliation. The conduct that
Russell now seeks to complain of had already been grieved and was not part of his
retaliation claim as presented to administrative authorities for exhaustion of
administrative remedies.
D. Russell’s Age, Race, and Religion Discrimination Claims Do Not “Grow Out
Of” His Retaliation Claim.
Russell acknowledges that the scope of a discrimination suit extends “as far as, but
no further than, the scope of the EEOC investigation which could reasonably grow out of
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the administrative charge.” D.E. 10, p. 8 (citing Thomas v. Clayton Williams Energy, 2
SW3d 734, 738 (Tex. App.–Houston [14th Dist.] 1999, no pet.).2 To overcome that
limitation, Russell contends that his age, race, and religion claims are so related to his
retaliation claims that they are essentially the same, citing Hornsby v. Conoco, Inc., 777
F.2d 243, 247 (5th Cir. 1985) and Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462-64
(5th Cir. 1970). Those cases do not help Russell.
In Hornsby, the claimant originally checked the “other” box and wrote in “age and
retaliation.” On the back of the same form, and simultaneously, she wrote that she
believed she had been subjected to sex discrimination.
All of those claims were
permitted under a liberal construction policy. She was not held to the strict confines of
the boxes or the front of the form. The claimant was not, however, permitted to later add
a claim for sexual harassment, describing additional facts.
The court rejected that
expansion as a new and independent charge based on new and independent facts.
Hornsby, supra at 247.
In Sanchez, while the claimant was permitted to add discrimination based on
national origin to her sex discrimination claim, the reason for doing so was that both
claims arose from the exact same circumstances that were already in issue based on the
original charge. The court held that the factual recitation is what is important, more so
than the boxes checked and their associated legal conclusions regarding what the facts
show. The claimant did what the court expected her to do, which was to fully describe
2
Russell also cites Terrell v. United States Pipe & Foundry Co., 644 F.2d 1112, 1123 (5th Cir. 1981), which was
vacated by International Ass'n of Machinists and Aerospace Workers, AFL-CIO v. Terrell, 456 U.S. 955, 102 S.Ct.
2028 (U.S. 1982).
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the “unfair thing” that she was complaining about. Because the facts she set out revealed
the basis for the additional charge, she was permitted to bring it. Sanchez, supra at 463.
Here, Russell’s November Charge did not recite age, race, or religious
discrimination or facts that implicate such discrimination as the “unfair thing” about
which he was complaining.
The November Charge involved a different charge—
retaliation—based on different facts in an entirely different time frame. The age, race,
and religious discrimination complaints do not “grow out of” the retaliation charge.
CONCLUSION
For the reasons set out above, the Court GRANTS the Defendant’s Partial Motion
to Dismiss for Lack of Subject Matter Jurisdiction (D.E. 5) and DISMISSES the
Plaintiff’s claims for age, race, and religious discrimination under the Texas Labor Code.
ORDERED this 26th day of September, 2013.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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