Rich v. Texas Department of Criminal Justice

Filing 35

MEMORANDUM OPINION: denying 26 MOTION, granting 31 MOTION to Dismiss , denying 32 MOTION Relief MOTION to Transfer Case to Eastern District-Tyler Division (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ELIZABETH AUSTIN RICH,

§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE,
Defendant.

May 12, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-15-1439

MEMORANDUM OPINION
Pending before the court1 is Plaintiff Elizabeth Austin Rich’s
(“Plaintiff”) Motion for Referral and for Relief (Docs. 26, 32) and
Defendant Texas Department of Criminal Justice (“TDCJ”)’s Motion to
Dismiss (Doc. 31). The court has considered the motion, all
relevant filings, and the applicable law.

For the reasons set

forth below, the court DENIES Plaintiff’s motions and GRANTS TDCJ’s
motion.
I.

Case Background

Plaintiff filed this action against TDCJ on December 18, 2014,
alleging employment discrimination under the Civil Rights Act of
1964 (“Title VII”) and the Age Discrimination Act of 1967 (the
“ADEA”) after she resigned her position at TDCJ after seventy-two
days of training.
A.

Factual Background

1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Docs. 28-29.

Plaintiff was hired by TDCJ in March 2014 in Tyler, Texas.2 As
part of the hiring process, Plaintiff was given a signing bonus.3
On March 5, 2014, Plaintiff traveled to Tennessee Colony, Texas, to
begin training.4
In April 2014, Plaintiff began working at a TDCJ facility in
Midway, Madison County, Texas.5

Plaintiff stated that she was

“continually harassed” by fellow employees because she and other
new hires had received bonus incentives to work at the prison.6
Plaintiff alleged that she was asked questions of an “intrusive
nature” and harassed by coworkers asking her age and marital
status.7 Plaintiff alleged that she felt harassed when coworkers
“constantly” told her that other female officers had been fired for
violating work policies.8 Plaintiff was “laughingly” told by other
officers that she may be an officer who would conduct “nefarious
acts” while on duty.9

2

See Doc. 32, Pl.’s Mot. for Relief p. 8.

3
See Doc. 20, Pl.’s Letter Correcting Compl. p. 8; Doc. 26, Mot. for
Referral p. 3, TDCJ Officer Recruitment Bonus Contract.
4

See Doc. 32, Pl.’s Mot. for Relief p. 11.

5
See Doc. 20, Pl.’s Letter Correcting Compl. p. 4; Doc. 4, Order
Transferring Case dated Dec. 29, 2014, p. 1. Madison County is located in the
Southern District of Texas.
6

See Doc. 20, Pl.’s Letter Correcting Compl. p. 4.

7

See id.

8

See id. p. 5.

9

See id.

2

On May 15, 2014, Plaintiff observed an officer violating
safety regulations during food delivery to prisoners.10

Plaintiff

requested to go home early after the incident and her request was
granted.11
The next night, Plaintiff was training in a position where she
was to open and close cell doors.12

An officer who was not wearing

a name tag instructed her from a distance to open a particular
cell, and not understanding him, Plaintiff opened an incorrect
cell.13

The officer yelled at Plaintiff, called her “trainee” in

front of the cell block, and accused Plaintiff of intentionally
opening the wrong cell.14
with one another.15

Plaintiff and the officer then argued

Plaintiff heard inmates threaten her and refer

to her as “trainee.”16
Plaintiff

reported

the

incident

(“Jordan”), a supervisor with TDCJ.17

to

Lieutenant

Jordan

Plaintiff became emotional

recounting the incident, and requested to go to her vehicle to

10

See id.

11

See id.

12

See id. p. 6.

13

See id.

14

See id.

15

See id.

16

See id.

17

See id. p. 7.

3

recover.18

Plaintiff was provided materials to make a report of

what had occurred and an officer delivered Plaintiff’s report to
Jordan.19

Plaintiff then called Jordan by phone from her car and

stated she was too upset to return to work, and went home without
completing her shift.20

The following day, Plaintiff called the

assistant warden and resigned.21
Plaintiff filed a charge of discrimination with the Equal
Employment

Opportunity

Commission

(“EEOC”)

on

July

11,

2014,

stating that she believed TDCJ had violated her rights under Title
VII,

the

ADEA,

and

the

Florida

Civil

Rights

Act

of

1992.22

Plaintiff’s charge alleged that she was repeatedly referred to as
“trainee” and yelled at, and that she was questioned about her
age.23 On November 20, 2014, the EEOC closed its file, stating that
it was unable to conclude there had been a violation of any
applicable law, and issued a right-to-sue letter.24
B.

Procedural Background
Plaintiff filed her complaint on December 18, 2014, in the

18

See id.

19

See id.

20

See id.

21

See id.

22

See Doc. 1 Pl.’s Compl., Charge of Discrimination p. 17.

23

See id.

24

See id. p. 19.

4

Eastern District of Texas.25

On December 29, 2014, a magistrate

judge ordered that the case be transferred to the Southern District
of Texas based on the venue provisions of 42 U.S.C. § 2000e5(f)(3).26

Plaintiff objected to the order, but on May 22, 2015,

the district court overruled Plaintiff’s objections and ordered
that the case be transferred.27
On July 13, TDCJ filed an unopposed motion for a more definite
statement because pages were missing from Plaintiff’s complaint.28
On August 12, 2015, Plaintiff wrote the court a letter with a
corrected copy of her initial complaint.29
On September 14, 2015, Plaintiff filed a motion asking the
court to refer the case back to the Eastern District of Texas.30
On

November

13,

Plaintiff’s claims.31

2015,

TDCJ

filed

a

motion

to

dismiss

Plaintiff filed a motion for relief, again

asking that this case be removed to the Eastern District of Texas
on November 30, 2015.32

Defendant filed a response to Plaintiff’s

25

See id. p. 1.

26

See Doc. 4, Order Transferring Case dated Dec. 29, 2014, p. 2.

27

See Doc. 5, Pl.’s Obj.; Doc. 6, Order dated May 22, 2015.

28

See Doc. 16, Def.’s Mot. for More Definite Statement.

29

See Doc. 20, Pl.’s Letter Correcting Compl.

30

See Doc. 26, Pl.’s Mot. for Referral.

31

See Doc. 31, Def.’s Mot. to Dismiss.

32

See Doc. 32, Pl.’s Mot. for Relief.

5

motion on December 3, 2015.33
II.

Legal Standard

Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1),
dismissal of an action is appropriate whenever the court lacks
subject matter jurisdiction.

Fed. R. Civ. P. 12(b)(1), 12(h)(3).

The party asserting jurisdiction bears the burden of proof that
jurisdiction does exist.
161 (5th Cir. 2001).

Ramming v. United States, 281 F.3d 158,

The court may exercise jurisdiction over

“civil actions arising under the Constitution, laws, or treaties of
the United States” and over actions between citizens of different
states when more than $75,000 is in controversy.
1331, 1332.

See 28 U.S.C §§

The court may also exercise supplemental jurisdiction

over claims brought under state law if they “form part of the same
case or controversy” as the action over which the court has
original jurisdiction.

28 U.S.C. § 1367.

Dismissal of an action is also appropriate whenever the
complaint, on its face, fails “to state a claim upon which relief
can be granted.”

Fed. R. Civ. P. 12(b)(6).

A complaint need not

contain “detailed factual allegations” but must include sufficient
facts to indicate the plausibility of the claims asserted, raising
the “right to relief above the speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Plausibility means that the factual

33

See Doc. 33, Def.’s Resp. to Pl.’s Mot. for Relief.

6

content “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
at

678.

A

plaintiff

must

provide

“more

Iqbal, 556 U.S.
than

labels

and

conclusions” or “a formulaic recitation of the elements of a cause
of action.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must allow for an inference of “more than a sheer
possibility that a defendant has acted unlawfully.”

Iqbal, 556

U.S. at 678.
Rule 12(b)(6) allows dismissal of an action whenever the
complaint, on its face, fails to state a claim upon which relief
can be granted.

Fed. R. Civ. P. 12(b)(6).

When considering a

motion to dismiss, the court should construe the allegations in the
complaint favorably to the pleader and accept as true all wellpleaded facts. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.
3d 787, 803 n.44 (5th Cir. 2011)(quoting True v. Robles, 571 F. 3d
412, 417 (5th Cir. 2009)).
A complaint need not contain “detailed factual allegations”
but must include sufficient facts to indicate the plausibility of
the claims asserted, raising the “right to relief above the
speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility means that the factual content “allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”

Iqbal, 556 U.S. at 678.

7

A plaintiff must

provide

“more

than

labels

and

conclusions”

or

recitation of the elements of a cause of actions.”
U.S. at 555.

“a

formulaic

Twombly, 550

In other words, the factual allegations must allow

for an inference of “more than a sheer possibility that a defendant
has acted unlawfully.”

Iqbal, 556 U.S. at 678.

Additionally, a plaintiff who proceeds in forma pauperis is
subject to sua sponte dismissal under 28 U.S.C. § 1915(e)(2) if
pleading standards are not met.
(5th Cir. 2011).

Hale v. King, 642 F.3d 492, 497

Such complaint shall be dismissed “at any time”

if the court determines the action “fails to state a claim on which
relief may be granted” or “is frivolous or malicious.”
§

28 U.S.C.

1915(e)(2).
A document filed pro se is to be liberally construed, and a

pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations and
citations omitted).
III. Analysis
Plaintiff moves to transfer this case to the Eastern District
of Texas.

TDCJ moves to dismiss Plaintiff’s Title VII, ADEA, and

contract claims.
abrogated

by

It argues that Plaintiff’s ADEA claims are

sovereign

immunity,

there

was

no

contract

of

employment, and Plaintiff’s constructive discharge and hostile work
environment claims are too speculative to survive Rule 12(b)(6)

8

scrutiny.
was

In response, Plaintiff detailed new incidents where she

harassed

by

other

female

officers

and

argued

that

TDCJ

fraudulently induced her to agree to the work contract because it
made a practice of hiring “intolerant, non-assimilated” workers.34
B.

ADEA Claim

The court must decide a Rule 12(b)(1) motion before addressing
any attack on the merits.
2001).

Ramming, 281 F.3d 158, 161 (5th Cir.

Pursuant to the federal rules, dismissal of an action is

appropriate whenever the court lacks subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1); 12(h)(3).

Federal courts may exercise

jurisdiction over cases only as authorized by the United States
Constitution and the jurisdictional statutes. Kokkonen v. Guardian
Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Howery v.
Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
asserting

jurisdiction

bears

the

burden

of

The party

overcoming

the

presumption that the cause falls outside the court’s limited
jurisdiction.
919.

Kokkonen, 511 U.S. at 377; Howery, 243 F.3d at 916,

In considering such a motion, the court must take as true all

uncontroverted factual allegations in the complaint. John Corp. v.
City of Houston, 214 F.3d 573, 576 (5th Cir. 2000).
TDCJ argues that it is a state agency and thus Plaintiff’s
ADEA claims are barred by sovereign immunity.

Sovereign immunity

is the privilege of the sovereign not to be sued without its

34

See Doc. 32, Pl.’s Mot. for Relief p. 9.

9

consent.

Virginia Office for Protection and Advocacy v. Stewart,

563 U.S. 247, 253 (2011).

Federal courts may hear a person’s suit

against the state only if the state has voluntarily waived or
abrogated its immunity.

Id. at 253-54.

In Kimel v. Florida Board

of Regents, 528 U.S. 62, 66 (2000), the Supreme Court found that
although Congress intended the ADEA to be applicable to the states,
Congress had not in fact abrogated sovereign immunity claims
asserted against the states.
TDCJ is an agency of the state and is subject to sovereign
immunity, absent waiver or abrogation. The Fifth Circuit has found
that the State of Texas has not waived its immunity regarding ADEA
claims in the wake of the Supreme Court’s holding in Kimel.

See

Sullivan v. Univ. of Texas Health Science Center at Houston Dental
Branch, 217 Fed. App’x 391, 395 (5th Cir. 2007).
accordingly

DISMISSES

Plaintiff’s

ADEA

claim

for

The court
lack

of

jurisdiction.
B.

Motion to Transfer Venue

Plaintiff has twice asked the court to transfer venue to the
Eastern District of Texas. Under 28 U.S.C. §1404(a), a case may be
transferred to another district court in which it could have been
brought “[f]or the convenience of parties and witnesses, in the
interest of justice. . .” or by consent.
Actions

under

Title

VII

are

“governed

28 U.S.C. § 1404(a).
by

the

special

provisions of the statute,” not the general venue rules.
10

venue

Adams v.

Cal-Ark Intern., Inc., 159 F. Supp. 2d 402, 409 (E.D. Tex. 2001)
(citing 42. U.S.C. § 2000e-5(f)(3)). The Title VII venue provision
states that venue is proper:
in any judicial district in the State in which the
unlawful employment practice is alleged to have been
committed, in the judicial district in which the
employment records relevant to such practice are
maintained and administered, or in the judicial district
in which the aggrieved person would have worked but for
the alleged unlawful employment practice, but if the
respondent is not found within any such district, such
action may be brought within the judicial district in
which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3).
Title VII further provides that “[t]he provisions of section
2000e-5(f) through (k) of this title, as applicable, shall govern
civil actions brought hereunder.”

42 U.S.C. § 2000e-16(d).

“The

provisions of 42 U.S.C. § 2000e-5(f)(3) are both mandatory and
explicit.”

Reynolds v. Geren, 2008 WL 4891159, *2 (E.D. Tex. Oct.

23, 2008); see also Kapche v. Gonzales, No. V-07-31, 2007 WL
3270393, *3 (S.D. Tex. Nov. 2, 2007).
Under all of the three venue provisions of section 2000e-5(f),
venue is proper only in the Southern District of Texas.

While the

court is sympathetic to Plaintiff’s inconvenience, the court may
not transfer an action to any district where it could not have been
brought absent consent from all parties.

See 28 U.S.C. § 1404(a).

Here, TDCJ has not consented to transfer to the Eastern District.
Accordingly, the court DENIES Plaintiff’s motion to transfer.
C.

Constructive Discharge
11

TDCJ argues that Plaintiff has failed to state a Title VII
discrimination claim because she has failed to allege the factual
underpinnings for a constructive discharge claim. Plaintiff states
in her complaint that she voluntarily resigned.

A resignation is

actionable under Title VII only if the resignation qualifies as a
constructive discharge.
566 (5th Cir. 2001).

Brown v. Kinney Shoe Corp., 237 F.3d 556,

“A constructive discharge occurs when the

employer makes working conditions so intolerable that a reasonable
employee would be compelled to resign.” Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 771 (5th Cir. 2001).
“To prove a constructive discharge, a plaintiff must establish
that working conditions were so intolerable that a reasonable
employee would feel compelled to resign.”

Id.

To determine

whether a reasonable employee would feel compelled to resign, the
Fifth Circuit has considered the following:
(1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger
[or
less
experienced/qualified]
supervisor;
(6)
badgering, harassment, or humiliation by the employer
calculated to encourage the employee's resignation; or
(7) offers of early retirement on terms that would make
the employee worse off whether the offer was accepted or
not.
Brown

v.

Bunge

Corp.,

207

F.3d

776,

782

(5th

Cir.

2000).

Constructive discharge requires a greater degree of harassment than
would be required by a hostile environment claim.
City of Houston, 157 F.3d 369, 378 (5th Cir. 1998).

12

Benningfield v.
Allegations of

discrimination alone are insufficient to support constructive
discharge.

See Boze v. Branstetter, 912 F.2d 801, 805 (5th Cir.

1990).
Here, Plaintiff does not allege any of the factors outlined in
Brown.

Plaintiff alleges that she resigned following an incident

where she was yelled at by an officer after she did not understand
that officer’s instructions.

Viewing this incident in the light

most favorable to her, the court does not find that this allegation
is sufficiently connected to Plaintiff’s gender to be actionable
under Title VII.

Plaintiff also alleges that harassment was

motivated by her status as a new hire; if true, this is not
discrimination based on status in any protected class.
Plaintiff’s allegations of discriminatory treatment consist of
unwelcome

comments

about

her

bonus

and

intrusive

questions

regarding her age and marital status by trainers and coworkers.
Standing alone, these allegations are insufficient to allege that
working conditions were so intolerable that a reasonable employee
would feel compelled to resign.
Because she has not met the standard of pleading for a
constructive discharge, the court finds that Plaintiff’s voluntary
resignation precludes her Title VII discrimination claim.

The

court

sex

accordingly

finds

that

Plaintiff’s

discrimination claim should be DISMISSED.
D.

Hostile Work Environment

13

Title

VII

TDCJ moves to dismiss Plaintiff’s hostile work environment
claim.

It argues that Plaintiff fails to state a claim that her

working conditions were severely or pervasively hostile enough to
alter the conditions of her employment.
A plaintiff may establish a Title VII violation by proving
that sex discrimination has created a hostile or abusive working
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66

environment.

(1986). To establish a hostile work environment claim, a plaintiff
must prove five elements: (1) the employee belonged to a protected
class; (2) the employee was subject to unwelcome sexual harassment;
(3) the harassment was based on sex; (4) the harassment affected a
“term, condition, or privilege” of employment; and (5) the employer
knew or should have known of the harassment and failed to take
prompt remedial action.

Celestine v. Petroleos de Venez, 266 F.3d

343, 353 (5th Cir. 2001).
In

order

to

affect

a

term,

condition,

or

privilege

of

employment, the conduct must be sufficiently severe or pervasive
“to alter the conditions of the victim’s employment and create an
abusive working environment.”

EEOC v. Boh Bros. Const. Co., LLC,

731 F.3d 444, 452 (5th Cir. 2013). To determine whether a workplace
constitutes a hostile work environment, a court must consider: “the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance;

and

whether

it

unreasonably

14

interferes

with

an

employee’s work performance.”

Ramsey v. Henderson, 286 F.3d 264

(5th Cir. 2002).
Here, Plaintiff does not allege that harassment affected a
term, condition, or privilege of her employment. Plaintiff alleges
that she was asked if she was married or had any children, and that
officers

repeatedly

joked

about

relationships with prisoners.

female

officers

engaging

in

Plaintiff has failed to allege that

these actions, even if she found them personally offensive, had any
affect on her ability to work.

As discussed in Plaintiff’s

constructive discharge claim, her voluntary resignation was based
on her verbal confrontation with another officer, not sexual
harassment.

The court accordingly DISMISSES Plaintiff’s hostile

work environment claim.
E.

Breach of Contract

Finally, TDCJ argues that Plaintiff’s breach of contract claim
must be dismissed.

Plaintiff has attached the contract outlining

her recruitment bonus. It states that TDCJ agreed to pay Plaintiff
a one-time bonus of $4,000 in exchange for remaining at a full-time
position for one year.35

The contract additionally stated that if

Plaintiff left her employment for any reason within three months
she would refund the bonus, and that if she left after three months

35

See

Doc. 26, Mot. for Referral p. 3, TDCJ Officer Recruitment Bonus

Contract.

15

but before one year, she would re-pay a pro-rated bonus amount.36
Plaintiff signed the agreement on April 11, 2014.37

She

voluntarily resigned her position on May 16, 2014, thirty-five days
later.38 While it is unclear from Plaintiff’s complaint whether she
is asserting her right to this bonus payment, it is clear from the
terms of the agreement that Plaintiff is not entitled to any part
of the $4,000 bonus, as she worked for TDCJ for less than three
months

before

she

resigned.

The

court

therefore

DISMISSES

Plaintiff’s breach of contract claim.
F.

Plaintiff’s Motion for Relief

In addition to requesting a transfer of venue, Plaintiff’s
motion for relief contains an addendum to her original petition.
Plaintiff details her first day in Tennessee Colony, Texas, and
states that her agreement to work was based on false pretenses.
Specifically, Plaintiff alleges that TDCJ should have informed her
that she would be forced to work with “intolerant, non-assimilated”
persons, and that she would not have taken the job had she known
that

hiring

such

individuals

was

TDCJ’s

policy.39

Plaintiff

additionally relates her experience being assigned a living space
during training in Tennessee Colony, Texas, stating that TDCJ’s

36

See id.

37

See id.

38

See Doc. 20, Pl.’s Letter Correcting Compl. p. 7.

39

See Doc. 32, Pl.’s Mot. for Relief p. 9.

16

housing policy violated labor laws and that “more details and
examples will be furnished during the appropriate forum.”40
To the extent that Plaintiff appears to be attempting to
allege new claims, such claims are improper as a matter of law.

An

EEOC charge is intended to place an employer on notice of the
charges against it.
(1984).

EEOC v. Shell Oil Comp., 466 U.S. 54, 77

A plaintiff is precluded from bringing claims outside the

scope of the EEOC charge.

Anderson v. Sikorsky Support Servs.,

Inc., 66 F. Supp. 3d 863, 871 (S.D. Tex. 2014).
Plaintiff’s charge of discrimination stated she had been
subject to harassment since May 2014.

Plaintiff’s allegations

regarding her hiring or initial training in March 2014 are outside
the scope of her EEOC charge which only concerned the events
occurring in May 2014.41

These new claims found in Plaintiff’s

Motion for Relief (Doc. 32) are DISMISSED for failure to exhaust
administrative remedies.
IV.

Conclusion

Based on the foregoing, the court GRANTS TDCJ’s Motion to
Dismiss Plaintiff’s Complaint and

DENIES

Plaintiff’s motions.

Plaintiff’s case against Defendant is DISMISSED for failure to
state a claim and lack of jurisdiction.

40

See id. p. 11.

41

See Doc 1, Pl.’s Orig. Compl. p. 17, attaching her Charge of
Discrimination wherein Plaintiff only complains of events which occurred in May
2014.

17

SIGNED in Houston, Texas, this 12th

day of May, 2016.

______________________________
U.S. MAGISTRATE JUDGE

18