Cephus v. Tex. Health & Human Servs. Comm'n

• Decision Date: 19 November 2015
• Docket Number: Civ. A. H-14-696
• Citation: 146 F.Supp.3d 818
• Parties: Bonnie Cephus, Plaintiff, v. Texas Health and Human Services Commission, Defendant.
• Court: U.S. District Court — Southern District of Texas

146 F.Supp.3d 818

Bonnie Cephus, Plaintiff,

v.Texas Health and Human Services Commission, Defendant.

Civ. A. H-14-696

United States District Court, S.D. Texas, Houston Division.

Signed November 19, 2015

Woodrow Epperson, Attorney at Law, Houston, TX, for Plaintiff.

Yvonne Denise Bennett, Susan Marie Watson, Office of the Attorney General, Austin, TX, for Defendant.

OPINION AND ORDER

MELINDA HARMON

, UNITED STATES DISTRICT JUDGE

Pending before the Court in the above referenced cause, removed from state court and alleging retaliation in employment based on Plaintiff Bonnie Cephus' (“Cephus' ”) complaints of race and gender discrimination in violation of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ,

(2) 42 U.S.C. § 1981, and (3) Chapter 21 of the Texas Labor Code,¹ are Defendant Texas Health and Human Services Commission's (“HHSC's”) motion for judgment on the pleadings (instrument #13) on Cephus' claims under § 1981 and motion for summary judgment (#14) under Title VII and the TCHRA.

After careful review of the record and the applicable law, the Court concludes for the reasons stated below that (1) HHSC's motion for judgment on the pleadings should be granted as a matter of law because Plaintiff's claims under 42 U.S.C. § 1981

are barred by Texas' sovereign immunity from liability; (2) HHSC's motion for summary judgment on Plaintiff's Title VII claims should be granted; and (3) Plaintiff's claims under the TCHRA should be dismissed without prejudice because jurisdiction in this Court is barred as a matter of law by sovereign immunity.

Factual Allegations

Initially Plaintiff also alleged claims for race and gender discrimination, but chose to abandon all but her retaliation claims (#8).

In a bare-bones Second Amended Complaint (#10), Cephus alleges that for years she was a full-time employee with management responsibility at HHSC. She claims, without providing any dates or details, that she was repeatedly discriminated against in job advancements based on her race, African American, and her gender, female. After she timely made such complaints internally and to the EEOC, she alleges that she was retaliated against when HHSC denied her an interview for a promotion and, after she retired, when she was denied reinstatement to her previous or to a comparable management position [and was subsequently terminated].

Standards of Review

Rules 12(c) and 12(b)(6)

A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

is “designed to dispose of cases where the material facts are not in dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.” Hebert Abstract Co. v. Touchstone Props., Ltd. , 914 F.2d 74, 76 (5th Cir.1990), citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1367, at 509-10 (1990). The same standard used to review motions under Rule 12(b)(6)

applies to motions under Rule 12(c). Doe v. MySpace, Inc. , 528 F.3d 413, 418 (5th Cir.2008).

When a district court reviews a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

, it must construe the complaint in favor of the plaintiff and take all well-pleaded facts as true. Randall D. Wolcott, MD, PA v. Sebelius , 635 F.3d 757, 763 (5th Cir.2011), citing

Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir.2009). The plaintiff's legal conclusions are not entitled to the same assumption. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”), citing

Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Hinojosa v. U.S. Bureau of Prisons , 506 Fed.Appx. 280, 283 (5th Cir. Jan. 7, 2013).

“While a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations, ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do ....” Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. at 1965, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (“[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action”). “Twombly jettisoned the minimum notice pleading requirement of Conley v. Gibson , 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 ... (1957) [“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”], and instead required that a complaint allege enough facts to state a claim that is plausible on its face.” St. Germain v. Howard , 556 F.3d 261, 263 n. 2 (5th Cir.2009), citing

In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir.2007) (“To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ”), citing

Twombly , 127 S.Ct. at 1974 ). “ ‘A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Montoya v. FedEx Ground Package System, Inc. , 614 F.3d 145, 148 (5th Cir.2010), quoting

Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The plausibility standard is not akin to a “probability requirement,” but asks for more than a “possibility that a defendant has acted unlawfully.” Twombly , 550 U.S. at 556, 127 S.Ct. 1955. Dismissal is appropriate when the plaintiff fails to allege “ ‘enough facts to state a claim to relief that is plausible on its face’ ” and therefore fails to “ ‘raise a right to relief above the speculative level.’ ” Montoya , 614 F.3d at 148, quoting

Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955.

In Ashcroft v. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937

, the Supreme Court stated that “only a complaint that states a plausible claim for relief survives a motion to dismiss,” a determination involving “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” under Rule 12(b). Iqbal , 129 S.Ct. at 1949. The plaintiff must plead specific facts, not merely conclusory allegations, to avoid dismissal. Collins v. Morgan Stanley Dean Witter , 224 F.3d 496, 498 (5th Cir.2000)

. “Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief ....” Rios v. City of Del Rio, Texas , 444 F.3d 417, 421 (5th Cir.2006), cert. denied , 549 U.S. 825, 127 S.Ct. 181, 166 L.Ed.2d 43 (2006).

As noted, on a Rule 12(b)(6)

review, although generally the court may not look beyond the pleadings, the Court may examine the complaint, documents attached to the complaint, and documents attached to the motion to dismiss to which the complaint refers and which are central to the plaintiff's claim(s), as well as matters of public record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.2010), citing

Collins , 224 F.3d at 498–99 ; Cinel v. Connick , 15 F.3d 1338, 1341, 1343 n. 6 (5th Cir.1994). See also

United States ex rel. Willard v. Humana Health Plan of Tex., Inc. , 336 F.3d 375, 379 (5th Cir.2003) (“the court may consider ... matters of which judicial notice may be taken”). Taking judicial notice of public records directly relevant to the issue in dispute is proper on a Rule 12(b)(6) review and does not transform the motion into one for summary judgment. Funk v. Stryker Corp. , 631 F.3d 777, 780 (5th Cir.2011). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).

Rule 12(b)(1)

The court should address Rule 12(b)(1)

jurisdictional issues before addressing any attack on the merits of a claim. Hitt v. City of Pasadena , 561 F.2d 606, 608 (5th Cir.1977) (noting that this requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice). A court may sua sponte raise a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction at any time. Westland Oil Development Corp. v. Summit Transp. Co. , 481 F.Supp. 15 (S.D.Tex.1979), aff'd , 614 F.2d 768 (1980). Fed. Rule of Civil Procedure 12(h)(3) states, “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”. See

Kidd v. Southwest Airlines Co. , 891 F.2d 540, 545 (5th Cir.1990) (“[F]ederal courts must address jurisdictional questions sua sponte when the parties' briefs do not bring the issue to the court's attention.”)(same); Giannakos v. M/V Bravo Trader , 762 F.2d 1295, 1297 (5th Cir.1985) (per curiam )(same). The Court may find lack of subject matter jurisdiction on any of the following three bases: (1) the complaint; (2) the complaint along with undisputed facts evidenced in the record; and (3) the complaint along with undisputed facts and the court's resolution of disputed facts. Barrera

–

Montenegro v. United States , 74 F.3d 657, 659 (5th Cir.1996). If the Court finds that Eleventh Amendment immunity applies, the barred claims “can be dismissed only under Rule 12(b)(1) and not with prejudice.” Warnock v. Pecos County, Tex. , 88 F.3d 341, 342–43 (5th Cir.1996). See, e.g.,

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