Akorede v. Texas Department of Assistive Rehabilitation Services

Filing 22

OPINION AND ORDER granting 8 Motion to Dismiss, TCHRA claims are DISMISSED, denying 14 Motion to Remand.. Case terminated on 8/7/2017; (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WANDA A. AKOREDE,
Plaintiff,
vs.
TEXAS DEPARTMENT OF ASSISTIVE
REHABILITATION SERVICES and
TEXAS WORKFORCE COMMISSION,
Defendants.

§
§
§
§
§
§
§
§
§
§
§

August 08, 2017
David J. Bradley, Clerk

CIVIL ACTION H-16-3518

OPINION AND ORDER
Pending before the Court in the above referenced cause,
removed from the 133rd Judicial District Court of Harris County,
Texas, alleging intentional age discrimination in violation of the
Texas Labor Code § 21.051 and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 6223, et seq., including hostile work
environment and retaliation under both statutes, and Texas common
law1 are (1) Defendant Texas Workforce Commission’s2 (“TWC’s”)
1

Plaintiff does not identify any common law claims. The
Court notes that the State of Texas has not waived sovereign
immunity for intentional tort claims such as defamation or
intentional infliction of emotional distress. Jones v.
Performance Service Integrity, 492 F. Supp. 2d 590, 598 (N.D.
Tex. 2007), citing Gillum v. City of Kerrville, 3 F.3d 117, 12223 (5th Cir. 1993); Thomas v. City of Houston, 537 Fed. Appx.
593,, 597 n.3 (5th Cir. 2013).
2

Defendant Texas Workforce Commission (“TWC”), in its notice
of removal (#1), explains that it was formerly known as Texas
Department of Assistive and Rehabilitative Services (“DARS”). In
subsequent amended pleadings, apparently acknowledging her error,
Plaintiff Wanda A. Akorede styles this suit solely against TWC.
For clarity, the Court refers to Defendant as “TWC” throughout
-1-

motion to dismiss (instrument #8) because Plaintiff Wanda A.
Akorede’s

(“Plaintiff’s” or “Akorede’s”) claims are barred by the

Eleventh Amendment and (2) Plaintiff’s motion to remand under 28
U.S.C. § 1447(c)(#14).
Plaintiff’s Original Petition (#1-3) and
First Amended Original Petition’s (#4's) Factual Allegations
It is undisputed that Defendant TWC is an agency of the State
of Texas.3
Plaintiff Wanda A. Akorede, an African American female over
the age of 40 and a resident of Texas, worked for the State of
Texas for approximately nine and a half years, beginning in
September 2007, when she was hired as a Vocational Rehabilitation
Counselor I.

In 2013 Plaintiff’s manager, Mr. Ekere Williams

(“Williams”), began harassing her by transferring to her the entire
Comprehensive Rehabilitation Services (“CRS”) case load, even
though she already was managing the full Vocational Rehabilitation

this Opinion and Order.
3

Tex. Labor Code § 301.001(a) (“The Texas Workforce
Commission is a state agency established to operate an integrated
workforce development system in this state, in particular through
the consolidation of job training, employment, and employmentrelated educational programs available in this state, and to
administer the unemployment compensation insurance program in
this state.”); Salinas v. Texas Workforce Comm’n, 2013 WL
4511638, at *4 (W..D. Tex. Aug. 22, 2013)(“TWC is an agency of
the State of Texas and, therefore, a suit against the TWC is a
suit against the State of Texas.”); Daigle v. Gulf State
Utilities Co. v. Local Union Number 2286, 794 F.2d 974, 980 (5th
Cir.), cert. denied, 479 U.S. 1008 (1986).
-2-

case load.

Several months later the CRS case load was transferred

out of the department, but Williams’ harassment continued and
intensified,

including

his

violations

of

TWC

policies

and

procedures by denying her leave requests after leave had already
been approved.

On September 11, 2014 she filed an administrative

complaint against Williams for his abusive behavior.

On or about

October 28, 2014 TWC ruled in her favor and disciplined Williams
for his conduct.
Williams then “began a systematic and persistent crusade to
get Plaintiff terminated from her employment.”

#4, p. 4. First he

began reviewing all of her work on completed cases in an effort to
find errors for which he could discipline her, something he had not
done to any other employees.

On July 22, 2015, he commenced a

disciplinary action against her, claiming that she had wrongfully
issued payments amounting to approximately $400.00.

Williams

continued to exclude Akorede from meetings and to reverse her
closed cases, even though her work was at least equal to or better
than that of her co-workers.

He also placed her on a disciplinary

plan to receive more training, again under his review.
On September 10, 2012, Akorede filed a complaint with the
Equal

Employment

Opportunity

Commission

(“EEOC),

claiming

retaliation based on age, race, and gender. She filed her state
court action on September 20, 2016, alleging age discrimination in
violation of the ADEA and retaliation in violation of the TCHRA,

-3-

and served the petition and citation for personal service on the
Secretary of State’s Office on November 4, 2016. At that point she
was a Vocational Rehabilitation Counselor V.
removed the case on November 29, 2016,
jurisdiction under the ADEA.

Defendant timely

based on federal question

On January 24, 2017, TWC filed its

motion to dismiss Plaintiff’s First Amended Complaint.

Akorede

filed her Second Amended Complaint (#12), without leave of Court,
on February 9, 2017, and then an untimely motion to remand (#14)
pursuant to 28 U.S.C. § 1447(c) the next day, 73 days after TWC’s
Notice of Removal. Plaintiff’s three pleadings present essentially
the same conclusory statements of fact, but the last one, her
Second Amended Complaint, eliminated her ADEA claims, leaving only
retaliation under the TCHRA.
The First Amended Original Petition presents two Counts:

the

first for “intentionally discriminat[ing] against Plaintiff because
of her age in violation of the ADEA by continually harassing her
and refusing to give Plaintiff merit pay increases or consider her
for promotion but . . . gave younger employees in less favorable
employment positions merit increases (#4, p. 5); second, “for
retaliation in violation of § 21.055 of the TCHRA” after she “filed
a charge of age, race, and gender discrimination with the EEOC and
the TCHRA on September 10, 2015,” which she claims still continues.
After reviewing the record and the applicable law, the Court
agrees with TWC and concludes that as a matter of law, this suit is

-4-

barred by the Eleventh Amendment and sovereign immunity and must be
dismissed for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) for the reasons stated below.
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

jurisdiction exists, here TWC, 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 Amendment4 bars

4

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.
-5-

claims under the TCHRA and ADEA against a State not only in actions
in which the State is actually named as the defendant, but also in
certain actions 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,

-6-

2011 WL 52525 at *3,

citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995).

The challenge here is a facial attack.

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).

-7-

In

resolving a factual attack on subject matter jurisdiction under
Rule 12(b)(1), the district court, which does not address the
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 addressed and 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 a private individual
-8-

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

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 and declaratory and 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 parties5 seeking to
impose a liability which must be paid from public funds”);
5

Cory v.

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.”).
-9-

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 in federal court unless the
state

consents

to

suit

or

Congress

has

clearly

abrogated the state’s sovereign immunity.”).

and

validly

“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
-10-

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

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 429.6

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

6

When a state agency is the nominal defendant, the Fifth
Circuit applies a six-factor test, with no single 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).
-11-

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.”).
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,
that abrogation exceeded Congress’ authority under section five of
the Fourteenth Amendment.” The Fifth Circuit has frequently stated
after the issuance of Kimel that the State of Texas has not waived
its immunity under the ADEA.

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

Health Science Center at Houston Dental Branch, 217 Fed. Appx. 391,
395 (5th Cir. 2014).

A district court in the Fifth Circuit has

applied Kimel to dismiss claims under the ADEA against TWC.

See

Jones v. Performance Integrity, 492 F. Supp. 2d 590, 597-98 (N.D.
Tex. 2007).

Although the Texas Labor Code §§ 21.002(8)(D)

(“‘Employer’ means . . . a county, municipality, state agency, or
state instrumentality, regardless of the number of 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

-12-

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 for claims under the TCHRA in federal court.
Cephus v. Tex. Health and Human Servs. Comm’n, 146 F. Supp. 3d 818,
829-30 (S.D. Tex. Nov. 19, 2015); Hernandez v. Tex. Dept. of Human
Services, 91 Fed. Appx. 934, 935 (5th Cir. 2004)(per curiam); 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 the Eleventh Amendment and Rule 12(b)(1).
With regard to seeking leave to amend,
[u]nder Federal Rule of Civil Procedure 15(a), a district
court “should freely give leave [to amend] when justice
so requires.” Fed. R. Civ. P. 15(a)(2). “[T]he language
of this rule evinces a bias in favor of granting leave to
amend.” Jones v. Robinson Prop. Grp., L.P., 427 F.3d
987, 994 (5th Cir. 2005)(internal quotation marks
omitted).
Although leave to amend should not be
automatically granted, “[a] district court must possess
a substantial reason to deny a request for leave to
amend[.] Id. (internal quotation marks omitted). Under
Rule 15(a), “[d]enial of leave to amend may be warranted
for undue delay, bad faith, or dilatory motive on the
part
of
the
movant,
repeated
failure
to
cure
deficiencies, undue prejudice to the opposing party, or
futility of a proposed amendment.” United States ex rel.
Steury v. Cardinal Health, Inc., 625 F.3d 262, 270 (5th
Cir. 2010).
Tucker Energy Services, USA, Inc. v. Ricoh Americas Corp., Civ. A.
No. H-12-0417, 2012 WL 2403513, at *1 (S.D. Tex. June 25, 2012).
Plaintiff filed, without leave of Court or TWC’s consent, her
Second

Amended

Complaint

eliminating

-13-

her

ADEA

claims

and

an

untimely request in two memoranda (#14, in support of motion to
remand, and “15, in opposition to TWC’s motion to dismiss) to
remand this suit to state court on the grounds that the suit “does
not involve a federal question.”

#15 at p. 2; #14 at p. 1.

As TWC notes, Akorede failed to obtain consent from TWC to
amend her complaint again.

Furthermore TWC removed this action at

a time when Akorede’s Original Petition (and even her First Amended
Complaint7) did contain ADEA claims involving federal questions.
Given the timing of her remand request, i.e., after TWC filed its
motion to dismiss and her effort to eliminate her ADEA claims, the
Court agrees with TWC that Akorede’s attempt to drop her federal
claims was motivated by a desire to defeat the Court’s subject
matter jurisdiction. See 6 Wright, Miller & Kane, Federal Practice
& Procedure § 1487 (3d ed. 2010)(bad faith has been found when “the
plaintiff

attempts

jurisdiction

by

to

destroy

altering

the

the

federal

complaint

7

so

court’s

the

case

removal
will

be

Under Federal Rule of Civil Procedure 15(a), “[a] party
may amend its pleading once as a matter of course within . . .21
days of serving it, or if the pleading is one to which a
responsive pleading is required, 21 days after service of the
responsive pleading . . . .” Akorede served the petition and
citation for personal service on the Secretary of State’s Office
on November 4, 2016 and WTC filed its Original Answer and
Affirmative Defenses in the state court on November 28, 2016.
WTC removed this suit on November 29, 2016, and Plaintiff filed
her First Amended Complaint on December 27, 2016, before TWC
filed its motion to dismiss on January 24, 2017. Thus it was too
late to qualify “for amending as a matter of course” under Rule
15(a) and therefore it also required, but did not obtain, WTC’s
consent or the Court’s leave to file it.
-14-

remanded.”).

Following removal, a plaintiff is not allowed to

amend her complaint to eliminate any federal claims in an attempt
to deprive the court of jurisdiction.

See Harrell v. 20th Century

Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991).

“Once a case has been

properly removed, there is very little that a plaintiff can do that
will defeat federal subject-matter jurisdiction and force a remand
to state court. . . . In contrast to [the] ability to destroy
diversity jurisdiction, a plaintiff cannot destroy federal question
jurisdiction by dismissing federal question claims. . . . In such
situations, th federal court is empowered to retain jurisdiction
over the state law claims as a matter of supplemental jurisdiction,
although the court may, in its discretion, choose to remand such
claims under 28 U.S.C. § 1367(c).”

14B Wright, Miller, Cooper &

Steinman, Federal Practice and Procedure § 3721 (4th ed. 2009). See
also Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir.
1985)(“a plaintiff cannot oust removal jurisdiction by voluntarily
amending the complaint to drop all federal questions.”)8; Enochs v.
8

The Fifth Circuit explained the rationale for the rule, id.
at 507,
The policy behind this rule is obvious. When a
plaintiff chooses a state forum, yet also elects to
press federal claims, he runs the risk of removal. A
federal forum for federal claims is certainly a
defendant’s right. If a state forum is more important
to the plaintiff than his federal claims, he should
have to make that assessment before the case is
jockeyed from state court to federal court and back to
state court. The jockeying is a drain on the resources
of the state judiciary, the federal judiciary and the
-15-

Lampasas County, 641 F.3d 155, 167 (5th Cir. 2011).
Furthermore, Akorede requests remand based on 28 U.S.C. §
1447(c).

Removal pursuant to 28 U.S.C. § 1447(c), which requires

a district court to remand an action “[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction,” is inapposite here.

See Hook v. Morrison Milling

Co., 38 F.3d 776, 780 (5th Cir. 1994)(“[A] post-removal amendment
to a petition that deletes all federal claims, leaving only pendent
state claims, does not divest a district court of its properly
triggered subject matter jurisdiction.”); Spear Marketing, Inc. v.
BancorpSouth

Bank,

791

F.3d

586,

592

(5th

Cir.

2015)(removal

jurisdiction “is resolved by looking at the complaint at the time
the petition for removal is filed,” and “any subsequent narrowing
of the issues such that the federal claims are eliminated and only
pendent

state

claims

remain,

federal

jurisdiction

is

not

extinguished.”)(citing Hook).
`

This Court finds that Akorede’s continuous failure to follow

and to meet deadlines under the Federal Rules of Civil Procedure
and her futile effort to drop her federal claims in a bad faith
effort to destroy this Court’s jurisdiction warrant denial of her
request for leave to amend.
In sum, the Court concludes that dismissal of Plaintiff’s

parties involved; tactical manipulation [by the]
plaintiff . . . cannot be condoned.
-16-

claims under Rule 12(b)(1) is necessary.

Accordingly, the Court

ORDERS the following:
(1) Because TWC is an agency and arm of the State of Texas,
entitled to sovereign immunity under the Eleventh Amendment from
Defendants’ ADEA and ADEA retaliation claims,9 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, TWC’s motion to dismiss them (#8) is GRANTED
and all the ADEA claims 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 TCHRA claims against both Defendants
under that statute in this federal Court are barred by Eleventh
Amendment immunity and TWC’s motion to dismiss the TCHRA claims
(#8) is GRANTED and the TCHRA claims are dismissed under Rule
12(b)(1); and
(3) Plaintiff’s motion to remand (#14) is DENIED.
SIGNED at Houston, Texas, this 7th day of August, 2017.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

9

See, e.g., Pennhurst, 465 U.S. at 100; Jackson, 997 F.
Supp. at 623; Taylor, 2013 WL 3157529, at *623.
-17-