832 F.3d 224 (5th Cir. 2016), 15-50300, Heinsohn v. Carabin & Shaw, P.C.

Docket Nº:15-50300
Citation:832 F.3d 224
Opinion Judge:WIENER, Circuit Judge:
Party Name:Cynthia Heinsohn, Plaintiff-Appellant v. Carabin & Shaw, P.C., Defendant-Appellee
Attorney:Thomas Joseph Crane, Attorney, Law Office of Thomas J. Crane, San Antonio, TX, for Plaintiff-Appellant. Joshua Herrera Nieto, Adrian Peter Senyszyn, Brin & Brin, P.C., San Antonio, TX, for Defendant-Appellee.
Judge Panel:Before SMITH, WIENER, and GRAVES, Circuit Judges.
Case Date:July 26, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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832 F.3d 224 (5th Cir. 2016)

Cynthia Heinsohn, Plaintiff-Appellant


Carabin & Shaw, P.C., Defendant-Appellee

No. 15-50300

United States Court of Appeals, Fifth Circuit

July 26, 2016

Revised July 28, 2016

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Appeal from the United States District Court for the Western District of Texas, USDC No. 5:14-CV-94

Thomas Joseph Crane, Attorney, Law Office of Thomas J. Crane, San Antonio, TX, for Plaintiff-Appellant.

Joshua Herrera Nieto, Adrian Peter Senyszyn, Brin & Brin, P.C., San Antonio, TX, for Defendant-Appellee.

Before SMITH, WIENER, and GRAVES, Circuit Judges.


WIENER, Circuit Judge:

Plaintiff-Appellant Cynthia Heinsohn brought this action in Texas court against her former employer, Defendant-Appellee, the law firm of Carabin & Shaw, P.C. (“ C & S” ). She alleged violations of the Family Medical Leave Act (“ FMLA” ) and the Texas Commission on Human Rights Act (“ TCHRA” ). C & S removed the action to federal court. Following discovery, both C & S and Heinsohn moved for summary judgment. The magistrate judge recommended granting C & S’s motion and denying Heinsohn’s. The district court agreed, and entered judgment. Heinsohn now appeals, and we reverse and remand.




In 2011, C & S hired Heinsohn as a legal assistant and assigned her to work exclusively on Social Security Administration (“ SSA” ) cases. Her wages were $10 an hour, and her responsibilities included (1) updating case notes in C & S’s electronic case management system, (2) communicating with clients and with the SSA, and (3) monitoring deadlines. She was assigned to assist George Escobedo, an “ of counsel” lawyer responsible for all SSA cases, 1 and Maria Carvajal, his legal assistant.

Late in 2011, Heinsohn decided to accept a better-paying position with another employer and tendered her resignation to C & S. Escobedo, who “ thought she was doing a good job, and ... didn’t want to see her leave,” convinced James Shaw, the managing partner of C & S, to raise her pay. He did so, and Heinsohn withdrew her resignation. Her wages eventually rose to $14 an hour.

Heinsohn became pregnant early in 2012. Shortly before she left on maternity

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leave later that year, Escobedo informed Heinsohn that he would reassign each of her cases to Becky Rendon, another legal assistant in the SSA section. Although it appears that Escobedo requested Heinsohn to perform some specific tasks before she left, it is not entirely clear what those tasks were. In their respective depositions, Escobedo and Heinsohn provided differing descriptions of those requests and tasks. The gist, however, appears to be that Escobedo simply requested Heinsohn to complete all outstanding tasks in each of the cases that he had assigned to her. Heinsohn began her maternity leave late in 2012, after telling Escobedo that she had completed all tasks that he had requested.

Within days after Heinsohn’s departure, Rendon told Escobedo that, according to the notes in the case management system, deadlines had been missed in some of Heinsohn’s cases and good-cause letters had been sent on Escobedo’s behalf. Neither Rendon nor Escobedo sought an explanation from Heinsohn. 2 Instead, after reviewing the notes himself, Escobedo informed Tracy Leonard, who assisted with human resources, that it appeared deadlines had been missed by Heinsohn. Leonard then informed Shaw. After speaking with Escobedo, Shaw decided to fire Heinsohn without providing her an opportunity to explain the situation. Approximately two weeks after Heinsohn had begun her maternity leave, Leonard— at Shaw’s behest— wrote to Heinsohn, informing her that C & S had terminated her employment. Leonard did not give any reason for firing Heinsohn.


Early in 2013, Heinsohn filed a claim with the Equal Employment Opportunity Commission (“ EEOC” ), alleging “ sex and retaliation discrimination.” C & S responded, asserting that it had nondiscriminatory reasons for terminating her. Heinsohn filed a petition in state court later that year, claiming that C & S had violated the FMLA and the TCHRA. C & S then removed the action to federal court on the basis of the FMLA claim. In so doing, it explained: “ Removal of this action is proper because [Heinsohn]’s suit involves a federal question. Specifically, [her] claim arises under [the FMLA].”

In late 2014, after discovery had been conducted, C & S moved for summary judgment. Heinsohn then filed her own motion for summary judgment on the question of liability, which she subsequently corrected. About a week later, Heinsohn responded to C & S’s motion for summary judgment. She acknowledged that C & S did not have enough employees to be subject to the FMLA, so she “ will withdraw that portion of her claim” against C & S. She also attached a new affidavit, dated December 17, 2014 (the “ earlier affidavit” ). C & S then moved to strike both the earlier affidavit and various portions of Heinsohn’s deposition.

Early in 2015, the magistrate judge granted much of C & S’s motion to strike, recommended that C & S’s motion for summary judgment be granted, and recommended that Heinsohn’s motion for summary judgment be denied. The district court reviewed the motions for summary judgment de novo and adopted the magistrate judge’s recommendations. In so doing, it refused to consider a new affidavit by Heinsohn, dated February 18, 2015 (the “ later affidavit” ). The court then dismissed Heinsohn’s claims and entered judgment

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against her. Heinsohn timely appealed to this court.




As a preliminary matter, we have “ an independent obligation to determine whether-subject matter jurisdiction exists, even in the absence of a challenge from any party.” 3 And, “ [i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 4

In its notice of removal, C & S asserted that federal question jurisdiction exists under 28 U.S.C. § 1331 because Heinsohn had asserted a federal law claim under the FMLA. Heinsohn, however, later “ withdrew” that federal law claim in her memorandum in opposition to C & S’s motion for summary judgment after stipulating that C & S might not have enough employees to be covered by the FMLA. In his recommendations, the magistrate judge acknowledged that Heinsohn had withdrawn the claim, and those recommendations were adopted by the district court. Heinsohn’s federal law claim was properly dismissed because “ stipulations (including those made for purposes of the motion only)” constitute evidence on summary judgment. 5

Without her federal law claim, Heinsohn’s only remaining claim is her state law claim under the TCHRA. And, as she and C & S are both residents of Texas, we must determine whether there is supplemental jurisdiction based on Heinsohn’s state law claim alone.

Although the FMLA only applies to employers with a specified minimum number of employees or more, that requirement “ is an element of the claim, not a limit upon the federal court’s subject-matter jurisdiction.” 6 After a court dismisses a federal law claim, “ [it] generally retains discretion to exercise supplemental jurisdiction ... over pendent state-law claims.” 7 Here, the magistrate judge and district court proceeded to resolve the state-law claim without expressly exercising that discretion. We must do so now.

Generally, “ whether a court has subject-matter jurisdiction over a claim is distinct from whether a court chooses to exercise that jurisdiction.” 8 “ With respect to supplemental jurisdiction in particular, a federal court has subject-matter jurisdiction over specified state-law claims, which it may (or may not) choose to exercise.” 9 “ A district court’s decision whether to exercise

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that jurisdiction after dismissing every claim over which it had original jurisdiction is purely discretionary.” 10 Although that “ determination may be reviewed for abuse of discretion,” it “ may not be raised at any time as a jurisdictional defect.” 11 We therefore consider only whether supplemental jurisdiction exists, not whether the district court erred in failing to consider if it should have exercised that jurisdiction if it does exist.

As noted, C & S alleged a basis for subject matter jurisdiction over the federal law claim, but it did not allege supplemental jurisdiction over the state law claim in its notice of removal. 12 Because the state law claim does not raise a federal question and because the parties are not...

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