Burke v. Prairie View A&M University
Filing
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MEMORANDUM OPINION AND ORDER granting in part and denying in part 5 MOTION to Dismiss 1 Complaint.(Signed by Judge Kenneth M. Hoyt) Parties notified.(dpalacios, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JENNIFER BURKE,
Plaintiff,
VS.
PRAIRIE VIEW A&M UNIVERSITY,
Defendant.
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CIVIL ACTION NO. H-11-1749
MEMORANDUM OPINION AND ORDER
I.
Introduction
Pending before the Court is the defendant’s, Prairie View A&M University, motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1) (Docket Entry No. 5).1
The plaintiff, Jennifer Burke, filed a response (Docket Entry No. 8). After having carefully
reviewed the motion, the response, the record and the applicable law, the Court grants the
defendant’s motion in part, and denies it in part.
II.
Factual Background
This case concerns the plaintiff’s allegations of retaliation, unequal pay and gender
discrimination by the public university defendant, her former employer. In December 2003, the
plaintiff began working toward tenure as an assistant professor. In the summer of 2004, she took
medical leave due to pregnancy complications. After returning to work, she took additional
medical leave to address further pregnancy complications from December 7, 2004 until March
28, 2005. On May 6, 2009, the plaintiff was notified that her tenure application had been denied,
based on job performance deficiencies in classroom effectiveness and in conducting academic
1
The Court declines the plaintiff’s invitation to dismiss the defendant’s motion as moot. Despite the fact that the
plaintiff subsequently filed an amended complaint, the defendant’s motion sufficiently addresses the issues relevant
to this Memorandum Opinion and Order.
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research, due mainly to extended and excessive absences. The plaintiff appealed the decision to
a university committee alleging discrimination, and the university invited her to reapply for
tenure in October 2009. However, the plaintiff concluded that certain research expectations
outlined in the offer were excessively burdensome. On April 21, 2010, the president of the
university denied the plaintiff’s final appeal for the renewal of her tenure track appointment. The
plaintiff filed the present suit on May 6, 2011, and this Court has jurisdiction pursuant to 28
U.S.C. § 1331.
III.
Contentions of the Parties
A.
The Plaintiff’s Contentions
The plaintiff contends that the defendant discriminated against her based on her gender,
her various health problems and her extended medical leave associated with her pregnancy. She
believes that this alleged discrimination directly resulted in the unfair denial of her application
for a tenured position. Additionally, she maintains that the defendant’s administrators and/or
employees also denied her application for tenure, and her later appeal, all in retaliation for her
complaint of discrimination. Finally, she avers that the defendant manifests its discriminatory
animus towards female faculty members via unequal pay and less favorable employment
conditions for women, as compared with male employees of similar education and experience.
She asserts claims for Title IX2 retaliation, Family Medical Leave Act (“FMLA”)3 discrimination
and retaliation, and Equal Pay Act (“EPA”)4 violations.5
2
20 U.S.C. § 1681, et seq.
3
29 U.S.C. § 2601, et seq.
4
29 U.S.C. § 206(d).
5
The plaintiff originally asserted a claim for Title IX gender discrimination as well, but has since relinquished that
claim.
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B.
The Defendant’s Contentions
The defendant asks the Court to dismiss all claims pending, except those for Title IX
retaliation and “family-care” under the FMLA. First, the defendant argues that the plaintiff’s
FMLA “self-care” claim against the defendant does not overcome its Eleventh Amendment
immunity. Second, the defendant argues that the plaintiff has not stated a valid claim for Title
IX gender discrimination, because the statute does not provide a private right of action for
employment discrimination on the basis of sex in federally-funded educational institutions.
Finally, the defendant argues that the plaintiff has neither stated a plausible claim nor met the
heightened pleading standard necessary to establish an EPA violation.
III.
Standards of Review
A.
Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) permits the dismissal of an action for the
lack of subject matter jurisdiction. “If [a federal] court determines at any time that it lacks
subject-matter jurisdiction, [it] must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Because
federal courts are considered courts of limited jurisdiction, absent jurisdiction conferred by
statute, they lack the power to adjudicate claims. See, e.g., Stockman v. Fed. Election Comm’n,
138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222,
225 (5th Cir. 1994). Therefore, the party seeking to invoke the jurisdiction of a federal court
carries “the burden of proving subject matter jurisdiction by a preponderance of the evidence.”
Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (citing New Orleans &
Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th Cir. 2008); see also Stockman, 138 F.3d at
151.
When evaluating jurisdiction, “a [federal] court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” MDPhysicians & Assoc., Inc. v. State Bd.
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of Ins., 957 F.2d 178, 181 (5th Cir. 1992) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th
Cir. 1981)); see also Vantage Trailers, 567 F.3d at 748 (reasoning that “[i]n evaluating
jurisdiction, the district court must resolve disputed facts without giving a presumption of
truthfulness to the plaintiff’s allegations.”) In making its ruling, the court may rely on any of the
following:
“(1) the complaint alone, (2) the complaint supplemented by undisputed facts
evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” MDPhysicians, 957 F.2d at 181 n.2 (citing Williamson, 645 F.2d at
413).
B.
Federal Rule of Civil Procedure 12(b)(6)
A defendant may to move to dismiss a plaintiff’s complaint for “failure to state a claim
upon which relief may be granted.” FED. R. CIV. P. 12(b)(6). Under the requirements of a Rule
12(b)(6) motion, “[t]he plaintiff's complaint is to be construed in a light most favorable to the
plaintiff, and the allegations contained therein are to be taken as true.”
Oppenheimer v.
Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996) (citing Mitchell v. McBryde, 944 F.2d
229, 230 (5th Cir. 1991)). Dismissal is appropriate only if, the “[f]actual allegations [are not]
enough to raise a right to relief above the speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations omitted). Moreover, in light of Federal Rule of Civil
Procedure 8(a)(2), “[s]pecific facts are not necessary; the [allegations] need only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). Even so, “a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
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labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
More recently, in Ashcroft v. Iqbal, the Supreme Court expounded upon the Twombly
standard, reasoning that “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly at 570).
“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft, 129 S. Ct. at 1949
(citing Twombly at 556). “But where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged--but it has not ‘show[n]’-‘that the pleader is entitled to relief.’” Ashcroft at 1950 (quoting FED. R. CIV. P. 8(a)(2)).
Nevertheless, when considering a 12(b)(6) motion to dismiss, the Court’s task is limited to
deciding whether the plaintiff is entitled to offer evidence in support of his claims, not whether
the plaintiff will eventually prevail. See Twombly at 563 n.8 (citing Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (overruled on other grounds)); see also, Jones v. Greninger, 188 F.3d 322,
324 (5th Cir. 1999).
IV.
Analysis and Discussion
The Court grants the defendant’s motion regarding the plaintiff’s EPA claim, and denies
the defendant’s motion regarding the FMLA self-care claim.
A.
Equal Pay Act Claim
The Court determines that the plaintiff has not stated a plausible claim nor met the
heightened pleading standard necessary to establish a viable EPA claim. To establish a prima
facie case under the EPA, a plaintiff must show that: “[1] her employer is subject to the Act; [2]
she performed work in a position requiring equal skill, effort, and responsibility under similar
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working conditions; and [3] she was paid less than the employee of the opposite sex providing
the basis of comparison.” Chance v. Rice Univ., 984 F.2d 151, 153 (5th Cir. 1993). Here,
plaintiff argues that, “upon information and belief, [she] was paid less than fourteen of the male
assistant professors in the College of Arts and Sciences.”
However, in her response to
defendant’s motion to dismiss, she plainly admits, “[t]he salary and contract status of her former
co-workers is not information that is accessible to [her] at this time.” As currently pled, she is
unable to identify any male comparator who was paid more than herself. Therefore she fails to
establish the third element of her prima facie case. Without such information, there is simply not
enough factual content to state a claim upon which relief can be granted. Therefore, the Court
dismisses the plaintiff’s EPA claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
B.
FMLA Self-Care Claim
The Court denies the defendant’s motion to dismiss the plaintiff’s FMLA self-care claim.
The Eleventh Amendment generally immunizes states, and federally-funded education
institutions, from suits for money damages. Lakoski v. James, 66 F.3d 751, 758 (5th Cir. 1995),
cert. denied 519 U.S. 947 (1996) (regarding a Title IX claim). However, under the doctrine of
state immunity, “prospective injunctive or declaratory relief against a state is permitted.”
Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988). Here, the plaintiff only seeks as relief
reinstatement.
The Court determines that her claim for reinstatement is an acceptable form of
prospective relief that may be sought as an exception to Eleventh Amendment immunity. See
Nelson v. University of Texas at Dallas, 535 F.3d 318, 322 (5th Cir. 2008) (citing Ex Parte
Young, 209 U.S. 123 (1908)). Here, like in Nelson, the plaintiff alleges that her termination from
her teaching position was in violation of the FMLA self-care provision, and solely seeks
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reinstatement. Nelson, 535 F.3d 318, 324. The Nelson court held, in relevant part, that “based
on our precedent and precedent from a majority of the circuits, a request for reinstatement is
sufficient to bring a case within the Ex parte Young exception to Eleventh Amendment
immunity, as it is a claim for prospective relief designed to end a continuing violation of federal
law.” Id. Therefore, the Court denies defendant’s motion to dismiss the plaintiff’s FMLA selfcare claim.6
V.
Conclusion
Based on the foregoing discussion, the Court GRANTS the defendant’s motion to dismiss
with respect to the EPA claim, and DENIES the motion to dismiss with respect to the FMLA
self-care claim.
It is so ORDERED.
SIGNED at Houston, Texas this 8th day of December, 2011.
___________________________________
Kenneth M. Hoyt
United States District Judge
6
At this juncture, the Court declines to rule on to what level of teaching position the plaintiff is entitled to seek
“reinstatement,” namely the distinction between a tenured teaching position versus a “tenure-track” position.
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