Silva v. Chertoff
| Decision Date | 19 March 2007 |
| Docket Number | No. EP-05-CA-443-FM.,EP-05-CA-443-FM. |
| Parties | Frank G. SILVA, Plaintiff, v. Michael CHERTOFF, Secretary, Department of Homeland Security, Defendant. |
| Court | U.S. District Court — Western District of Texas |
Francisco X. Dominguez, The Law Office of Francisco X. Dominguez, El Paso, for Plaintiff.
Magdalena G. Jara, Assistant U.S. Attorney, El Paso, TX, for Defendant.
Before the Court is Defendant Michael Chertoff's ("Defendant") "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Motion") [Rec. No. 22], filed through the Assistant United States Attorney in this employment discrimination action on November 3, 2006. After, obtaining an enlargement of time, Plaintiff Frank G. Silva ("Silva") timely filed his "Response to Defendant's Motion to Dismiss or for Summary Judgment" ("Response") [Rec. No. 26] on November 28, 2006. Defendant's "Objections to Plaintiffs Summary Judgment Evidence" ("Objections") [Rec. No. 28] and "Reply to Plaintiffs Response to Defendant's Motion to Dismiss or, in the Alternative[,] Motion for Summary Judgment" ("Reply") [Rec. No. 30] followed on December 11, 2006 and December 13, 2006, respectively.
After carefully considering the record and pleadings in this cause, the Court concludes it should OVERRULE Defendant's Objections IN PART and SUSTAIN them IN PART. The Court further concludes it should GRANT Defendant's Motion in its entirety.
This lawsuit arises from the United States Border Patrol's ("the Border Patrol" or "the agency") termination of Silva's employment as an Electronics Technician on February 21, 2004. At all times relevant to this litigation, Silva's duty station was the El Paso Sector Electronics Branch, Las Cruces, New Mexico division. Silva's discharge ensued after the agency declined his request for a permanent light-duty assignment in the El Paso division following an injury he sustained on the job and Silva did not accept the agency's thrice-repeated offer of reassignment as a Law Enforcement Communications Officer ("LECA").
In his "Original Complaint" ("Complaint") [Rec. No. 1] filed on November 28, 2005, Silva alleges the Border Patrol engaged in unlawful employment practices, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("the ADEA"); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791. Specifically, Silva asserts the agency violated Title VII when it illegally discriminated against him on the basis of his race (Mestizo/non-white) and national origin (Mexican) by subjecting him to heightened scrutiny and different employment terms and conditions, which included the agency's alleged failure to reasonably accommodate Silva following his injury. Silva, who was fifty-two years old upon his removal from federal service, further asserts that the agency violated the ADEA by subjecting him to disparate treatment. Silva additionally contends the agency violated the Rehabilitation Act by failing to reasonably accommodate his actual physical disability or discriminating against him on the basis of a perceived physical disability. Silva lastly avers that agency personnel unlawfully retaliated against him for opposing discrimination or engaging in a protected activity.
In his Motion, Defendant counters that Silva has not set forth a prima facie case of discrimination or retaliation under Title VII, the ADEA, or the Rehabilitation Act. The Court understands Defendant to assert that he is therefore entitled to have the Court dismiss Silva's Complaint for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant further argues that, to the extent, Silva asserts he is entitled to relief under the Rehabilitation Act on the theory that agency personnel discriminated against him because they "regarded him as disabled," Silva failed to raise this claim in his complaint to the' Equal Employment Opportunity Commission ("EEOC"). Therefore, Defendant asserts, Silva has failed to exhaust his administrative remedies insofar as he contends the agency "regarded him as disabled." Because exhaustion of administrative remedies is a jurisdictional prerequisite for federal court review of Rehabilitation Act claims, Defendant moves the Court dismiss the "regarded as disabled" aspect of Silva's Rehabilitation Act claim pursuant to Federal Rule of Civil Procedure 12(b)(1).
Alternatively, Defendant asserts that, even assuming Silva has established a prima facie case of discrimination and retaliation, Defendant has articulated legitimate and nondiscriminatory reasons for its decisions regarding Silva's employment. Because Silva has not carried his burden of production by presenting admissible or minimally persuasive evidence that Defendant's proffered reasons were a pretext for discrimination, Defendant contends he is accordingly entitled to summary judgment in this action. Related to the latter argument is Defendant's assertion in his Objections that the "Declaration of Narciso Retana" attached to Silva's Response does not represent competent summary judgment evidence.
Finally, Defendant argues that if the Court denies his Motion regarding Silva's ADEA claim, Silva is nonetheless not entitled to a jury trial on his age discrimination cause of action. Silva concedes that he is not entitled to a jury trial on his ADEA claim. He nonetheless urges the Court to allow a jury empaneled to, adjudicate the merits of his other claims to render an advisory opinion concerning his age discrimination allegations.
The Court now considers the legal standards governing Defendant's Motion.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") addresses the court's subject matter jurisdiction, which derives from the Case or Controversy Clause of Article III of the United States Constitution.1 Because federal courts are courts of limited jurisdiction, it is presumed that a case lies, outside their jurisdiction unless proven otherwise.2 Rule 12(b)(1) demands dismissal if the court lacks jurisdiction over the subject matter of the plaintiff's complaint.3 The burden of proof on a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.4 "`A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.'"5
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction cannot be converted into a motion for summary judgment.6 Nevertheless, the court may consider
outside matters which are attached to a motion to dismiss without first converting it into a motion for summary judgment "if the material is pertinent to the question of the District Court's jurisdiction since it is always the obligation of a federal court to determine if it has jurisdiction."7
Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted."8 Nonetheless, a "motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."9 That is, a court should not grant a motion to dismiss pursuant to Rule 12(b)(6) unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief.10 "The task of the court in ruling on a Rule 12(b)(6) motion `is merely to assess the legal feasibility of the complaint, [and] not to assay the weight of the evidence which might be offered in support thereof.'"11 Thus, when considering a Rule 12(b)(6) motion, a court must accept all well-pleaded facts as true, and construe all reasonable inferences in the light most favorable to the plaintiffs.12 The principles set forth above are nevertheless subject to limitations. Although the Court must accept well-pleaded allegations in a complaint as true, it does not afford conclusory allegations similar treatment.13 Moreover, where a complaint shows on its face that it is barred by an affirmative defense, a court may dismiss the action for failing to state a claim.14
Federal Rule of Civil Procedure 56 ("Rule 56") governs motions for summary judgment. The purpose of Rule 56 is to "enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one sworn averment of that fact before the lengthy process of litigation continues."15 Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."16 Under Rule 56(c) "judgment ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."17
The party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but it need not negate the elements of the nonmovant's case.18 Since the moving party bears the burden of proof, ...
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...§19:7.E.2 Siler-Khodr v. Univ. of Texas-Health Science Ctr.-San Antonio , 261 F.3d 542 (5th Cir. 2001), §19:3.A Silva v. Chertoff , 512 F. Supp. 2d 792, 821 (W.D. Tex. 2007), §21:7.I.3 Silva v. City of Hidalgo , Tex., __ Fed. App’x __, 2014 WL 3511685, *3 (5th Cir. July 17, 2014), §21:6.E.2......
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