Yu v. Univ. of Houston At Victoria

• Decision Date: 23 August 2017
• Docket Number: CIVIL ACTION H-16-3138
• Parties: CHUN-SHENG YU, Plaintiff, v. THE UNIVERSITY OF HOUSTON AT VICTORIA and THE UNIVERSITY OF HOUSTON SYSTEM, Defendants.
• Court: U.S. District Court — Southern District of Texas

CHUN-SHENG YU, Plaintiff, v. THE UNIVERSITY OF HOUSTON AT VICTORIAand THE UNIVERSITY OF HOUSTON SYSTEM, Defendants.

CIVIL ACTION H-16-3138

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

August 23, 2017

OPINION AND ORDER OF PARTIAL DISMISSAL

Pending before the Court in the above referenced cause, alleging intentional, continuing discrimination since 2009 based on national origin (Chinese) and age (62) and retaliation, grounded in the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et al., and Title VII of the Civil Rights Act, as amended, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), with supplemental jurisdiction under 28 U.S.C. § 1367 over pendent state law claims arising under the Texas Commission on Human Rights Act ("TCHRA"), Texas Labor Code § 21.051, et seq., is Defendants the University of Houston at Victoria ("UHV") and the University of Houston System's ("UH System's") partial motion to dismiss (instrument #6) Counts 2 (TCHRA national origin discrimination) and 4-7 (ADEA age discrimination, TCHRA age discrimination, ADEA retaliation, and TCHRA retaliation, respectively) and to dismiss Defendant the UH System, pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

Standard of Review

Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. "'A case is properly dismissed under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the case.'" Taylor v. Texas Southern Univ., Civ. A. No. 12-CV-01975, 2013 WL 3157529, at *2 (S.D. Tex. June 20, 2013), citing Home Builder's Assoc. of Mississippi, Inc. v. City of Madison, Mississippi, 143 F.3d 1006, 1010 (5^th Cir. 2014). The party asserting that subject matter exists, here Plaintiff Dr. Chun-Sheng Yu, must bear the burden of proof by a preponderance of the evidence for a 12(b)(1) motion. New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 327 (5^th Cir. 2008); Ramming v. United States, 281 F.3d 158, 161 (5^th Cir. 2001), cert denied sub nom. Cloud v. U.S., 536 U.S. 960 (2002).

It has long been recognized that the Eleventh Amendment¹ bars claims under the TCHRA and the federal age discrimination statute (the ADEA) against a State not only in actions in which the State is actually named as the defendant, but also in certain actionsagainst state agents and state instrumentalities. Taylor v. Texas Southern Univ., 2013 WL 3157529, at *2.

In reviewing a motion under 12(b)(1) the court may consider (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. Williamson v. Tucker, 645 F.2d 404, 413 (5^th Cir. 1981). This case falls into the first category, the complaint alone.

A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) is characterized as either a "facial" attack, i.e., the allegations in the complaint are insufficient to invoke federal jurisdiction, or as a "factual" attack, i.e., the facts in the complaint supporting subject matter jurisdiction are questioned. In re Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011), citing Rodriguez v. Texas Comm'n of Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998), aff'd, 199 F.3d 279 (5^th Cir. 2000). A facial attack happens when a defendant files a Rule 12(b)(1) motion without accompanying evidence. Paterson v. Weinberger, 644 F.2d 521, 523 (5^th Cir. 1981). In a facial attack, allegations in the complaint are taken as true. Blue Water, 2011 WL 52525 at *3, citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5^th Cir. 1995). The challenge from Defendants here is a facial attack.

If it is a factual attack, the Court may consider any evidence (affidavits, testimony, documents, etc.) submitted by the parties that is relevant to the issue of jurisdiction. Id., citing Irwin v. Veterans Admin., 874 F.2d 1092, 1096 (5^th Cir. 1989). A defendant making a factual attack on a complaint may provide supporting affidavits, testimony or other admissible evidence. Patterson v. Weinberger, 644 F.3d 521, 523 (5^th Cir. 1981). The plaintiff, to satisfy its burden of proof, may also submit evidence to show by a preponderance of the evidence that subject matter jurisdiction exists. Id. The court's consideration of such matters outside the pleadings does not convert the motion to one for summary judgment under Rule 56(c). Robinson v. Paulson, H-06-4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing Garcia, 104 F.3d at 1261. "Unlike in a facial attack where jurisdiction is determined upon the basis of allegations of the complaint, accepted as true[,] when a factual attack is made upon federal jurisdiction, no presumption of truthfulness attaches to the plaintiffs' jurisdictional allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In a factual attack, the plaintiffs have the burden of proving that federal jurisdiction does in fact exist." Evans v. Tubbe, 657 F.2d 661, 663 (5^th Cir. 1981). In resolving a factual attack on subject matter jurisdiction under Rule 12(b)(1), the district court, which does not address themerits of the suit, has significant authority "'to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Robinson v. Paulson, No. H-06-4083, 2008 WL 4692392, *10 (S.D. Tex. Oct. 22, 2008), quoting Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11^th Cir. 1997), and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5^th Cir. 1986).

A court's dismissal of a case for lack of subject matter jurisdiction is not a judgment on the merits and does not bar the plaintiff from pursuing his claim in a court that has jurisdiction. Ramming, 281 F.3d 158, 161 (5^th Cir. 2001), cert denied sub nom. Cloud v. U.S., 536 U.S. 960 (2002).

Applicable Law

Eleventh Amendment Immunity

Eleventh Amendment immunity must be resolved before the court reaches the merits of a suit. United States v. Tex. Tech. Univ., 171 F.3d 279, 285-86 & n.9 (5^th Cir. 1999). The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Eleventh Amendment bars an individual from suing a state in federal court unless the state consents to suit or unless Congress has clearly, unequivocally, and validly abrogated the state's sovereignimmunity. Jackson v. Texas Southern University, 997 F. Supp. 2d 613, 623 (S.D. Tex. 2014). The Supreme Court has "consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000) ("[F]or over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States."). Absent a waiver of immunity by a state or through a federal statute, the Eleventh Amendment bars suits against states and state agencies for money damages or injunctive relief. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984); Quern v. Jordan, 440 U.S. 332, 337 (1979)(sovereign immunity protects a state from "a suit in federal court by private parties² seeking to impose a liability which must be paid from public funds"); Cory v. White, 457 U.S. 85, 91 (1982); Voisin's Oyster House v. Guidry, 799 F.2d 183, 185 (5^th Cir. 1986). See also Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5^th Cir. 2002)(The Eleventh Amendment bars "an individual from suing a statein federal court unless the state consents to suit or Congress has clearly and validly abrogated the state's sovereign immunity."). "Congress may only abrogate a state's Eleventh amendment immunity by 'unequivocally' expressing its intent to do so and by acting 'pursuant to a valid exercise of power.'" Cozzo v. Tangipaphoa Parish Council-President Government, 279 F.3d 273, 281 (5^th Cir. 2002), citing Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 634 (1999). The Eleventh Amendment's "withdrawal of jurisdiction effectively confers an immunity from suit." Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993).

The Eleventh Amendment's "reference to actions 'against one of the United States' encompasses not only actions in which a State is actually named as a defendant, but also certain actions against state agents and state instrumentalities." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997), citing Poindexter v. Greenhow, 114 U.S. 270, 287 (1885). "'[W]hen the action is in essence one for the recovery of money from the state, the state is the real substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.'". Yowman v. Jefferson County Community Supervision & Corrections Dept., 370 F. Supp. 2d 568, 583 (E.D. Tex. 2005), citing Doe, 519 U.S. at 429.

"Even in cases where the State itself is not a nameddefendant, the State's Eleventh Amendment immunity will extend to any state agency or other political entity that is deemed the 'alter ego' or an 'arm' of the State." Vogt v. Bd. of Com'rs of Orleans Levee Dist., 294 F.3d 684, 688 (5^th Cir. 2002), citing Doe, 519 U.S. at 429.³ A State's agencies are also subject to suit in federal court, absent waiver of immunity by the State. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Inc., 506 U.S. 139, 144 (1993)("Absent waiver, neither a State nor agencies acting under its control may 'be subject to suit in ...