Canon v. Bd. of Trs. of State Institutions of Higher Learning of Miss.

• Decision Date: 22 September 2015
• Docket Number: Civil Action No. 3:15CV9TSL–RHW.
• Citation: 133 F.Supp.3d 865
• Parties: Michael Mohammed CANON, Plaintiff v. The BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF the State of MISSISSIPPI; Jackson State University; and Tor A. Kwembe, Ph.D., in his Individual Capacity, for State Law Claims, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

133 F.Supp.3d 865

Michael Mohammed CANON, Plaintiff

v.The BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING OF the State of MISSISSIPPI; Jackson State University; and Tor A. Kwembe, Ph.D., in his Individual Capacity, for State Law Claims, Defendants.

Civil Action No. 3:15CV9TSL–RHW.

United States District Court, S.D. Mississippi, Northern Division.

Signed Sept. 22, 2015.

Jim D. Waide, III, Rachel Pierce Waide, Waide & Associates, P.A., Tupelo, MS, for Plaintiff.

Matthew W. Burris, Mayo Mallette, PLLC, Oxford, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE

, District Judge.

Plaintiff Michael Mohammed Canon, a former employee of Jackson State University, filed the present action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,¹

complaining of national origin discrimination, race discrimination and retaliation. Originally, Canon named as defendant "The Board of Trustees of State Institutions of Higher Learning of the State of Mississippi d/b/a Jackson State University." The Board of Trustees of State Institutions of Higher Learning of the State of Mississippi (IHL) promptly moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), contending that Jackson State University (JSU) and IHL are not "one and the same", as plaintiff's allegations seemed to suggest, but were separate legal entities, and that IHL was due to be dismissed as plaintiff had failed to plead any facts involving IHL or suggesting any wrongful conduct by IHL. Rather than respond to the motion to dismiss, plaintiff moved to file an amended complaint. That motion was granted as unopposed. Plaintiff's amended complaint retained IHL as a defendant but added JSU as a defendant. Plaintiff also named as a defendant Tor A. Kwembe, his supervisor at JSU, against whom he asserted a state law claim for tortious interference with contract.²

In his original and amended complaints, Canon, who is of Iranian national origin, alleges he was employed as a mathematics instructor at JSU for over twenty-six years. Kwembe, who is Nigerian, was hired in 2003 as Chair of the Mathematics Department. According to the complaint, before Kwembe was hired, there had been no issues with Canon's performance; however, Kwembe "had an enormous prejudice against Iranians" and "treated plaintiff differently from other faculty members," giving him poor evaluations and claiming, without any basis in fact, that plaintiff was a poor performer. Canon alleges that because of Kwembe's influence, he was paid less than persons of non-Iranian origin. Canon further asserts that after (and as a result of) his and other faculty members' complaints about Kwembe's lack of qualifications and poor job performance, Kwembe entertained hostility against Canon and harassed him over petty matters. Canon alleges he complained to Dean Richard Alo, and to JSU Provost James Rennick and JSU President Carolyn Meyers, about the "unfair and biased treatment" to which he was subjected by Kwembe, and on April 9, 2014, plaintiff filed his first charge of discrimination with the Equal Employment Opportunity Commission (EEOC), complaining of wage discrimination, age discrimination and retaliation. Canon filed a second charge on September 17, 2014, asserting that he had received notice from Kwembe that his contract would not be renewed for the 2014–15 school year. Canon claimed his non-renewal was in retaliation for his earlier EEOC charge.

According to the complaint, Canon appealed his non-renewal and was reinstated for the 2014–15 school year. However, in February 2015, he was notified by Kwembe that his contract would not be renewed for the 2015–16 school year. In the meantime, in mid-October 2014, Canon had received a notice of right to sue on each of his EEOC charges and had commenced the present action on January 6, 2015. After receiving the notice of non-renewal in February 2015, Canon filed a third EEOC charge, complaining that he was terminated on account of his national origin and in retaliation for his two prior EEOC charges.

In its present motion to dismiss, IHL argues that Canon's complaint against it should be dismissed for failure to state a claim because it contains no allegations regarding IHL, i.e., it does not allege that IHL acted, had a duty to act, or had a duty to supervise the actions of Kwembe, and further because Canon has failed to exhaust his administrative remedies as to IHL. Canon asserts in response to the motion that IHL is a proper defendant because IHL was his employer. In fact, however, Canon has not alleged in his complaint that he was employed by IHL; rather, he alleges he was employed by JSU. Moreover, in the court's opinion, for reasons explained infra, as a matter of law, there is no basis for concluding that IHL was his employer; but even if IHL could possibly qualify as his employer for some purposes, IHL cannot be considered Canon's employer for purposes of the claims asserted in the case at bar and hence is not a proper defendant as Canon has not alleged that IHL had any involvement whatsoever in the challenged employment actions. In addition, IHL is not a proper defendant as Canon has failed to exhaust as to any claim against IHL.

Title VII prohibits an "employer" from discriminating against "any individual ... because of such individual's race, color, religion, sex, or national origin...." 42 U.S.C. § 2000e–2(a)

. "As Title VII prohibits discrimination in the employment context, see 42 U.S.C. §§ 2000e–2(a), 2000e–5, generally only employers may be liable under Title VII." Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir.2007) (citing Oden v. Oktibbeha Cnty., Miss., 246 F.3d 458, 462 (5th Cir.2001) ). This means that to establish Title VII liability on the part of a particular defendant, the plaintiff must prove both that the defendant meets Title VII's definition of "employer," i.e., "a person engaged in an industry affecting commerce who has fifteen or more employees ..., and any agent of such a person....," Muhammad v. Dallas Cnty. Cmty. Supervision & Corrs. Dept., 479 F.3d 377, 380 (5th Cir.2007) (quoting 42 U.S.C. § 2000e(b) ),³ and "that an employment relationship existed between him and that defendant." Karagounis v. Univ. of Tex. Health Science Center at San Antonio, No. 97–50587, 1999 WL 25015, at *2 (5th Cir.1999) (citing Deal v. State Farm County Mutual Ins. Co., 5 F.3d 117, 118 (5th Cir.1993) ).⁴ "In the Fifth Circuit, the basic test for deciding whether an employment relationship exists between a worker and his putative employer is the ‘hybrid economic realities/common law control’ test." Murdock v. City of Houston, Civil Action No. 4:10cv00056, 2011 WL 7109286, at *3 (S.D.Tex. Sept. 21, 2011) (citing Mares v. Marsh, 777 F.2d 1066, 1067–68 (5th Cir.1985) ; Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 119 (5th Cir.1993) ; and Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir.1990) ). "The right to control an employee's conduct is the most important component, focusing on the putative employer's right to hire, fire, supervise, and schedule the work. The economic realities component focuses on whether the alleged employer signed the paycheck, withheld taxes, provided benefits, and set terms and conditions of employment." Id. (citing Deal, 5 F.3d at 119 ). It is undisputed that under this test, JSU was plaintiff's employer. The question, though, is whether IHL was also his employer for purposes of plaintiff's Title VII claim.

The Fifth Circuit has held that "one way to effectively bypass [the] requirement" that a Title VII plaintiff prove an employment relationship with a given defendant "is to prove that the defendant in question is sufficiently interrelated with another defendant. The plaintiff can show that the two defendants are so integrated so as to be considered a ‘single employer.’ " Karagounis, 1999 WL 25015, at *2

(citing Radio and Televison Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) ); Trevino v. Celanese Corp., 701 F.2d 397, 403–04 (5th Cir.1983) (holding that "[S]uperficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer.").

"The plaintiff can also show that the defendant in question exercises such control over the labor relations of the other defendant that they together should be considered ‘joint employers.’ " Id. (citing Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964)

; Trevino, 701 F.2d at 403 ).⁵ However, in a succession of cases, the Fifth Circuit has stated that neither of these theories applies to governmental subdivisions. See Trevino, 701 F.2d at 404 n. 10 (stating that the integrated enterprise or single employer standard "is not readily applicable to governmental subdivisions") (citing Dumas v. Town of Mt. Vernon, 612 F.2d 974, 979 n. 9 (5th Cir.1980) ); Karagounis, 1999 WL 25015, at *2 (stating that based on the similarities between the single employer and joint employer theories, "we are constrained by Trevino to hold that the governmental subdivision rule we applied within the single employer doctrine also applies to the joint employer theory"); Turner, 476 F.3d at 344 (holding that "a government employer ... may not be considered part of an integrated enterprise under the Trevino framework"); Garrett–Woodberry v. Miss. Bd. of Pharmacy, 300 Fed.Appx. 289, 291 (5th Cir.2008) (stating, based on Dumas, Trevino, Karagounis and Turner, that "it seems clear that the ‘single employer’ test should not be applied here, as the Board is a state agency and is thus a governmental subdivision"). Notwithstanding that a number of these opinions have been unpublished and/or that their statements regarding the inapplicability of the single employer and/or joint employer theories to governmental entities have been dicta, district courts in this circuit have held,...