Arredondo v. The University of Texas Medical Branch at Galveston et al
Filing
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MEMORANDUM AND ORDER granted in part and denied in part 13 MOTION to Dismiss 10 Amended Complaint/Counterclaim/Crossclaim etc., and Motion for More Definite Statemment (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
§
§
Plaintiff,
§
VS.
§
§
THE UNIVERSITY OF TEXAS
§
MEDICAL BRANCH AT GALVESTON; §
dba UTMB HEALTH; dba UTMB
§
CORRECTIONAL MANAGED CARE, et §
al,
§
§
Defendants.
§
August 02, 2017
David J. Bradley, Clerk
ROBERT ARREDONDO,
CIVIL ACTION NO. 3:16-CV-238
MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Partial Motion to Dismiss and Motion for More
Definite Statement. Dkt. 13. Based on the pleadings; the motion, response, and reply;
and the applicable law, the Defendants’ motion is granted in part, and denied in part. The
reasons for the ruling are explained below.
Background
From 2007 to 2013, Robert Arredondo (“Arredondo”) worked for the University
of Texas Medical Branch at Galveston (“UTMB”)1 as a Mental Health Worker, providing
services to inmates in the Texas prison system. Arredondo is a Hispanic male and—at
the time of his termination from UTMB—was forty-five years of age. While employed,
Arredondo received intermittent Family and Medical Leave Act (“FMLA”) leave and
various Americans with Disabilities Act (“ADA”) accommodations due to his diabetes.
1
d/b/a UTMB health a/d/b/a UTMB Correctional Managed Care.
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During this period, Arredondo unsuccessfully applied for forty-six promotions.
According to Arredondo, many of the successful candidates for promotion were less
qualified and were either younger than Arredondo, female, and/or non-Hispanic.
Arredondo eventually filed a grievance with UTMB based on discrimination on
the basis of race, sex, and age. His complaint was forwarded to UTMB’s local Human
Resources Administrator, Deborah S. Dansbe (“Dansbe”). Two days after the grievance
was filed, according to Arredondo, Dansbe began working with Arredondo’s supervisors,
Donald Hlavinka (“Hlavinka”), Shana L. Khawaja (“Khawaja”), and Charlotte Kearney
(“Kearney”) to create reasons to discipline him.
Specifically, Dansbe instructed
Arredondo’s supervisors to begin documenting complaints against him.
subsequently received his first below-average performance review.
Arredondo
According to
Arredondo, UTMB continued to generate false and misleading reports on his
performance before ultimately terminating his employment.
Arredondo filed a discrimination complaint with the Equal Employment
Opportunity Commission (“EEOC”). Having exhausted his administrative remedies, he
then filed the instant suit. Arredondo’s Complaint asserts causes of action for violations
of the following statutes: (1) 42 U.S.C. § 2000e (“Title VII”); (2) the ADA, 42 U.S.C. §
12101; (3) the Age Discrimination in Employment Act, 29 U.S.C. § 621 (“ADEA”); and
(4) the FMLA, 29 U.S.C. § 2601. Arredondo asserted each statutory violation against
UTMB as well as Dansby, Hlavinka, and Khawaja in their official capacities.
Also
named in his official capacity was David L. Callender (“Callender”), president of UTMB.
UTMB filed this instant motion to dismiss for lack of subject matter jurisdiction and for
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failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(1) and (6)
of the Federal Rules of Civil Procedure.2 In the alternative, UTMB moves for a more
definite statement pursuant to Rule 12(e).
Standard of Review
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal of
an action if the court lacks subject matter jurisdiction to entertain it. FED. R. CIV. P. §
12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the
court lacks the statutory or constitutional power to adjudicate the case.”
Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (quoting Home Builders Ass'n of
Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). “The burden of
proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.”
Alfonso v. United States, 752 F.3d 622, 625 (5th Cir. 2014) (quoting In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011)).
A Rule 12(b)(1) motion to dismiss is characterized as either a “facial” attack, that
is, the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a
“factual” attack, that is, the facts in the complaint supporting subject matter jurisdiction
are questioned. Turner Indus. Group, LLC v. Int'l Union Operating Eng'rs, 8 F. Supp.3d
875, 883 (S.D. Tex. 2014). An attack is “facial” if the defense “merely files a Rule
12(b)(1) motion ….” Peterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). In
2
UTMB asserts both Rules 12(b)(1) and 12(b)(6) as bases for its motion to dismiss. However,
UTMB’s arguments are jurisdictional. Accordingly, the Court analyzes its motion under Rule
12(b)(1).
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such cases, “the trial court is required merely to look to the sufficiency of the allegations
in the complaint because they are presumed to be true.” Id.
B. Motion for More Definite Statement
“A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” FED. R. CIV. P. § 12(e). Such motions, however, are
“generally disfavored.” Lehman Bros. Holding, Inc. v. Cornerstone Mortg. Co., No. 09–
0672, 2009 WL 1504977, at *1 (S.D. Tex. May 29, 2009) (collecting authorities).
“When a defendant is complaining of matters that can be clarified and developed during
discovery, not matters that impede his ability to form a responsive pleading, an order
directing the plaintiff to provide a more definite statement is not warranted.”
Id.
(citations omitted).
Discussion
A. Initial Matters
Initially, the Court notes that Arredondo’s Response compels the dismissal of
several claims. Arredondo alludes in his Response to a desire to file a second amended
complaint.3 However, he did not file a motion to further amend his complaint. While the
Court declines to consider the request here, it takes judicial notice of several of
Arredondo’s stipulations and clarifications regarding his anticipated second amended
complaint.
3
Arredondo filed his Response on December 22, 2016—more than two months before the
deadline for amending pleadings. See Dkt. 20.
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The Court therefore DISMISSES Arredondo’s ADEA claims. See Dkt. 21, p. 4
(“Plaintiff’s Second Amended Complaint removes the ADEA claims ….”).
The Court further DISMISSES Arredondo’s FMLA claims for relief apart from
injunctive and/or declaratory relief pursuant to Ex parte Young. See 209 U.S. 123, 28
(1908); Dkt. 21, p. 4 (“Plaintiff’s Second Amended Complaint … limits the FLMA
claims to Ex parte Young claims.”).
The Court further DISMISSES Arredondo’s claims for damages—including front
pay—against the individual Defendants.
Arredondo clarifies that he does not seek
monetary damages—including front pay—from the individual Defendants regarding any
claim.
Finally, Arredondo clarifies that he asserts no cause of action involving disability
discrimination pursuant to Title VII. Pursuant to Arredondo’s concession—and because
there is no Title VII cause of action for disability discrimination—Arredondo’s ADA
claim for discrimination on the basis of his disability is also DISMISSED.
Accordingly, the following live causes of action remain:
Title VII, 42 U.S.C. § 2000e, alleging discrimination on the basis of sex and race
against UTMB and the individual Defendants in their official capacities as well as
retaliation for opposing such discrimination.
ADA, 42 U.S.C. § 12101, alleging discrimination on the basis of Arredondo’s
disability against UTMB and the individual Defendants in their official capacities
(Title I) as well as retaliation for opposing such discrimination (Title V).
FMLA, 29 U.S.C. § 2601, alleging discrimination on the basis of Arredondo’s
disability against UTMB and the individual Defendants in their official capacities.
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Arredondo seeks damages and injunctive/declaratory relief from UTMB and
injunctive/declaratory relief from the individual Defendants pursuant to Ex parte Young.
209 U.S. 123 (1908). Having narrowed the scope of Arredondo’s Complaint, the Court
addresses each remaining claim.
B. Motion to Dismiss
i. Title VII claims
Arredondo alleges that UTMB and its employees discriminated against him based
on his sex and race. Arredondo further alleges that they retaliated against him for
bringing such discrimination to light.
Under Title VII, “[i]t shall be an unlawful
employment practice for an employer … to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e(a)(1).
UTMB does not dispute that Arredondo properly alleged a Title VII claim against
UTMB. However, it argues that “Title VII provides no basis for individual liability for
supervisory employees or fellow employees.” Dkt. 13, p. 5. UTMB further argues that
this prohibition on individual liability applies to employees in both their individual and
official capacities. Arredondo counters that suing individual employers in their official
capacity is another way to bring claims against the employer. Arredondo further argues
that the cases cited by UTMB in support of its position involved corporations—not
government entities—and therefore are inapplicable here.
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The Fifth Circuit has addressed the propriety of asserting a Title VII claim against
both an employer and its employees in their official capacities. In Indest v. Freeman
Decorating, it held that “a party may not maintain a suit against both an employer and its
agent[s in their official capacities] under Title VII. 164 F.3d 258, 262 (5th Cir. 1999).
The Fifth Circuit reasoned that allowing a party to do so would be to hold the employer
twice liable for the same act. See Shabazz v. Texas Youth Comm’n, 300 F. Supp. 2d 467,
471 (N.D. Tex. 2003) (citing Indest, 164 F.3d at 262).
Arredondo argues that cases like Indest are inapplicable because they address Title
VII claims against private employers. See, e.g., Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376 (5th Cir. 2003); Smith v. Amedisys Inc., 298 F.3d 434 (5th Cir. 2002); Indest, 164
F.3d at 260.
However, district courts within the Fifth Circuit have applied the logic of
Indest in barring Title VII suits against both governmental entities and their employees.
See Shabazz, 300 F. Supp. 2d at 471. Arredondo here offers no rationale in opposition of
doing so here. The Court finds that Arredondo may not bring Title VII claims against
both UTMB and its employees.
The Title VII claims against Hlavinka, Dansbe,
Khawaja, and Callender are therefore DISMISSED.
ii. ADA claims
Arredondo alleges that UTMB and its employees discriminated against him based
on his disability. Arredondo further alleges that they retaliated against him for bringing
such discrimination to light.
Because Arredondo alleges violations of the ADA in
general, it is unclear which ADA Title(s) form(s) the basis of his Complaint. In context,
however, the Court construes Arredondo’s claims as brought pursuant to Titles I
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(employment discrimination) and V (retaliation). Dkt. 10, ¶ 168 (“Defendants were an
employer and Plaintiff was an employee, person, and member of a protected class as
defined by 42 U.S.C. § 12101 et seq.”); see also Dottin v. Texas Dep’t of Criminal
Justice, 627 F. App’x 397, 398 (5th Cir. 2015) (“Title II does not cover employment
discrimination.”) (citing Taylor v. City of Shreveport, 798 F.3d 276, 282-83 (5th Cir.
2015)) (unpublished).
Under Title I of the ADA, “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.” 42 U.S.C. § 12101. UTMB argues
that this claim is barred by the Eleventh Amendment. Arredondo counters that UTMB
waived immunity when it accepted federal funds. Dkt. d10, ¶ 178 (“Because Defendant
received financial assistance within the meaning of 29 U.S.C. § 794 [and 42 U.S.C. §
2000d-7], they have waived any Eleventh Amendment Immunity for claims under 42
U.S.C. §12101 et seq.”). See 29 U.S.C. § 794(a) (“No otherwise qualified individual with
a disability in the United States … shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance ….”);
42 U.S.C. § 2000d-7(a)(1) (“A State shall not be immune under the Eleventh Amendment
of the Constitution of the United States from suit in Federal court for a violation of …
[any] Federal statute prohibiting discrimination by recipients of Federal financial
assistance.”).
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“The Eleventh Amendment bars an individual from suing a state in federal court
unless the state consents to suit or Congress has clearly and validly abrogated the state’s
sovereign immunity.” Lumpkins v. Office of Cmty. Dev., 621 F. App’x 264, 268 (5th Cir.
2015) (unpublished).4 The Eleventh Amendment would therefore bar Arredondo’s ADA
claims unless Texas has consented to suit or Congress has abrogated sovereign immunity.
The United States Supreme Court expressly confirmed that Congress did not abrogate the
states’ Eleventh Amendment sovereign immunity from ADA Title I claims for money
damages. Bd. of Tr. of Univ. of Alabama v. Garrett, 531 U.S. 356, 360 (2001). The
Court must therefore determine whether the State has consented to a suit against it.
Arredondo argues that the State consented by accepting federal funds. See, e.g.,
Dkt. 10, ¶ 208-09 (“Defendants receive Federal financial assistance in the form of grants
for research, funds for tuition for Defendants’ students pursuant to Federal student aid
programs, and financial assistance. Upon information and belief, the financial assistance
in the previous paragraph is conditioned, pursuant to agreements with the appropriate
federal agencies, on Defendants’ waiver of Eleventh Amendment Immunity ….”).
UTMB does not dispute that it received federal funds. Instead, it argues that it did not
consent to waive its Eleventh Amendment sovereign immunity by receiving such funds.
In support, UTMB points to Sullivan v. Univ. of Tex. Health Sci. Ctr. at Hous.
Dental Branch, 217 F. App’x 391, 394-95 (5th Cir. 2007). In Sullivan, the Fifth Circuit
held that Texas did not waive its Eleventh Amendment sovereign immunity from ADEA
4
This protection extends to alter egos and ‘arms of the state.’ Id. Here, the parties agree that
UTMB is a state entity. See Dkt. 10, ¶ 22.
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claims by accepting federal funding. Id.
The court in Sullivan reasoned that the ADEA
was not a “Federal statute prohibiting discrimination by recipients of Federal financial
assistance.”
Id.; see 42 U.S.C. § 2000d et seq.
Indeed, the ADEA prohibits
discrimination by “employers.” The court reasoned that prohibiting employers from
discriminating did not constitute prohibiting federal funding recipients from
discriminating even though the two groups may overlap. Id.
Here, Title I of the ADA prohibits “covered entities” from discriminating on the
basis of disability. 42 U.S.C. § 12112(a). Title I defines a “covered entity” as “an
employer, employment agency, labor organization, or joint labor-management
committee.” 42 U.S.C. 12111(2). Title I further defines “employer” generally as “a
person engaged in an industry affecting commerce who has 15 or more employees ….”
42 U.S.C. 12111(5)(A). As in Sullivan, “[t]he fact that many employers receive federal
assistance does not mean that Title I of the [ADA] is a ‘statue prohibiting discrimination
by recipients of Federal financial assistance.’” Sullivan, 217 F. App’x at 395. Texas did
not waive its Eleventh Amendment immunity for ADA Title I claims. Because Texas has
not consented to suit, and because Congress has not abrogated its immunity from Title I
claims, Arredondo’s ADA Title I claim against UTMB is DISMISSED.5
5
However, his
This dismissal applies equally to Arredondo’s ADA Title V (retaliation) claim. See Dottin v.
Texas Dept. of Criminal Justice, 627 F. App’x 397, 398 (5th Cir. 2015) (“Title V does not
abrogate a state’s sovereign immunity. Instead, a plaintiff may bring a retaliation claim against a
state entity only to the extent that the underlying claim of discrimination effectively abrogates
sovereign immunity of the particular state.”) (citing Lors v. Dean, 746 F.3d 857, 863-64 (8th Cir.
2014)) (unpublished).
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ADA claim for injunctive/declaratory relief against the individual Defendants in their
official capacities remains pursuant to Ex parte Young.
iii. FMLA claims
Arredondo alleges that UTMB and its employees discriminated against him based
on his decision to take leave for his serious health condition as allowed by the Family and
Medical Leave Act. Under the FMLA, “an eligible employee shall be entitled to a total
of 12 workweeks of leave during any 12-month period for … a serious health condition
that makes the employee unable to perform the functions of the position of such
employee.” 29 U.S.C. § 2601(a)(1)(D). UTMB again argues that Congress did not
abrogate the State’s immunity as to the FMLA’s self-care provision.
Arredondo’s
Response does not address the assertion of immunity regarding FMLA. Instead, he
concedes that he “removed … the majority of his FMLA claims [i.e., all non-Ex parte
Young claims for injunctive relief] so it is unnecessary for the Court to resolve
Defendants’ motion on [that] point.” Dkt. 21, pp. 1-2. Arredondo’s FMLA claims are
therefore
DISMISSED
as
to
UTMB.
However,
his
FMLA
claims
for
injunctive/declaratory relief against the individual Defendants in their official capacities
remain pursuant to Ex parte Young.
B. Defendants’ Alternative Motion for More Definite Statement
The Court finds that the present Order sufficiently distills Arredondo’s claims. As
such, a more definite statement is not presently warranted. UTMB’s motion for a more
definite statement under Rule 12(e) is therefore DENIED.
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Conclusion
For the reasons discussed, Defendants’ motion to dismiss is GRANTED in part
and DENIED in part.
For the sake of clarity, the Court recites the remaining claims:
Title VII claims against UTMB for discrimination and retaliation on the basis of sex
and race, seeking damages and injunctive/declaratory relief;
ADA Title I/V claims against the individual Defendants in their official capacities for
discrimination and retaliation on the basis of disability, seeking injunctive/declaratory
relief pursuant to Ex parte Young;
FMLA claims against the individual Defendants in their official capacities for
discrimination and retaliation on the basis of disability, seeking injunctive/declaratory
relief pursuant to Ex parte Young.
All other claims are DISMISSED with prejudice.
SIGNED at Galveston, Texas, this 2nd day of August, 2017.
___________________________________
George C. Hanks Jr.
United States District Judge
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