Blanchet v. Chevron/Texaco Corp., CIV.A. 1:04CV0216.

• Decision Date: 10 November 2004
• Docket Number: No. CIV.A. 1:04CV0216.,CIV.A. 1:04CV0216.
• Citation: 368 F.Supp.2d 589
• Parties: Rebecca S. BLANCHET, Plaintiff, v. CHEVRON/TEXACO CORPORATION, Chevron Environmental Management Company, and Chevron USA Inc., Defendants.
• Court: U.S. District Court — Eastern District of Texas

368 F.Supp.2d 589

Rebecca S. BLANCHET, Plaintiff, v. CHEVRON/TEXACO CORPORATION, Chevron Environmental Management Company, and Chevron USA Inc., Defendants.

No. CIV.A. 1:04CV0216.

United States District Court, E.D. Texas, Beaumont Division.

November 10, 2004.

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Louis Claiborne Dugas and Michael, Jacobellis of Clay Dugas & Associates, Beaumont, TX, for Plaintiffs.

Malone M. Lankford and Steve Randolph, McCown of Littler Mendelson, PC, Dallas, TX, for Defendants.

MEMORANDUM AND ORDER

CRONE, District Judge.

Pending before the court is Defendant Chevron Environmental Management Company's ("Chevron") Motion to Dismiss Plaintiff's Second Amended Complaint (# 14) for lack of subject matter jurisdiction. Chevron seeks dismissal of Plaintiff Rebecca S. Blanchet's ("Blanchet") claims of sexual discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000h-6. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that dismissal should be granted in part and denied in part.

I. Background

Blanchet was employed by Zachary Construction Company ("Zachary") as a materials manager assigned to Chevron's Port Arthur Remediation Team from September 1995 to January 3, 2003. Zachary, based in San Antonio, Texas, is a contractor for Chevron.

Blanchet alleges that in "mid to late October 2002," her supervisor, Steve McQueen ("McQueen"), showed her a cookbook with an offensive title, commented about his sexual exploits with his girlfriend, and made an offensive telephone call from her office. Additionally, Blanchet claims that McQueen made inappropriate remarks to coworkers and told "off-color" and sexual jokes in her presence. Subsequently, on January 3, 2003, upon the expiration of Zachary's contract with Chevron, Blanchet's employment was terminated.

On October 1, 2003, Blanchet filed an unverified charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") against Chevron, alleging sexual harassment on the part of McQueen. The EEOC charge states that McQueen "passed out a cookbook with an offensive title. Made remarks about his sexual encounters with his girlfriend, made an offensive call from my office to his girlfriend." On the charge information sheet related to the charge, Blanchet states that the date she learned of the alleged discrimination was "mid to late October 2002." The EEOC charge itself, however, sets forth no dates as to when the purported harassment occurred. Additionally, when asked to identify the types of discrimination alleged, Blanchet checked the "other (specify)" box and wrote in sexual harassment, but she did not mark the "retaliation" box on the charge.

On October 31, 2003, Blanchet filed an amended, verified charge with the EEOC and the Texas Commission on Human Rights ("TCHR"), alleging sexual discrimination against Chevron and McQueen. The verified charge recites the same alleged acts of discrimination as the October 1, 2003, charge, stating:

I. While working as a Procurement Clerk for Port Arthur Remediation Team controlled by Chevron/Texaco, I was subjected to unwelcome conduct of a sexual nature. On or about October 15, 2002, I was shown an offensive cook book. During October 2002 to January 3, 2003, I was subjected to comments of a sexual nature which created a hostile work environment. I complained to the Project Manager David Craig of Chevron Texaco and Kathy Robinson, Contract Coordinator and Gloria Delgadillo, Auditor.

II. No specific reason was given for [the] sexual conduct. Steve McQueen, Field Engineer Manager, Chevron/Texaco was responsible for the offensive conduct of a sexual nature. Mr. McQueen did not create a hostile work environment for male employees.

III. I believe I was discriminated against because of my sex, female, due to sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, as amended.

Blanchet listed the earliest date discrimination took place as October 15, 2002, and the latest as January 3, 2003, the date her employment was terminated. Additionally, Blanchet marked the "sex" box on the charge but did not check the "retaliation" box.

On January 30, 2004, the EEOC issued Blanchet a "Notice of Right to Sue," authorizing her to institute a civil action in the appropriate district court within ninety days of receipt. Blanchet initiated this lawsuit in the 58th Judicial District Court of Jefferson County, Texas, on March 11, 2004, alleging sex discrimination and retaliation under the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB. CODE ANN. § 21.051. Pursuant to 28 U.S.C. §§ 1441, 1446(a), the case was removed to federal court on April 14, 2004, on the basis of diversity of citizenship between the parties. See U.S.C. § 1332.

On August 5, 2004, Chevron filed its motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, seeking dismissal of Blanchet's TCHRA claim for lack of subject matter jurisdiction based on her failure to file the charge within the statutorily required 180 days from the latest alleged discrimination. See FED. R. CIV. P. 12(b)(1); TEX. LAB. CODE ANN. § 21.202. In response, on August 17, 2004, Blanchet filed her second amended complaint, withdrawing the TCHRA claim and adding sexual discrimination and retaliation claims under Title VII. See 42 U.S.C. § 2000e-5.

Subsequently, on August 26, 2004, Chevron filed its motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, seeking dismissal of Blanchet's Title VII claims on the ground that her EEOC charge was not timely filed. The court afforded the parties an opportunity to submit additional briefs and materials in support of or in opposition to the motion. Blanchet filed a sworn affidavit describing the alleged discriminatory acts. Chevron filed a supplemental brief, arguing that, in addition to Blanchet's sexual discrimination claim being time-barred, her retaliation claim should be dismissed for failure to exhaust administrative remedies.

II. Analysis

A. Dismissal for Lack of Subject Matter Jurisdiction under Rule 12(b)(1)

A motion to dismiss filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the subject matter jurisdiction of the federal district court. See FED. R. CIV. P. 12(b)(1). "`A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.'" Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir.1996)); see John Corp. v. City of Houston, 214 F.3d 573, 576 (5th Cir.2000). Federal courts are courts of limited jurisdiction and, absent jurisdiction conferred by statute or the Constitution, lack the power to adjudicate claims. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 459, 151 L.Ed.2d 377 (2001); Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir.1998). "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery, 243 F.3d at 919.

The burden of establishing federal jurisdiction rests on the party seeking to invoke it. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002); Howery, 243 F.3d at 916; Estate of Martineau v. ARCO Chem. Co., 203 F.3d 904, 910 (5th Cir.2000); Stockman, 138 F.3d at 151; St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998); Frank v. Bear Stearns & Co., 128 F.3d 919, 921-22 (5th Cir.1997). Indeed, "there is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court." Coury v. Prot, 85 F.3d 244, 248 (5th Cir.1996) (citing Strain v. Harrelson Rubber Co., 742 F.2d 888, 889 (5th Cir.1984)); accord Howery, 243 F.3d at 916 (citing Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673).

"In ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Den Norske Stats Oljeselskap As v. HeereMac V.O.F., 241 F.3d 420, 424 (5th Cir.2001), cert. denied, 534 U.S. 1127, 122 S.Ct. 1059, 151 L.Ed.2d 967 (2002) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996)); accord Ramming, 281 F.3d at 161; Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir.1997). Nevertheless, all uncontroverted allegations in the complaint must be accepted as true. See Den Norske Stats Oljeselskap As, 241 F.3d at 424; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981); Cloud v. United States, 126 F.Supp.2d 1012, 1017 (S.D.Tex.2000), aff'd, 281 F.3d 158 (5th Cir.2001), cert. denied, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). Thus, when examining a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), unlike a motion to dismiss under Rule 12(b)(6), the district court is entitled to consider disputed facts as well as undisputed facts in the record. See Ramming, 281 F.3d at 161; Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.1986); Williamson, 645 F.2d at 413; Cloud, 126 F.Supp.2d at 1017.

It is well settled that "a district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached." Williamson, 645 F.2d at 413. "Jurisdictional issues are for the court — not a jury — to decide, whether they hinge on legal or...