Saldivar v. Austin Independent School District
ORDER GRANTING 5 Motion to Dismiss. Signed by Judge Sam Sparks. (td)
TATES DISTRICT COURT
20 PH 2:57
AUSTIN INDEPENDENT SCHOOL
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Defendant Austin Independent School District's Motion to Dismiss [#5],
Plaintiff Annette Saldivar's Response [#6] in opposition, Defendant's Reply [#7] in support, and
Defendant's Supplemental Authority [#8] in support. Having reviewed the documents, the
governing law, and the file as a whole, the Court now enters the following opinion and order.
This case involves claims for retaliation arising from Defendant Austin Independent
School District (AISD)'s termination of Plaintiff Annette Saldivar (Saldivar)'s employment on
January 30, 2014. Specifically, Saldivar alleges she was terminated in retaliation for
"complain[ing] of age discrimination or, in the alternative, complain[ing] of being denied
overtime pay." Compl. [#1] ¶ 2.
Prior to filing the instant lawsuit, Saldivar sued AISD on February 5, 2014, seeking
unpaid overtime under the Fair Labor Standards Act (FLSA). See Compl. [#1], Saldivar v. Austin
Indep. Sch. Dist., No. 1:l4-cv-117-SS (W.D. Tex. Feb. 5,2014) (Saldivarl). In that lawsuit, the
Court granted Saldivar's first request for leave to amend her complaint to add age discrimination
claims under the Age Discrimination in Employment Act (ADEA) and the Texas Commission on
Human Rights Act (TCHRA). See Order of June 26, 2014 [#11], Saldivar I. Almost a year later,
on June 9, 2015, Saldivar filed a second motion for leave to amend her complaint, this time
seeking to add retaliation claims under the FLSA, ADEA, and TCHRA. See Mot. Amend [#23],
Saldivar I. The Court denied Saldivar's second motion for leave to amend her complaint to add
retaliation claims, concluding "the [December
2014] deadline for amended pleadings and for
discovery has long passed[.]" See Order of July 1, 2015 [#37] at 2, Saldivar I. Following this
denial, on September 22, 2015, Saldivar filed the instant lawsuit (Saldivar II), asserting her
claims against AISD for retaliation under the FLSA, ADEA, and TCHRA.
On October 19, 2015, AISD moved to dismiss Saldivar
II for improper claim splitting.
The parties fully briefed the motion, which is now ripe for the Court's consideration.
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." FED.
R. CIV. P.
motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for
"failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). The plaintiff
must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft
556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 566 U.S. at
678. Although a plaintiffs factual allegations need not establish that the defendant is probably
liable, they must establish more than a "sheer possibility" that a defendant has acted unlawfully.
Id. Determining plausibility is a "context-specific task," and must be performed in light of a
court's "judicial experience and common sense." Id. at 679.
In deciding a motion to dismiss under Rule 1 2(b)(6), a court generally accepts as true all
factual allegations contained within the complaint. Leatherman
Tarrant Cty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to
accept legal conclusions couched as factual allegations. Papasan
Allain, 478 U.S. 265, 286
(1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff
must plead "specific facts, not mere conclusory allegations." Tuchman, 14 F.3d at 1067. In
deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as
documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice. Tellabs, Inc.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
AISD moves to dismiss Saldivar II on the basis that it violates the prohibition against
claim splitting. Claim splitting precludes a plaintiff from "prosecuting [her] case piecemeal and
requires that all claims arising out of a single wrong be presented in one action." Ameritox, Ltd.
Aegis Sciences Corp., No. 3:08-CV-1 168, 2009 WL 305874, at *4 (N.D. Tex. 2009) (quoting
Sensormatic Sec. Corp.
Sensormatic Elecs. Corp., 273 F. App'x 256, 265 (4th Cir. 2008)). The
rule against claim splitting is related to the doctrine of claim preclusion, which prohibits a
plaintiff from litigating a claim that "could and should" have been brought in an earlier suit
where a court of competent jurisdiction renders a final judgment on the merits. See Matter of
Super Van Inc., 92 F.3d 366, 371 (5th Cir. 1996). Unlike claim preclusion, the rule against claim
splitting does not require a final judgment. See Friends of the Earth, Inc.
Petroleum Corp., 95 F.3d 358, 362 (5th Cir. 1996) ("When a plaintiff files a second complaint
alleging the same cause of action as a prior, pending, related action, the second complaint may
be dismissed.") (emphasis added).
In the Fifth Circuit, the crux of the claim-splitting inquiry is whether "the two actions
were based on the same nucleus of operative facts." Eubanks
F.D.I.C., 977 F.2d 166, 171 (5th
Cir. 1992). The Fifth Circuit has directed courts to "look to the factual predicate of the claims
asserted, not the legal theories upon which the plaintiff relies." Id. "In a claim splitting case, the
second suit will be barred if the claim involves the same parties and arises out of the same
transaction or series of transactions as the first claim." Ameritox, Ltd., 2009 WL 305874, at *4
(quoting Sensormatic, 273 F. App'x at 265).
Claim splitting is designed to "protect the defendant from being harassed by repetitive
actions based on the same claim." Matter of Super Van Inc., 92 F.3d 366, 371 (5th Cir. 1996).
"This rule finds particular application where
the plaintiff files the second complaint to
achieve procedural advantage by circumventing the rules pertaining to the amendment of
complaints." Friends of the Earth, Inc., 95 F.3d at 362 (quotation marks and citation omitted).
In Thomas v. Beaumont Independent School District, the plaintiff asserted several claims
in federal court against the defendant-school district, including age discrimination under the
ADEA. No. 1:15-CV-112, 2016 WL 922182, at *1 (E.D. Tex. Feb. 12, 2016), adopted by 2016
WL 899870 (E.D. Tex. Mar. 8, 2016). The plaintiff also filed a separate action in state court
asserting claims under the Texas Whistleblower Act, alleging he was wrongfully terminated
because he reported the school district's alleged "illegal acts" to state agencies. Id. at *2. The
Magistrate Judge concluded the case presented a "straightforward example of claim-splitting,"
because "[t]he essence of plaintiff']s causes of action in both cases is that [the school district]
wrongfully terminated his employment." Id. at *4
Like the plaintiff in Thomas, Saldivar' s claims in both Saldivar I and Saldivar II concern
AISD's allegedly unlawful motive in terminating her employment on January 30, 2014. In her
first lawsuit, Saldivar argued her termination was discriminatory; in her second lawsuit, she
argued her termination was retaliatory. As AISD points out, many of the factual allegations pled
in the Saldivar
complaint are identical to the factual allegations pled in the Saldivar II
complaint. Compare First Am. Compl. [#12]
11-12, Saldivar I ("Saldivar chose not to resign
since she did not engage in any misconduct.
. . .
AISD then terminated Saldivar."), with Compl.
15, 22, Saldivar
II ("Saldivar chose not to resign since she did not engage in any
AISD then terminated Saldivar."). In light of the foregoing, the Court finds
Saldivar's claims in Saldivar
I and Saldivar II arise
out of the same nucleus of operative facts
concerning the termination of her employment on January 30, 2014.1 See Thanedar
Warner, Inc., 352 F. App'x 891, 898 (5th Cir. 2009) (concluding the plaintiffs claims were
subject to claim preclusion, as they all arose "from the fact that he suffered an adverse
employment action and that his employer ultimately terminated his employment out of illegal
and retaliatory motives")
Moreover, the Court denied Saldivar' s request to amend her complaint in Saldivar I to
add her retaliation claims, because this request came six months after the pleadings amendment
deadline had passed and over one month after discovery had closed. Nearly three months after
the Court denied Saldivar' s request in Saldivar I, Saldivar filed the instant lawsuit asserting her
retaliation claims against AISD, the same defendant in Saldivar I. The rule against claim splitting
is often employed "to prevent a plaintiff from filing a new lawsuit after the court in an earlier
Saldivar contends the "factual predicates" are distinct in Saldivar I and Saldivar II, because the Court
granted AJSD's motion for summary judgment on Saldivar's ADEA claim in Saldivar I. See Resp. [#611 ¶ 8.
However, that AISD prevailed on the merits of Saldivar's ADEA claim is irrelevant to the question of whether her
ADEA claim as originally asserted in Saldivar I and her claims for retaliation in Saldivar II arise out of the same
nucleus of operative facts.
action has denied the plaintiffs request for leave to amend to add the claims later asserted in the
second lawsuit." See Ameritox, Ltd., 2009 WL 305874, at *4 (quoting Sensormatic, 273 F. App'x
at 265). In this case, allowing Saldivar II to proceed would constitute improper claim splitting.
To prevent this procedural end run around the Court's order in Saldivar I, Saldivar
DISMISSED WITH PREJUDICE.
IT IS ORDERED that Defendant Austin Independent School District's Motion to
Dismiss [#5] is GRANTED.
SIGNED this the ,2o
day of December 2016.
UNITED STATES DISTRICT JUDGE
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