Wije v. Burns et al

Filing 19

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE. Signed by Judge Sam Sparks. (ml)

IN THE UNITED

STTj

R1Ig

FORT
AN

AUSTIN DIVISION

SUN WIJE,

Q:

2

-

Plaintiff,
CAUSE NO.: A-16-CA-1179-SS

-vs-

DAVID A. BURNS, UNIVERSITY OF
TEXAS, JANE DOE, and JOHN DOE,

Defendants.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

and specifically Plaintiff Suran Wije's Order of Dismissal Objections and Motion for Third

Amended Complaint (TAC) [#18]. Having reviewed the documents, the governing law, and the
file as a whole, the Court enters the following opinion and orders.

Background
Plaintiff Suran Wije, proceeding pro Se, brings claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C.
§

§

2000e, and Section 1983 of the 1871 Civil Rights Act, 42 U.S.C.

1983, against David A. Burns, the University of Texas at Austin (the University), John Doe,

and Jane

The facts of this case are described in detail in this Court's Order of April 13,

Doe.1

2017 [#16], adopting Magistrate Judge Mark Lane's recommendation that Wije's claims be

dismissed.

See

Order of Apr. 13, 2017 at 11. Thus, the Court will only recount a brief summary

of the facts here.
Wije, who is South Asian, worked in the Information Technology Department (IT

Department) at the McCombs School of Business at the University from January 12, 2000, until

According to Wije, John and Jane Doe are "merely placeholders if discovery suggested a taxpayerfinanced civil conspiracy." Objs. [#121 ¶ 2.

I

November 18, 2005.

See

Compi. [#1-1] (Wije Aff.) ¶ 1. David Burns, the Director of the IT

Department, was Wije's supervisor.

See

Id.

¶

3.

Sometime during his employment, Wije states

he tried to inform the IT Department and other University personnel of "various concerns,

including for software quality engineering and the cutting of corners on the software security

lifecycle.

. .

." Id. ¶ 6.

On November 18, 2005, Wije voluntarily resigned from his position.
Compi. [#1-2] Ex. 1981d (Employee Separation

Form).2

See

Original

The Employee Separation Form states

Wije "resigned and is relocating to the Dallas area" and "was on Level 3 status and has received
an intent to terminate letter." Id. The form also references "Code 101," which signifies Wije

voluntarily "left without notice." Id. Ex. 1981 e (Usual Reasons and Codes) at

1.

Sometime after his resignation, Wije began applying for jobs with the University.

See

Wije Aff. ¶ 8. He claims he applied for 35 to 45 jobs over more than a two-year period and
never received a request "for even a phone interview by [the University]."

Statement [#7] ¶ 4. Wije believes Mr. Burns "intentionally placed a

More Definite

[] lie in [Wije's] personnel

file vouching that [Wije] 'left without notice." Wije Aff. ¶ 8. According to Wije, this note

"ensure[d] that [Wije] would never be rehired again" and constituted a "de facto blacklist[ ]." Id.
In his pleadings, Wije brings three federal law
a Title VII retaliation claim, and a

claims.

See

§

claimsa Title VII discrimination

1983 discrimination

More Definite Statement [#7] ¶J 1-9.

claimas

claim,

well as various state law

In essence, Wije claims the University

discriminated against him because of his race and retaliated against him because of his
2

In his Objections, Wije contends "he was constructively discharged, or forced to resign under the threat of
termination (without due process) or wrongfully terminated in secret while being led to believe that he had officially
resigned and left in good standing." Objs. [#12] ¶ 3. In his TAC, Wije also states he was "forced to resign under the
threat of immediate termination (also called constructive discharge[ ])." TAC [#18] at 3. Wije, however, provides
no factual basis to support his argument that he was forced to resign. And the Employee Separation Form, which
Wije submitted as part of the record, clearly states Wije "resigned and is relocating to the Dallas area." Employee
Separation Form at 1. Wije does not explain why the Court should ignore the plain language of this form.

whistleblowing regarding his concerns about the software. On January 9, 2017, the Magistrate
Judge issued his Report and Recommendation recommending dismissal of Wije's claims. See R.
& R. [#9].

In its Order of April 13, 2017, this Court adopted the Magistrate Judge's

recommendation that Wije's claims be dismissed. Order of Apr. 13, 2017 [#16]. On the same
day, the Court issued an Order of Dismissal, dismissing all of Wije's claims without prejudice.

Order of Apr. 13, 2017 [#17].
On May 1, 2017, Wije filed an Order of Dismissal Objections and Motion for Third

Amended Complaint [#18]. Because of Wije's pro se status, the Court will treat this filing as a
motion to amend under Federal Rule of Civil Procedure 15(a) and will analyze Wije's TAC
under 28 U.S.C.

§

1915(e)(2)(B). See Whitaker

v.

City of Hous., Tex., 963 F.2d 831, 836 (5th

Cir. 1992) ("The finality of [a district court's order dismissing a complaint] is destroyed,

. . .

if

instead of appealing the plaintiff files a Rule 15(a) motion to amend.").

Analysis
I.

Legal Standard
A district court "shall dismiss" a case brought in forma pauperis at any time if the court

determines the action "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."
28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it "lacks an arguable basis either in law or

in fact." Neitzke

v.

Williams, 490 U.S. 319, 325 (1989); Siglar

v.

Hightower, 112 F.3d 191, 193

(5th Cir. 1997). A claim lacks an arguable basis in law when it is "based on an indisputably

meritless legal theory." Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it
describes "fantastic or delusional scenarios." Id. at 327-28.

i]

Pro se complaints are liberally construed in favor of the plaintiff. Haines

v.

Kerner, 404

A petitioner's pro se status, however, does not offer him an

U.S. 519, 20-21 (1972).

"impenetrable shield, for one acting pro se has no license to harass others, clog the judicial
machinery with meritless litigation, and abuse already overloaded court dockets." Farguson

v.

MBankHous. NA., 808 F.2d 358, 359 (5th Cir. 1986).

II.

Discussion

A.

Federal Claims
In his TAC, Wije only discusses his federal discrimination claims under Title VII and

§ 1983

and his retaliation claim under Title VII.
1.

Title VII Employment Discrimination and § 1983 Claims3

Title VII states that "[ut shall be an unlawful employment practice for an employer.

. .

to

fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.
2(a).

§

2000e-

The plaintiff has the burden to establish a prima facie case of discrimination.

McDonnell Douglas Corp.

v.

See

Green, 411 U.S. 792, 802-04 (1973). To establish a prima facie

case, "[a] plaintiff may prove her claim either through direct evidence, statistical proof, or the

test established by the Supreme Court in McDonnell Douglas

. . .

." Craven

v. Tex.

Dep 't. of

Criminal Justice-Institutional Div., 151 F. Supp. 2d 757, 764 (N.D. Tex. 2001) (citing Urbano

v.

Cont'l Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998)). The McDonnell Douglas test requires
the plaintiff to show: (1) he was a member of a protected class, (2) he was qualified for the

Because the analysis for a discrimination claim under Title VII and § 1983 are identical, the Court need
not separately analyze the merits of Wije's discrimination claims. See Jones v. Robinson Prop. Grp., L.P., 427 F.3d
987, 992 (5th Cir. 2005) (explaining "the only substantive differences between the two statues [are] their respective
statute of limitations and the requirement under Title VII that the employee exhaust administrative remedies")

4

position at issue, (3) he suffered an adverse employment action by the employer, and (4) he was
replaced by someone outside his protected group or was treated less favorably than other
similarly situated employees outside the protected group. Morris
396, 400 (5th Cir. 2016); see also Brown

v.

v.

Town of Indep., 827 F.3d

AT&T Servs. Inc., No. CV H-16-169, 2017 WL

896159, at *4 (S.D. Tex. Feb. 15, 2017) ("[A] plaintiff must prove his prima facie failure to hire
case by showing that he was: (1) a member of a protected class; (2) applied for an open position;
(3) qualified for the position; (4) not selected for the position; and (5) the employer continued to

seek applicants for the position or filled the position by someone outside the protected class.").

In the Order of April 13, 2017, the Court found Wije asserted only one adverse

employment action: the University's alleged failure to hire Wij e after he applied for 35 to 45
jobs. See Order of Apr. 13, 2017 [#16] at 8; see also Burlington N & Santa Fe Ry. Co.

v.

White,

548 U.S. 53, 60 (2006) (An adverse employment action includes only ultimate employment

decisions "such as hiring, granting leave, discharging, promoting, or compensating.") (internal

citation omitted).
The Court also found Wije's discrimination claims failed because he did not establish

someone outside of his protected group was hired for those positions or that he was treated less

favorably than other similarly situated persons. See Order of Apr. 13, 2017 [#16] at 8-9. In his
TAC, Wije attempts to cure this defect by listing the names of seven individuals who were

allegedly

hired

instead

of Wije.

See

TAC

[#18]

at

5

(listing

people

from

Salaries.TexasTribune.org who are "replacements outside Plaintiff's protected group with higher
salaries

despite

less

accreditations

(degrees)

and

less

vendor-neutral

professional

certifications").4

Wije also argues, as he did in his Amended Complaint, that Ms. Gayle Hight was whistleblower who did
not lose her job. TAC [#18} at 6; Wije Aff. ¶ 6. But, as the Court stated in its previous Order, Wije's attempt to
5

Despite this repleading, Wije does not allege facts that establish similarly situated

persons outside of his protected group were hired instead of Wije. Wije does not specify which

jobs he applied for and which jobs he was rejected from. See More Definite Statement [#7] ¶ 4
(only stating that "[Wije] applied for 35 to 45 jobs over more than a two-year period"). It is

therefore impossible to determine if any of the alleged replacements were hired instead of Wije.
Further, it appears from Wije' s exhibits that some of the alleged replacements are "Asian,"

leaving open the possibility that the person who was hired instead of Wije was also South Asian.
See TAC [#18] Ex. K (Texas Tribune Salaries). Ultimately, Wije again fails to establish he was

treated less favorably than other similarly situated persons. See Raj

v.

La. State Univ., 714 F.3d

322, 331 (5th Cir. 2013) ("Raj's complaint and speculation did not allege any facts, direct or

circumstantial, that would suggest LSU's actions were based on Raj's race or national origin or
that LSU treated similarly situated employees of other races or national origin more favorably.").

In sum, Wije has not sufficiently plead his discrimination claims under Title VII and
§

1983.
2.

Title VII Retaliation Claims

The antiretaliation provision of Title VII "forbids employer actions that 'discriminate

against' an employee (or job applicant) because he has 'opposed' a practice that Title VII forbids
or has 'made a charge, testified, assisted, or participated in' a Title VII 'investigation,

proceeding, or hearing." Burlington N, 548 U.S. at 59 (internal citation omitted). A plaintiff
may prove a claim of retaliation by either direct or circumstantial evidence. McCoy

v.

City

of

Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). If based on circumstantial evidence, the plaintiff

must establish a prima facie case of retaliation, which requires a showing that: (1) the plaintiff
establish Ms. Hight as a similarly situated comparator is based on the allegation that Wije was terminated from his
position. Because the record shows Wije was not terminated, and his voluntarily resignation does not constitute an
adverse employment action, his argument regarding Ms. Hight is moot.

participated in an activity protected by Title VII; (2) his employer took an adverse employment

action against him; and (3) a causal connection exists between the protected activity and the
adverse employment action. Id.

As with Wije' s discrimination claims, this Court found in its Order of April 13, 2017, that
the only possible adverse employment action was the University's alleged failure to hire Wije

after he applied for 35 to 45 jobs. See Order of Apr. 13, 2017 at 10. The Court then dismissed

Wije's retaliation claim because Wije did not establish a causal connection between his
whistleblowing and the University's alleged failure to rehire Wije. See id.
In his TAC, Wije argues a causal connection exists because he was "grieved/disputed"
and "then blacklisted/not rehired."

TAC [#18] at 7.

Wije's whistling blowing occurred

sometime before he voluntarily resigned in 2005. Wije Aff. ¶ 6. Wije does not state exactly

when the University rejected his job applications, but does explain in his affidavit filed on
October 27, 2016, that he "currently [had applied] for 35 to 45 jobs over about a two year
period." Id. ¶ 6. The Court finds this loose temporal proximity alone is insufficient to establish
causation. See Clark Cty. Sch. Dist.

mere temporal proximity

.

. .

v.

Breeden, 532 U.S. 268, 273 (2001) ("Cases that accept

as sufficient evidence of causality to establish a prima facie case

uniformly hold that the temporal proximity must be 'very close.") (emphasis added). Because
Wije fails to establish a causal link between his whistleblowing and the University's refusal to

rehire him, Wije' s retaliation claim fails.

Notwithstanding numerous opportunities to replead, Wije has failed to sufficiently assert
his federal claims.

Thus, the Court DISMISSES WITH PREJDUICE Wije's federal

discrimination and retaliation claims for failure to state a claim upon which relief can be granted.

7

See e.g., Blackwell

v.

Bridge, No. 3:13-CV-957-L BH, 2013 WL 1820998, at *1 (N.D. Tex. Apr.

30, 2013).
B.

State Claims
Under 28 U.S.C.

jurisdiction over a claim

1367(c)(3), "a district court may decline to exercise supplemental

§
.

.

.

[if] the district court has dismissed all claims over which it has

original jurisdiction." See Parker & Parsley Petroleum Co.

v.

Dresser Indus., 972 F.2d 580, 585

(5th Cir. 1992) ("Our general rule is to dismiss state claims when the federal claims to which

they are pendent are dismissed.") (internal citation omitted).
Because the Court dismissed Wije' s federal claims under Title VII and

§

1983, the Court

declines to exercise supplemental jurisdiction over Wije's state law claims. Therefore, Wije's
state law claims are DISMISSED WITHOUT PREJUDICE for lack of subject matter

jurisdiction.
Accordingly,
IT IS ORDERED that the federal discrimination and retaliation claims in Plaintiff
Suran Wije's Complaint [#11 are DISMISSED WITH PREJUDICE under 28 U.S.C.
§

1915(e); and

IT IS FINALLY ORDERED that the state law claims in Plaintiff Suran Wije's

Complaint [#1] are DISMISSED WITHOUT PREJUDICE under 28 U.S.C.
SIGNED this the

§

1915(e).

$day of May, 2017.
SAM SPARKS
UNITED STATES DISTRICT JUDGE

8