Martinez v. Texas Workforce Commission-Civil Rights Division

Filing 8

REPORT AND RECOMMENDATIONS re 4 Motion to Dismiss filed by Texas Workforce Commission-Civil Rights Division. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RODOLFO MARTINEZ
v.
TEXAS WORKFORCE COMMISSIONCIVIL RIGHTS DIVISION

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A-11-CA-837 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before the Court are: Defendant’s Motion for Partial Dismissal (Clerk’s Doc. No. 4) filed

November 2, 2011; and Plaintiff’s Response to Defendants’ Motion for Partial Dismiss (Clerk’s
Doc. No. 6) filed November 10, 2011. The District Court referred these Motions to the undersigned
Magistrate Judge for report and recommendation.
I. FACTUAL BACKGROUND
Plaintiff, who is proceeding pro se, sues the Civil Rights Division of the Texas Workforce
Commission for the failure to promote him based upon his race and national origin — MexicanAmerican. Plaintiff sues pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C § 1981.
As relief he requests: (1) that Defendant be directed to employ and promote Plaintiff in a
management position; and (2) that Defendant be directed to establish selection guidelines “not
adversely affecting Mexican-American[s].” Defendant filed a motion under Rule 12(b)(1) moving
the Court to dismiss Plaintiff’s Section 1981 claims based upon Eleventh Amendment immunity.
II. MOTION TO DISMISS
A motion under Rule 12(b)(1) should be granted only if it appears beyond doubt that the
plaintiff cannot prove a plausible set of facts in support of its claim. Lane v. Halliburton, 529 F.3d

548, 557 (5th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)). The
Court may find a plausible set of facts by considering: “(1) the complaint alone; (2) the complaint
supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented
by undisputed facts plus the court's resolution of disputed facts.” Lane, 529 F.3d at 557 (quoting
Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)). The Court will accept all
well-pleaded allegations in the complaint as true, and construe those allegations in the light most
favorable to Plaintiffs. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The party
asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). “A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”
CleanCOALition v. TXU Power, 536 F.3d 469, 473 (5th Cir. 2008) (quoting Home Builders Ass'n
of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).
“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519 (1972); Bledsue v.
Johnson, 188 F.3d 250, 255 (5th Cir. 1999).
III.

Plaintiff’s 42 U.S.C. § 1981 Claim
In his Complaint, Plaintiff requests relief pursuant to 42 U.S.C. § 1981. Defendant moves

to dismiss Plaintiff’s § 1981 claims asserting they are barred by Eleventh Amendment immunity.
Absent an express abrogation by Congress or a waiver by the state, the Eleventh Amendment
precludes suits in which a state agency is named as a defendant. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984). “The Eleventh Amendment prohibits a private citizen from
bringing suit against a state in federal court unless the state consents.” Daigle v. Gulf State Utils.
Co., Local Union No. 2286, 794 F.2d 974, 980 (5th Cir. 1986). This includes suits against a state
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agency because a suit against a state agency “is a suit against the state . . . .” Id. “The [TWC] is a
state agency established . . . to administer the unemployment compensation insurance program” in
the state of Texas. See TEX . LABOR CODE § 301.001.
The Fifth Circuit has found that Congress has not abrogated the states’ immunity for suits
under § 1981. See Hines v. Mississippi Dep’t of Corr., 239 F.3d 366 (5th Cir. 2000); Sessions v.
Rusk State Hosp., 648 F.2d 1066, 1069 (5th Cir. 1981) ( “Section 1981 contains no congressional
waiver of the state’s eleventh amendment immunity”); Dear v. Jackson State Univ., 2008 WL
4225766, at *4 (S.D. Miss. Sept.10, 2008) (finding that JSU was entitled to immunity as to
plaintiff’s § 1981 and § 1983 claims).
Plaintiff has not pled, and there is nothing in the Texas statutory scheme that clearly indicates
that Texas has waived its immunity from suit in federal court. Thus, the Court concludes that the
Eleventh Amendment precludes Plaintiff’s § 1981 claims against the TWC. Plaintiff’s § 1981
claims against the TWC should therefore be dismissed with prejudice.1
III. RECOMMENDATION
The undersigned Magistrate Judge RECOMMENDS that the District Court GRANT
Defendant’s Motion for Partial Dismissal (Clerk’s Doc. No. 4) and DISMISS WITH PREJUDICE
Plaintiff’s Section 1981 cause of action.

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The remainder of Plaintiff’s claims are brought pursuant to Title VII. Title VII, which
expressly authorizes suits against the states, abrogates Eleventh Amendment immunity because it
was passed pursuant to Section Five of the Fourteenth Amendment. See Idaho v. Coeur d'Alene
Tribe of Idaho, 521 U.S. 261, 279 (1997) (citing Fitzpatrick v. Bitzer, 427 U.S. 445,456–57 (1976));
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 n.1 (5th Cir. 2002) (finding that the Fifth
Circuit has “long recognized that Congress has clearly abrogated the states’ Eleventh Amendment
immunity in enacting Title VII”) (citing Ussery v. Louisiana ex rel. La. Dep't of Health & Hosps.,
150 F.3d 431, 434–35 (5th Cir. 1998)).
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IV. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen days after the party is served with a copy of the Report shall
bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
To the extent that a party has not been served by the Clerk with this Report &
Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is
directed to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 18th day of November, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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