Yu v. The University of Houston at Victoria et al

Filing 18

OPINION AND ORDER as to 6 MOTION to Dismiss Partial. The Court Orders (1) Defendants, as agencies, arms, and instrumentalities of the State of Texas are entitled to sovereign immunity under the Eleventh Amendment from Defendants' AD EA and ADEA retaliation claims, and under Kimel, 528 U.S. 62, because Congress lacked authority to abrogate immunity under the ADEA under the enforcement clause, section five of the Fourteenth Amendment, the ADEA claims (Complaint, #1. Counts 4 and 6 are dismissed under Rule 12(b)(1); (2) Although the Texas Legislature waived immunity for claims under the TCHRA in Texas state court, it did not waive immunity for them in federal courts, so the claims against both Defendants under that statute (Co mplaint, #1, Counts 2, 5 and 7) in this Court are barred by Eleventh Amendment immunity and are dismissed under Rule 12(b)(1); and (3) The Court cannot exercise supplemental jurisdiction over the TCHRA claims, depended from the federal question claims under Title VII, because the supplemental jurisdiction statute, 28, U.S.C. § 1367, does not abrogate Eleventh Amendment immunity. Plaintiffs Title VII claims shall remain pending.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

United States District Court
Southern District of Texas

ENTERED
August 23, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHUN-SHENG YU,
Plaintiff,
vs.
THE UNIVERSITY OF HOUSTON AT
VICTORIA and THE UNIVERSITY OF
HOUSTON SYSTEM,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

David J. Bradley, Clerk

CIVIL ACTION H-16-3138

OPINION AND ORDER OF PARTIAL DISMISSAL
Pending before the Court in the above referenced cause,
alleging intentional, continuing discrimination since 2009 based on
national origin (Chinese) and age (62) and retaliation, grounded in
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621,
et al., and Title VII of the Civil Rights Act, as amended, 42
U.S.C. §§ 2000e-2(a) and 2000e-3(a), with supplemental jurisdiction
under 28 U.S.C. § 1367 over pendent state law claims arising under
the Texas Commission on Human Rights Act (“TCHRA”), Texas Labor
Code § 21.051, et seq., is Defendants the University of Houston at
Victoria (“UHV”) and the University of Houston System’s (“UH
System’s”) partial motion to dismiss (instrument #6) Counts 2
(TCHRA

national

origin

discrimination)

and

4-7

(ADEA

age

discrimination, TCHRA age discrimination, ADEA retaliation, and
TCHRA retaliation, respectively) and to dismiss Defendant the UH
System, pursuant to Federal Rule of Civil Procedure 12(b)(1) for

-1-

lack of subject matter jurisdiction.
Standard of Review
Rule 12(b)(1) allows a party to move for dismissal of an
action for lack of subject matter jurisdiction.

“‘A case is

properly dismissed under Rule 12(b)(1) when the court lacks the
statutory or constitutional power to adjudicate the case.’” Taylor
v. Texas Southern Univ., Civ. A. No. 12-CV-01975, 2013 WL 3157529,
at *2 (S.D. Tex. June 20, 2013), citing Home Builder’s Assoc. of
Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006,
1010 (5th Cir. 2014).

The party asserting that subject matter

exists, here Plaintiff Dr. Chun-Sheng Yu, must bear the burden of
proof by a preponderance of the evidence for a 12(b)(1) motion.
New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5th
Cir. 2008); Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001), cert denied sub nom. Cloud v. U.S., 536 U.S. 960 (2002).
It has long been recognized that the Eleventh Amendment1 bars
claims under the TCHRA and the federal age discrimination statute
(the ADEA) against a State not only in actions in which the State
is actually named as the defendant, but also in certain actions

1

The Eleventh Amendment states,

The judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens of Subjects of a Foreign state.
U.S. Const. amend. XI.
-2-

against state agents and state instrumentalities.

Taylor v. Texas

Southern Univ., 2013 WL 3157529, at *2.
In reviewing a motion under 12(b)(1) the court may consider
(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.
1981).

Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.

This case falls into the first category, the complaint

alone.
A motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a “facial” attack,
i.e., the allegations in the complaint are insufficient to invoke
federal jurisdiction, or as a “factual” attack, i.e., the facts in
the

complaint

questioned.

supporting

subject

matter

jurisdiction

are

In re Blue Water Endeavors, LLC, Bankr. No. 08-10466,

Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011),
citing Rodriguez v. Texas Comm’n of Arts, 992 F. Supp. 876, 878-79
(N.D. Tex. 1998), aff’d, 199 F.3d 279 (5th Cir. 2000).

A facial

attack happens when a defendant files a Rule 12(b)(1) motion
without accompanying evidence.
521, 523 (5th Cir. 1981).

Paterson v. Weinberger, 644 F.2d

In a facial attack, allegations in the

complaint are taken as true.

Blue Water,

2011 WL 52525 at *3,

citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995). The challenge from Defendants here is a facial attack.

-3-

If it is a factual attack, the Court may consider any evidence
(affidavits, testimony, documents, etc.) submitted by the parties
that is relevant to the issue of jurisdiction.

Id., citing Irwin

v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).

A

defendant making a factual attack on a complaint may provide
supporting affidavits, testimony or other admissible evidence.
Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981).

The

plaintiff, to satisfy its burden of proof, may also submit evidence
to show by a preponderance of the evidence that subject matter
jurisdiction exists.

Id.

The court’s consideration of such

matters outside the pleadings does not convert the motion to one
for summary judgment under Rule 56(c).

Robinson v. Paulson, H-06-

4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing
Garcia, 104 F.3d at 1261.

“Unlike in a facial attack where

jurisdiction is determined upon the basis of allegations of the
complaint, accepted as true[,] when a factual attack is made upon
federal jurisdiction, no presumption of truthfulness attaches to
the plaintiffs’ jurisdictional allegations, and the court is free
to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.

In a factual attack, the plaintiffs have

the burden of proving that federal jurisdiction does in fact
exist.”

Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981).

In

resolving a factual attack on subject matter jurisdiction under
Rule 12(b)(1), the district court, which does not address the

-4-

merits of the suit, has significant authority “‘to weigh the
evidence and satisfy itself as to the existence of its power to
hear the case.’”
4692392,

*10

Robinson v. Paulson, No. H-06-4083, 2008 WL

(S.D.

Tex.

Oct.

22,

2008),

quoting

Garcia

v.

Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997),
and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986).
A court’s dismissal of a case for lack of subject matter
jurisdiction is not a judgment on the merits and does not bar the
plaintiff from pursuing his claim in a court that has jurisdiction.
Ramming, 281 F.3d 158, 161 (5th Cir. 2001), cert denied sub nom.
Cloud v. U.S., 536 U.S. 960 (2002).
Applicable Law
Eleventh Amendment Immunity
Eleventh Amendment immunity must be resolved before the court
reaches the merits of a suit.

United States v. Tex. Tech. Univ.,

171 F.3d 279, 285-86 & n.9 (5th Cir. 1999).

The Eleventh Amendment

provides that “[t]he Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.”

The

Eleventh Amendment bars an individual from suing a state in federal
court unless the state consents to suit or unless Congress has
clearly, unequivocally, and validly abrogated the state’s sovereign
-5-

immunity.

Jackson v. Texas Southern University, 997 F. Supp. 2d

613, 623 (S.D. Tex. 2014).

The Supreme Court has “consistently

held that an unconsenting State is immune from suits brought in
federal courts by her own citizens as well as by citizens of
another State.”

Edelman v. Jordan, 415 U.S. 651, 662-63 (1974);

Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000)(“[F]or over
a century now, we have made clear that the Constitution does not
provide for federal jurisdiction over suits against nonconsenting
States.”).

Absent a waiver of immunity by a state or through a

federal statute, the Eleventh Amendment bars suits against states
and state agencies for money damages or injunctive relief.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01
(1984);

Quern

v.

Jordan,

440

U.S.

332,

337

(1979)(sovereign

immunity protects a state from “a suit in federal court by private
parties2 seeking to impose a liability which must be paid from
public funds”);

Cory v. White, 457 U.S. 85, 91 (1982); Voisin’s

Oyster House v. Guidry, 799 F.2d 183, 185 (5th Cir. 1986).

See also

Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir.
2002)(The Eleventh Amendment bars “an individual from suing a state

2

Sovereign immunity only protects States from private lawsuits-–not from lawsuits by
the federal government. EEOC v. Bd. of Supervisors for the Univ. of Louisiana System, 559 F.3d
270, 272 (5th Cir. 2009), citing West Virginia v. U.S., 479 U.S. 305, 311 (1987)(“States have no
sovereign immunity as against the Federal Government.”); Alden v. Maine, 527 U.S. 706, 755
(1999)(“In ratifying the Constitution, the States consented to suits brought by other States or by
the Federal Government.”); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 71 n.14 (1996)(“‘The
Federal Government can bring suit in federal court against a State’ in order to ensure its
compliance with federal law.”).
-6-

in federal court unless the state consents to suit or Congress has
clearly and validly abrogated the state’s sovereign immunity.”).
“Congress may only abrogate a state’s Eleventh amendment immunity
by ‘unequivocally’ expressing its intent to do so and by acting
‘pursuant to a valid exercise of power.’”

Cozzo v. Tangipaphoa

Parish Council–President Government, 279 F.3d 273, 281 (5th Cir.
2002), citing Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll.
Sav. Bank, 527 U.S. 627, 634 (1999).

The Eleventh Amendment’s

“withdrawal of jurisdiction effectively confers an immunity from
suit.” Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993).
The Eleventh Amendment’s “reference to actions ‘against one of
the United States’ encompasses not only actions in which a State is
actually named as a defendant, but also certain actions against
state agents and state instrumentalities.” Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429 (1997), citing Poindexter v.
Greenhow, 114 U.S. 270, 287 (1885).

“‘[W]hen the action is in

essence one for the recovery of money from the state, the state is
the real substantial party in interest and is entitled to invoke
its sovereign immunity from suit even though individual officials
are nominal defendants.’”.

Yowman v. Jefferson County Community

Supervision & Corrections Dept., 370 F. Supp. 2d 568, 583 (E.D.
Tex. 2005), citing Doe, 519 U.S. at 429.
“Even

in

cases

where

the
-7-

State

itself

is

not

a

named

defendant, the State’s Eleventh Amendment immunity will extend to
any state agency or other political entity that is deemed the
‘alter ego’ or an ‘arm’ of the State.”

Vogt v. Bd. of Com’rs of

Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir. 2002), citing Doe,
519 U.S. at 429.3

A State’s agencies are also subject to suit in

federal court, absent waiver of immunity by the State. Puerto Rico
Aqueduct & Sewer Authority v. Metcalf & Inc., 506 U.S. 139, 144
(1993)(“Absent waiver, neither a State nor agencies acting under
its control may ‘be subject to suit in federal court.’”). See
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100
(1984)(“[I]n the absence of consent a suit in which the State or
one of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.”).

Under Texas law, state

universities are agencies of the state and enjoy sovereign immunity
under

the

Eleventh

Amendment.

3

Jackson

v.

Texas

Southern

When a state agency is the nominal defendant, the Fifth Circuit applies a six-factor test,
with no factor dispositive, but the source of the entity’s funding is especially important because
“a principal goal of the Eleventh Amendment is to protect state treasuries,” to determine whether
the suit is effectively against the sovereign state: “(1) whether state statutes and case law view
the entity as an arm of the state; (2) the source of the entity’s funding; (3) the entity’s degree of
local autonomy; (4) whether the entity is concerned primarily with local, as opposed to
statewide, problems; (5) whether the entity has the authority to sue and be sued in its own name;
and (6) whether the entity has the right to hold and use property.” Perez v. Region 20 Educ.
Service Center, 307 F.3d 318, 326-27 (5th Cir. 2002). “An entity need not show that all of the
factors are satisfied; the factors simply provide guidelines for courts to balance the equities and
determine if the suit is really one against the state itself.” Id. at 327. Having the ability to sue
or be sued apart from the state indicates immunity is probably not appropriate. Id. The most
significant of the six factors “in assessing an entity’s status is whether a judgment against it will
be paid with state funds.” Delahoussaye v. City of New Iberia, 937 F.2d 144, 147-48 (5th Cir.
1991).
-8-

University, 997 F. Supp. 2d 613, 623 (S.D. Tex. 2014), citing inter
alia Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 10002 (1984), and Taylor v. Texas Southern University, Civ. A. No.
4:12-CV-01975, 2013 WL 3157529 at *3-4 (concluding that “for
Eleventh Amendment purposes, a suit against a state agency or
university is a suit against the state”).

That a school has

accepted federal funds does not mean the State has consented to
suit in federal court.

Id., citing Atascadero State Hosp. v.

Scanon, 473 U.S. 234, 246-47 (1985).

In Thomas v. University of

Houston, 155 Fed. Appx. 115, 117 (5th Cir. Nov. 4, 2005), the Fifth
Circuit pronounced the University of Houston to be “an undisputed
arm of the state of Texas,” which “can assert sovereign immunity
under the Eleventh Amendment . . . .”

See also Harrell v.

University of Houston Police Dept., 44 F.3d 1004, 1995 WL 10517, at
*2 (5th Cir. Jan. 3, 1995)(“The University of Houston is a state
agency.”), citing Bache Halsey Stuart Shields, Inc. v. Univ. of
Houston, 638 S.W. 2d 920, 923 (Tex. App.–-Houston [1st Dist.] 1982,
writ ref’d n.r.e.);

Alcantra v. Univ. of Houston, Civ. A. No. H-

14-0463, 2016 WL 4040123, at *2 (S.D. Tex. July 28, 2016)(“UH is
not a local school district, it is a state university.

As a state

university, UH is a state agency for purposes of Eleventh Amendment
immunity.”); Chhim v. Univ. of Houston Clear Lake, 129 F. Supp. 3d
507, 512 (S.D. Tex. 2015)(“As an agent of the state of Texas, the
University is entitled to Eleventh Amendment immunity absent waiver
-9-

or abrogation.”).
The same is true of the University of Houston System.
Lecompte v. University of Houston System, 535 F. Supp. 317, 320
(S.D. Tex. 1982)(“[A]ny judgment against the University of Houston
System would be paid out of the state treasury.”); Shoecraft v.
University of Houston-Victoria, No. Civ. A. V-03-85, 2006 WL
870432, at *8 (S.D. Tex. March 28, 2006)(“[A]s state agencies,
[University of Houston System and University of Houston-Victoria]
are agencies of the state.

Therefore, as state agencies, [they]

are immunized from private suit by the Eleventh Amendment.”).
It has long been established that “any judgment against the
University of Houston System would be paid out of the state
treasury.”

Lecompte v. University of Houston System, 535 F. Supp.

317, 320 (S.D. Tex. 1982), citing Tex. Educ. Code Ann., § 111.01 et
seq. (1972 and Supp. 1982); Tex. Rev. Civ. Stat. Ann. art. 6252-26
(Supp. 1982).

The Eleventh Amendment bars suits for monetary

relief

educational

against

institutions

that

are

so

closely

connected with the states as to be considered instrumentalities of
the state . . . .”

Id. at 319.

In Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 62, 91 (2000),
the Supreme Court held, “[I]n the ADEA, Congress did not validly
abrogate

the

States’

sovereign

immunity

to

suits

by

private

individuals” because even though the statute “contains a clear
statement of Congress’ intent to abrogate the States’ immunity,

-10-

that abrogation exceeded Congress’ authority under section five of
the Fourteenth Amendment.”

The Fifth Circuit has applied Kimel to

dismiss claims under the ADEA against state universities.

See,

e.g., Sullivan v. Univ. of Tex. Health Science Center, 217 Fed.
Appx. 391, 392-95 (5th Cir. 2007)(neither Congress nor Texas have
waived the State of Texas’ sovereign immunity from ADEA claims);
McGarry v. Univ. of Mississippi Medical Center, 355 Fed. Appx. 853,
855 (5th Cir. 2009); Chhim v. Univ. of Texas at Austin, 836 F.3d
467, 469-70 (5th Cir. 2016), cert. denied, 137 S. Ct. 1339 (2017);
In contrast, in enacting Title VII, Congress abrogated the
States’

Eleventh

Amendment

private

parties

to

bring

sovereign
suit

for

immunity
money

and

authorized

damages

against

nonconsenting States pursuant to Congress’s enforcement power under
§ 5 of the Fourteenth Amendment.

Fields v. Dept. of Public Safety,

911 F. Supp. 2d 373, 379-80 (M.D. La. Nov. 27, 2012).

Congress

made clear its intent to abrogate the states’ immunity “when it
amended Title VII’s definition of ‘person’ to include governments,
governmental agencies, and political subdivisions, 42 U.S.C. §
2000e(a), and simultaneously amended the definition of employee to
include individuals ‘subject to the civil service laws of a State
government, government agency, or political subdivision,’ 42 U.S.C.
§ 2000e(f).”

Ussery v. State of La. on Behalf of Louisiana Dept.

of Health and Hospitals, 150 F.3d 431, 435 (5th Cir. 1998), cert.
dismissed, 526 U.S. 1013 (1999).
-11-

Although the Texas Labor Code §§ 21.002(8)(D)(“‘Employer’
means

.

.

.

a

instrumentality,

county,

municipality,

regardless

of

state

the

number

agency,
of

or

state

individuals

employed.”), 21.002(14)(A) and (C)(“‘State agency’ means a board,
commission, council, department, institution, office, or agency in
the

executive

branch

of

state

government

having

statewide

jurisdiction . . . or an institution of higher education as defined
by

Section

61.003,

Education

Code.”)

waives

Texas’

sovereign

immunity for claims under the TCHRA in Texas state court, it does
not waive immunity in federal court.

Cephus v. Tex. Health and

Human Servs. Comm’n, 146 F. Supp. 3d 818,

2015

WL 7313414, at *8

(S.D. Tex. Nov. 19, 2015); Perez v. Region 20 Educ. Serv. Ctr., 307
F.3d 318, 322 (5th Cir. 2002); Jackson, 997 F. Supp. 2d at 636.
Thus these claims should also be dismissed under Rule 12(b)(1).
UHV is a part of UH System and both are units of Texas State
government.

Tex. Educ. Code Ann. § 111.81; Lowery v. Univ. Of

Houston--Clear

Lake,

82

F.

Supp.

2d

689,

693

(S.D.

Tex.

2000)(discussing the UHV, part of the University of Houston, is a
state entity).

Thus both entities are entitled to the same

sovereign immunity as the State itself.
100.

Pennhurst, 465 U.S. at

Also under Kimel, because the “ADEA exceeds the scope of

congressional, it is therefore invalid as an abrogation of state
sovereignty.”

Lowery, 82 F. Supp. 2d at 693, citing Kimel, 528

U.S. at

-12-

Supplemental Jurisdiction
Under 28 U.S.C. § 1367(a),
Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution.
Such
supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional
parties.
Title 28 U.S.C. § 1367(c) provides,
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if-—
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are
compelling reasons for declining jurisdiction.

other

“[T]his Court has long adhered to principles of pendent and
ancillary

jurisdiction

by

which

the

federal

courts’

original

jurisdiction over federal questions carries with it jurisdiction
over state law claims that ‘derive from a common nucleus of
operative fact,’ such that ‘the relationship between [the federal]
claim and the state claim permits the conclusion that the entire
action before the court comprises but one constitutional ‘case.’‘”

-13-

City of Chicago v. International College of Surgeons, 522 U.S. 156,
165 (1997)(and cases cited therein).

“Congress has codified those

principles in the supplemental jurisdiction statute, which combines
the doctrines of pendent and ancillary jurisdiction under a common
heading.

28 U.S.C. § 1367.

Usually, “when a district court has original jurisdiction over
some claims, the court may exercise ‘supplemental jurisdiction over
all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy,’ including claims over additional parties.

28 U.S.C.

§ 1367. Supplemental jurisdiction may be declined where a novel or
complex issue of State law exists, where the claims substantially
predominate over the claims granting original jurisdiction, where
the court has dismissed the claims over which it had original
jurisdiction, or where other compelling reasons exist.”

28 U.S.C.

§ 1367(c); Winkler v. State Farm Fire and Cas. Co., 266 F. Supp. 2d
509, 513 (S.D. Miss. 2003).
Defendants’ Partial Motion to Dismiss (#6)
Defendants contend that Plaintiff’s TCHRA and his ADEA claims
2 and 4-7 are barred by the State of Texas’ Eleventh Amendment
immunity.

Plaintiffs’ age discrimination and retaliation claims

under the ADEA against the State of Texas are barred by sovereign
immunity.

Kimel, 528 U.S. at 91 (“[I]n the ADEA, Congress did not

validly abrogate the States’ sovereign immunity to suits by private

-14-

individuals.”).

As noted, the Fifth Circuit has applied Kimel to

dismiss claims against state universities.

See, e.g., Sullivan,

217 Fed. Appx. at 395; McGarry, 355 Fed. Appx. at 855.
UHV is a state university, a state agency, and an institution
of higher education organized under the laws of the State of Texas.
Tex. Educ. Code Ann. § 111.81.

In Kimel, 528 U.S. at 91, the

Supreme Court ruled that Congress did not abrogate the states’
sovereign immunity with regard to the ADEA.

See also Simon v.

Tex. Rehab. Comm’n, 66 Fed. Appx. 525, 525 (5th Cir. 2003)(per
curiam).

Therefore UHV is entitled to sovereign immunity from

Plaintiff’s ADEA claims, which thus should be dismissed for lack of
jurisdiction.
Should Plaintiff argue that the Court has federal question
jurisdiction over the Title VII claims and could therefore claim to
have supplemental jurisdiction over the TCHRA claims, Defendants
insist that “the supplemental jurisdiction statute, 28 U.S.C. §
1367 (West 2004), which codified pendent jurisdiction, does not
abrogate Eleventh Amendment immunity.”

Cephus, 146 F. Supp. 3d at

830 (“[T]he Eleventh Amendment bars the adjudication of pendent
state law claims against nonconsenting state defendants in federal
court.”), citing Hernandez v. Texas Dept. of Human Services, 91
Fed. Appx. 934, 935 (5th Cir. 2004)(“[T]he Eleventh Amendment bars
the adjudication of pendent state law claims against nonconsenting
state

defendants

in

federal

court.

-15-

And

the

supplemental

jurisdiction statute, 28 U.S.C. § 1367 (West 2004), which codified
pendent

jurisdiction,

does

not

abrogate

Eleventh

Amendment

immunity.”), citing Raygor v. Regents of the Univ. of Minn., 534
U.S. 533, 541-42 (2002).

Thus Plaintiffs TCHRA claims (Counts 2,

5 and 7) should be dismissed with prejudice.

In accord, Taylor v.

Texas Southern Univ., 2013 WL 3157529, at *5.
As for UH System, because it is not Plaintiff’s employer nor
did it exercise any power or control over his employment at UHV, is
not a proper defendant here.
from

UHV.

Tex.

Educ.

UH System is a separate legal entity

Code

§

55.1723,

111.20

et

seq.

(the

University of Houston System). Because UH System is not alleged to
be an “employer,” it cannot be liable for Plaintiff’s Title VII
claims and should be dismissed as an improper party.

City of

Austin v. Gifford, 824 S.W. 2d 735, 742 (Tex. App.--Austin 1992, no
writ)(“[U]nder the express terms of the Human Rights Act,” only
“employers may be liable for an unlawful employment practice, just
as “the long line of federal cases which hold that Title VII
creates a cause of action against employers, but not against
supervisors or public officials in their individual capacities.”).
See also Sibley Memorial Hosp. v. Wilson, 488 F. 2d 1338, 1341-43
(D.C. Cir. 1973).
In NME Hosps., Inc. v. Rennels, 994 S.W. 2d 142, 147 (Tex.
1992), the Texas Supreme Court held that a direct employment
relationship is not required if the plaintiff can show that an

-16-

employer used its position of power and control, adversely and
wrongfully,

to

interfere

with

the

relationship with a third party.

plaintiff’s

employment

See also Sibley Mem’l Hosp. v.

Wilson, 488 F.2d 1338, 1341-43 (D.C. Cir. 1973).

To state such a

claim, the plaintiff must show (1) that the defendant is an
employer

within

the

statutory

definition,

(2)

an

employment

relationship exists between the plaintiff and a third party, and
(3) the defendant controlled access to the plaintiff’s employment
opportunities,

and

(3)

the

defendant

controlled

access

to

plaintiff’s employment opportunities and denied or interfered with
or denied that access based on unlawful criteria.
S.W. 2d at 147.

Rennels, 994

Plaintiff here cannot satisfy the third prong

because there has been no allegation that UH System exercised such
control over UHV’s employment decisions, nor that it denied or
interfered with Plaintiff’s employment based on unlawful criteria.
see, e.g., Johnson v. Scott Fetzer Co., 124 S.W. 3d 257 (Tex. App.-Fort Worth 2003, pet. denied).

Instead all personnel decisions

rested at all times with Plaintiff’s employer, UHV, not UH System.
Thus Plaintiff fails to show that UH System waived its sovereign
immunity, and Plaintiff’s claims should be dismissed for lack of
subject matter jurisdiction.
In sum, Plaintiff’s claims under the ADEA and the TCHRA and
the UH System should be dismissed for lack of subject matter
jurisdiction.

-17-

Plaintiff’s Response (#12)
Plaintiff

contends

that

Defendants

fail

to

present

any

evidence to support their immunity argument, so the entire motion
to dismiss should be denied.

Defendants have not proven how and

why they would be entitled to protection by Eleventh Amendment
immunity or that they would be entitled to the same immunity as the
State of Texas.

Even though the Eleventh Amendment gives each

state sovereign immunity from a private lawsuit for damages brought
by an individual citizen, Plaintiff here is not suing the State of
Texas; he is suing Defendants, who presented no evidence showing
they are entitled to the same immunity as the State of Texas.
Plaintiff did not allege that Defendants are units of state
government, but merely stated that Defendants are “state funded.”
Complaint, #1, ¶¶ 2-3. Defendants fail to satisfy the factors that
would show they are entitled to Eleventh Amendment immunity as arms
of the state.
state

Plaintiff disputes whether Defendants are “units of

government”

entitled

to

Eleventh

Amendment

immunity.

Furthermore there is a limited waiver for TCHRA claims: Section
21.2024 makes mandatory and jurisdictional the filing of TCHRA
claims with 180-day period after the unlawful employment action or

4

Section 21.202 (“Statute of Limitations”) states,

(a) A complaint under this subchapter must be filed no later than the 180th day
after the date the alleged unlawful employment practice occurred.
(b) The commission shall dismiss an untimely complaint.
-18-

the claims must be dismissed.

See, e.g., Sauceda v. Univ. of Texas

at Brownsville, 958 F. Supp. 761, 766-767 (S.D. Tex. 2013).
Although Defendants cite Texas Education Code § 111.81 to
support their claim that UHV is a state university, a state agency,
and an institution of higher education organized under the laws of
the State of Texas, that section does not mention either Defendant
and thus does not apply to this case, argues Plaintiff.

Nor do

the cases they cite for their claim that Defendants are considered
to be a “state” for purposes of being able to claim Eleventh
Amendment immunity.

Plaintiff disputes all these claims and asks

that the motion be denied.
In addition Plaintiff objects that his TCHRA claims should not
be dismissed because the Court has subject matter/supplemental
jurisdiction over them.

Dr. Yu claims that the allegations in the

Complaint show that the Court has supplemental jurisdiction over
the pendent state claims under the TCHRA because they are related
to

the

other

claims

that

provide

the

Court

with

original

jurisdiction, i.e., Plaintiff’s claims under Title VII and the
ADEA, that they form part of the same case or controversy under
Article III of the United States Constitution.

28 U.S.C. § 1367.

The state and federal claims must arise from a common nucleus of
operative fact for the federal court to retain jurisdiction of a
state law claim under the pendent jurisdiction doctrine.

United

Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).

-19-

Pendent jurisdiction serves judicial economy, conveniences, and
fairness to litigants.

Id. at 726.

Chapter 21 provides a limited waiver of a school district’s
governmental immunity for claims that fall under the TCHRA.
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W. 3d 629, 636
(Tex.

2012)(“‘[T]he

TCHRA

clearly

and

unambiguously

waives

immunity’ for suits brought against ‘school districts’ under the
TCHRA.5

However, the Legislature has waived immunity only for

those suits where the plaintiff actually alleges a violation of the
TCHRA by pleading facts that state a claim thereunder.”).

The

TCHRA defines “employer” to encompass “a county, municipality,
state agency, or state instrumentality.”
21.002(8)(D).

Texas Labor Code §

Plaintiff insists that it has done so.

Plaintiff also argues that his ADEA claim should not be
dismissed because Defendants have not provided any evidence showing
that they are to be viewed as the “state.”

They have not applied

the traditional six-factor test set out in Perez, 307 F.3d at 326-

5

The Court finds this section inapposite to the university Defendants here. As noted
earlier by the Court,“UH is not a local school district, it is a state university. As a state
university, UH is a state agency for purposes of Eleventh Amendment immunity.” Alcantra,
2016 WL 4040123, at *2; Chhim, 129 F. Supp. 3d at 512 (“As an agent of the state of Texas, the
University is entitled to Eleventh Amendment immunity absent waiver or abrogation.”). The
same is true of the University of Houston System. Lecompte, 535 F. Supp. at 320 (“[A]ny
judgment against the University of Houston System would be paid out of the state treasury.”);
Shoecraft v. University of Houston-Victoria, 2006 WL 870432, at *8 (“[A]s state agencies,
[University of Houston System and University of Houston-Victoria] are agencies of the state.
Therefore, as state agencies, [they] are immunized from private suit by the Eleventh
Amendment.”).
-20-

27, inter alia.

Plaintiff points out that the University of

Houston has the power to sue and be sued under Texas Education Code
§

111.33.

That

appropriate.

ability

Id. at 331.

suggests

sovereign

immunity

is

not

Because Defendants are not immune, the

motion to dismiss should be denied.
Furthermore because the Complaint identifies UH System as an
employer, it should not be dismissed. The term “employer” is to be
liberally construed under Title VII.

Baker v. Stuart Broadcasting

Co., 560 F.2d 389, 391 (8th Cir, 1977).

“[S]uperficially distinct

entities may be exposed to liability upon a finding that they
represent a single integrated enterprise: a single employer.
Factors

considered

in

determining

whether

distinct

entities

constitute an integrated enterprise are (1) interrelations of
operations, (2) centralized control of labor relations, (3) common
management, and (4) common ownership or financial control.”
Trevino

v.

Celanese

Corp.,

1983)(applied to Title VII).

701

F.2d

397,

403-04

(5th

Cir.

Courts have mainly focused on the

second prong (centralized control), with the critical issue being
who made the final decision regarding the employment matter in
dispute.

Id. at 404.

The Complaint alleges that Plaintiff

complained about national origin and age discrimination in UHV and
UH System, and subsequently to the EEOC through UH Systems Office
of Equal Opportunity Services, whose Director of Investigations
discussed

Plaintiff’s

grievance

-21-

with

him

(Exhibit

A).

Thus

Plaintiff suggests that UH System had a role in the discrimination
and retaliation against Plaintiff while he worked for Defendants.
In addition Plaintiff notes the Position Statement submitted
on behalf of Defendants in response to Plaintiff’s EEOC Charge was
on UH System’s letterhead.

#12, Ex. B.

A copy of Defendants’

discrimination and harassment policy, Exhibit 1, for the EEOC.

UH

System’s administrative policy about discrimination and harassment
is attached as Exhibit C.

Furthermore, both Defendants have the

same attorney representing them at the EEOC and in this lawsuit.
The W-2 Wage and Tax Statement that Plaintiff received for his
employment with Defendants identified UH System as the employer
(Exhibit D).

Plaintiff concludes that UHS was Plaintiff’s joint

employer, along with UHV and expresses confidence that discovery
will further support that conclusion.
Defendants Reply (#13)
Reiterating its earlier arguments, Defendants insist that
Plaintiff’s

lack

of

supporting

cases

cannot

overcome

well

established precedents, i.e., that Defendants are entitled to the
same

protections

as

the

State

of

Texas

and

Plaintiff’s claims under the TCHRA and the ADEA.

are

immune

from

In addition they

maintain that the administrative overlap between the UH System and
UHV does not make them joint employers because the UH System did
not exercise control over Plaintiff’s employment under
relevant tests.

both

Defendants call “tangential connections” that “UH

-22-

System” appears on Plaintiff’s W-2, UHV’s policy handbooks, and
letter to the EEOC, which do not show actual control by UH System.
They urge the Court to dismiss UH System for lack of subject matter
jurisdiction and permit Plaintiff’s remaining claims under Title
VII to survive against UHV.
Defendants insist that a slew of cases show that universities
such

as

UH

are

immune

from

jurisdiction does not apply.

TCHRA

lawsuits

and

supplement

See, e.g., Cephus, 146 F. Supp. 2d

818 (holding that TCHRA claims could not attach via supplemental
jurisdiction and the Texas Labor Code waives sovereign immunity for
claims under the Labor Code only in state court, but not in
federal.).

See also Taylor, 2013 WL 3157529, at *5; Perez, 307

F.3d at 332-33 (TCHRA “does not expressly waive sovereign immunity
in federal court”).

The only case cited by Plaintiff (Mission

Consolidated, 372 S.W. 3d 629) is a state court action, which is
irrelevant in federal court.

Supplemental jurisdiction does not

apply because “[t]he supplemental jurisdiction statute, 28 U.S.C.
§

1367 (West 2004), which codified pendent jurisdiction, does not

abrogate Eleventh Amendment immunity.” Hernandez, 91 Fed. Appx. at
935, citing Raygor, 534 U.S. at 541-42.

Defendants contend that

Plaintiff cannot satisfy the third element of the Rennels test
because unlike in Rennels, there is no pleading that UH System
exercised such control over UHV’s employment decisions, not that it
denied or interfered with Plaintiff’s employment based on unlawful

-23-

criteria.

Johnson v. Scott Fetzer Co., 124 S.W. 3d at 264 (finding

plaintiff had not satisfied third prong of Rennels test because he
presented no evidence that the manufacturer had the right to hire
or fire him and that defendant’s control did not deny or interfere
with the salesperson’s access to employment based on unlawful
criteria).

De Santiago v. West Texas Community Supervision &

Corrections Dept., 203 S.W. 3d 387, 395 (Tex. App.--El Paso 2006)
Plaintiff’s ADEA claims are barred because UHV, as a State
University and arm of the State, is entitled to the same immunity
as the State of Texas absent waiver or abrogation.

Lowery 82 F.

Supp. 2d at 693; Chhim, 129 F. Supp. 3d at 512; Johnson v. Prairie
View

A&M

Univ.,

587

Fed.

Appx.

213,

curiam)(and cases cited therein).

214

(5th

Cir.

2014)(per

Furthermore, as noted, the

United States Supreme Court has concluded that the ADEA exceeds the
scope

of

congressional

authority

abrogation of state sovereignty.

and

is

thus

invalid

as

an

Kimel, 528 U.S. 62.

Defendants further contend that UH System was not Plaintiff’s
employer under either the hybrid test or the Rennels test and thus
should be dismissed as a defendant.

Plaintiff fails to cite a

single case in which such a University System has been successfully
sued when a specific University branch employed the plaintiff.
Defendants do not disagree that UH System is an employer generally.
Texas Lab. Code § 21.002(8). Nevertheless, despite the shared name
(“University of Houston”) and the financial and administrative

-24-

overlap in any state school system, the UH System is a separate
legal entity from UHV.

Tex. Educ. Code § 55.1712, 111.20 et seq.

Without any evidence Defendants insists that the UH System did not
directly control Plaintiff’s employment, and all the relevant
factual allegations in the Complaint deal with alleged actions by
UHV employees.
For an entity to be subject to liability under the TCHRA, a
plaintiff must demonstrate that (1) the entity satisfies the
statutory

definition

of

“employer,”

and

relationship existed between the parties.

(2)

an

employment

De Santiago v. West

Texas Community Supervision & Corrections Dept., 203 S.W. 3d 387,
395 (Tex. App.--El Paso 2006).

Courts employ a hybrid economic

realities/common law control test to determine if an employment
relationship, as opposed to an independent contractor relationship,
exists between parties.

Id. at 395-96; Deal v. State Farm County

Mut. Ins. Co. of Tex., 5 F.3d 117, 118-19 (5th Cir. 1993).

See also

Johnson v. Scott Fetzer Co., 124 S.W. 3d 257, 263 (Tex. App.--Fort
Worth 2003, pet. denied); Thompson v. City of Austin, 979 S.W. 2d
676, 681-82 (Tex. App.--Austin 1998, no pet.). Plaintiffs have
cited Exhibits A-D (discrimination policy), and a W-2 Wage and Tax
Statement to show UH System is a properly named defendant, but
“legal reality suggest[s] otherwise,” insist Defendants.
economic

realities

component

of

the

hybrid

The

economic

realities/common law test examines whether the purported employer

-25-

paid the employee’s salary, withheld taxes, provided benefits, and
set the terms and conditions of employment.
3d at 396.

De Santiago, 203 S.W.

The control component looks at whether the alleged

employer has the right to hire and fire the employee, to supervise
the employee, and to set the employee’s work schedule.

Id.

The

right to control an employee’s conduct is more important than the
economic realities component.

Univ. of Texas at El Paso v. Ochoa,

410 S.W. 3d 327, 331-32 (Tex. App.--El Paso 2013); Deal, 5 F. 3d at
119.
Here Plaintiff cannot satisfy the requirements for the control
component because his Complaint and his Response fail to allege
that the UH System had the right to hire, fire, supervise or set
Dr. Yu’s work schedule.

Thus UH System was not his employer.

In addition, Plaintiff lacks standing to sue UH System because
he failed to satisfy the Rennels test, which establishes that a
direct employment relationship is not necessary if the plaintiff
demonstrates “(1) that the defendant is an employer within the
statutory definition of the Act . . .; (2) that some sort of
employment relationship exists between the plaintiff and a third
party . . .; and (3) that the defendant controlled access to the
plaintiff’s employment opportunities and denied or interfered with
that access based on unlawful criteria.”

NME Hospitals, Inc. v.

Rennels, 994 S.W. 2d 142, 147 (Tex. 1999), citing Sibley Memorial
Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973).

-26-

All personnel

decisions rested at all times with Plaintiff’s employer, UHV, not
UH System.
Last of all, Defendants maintain that the EEOC letter sent on
the UH System letterhead and the fact that UHV and UH System share
the same attorney (a kind of “guilt by association”) do not mean
that UH System was Plaintiff’s employer. A trial court may exclude
an EEOC letter that is so conclusory that it possesses very little
probative value.

Cortes v. Maxus Exploration Co., 977 F.2d 195,

201 (5th Cir. 1992); Lee v. Executive Airlines, Inc., 31 F. Supp.
2d

1355,

1357-58

(S.D.

Fla.

1998)(“We

find

this

Letter

of

Determination is highly conclusory and thus possesses very little
probative value and accordingly will exclude it.”).
Court’s Decision
After careful review of the briefing and the applicable law,
the Court concludes that Plaintiff misconstrues the law and does
not properly plead his claims under the ADEA and the TCHRA.

Those

errors and deficiencies, however, do not protect all his claims
other than those under Title VII from dismissal as a matter of law.
With regard to Defendants’ contention that UH System is not an
“employer” for purposes of Title VII liability, they do not present
any facts to support their claim.

Moreover the Court finds there

are genuine issues of material fact that must be investigated, as
there are cases of professors and state university employees suing
the University of Houston System as an employer under Title VII.

-27-

See, e.g., Foley v. Univ. Of Houston System, 355 F.3d 333 (5th Cir.
2003); Shoecraft v. University of Houston-Victoria, University of
Houston System, No. Civ. A. V-03-85, 2006 WL 870432 (S.D. Tex. Mar.
28, 2006); Septimus v. University of Houston and University of
Houston System, 399 F.3d 601 (5th Cir. 2005); Hernandez v. Univ. Of
Houston System, Civ. A. No. 4:11-CV-3038, 2013 WL 1390737 (S.D.
Tex. Feb. 1, 2013); Hutto v. University of Houston System, Civ. A.
No. V-05-70, 2008 WL 4453427 (S.D. Tex. Sept. 28, 2008).
The Court agrees with Defendants that dismissal under Rule
12(b)(1) is appropriate for all except Plaintiff’s Title VII
claims.

Accordingly, the Court

ORDERS the following:
(1) Defendants, as agencies, arms, and instrumentalities of the
State of Texas are entitled to sovereign immunity under the
Eleventh Amendment from Defendants’ ADEA and ADEA retaliation
claims,6 and under Kimel, 528 U.S. 62, because Congress lacked
authority to abrogate immunity under the ADEA under the enforcement
clause, section five of the Fourteenth Amendment, the ADEA claims
(Complaint, #1. Counts 4 and 6 are dismissed under Rule 12(b)(1);
(2) Although the Texas Legislature waived immunity for claims under
the TCHRA in Texas state court, it did not waive immunity for them
in federal courts, so the claims against both Defendants under that

6

See, e.g., Pennhurst, 465 U.S. at 100; Jackson, 997 F. Supp. at 623; Taylor, 2013 WL
3157529, at *623.
-28-

statute (Complaint, #1, Counts 2, 5 and 7) in this Court are barred
by

Eleventh

Amendment

immunity

and

are

dismissed

under

Rule

12(b)(1)7; and
(3) The Court cannot exercise supplemental jurisdiction over the
TCHRA claims, depended from the federal question claims under Title
VII, because the supplemental jurisdiction statute, 28, U.S.C. §
1367, does not abrogate Eleventh Amendment immunity.8
Plaintiff’s Title VII claims shall remain pending.
SIGNED at Houston, Texas, this

23rd

day of

August , 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

7

See, e.g., Thomas, 155 Fed. Appx. at 117; Lecompte, 535 F. Supp. at 320.

8

See Cephus, 146 F. Supp. 3d at 830; Hernandez, 91 Fed. Appx. at 935; Raygor, 534
U.S. at 541-42.
-29-