Benitez v. Rumage, CIVIL ACTION NO. C-11-208
Decision Date | 27 July 2011 |
Docket Number | CIVIL ACTION NO. C-11-208 |
Parties | DALIA BENITEZ, Plaintiff, v. JIM RUMAGE, et al, Defendants. |
Court | U.S. District Court — Southern District of Texas |
On Wednesday, July 27, 2011, the Court held a pre-trial conference in the above styled action with the Plaintiff appearing by telephone. Plaintiff failed to serve Defendants Banquete Independent School District and Jim T. Rumage, and thus Defendants did not enter an appearance.
The court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question), as Plaintiff brings a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq, the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 et seq.
Plaintiff brings the following claims against Defendant Banquete Independent School District and Defendant Jim T. Rumage: discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., ("ADEA"), and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 et seq., ("ADA"); mail and wire fraud, 18 USC §§ 1341, 1343; and the Hate Crimes Prevention Act, 18 U.S.C. § 249.
At the conference, the Court dismissed without prejudice Plaintiff's claims under the mail and wire fraud statutes, 18 USC §§ 1341, 1343, as against both Defendant Banquete Independent School District and Defendant Rumage.
To maintain a claim for wire fraud under § 1341, a plaintiff must show that the defendants participated in a scheme to defraud involving the use of interstate wires for the purpose of executing the scheme, resulting in some intended harm. United States v. Richards, 204 F.3d 177, 207 (5th Cir.2000). Similarly, to establish a claim for mail fraud under § 1343, a plaintiff must demonstrate that the defendants were involved in a scheme to defraud involving the use of mails for the purpose of executing the scheme. United States v. McClelland, 868 F.2d 704, 706 (5th Cir.1989).
However, these statutes do not provide a private cause of action. See Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634, 636 (5th Cir. 1974) cert. denied, 423 U.S. 837 (1975) ( ); see also Ryan v. Ohio Edison Co., 611 F.2d 1170, 1178-1179 (6th Cir. 1979) ( ). Therefore, the Court dismissed these claims as against both Defendants.
For the same reason, the Court dismissed without prejudice Plaintiff's claims under the Hate Crimes Prevention Act, 18 U.S.C. § 249, as against both Defendant Banquete Independent School District and Defendant Rumage.
The "Hate Crimes Prevention Act," 18 USC § 249, "generally provides criminal penalties for intentionally causing bodily injury to another person when the injury was motivated by the actual or perceived religion, race, color, national origin, gender, sexual orientation, gender identity, or disability of the victim." Glenn v. Holder, 738 F.Supp.2d 718, 719-20 (E.D.Mich.,2010).1 However, the Hate Crimes Prevention Act does not provide for any civil cause of action. See Lee v. Lewis, 2010 WL 5125327, at *2 (E.D.N.C. Oct. 28, 2010) ( ). Therefore, the Court dismissed this claim as against both Defendants.
The Court also dismissed without prejudice Plaintiff's claims under Title VII, the ADEA, and the ADA with respect to Defendant Rumage only.
To establish a prima facie case of discrimination under Title VII, Plaintiff must show "(1) she is a member of a protected class; (2) she was qualified for the position she sought; (3) she suffered an adverse employment action; and (4) others similarly situated but outsidethe protected class were treated more favorably." Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
To establish a prima facie case of age discrimination under the ADEA, Plaintiff must demonstrate that she (1) belongs to the protected group of persons over the age of forty; (2) was qualified for her position; (3) was discharged; and (4) was replaced with someone younger or outside the protected group. Cervantez v. KMGP Services Co. Inc., 349 Fed.Appx. 4, 8 (5th Cir. 2009).
To establish a prima facie case of discrimination under the ADA, Plaintiff must show that (1) she is disabled or is regarded as disabled; (2) she is qualified for the job; (3) she was subjected to an adverse employment action on account of his disability; and (4) she was replaced by or treated less favorably than non-disabled employees. Milton v. Nicholson, 256 Fed.Appx. 655, 657 (5th Cir. 2007).
However, under Title VII, the ADEA, and the ADA, only an "employer" can be made liable for unlawful discrimination. See Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994) (); see also Smith v. Amedisys Inc., 298 F.3d 434, 442 (5th Cir. 2002) ( ); Lehman v. Nakshian, 453 U.S. 156, 168 n. 15 (1981) ( ).
Defendant Rumage is a Superintendant in the Banquete Independent School District. He is not an "employer" for purposes of Title VII, the ADEA, or the ADA. See Grant, 21 F.3d at 652. Therefore, the Court dismissed without prejudice Plaintiff's claims under Title VII, the ADA, and the ADEA as against Defendant Rumage only.
The Court then ORDERED Plaintiff, within fourteen (14) days, to serve Defendant Banquete Independent School District with the complaint and summons as well as a copy of this Order.
The Court further ORDERED that within fourteen (14) days Plaintiff must file an amended complaint detailing: (1) the date on which Plaintiff filed her charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") bringing claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.), the Age Discrimination in Employment Act (29 U.S.C. §§ 621 et seq.), and the Americans with Disabilities Act (42 U.S.C. §§ 12102 et seq.); and (2) the date on which the EEOC issued Plaintiff a notice of right-to-sue.
The Court further ORDERED Plaintiff to appear in-person at 1133 N. Shoreline Boulevard, Corpus Christi, Texas, 78401, on August 18, 2011 at 11 a.m for a continued initial pre-trial conference.
For the reasons stated herein, Plaintiff's claims under the mail and wire fraud statutes, 18 USC §§ 1341, 1343, and the Hate Crimes Prevention Act, 18 U.S.C. § 249, are DISMISSED without prejudice as to both Defendants. Plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and the Americans with Disabilities Act, 42 U.S.C. §§ 12102 et seq., are hereby DISMISSED without prejudice as to Defendant Rumage only. Plaintiff shall within fourteen (14) days serve Defendant Banquete Independent School District with her complaint and this Order and amend her complaint in the mannerdetailed above. Plaintiff shall appear in-person for her continued initial pre-trial conference on August 18, 2011 at 11 a.m.
1. The Act provides, in relevant part:
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