Simmons v. Airgas On-Site Safety Services, Inc.

Filing 8

ORDER entered DENYING 2 MOTION to Dismiss Plaintiff's Original Complaint for Lack of Subject-Matter Jurisdiction.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMIE SIMMONS,
Plaintiff,
v.
AIRGAS ON-SITE SAFETY
SERVICES, INC.,
Defendant.

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CIVIL ACTION NO. H-14-3029

ORDER
Jamie Simmons sued Airgas On-Site Safety Services, Inc. (“Airgas”) in Texas state court,
alleging discrimination and retaliation that violated the Texas Commission on Human Rights Act
(“TCHRA”), TEX. LAB. CODE § 21.001 et seq. Airgas removed to federal court on the basis of
diversity jurisdiction and moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), asserting
that Simmons’s failure to exhaust her state administrative remedies deprives this court of subjectmatter jurisdiction to decide the merits. (Docket Entry No. 2). Simmons has not responded to
Airgas’s motion.
In Gorman v. Verizon Wireless Texas, LLC, 753 F.3d 165 (5th Cir. 2014), the Fifth Circuit
held that “the failure to receive a Texas right to sue letter is not a jurisdictional defect” for a claim
under the TCHRA. Id. at 170 (citing In re: USAA, 307 S.W.3d 299, 311 (Tex. 2010)). Instead, the
exhaustion requirement is “only a condition precedent” to such a claim. Id. at 166. Whether
Simmons has exhausted her state administrative remedies or not, this court has subject-matter

jurisdiction to decide this action. Airgas’s Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction, (Docket Entry No. 2), is denied.
SIGNED on December 8, 2014, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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