Gardon v. City of El Paso, EP-03-CA-110-DB.
| Decision Date | 17 July 2003 |
| Docket Number | EP-03-CA-110-DB. |
| Parties | RAFAEL GARDON, Plaintiff, v. CITY OF EL PASO, Defendant. |
| Court | U.S. District Court — Western District of Texas |
THE HONORABLE DAVID BRIONES UNITED STATES DISTRICT JUDGE.
On this day, the Court considered Plaintiff Rafael Gardon's "Motion to Remand," filed in the above-captioned cause on April 8, 2003. On April 11, 2003, Defendant City of El Paso filed a Response. For the reasons that follow, the Court is of the opinion that Plaintiff's Motion to Remand should be granted.
Plaintiff commenced this cause in the 168th Judicial District Court of El Paso County, Texas ("state court"), on February 6, 2003. In his Original Petition, Plaintiff alleges that, as an employee of Defendant, he endured a hostile work environment and was retaliated against for filing a complaint with the Equal Employment Opportunity Commission. He was also allegedly denied a promotion by Defendant for reporting what Plaintiff believed to be violations of the Texas Open Records Act, TEX. GOVT. CODE ANN. §§ 552.001 et seq (West 1994). Plaintiff asserts that Defendant's conduct violated the Texas Commission on Human Rights Act ("TCHRA"), TEX. LAB. CODE ANN. § 21.001 et seq (West 1996), and the Texas Whistleblower Act, TEX. GOVT. CODE ANN. § 554.001 et seq (West 1994), and seeks damages for pain and suffering, mental anguish, past lost wages, attorneys fees, and costs of court. On March 28, 2003, Defendant removed the case to this Court pursuant to 28 U.S.C. § 1331, asserting that Plaintiff's suit confers original jurisdiction in federal court. The instant Motion followed.
Title 28 U.S.C. § 1441, the general removal statute, allows a defendant to remove a case to the federal district court for the district and division within which the action is pending. 28 U.S.C.A. § 1441(a) (West 1994). As there is no allegation of diversity between the Parties, the propriety of removal in this cause turns on whether Plaintiff's claim falls within the "federal question" jurisdiction conferred by 28 U.S.C. § 1331. Section 1331 provides that the district courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C.A. § 1331 (West 1993). For jurisdiction to exist under this section, a well-pleaded complaint must reveal a federal question. Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429, 96 L. Ed. 2d 318 (1987); Sarmiento v. Texas Bd. of Veterinary Medical Examiners, 939 F.2d 1242, 1245 (5th Cir. 1991). However, it has been noted that the well-pleaded complaint rule is more useful in defining when jurisdiction is present than in establishing when jurisdiction is not present. Greater Jacksonville Transportation Co. v. The Jacksonville Port Authority, 12 F. Supp. 2d 1311, 1313 (M. D. Fla. 1998) (citing T.B. Harms Co. v. Eliscu, 339 F. 2d 823 (2nd Cir. 1964)).
Courts must examine the jurisdictional facts as they existed at the time of removal. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). That is, removability should be determined by looking at the complaint as it existed when the petition for removal was filed. Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 9-10, 103 S. Ct. 2841, 2846, 77 L. Ed. 2d 420 (1983).
Because federal courts are courts of limited jurisdiction and removal jurisdiction raises significant federalism concerns, the law imposes a presumption against federal jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 61 S. Ct. 868, 85 L. Ed. 1214 (1941); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The court must resolve any doubt concerning removability in favor of remand. See Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689, 694 (5th Cir. 1995).
This case raises an unusual scenario. Defendant alleges removal is proper because Plaintiff has made a specific allegation in his Original Petition that he was retaliated against for having filed an EEOC charge, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), which confers federal question jurisdiction pursuant to § 1331. Plaintiff argues that his Petition alleges only state law claims, and that his sole reference to Title VII was in error and was not meant to convey that Plaintiff intended to pursue a federal claim. The question for the court, therefore, becomes whether this single careless reference is sufficient to create federal jurisdiction.
A substantive review of the Petition indicates that Plaintiff is opting to pursue his claims under state law. The Petition's introduction begins with Plaintiff's declaration that he is pursuing claims under the TCHRA and the Texas Whistleblower Act. Plaintiff then presents two separate statements of fact under the subheadings "Texas Commission on Human Rights" and "Texas Whistleblower Act," respectively. Plaintiff then alleges two counts under the TCHRA and a third count under the Texas Whistleblower Act. In counts one and two, Plaintiff specifically states that he was retaliated against because of his prior EEO activity in violation of the TCHRA. In count three, Plaintiff again complains that the Defendant violated the Texas Whistleblower Act because of Plaintiff's prior EEO activity. None of the counts contain any reference to federal law. Plaintiff's sole reference to Title VII appears on the last line of his statement of facts relating to the TCHRA, as follows:
Plaintiffs [sic] believes he was retaliated against for having filed EEOC Charge No. 361-A1-1032, by denial of his overtime pay for three hours that he worked and denial of a re-hearing with a Hearing Officer, in violation of Title VII of the Civil Rights Act of 1964, as amended, Sec. 704(a).
Plaintiff's reference to Title VII in the statement of facts suggests that Plaintiff is not making an additional claim under that statute. While the reference to Title VII might suggest that Plaintiff could be asserting a federal cause of action, the actual causes of actions stated in the Petition all sound in state law. Despite Plaintiff's careless drafting of his Petition, the Court finds that he otherwise clearly alleges that his claims are based under the TCHRA and Texas Whistleblower Act.
Defendant contends that the reference to Title VII in Plaintiff's Petition is, nonetheless, sufficient to confer federal jurisdiction. The Court disagrees. A single reference to federal law in the Petition does not automatically give rise to federal jurisdiction, particularly when the Petition, when viewed substantively, clearly indicates that Plaintiff has exercised his option to pursue exclusively state causes of action. See Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140, 1144 (D.C. Ala. 1971) ( ). By its own terms, Title VII is not the exclusive avenue for employment discrimination claims, nor does it preempt related state claims. See 42 U.S.C.A. § 2000e-7 (West 1994); Pointer v. Crown Cork & Seal Co., 791 F. Supp. 164, 166 (S.D. Tex. 1992). The Texas legislature created the TCHRA to provide plaintiffs with an additional avenue under state law to remedy perceived employment discrimination. As the "master" of his claims, Plaintiff has elected to pursue state law remedies under the TCHRA rather than those provided by Title VII, and the...
To continue reading
Request your trial