SIDNEY A. FITZWATER, Chief District Judge.
Plaintiff Annie Sharp ("Sharp") sues her former employer, Texas Department of Family Protective Services ("DFPS"),
On July 11, 2013 Sharp filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). On the form, she checked the box stating that she was complaining of "DISCRIMINATION BASED ON" "RETALIATION." Sharp's "STATEMENT OF DISCRIMINATION" was as follows: "I believe I was discriminated against in retaliation for having filed several internal administrative complaints, a violation of [Title VII]." Ds. App. Ex. A. The EEOC issued Sharp a right-to-sue letter that same day, although Sharp maintains that she did not receive it until at least two days later.
On October 10, 2013 Sharp filed this lawsuit against DFPS and Specia in his official capacity, alleging discrimination claims under Title VII and 42 U.S.C. § 1991, and seeking, inter alia, punitive damages. Defendants filed a partial motion to dismiss addressed to Sharp's claim under 42 U.S.C. § 1991 and her claim for punitive damages. Sharp did not respond to the motion, and the court granted it.
DFPS then filed a motion to dismiss Sharp's Title VII claim for discrimination based on race, sex, or color on the ground that Sharp had failed to exhaust her administrative remedies as to this claim. Sharp again failed to respond to defendants' motion, and the court granted it. The court held that Sharp had failed to exhaust her administrative remedies as to her Title VII discrimination claim, but it granted her leave to replead because she could conceivably bring a discrimination claim under 42 U.S.C. § 1981 that was not subject to exhaustion requirements. Sharp v. Tex. Dep't of Family & Family & Protective Servs., 2014 WL 2475894, at *2 (N.D. Tex. June 3, 2014) (Fitzwater, C.J.) ("Sharp I").
On June 30, 2014 Sharp filed a first amended complaint in which she alleges claims for race and color discrimination, and retaliation, under Title VII and § 1981. Defendants move for summary judgment and to dismiss Sharp's newly-pleaded Title VII retaliation claim and her § 1981 claims for discrimination and retaliation
The court begins with Sharp's Title VII retaliation claim, which defendants contend is time-barred. The court will address this ground of defendants' motion under the summary judgment standard.
Limitations is an affirmative defense on which defendants will have the burden of proof at trial. See, e.g., Sivertson v. Clinton, 2012 WL 4473121, at *2-3 (N.D. Tex. Sept. 28, 2012) (Fitzwater, C.J.) (characterizing as affirmative defense assertion that claim brought under Title VII was untimely). To obtain summary judgment on the defense of limitations, defendants must establish "beyond peradventure all of the essential elements of the . . . defense." Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). This means that defendants must demonstrate that there are no genuine and material fact disputes and that they are entitled to summary judgment as a matter of law. See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412 (5th Cir. 2003). "The court has noted that the `beyond peradventure' standard is `heavy.'" Carolina Cas. Ins. Co. v. Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009) (Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St. Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10 (N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
Defendants contend that, because Sharp did not file her retaliation claim within 90 days of receiving her right-to-sue letter from the EEOC, this claim is time-barred. They maintain that the relation-back doctrine is inapplicable because Sharp's retaliation claim is not factually similar to the discrimination claim that she alleged in her original complaint ("complaint"). Sharp responds that the discrimination claim in her complaint and the retaliation claim in her amended complaint arise out of the same transaction or occurrence, and because she complained of retaliatory practices in her complaint and mentions that her employment was ultimately terminated, these facts, taken with the alleged discriminatory practices, put defendants on notice of her possible retaliation claim.
In deferral states such as Texas, an aggrieved party must file a charge of discrimination with the EEOC within 300 days after the alleged unlawful practice occurred. See 29 U.S.C. § 626(d)(1)(B); see also Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). "[I]f the EEOC determines that there is no reasonable cause to believe that an unlawful employment practice has occurred, the EEOC issues a letter informing the aggrieved party that it has the right to sue in federal district court . . . within 90 days of the receipt of the letter." Martin, 353 F.3d at 411 (citing 29 C.F.R. § 1601.19(a)). "A plaintiff alleging employment discrimination must file a civil action no more than ninety days after she receives statutory notice of her right to sue from the EEOC. The ninety-day window is strictly construed and is a precondition to filing suit in district court." Smith v. Alcorn State Univ., 451 Fed. Appx. 464, 465 (5th Cir. 2011) (per curiam) (quoting Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir. 2009) (internal quotation marks omitted)).
It is undisputed that Sharp did not file her retaliation claim within 90 days of receiving her right-to-sue letter from the EEOC. She did not allege this claim until she filed her first amended complaint. Under Rule 15(c), however,
Johnson v. Crown Enters., Inc., 398 F.3d 339, 342 (5th Cir. 2005) (citations, quotation marks, and ellipsis omitted). "Amendments that correct technical deficiencies in a pleading or serve to expand the facts alleged in the original pleading satisfy the relation back requirements of rule 15(c)." McClellon v. Lone Star Gas Co., 66 F.3d 98, 102 (5th Cir. 1995). Similarly, if an amended complaint presents a new legal theory based on the same operative facts, the amendment will relate back. See F.D.I.C. v. Bennett, 898 F.2d 477, 478-79 (5th Cir. 1990). The relation-back doctrine is "liberally applied . . . `based on the idea that a party who is notified of litigation concerning a given transaction or occurrence is entitled to no more protection from statutes of limitation than one who is informed of the precise legal description of the rights sought to be enforced.'" Williams v. United States, 405 F.2d 234, 236 (5th Cir. 1968) (citation omitted); see also Galvan v. Bexar Cnty., 785 F.2d 1298, 1305 (5th Cir. 1986) ("The doctrine of relation back under Rule 15(c) is to be `liberally applied.'" (citation omitted)).
In her complaint, Sharp alleged:
Compl. ¶ 9. She also asserted that she "timely filed a charge of discrimination against defendants with the [EEOC]." Id. ¶ 6. And in her charge of discrimination, which DFPS attached to its April 29, 2014 motion to dismiss and which defendants attach to their summary judgment motion, Sharp checked the box stating that she was complaining of "DISCRIMINATION BASED ON" "RETALIATION," and her "STATEMENT OF DISCRIMINATION" was as follows: "I believe I was discriminated against in retaliation for having filed several internal administrative complaints, a violation of [Title VII]." Ds. App. Ex. A.
In her amended complaint, Sharp bases her Title VII retaliation claim on the following:
Am. Compl. ¶¶ 9-10. Sharp also alleges that DFPS "instituted a campaign of retaliation which included termination." Id. ¶ 16.
Sharp's complaint alleges that defendants discriminated against her by, inter alia, terminating her employment. Her retaliation claim is based, at least in part, on this same underlying conduct. Moreover, Sharp clearly referred to her EEOC charge in her complaint. And in her EEOC charge, she not only checked the "RETALIATION" box, she also stated her belief that she was retaliated against for having filed several internal administrative complaints, in violation of Title VII. As noted in defendants' appendix, the EEOC mailed to respondent (i.e., DFPS) a copy of Sharp's EEOC complaint and right-to-sue letter on July 15, 2013, which gave DFPS fair notice of Sharp's retaliation complaint nearly three months before she filed her complaint. See Swanson v. Aegis Commc'ns Grp., Inc., 2010 WL 1779666, at *1 (N.D. Tex. Mar. 22, 2010) (Sanderson, J.) (holding that Title VII claims raised for first time in amended complaint related back to date of complaint because plaintiff alleged Title VII claim in EEOC charge, which defendant received, and thus defendant had fair notice of plaintiff's discrimination claim), rec. adopted, 2010 WL 1779664, at *1 (N.D. Tex. Apr. 29, 2010) (Fitzwater, C.J.).
Accordingly, the court concludes that because Sharp's Title VII retaliation claim concerns the same underlying facts—namely, Sharp's termination—as are alleged in her complaint, and because defendants had fair notice of this claim, the claim relates back to the date of her complaint.
Defendants next argue that, even if Sharp's amended complaint relates back to the date of her complaint, her claims are still time-barred because her complaint was not filed within 90 days of the date she received her right-to-sue letter from the EEOC. They contend that on July 11, 2013, the following three events occurred: the EEOC issued the right-to-sue letter regarding Sharp's claim; Sharp hand-delivered a letter to the EEOC requesting a rightto-sue letter; and the EEOC handed Sharp a copy of the right-to-sue letter. Defendants maintain that, because Sharp received a copy of the right-to-sue letter on July 11, 2013 and filed her complaint 92 days later,
Sharp responds that the EEOC case log, on which defendants rely, creates a material fact issue because it is unclear from that document whether Sharp received the right-to-sue letter on July 11, 2013 or September 11, 2013. Sharp also contends that defendants have failed to adduce evidence that she received the right-to-sue letter on July 11, 2013, because the letter itself states that it was "mailed on" July 11, 2013, meaning that the earliest Sharp could have received it is July 13, 2013.
The question whether Sharp's Title VII retaliation claim is time-barred based on her failure to file suit within 90 days is governed by a different standard from the one that controls the Rule 15 relation-back doctrine. Unlike that doctrine, which is "`liberally applied,'" Galvan, 785 F.2d at 1305 (citation omitted), "[t]he ninety-day window is strictly construed and is a precondition to filing suit in district court," Smith, 451 Fed. Appx. at 465 (quoting Duron, 560 F.3d at 290) (internal quotation marks omitted)). The court concludes that defendants have established beyond peradventure that Sharp received the right-to-sue letter on July 11, 2013. Although the right-to-sue letter itself states "Date Mailed" under the handwritten date of July 11, 2013, defendants have produced evidence that would only enable a reasonable jury to find that the EEOC gave Sharp the right-to-sue letter on July 11, 2013. The EEOC case log prepared for Sharp's case
Sharp's October 10, 2013 complaint was not filed within 90 days of July 11, 2013, and was therefore untimely. Even though Sharp's retaliation claim asserted in her first amended complaint is deemed to relate back to the date she filed her complaint, because Sharp's complaint was not filed within 90 days of receiving her right-to-sue letter, her Title VII retaliation claim is time-barred. The fact that she filed suit on the 91st day may make this result seem harsh, but because "[t]he ninety-day window is strictly construed and is a precondition to filing suit in district court," Smith, 451 Fed. Appx. at 465 (quoting Duron, 560 F.3d at 290) (internal quotation marks omitted), this result is dictated by law.
Accordingly, the court grants defendants' motion for summary judgment dismissing Sharp's Title VII retaliation claim.
Defendants next move to dismiss Sharp's § 1981 claims, which she alleges against DFPS and Specia in his official capacity. The court will address this ground of defendants' motion under the Rule 12(b)(1) standard.
Defendants contend that § 1981 does not provide a cause of action against governmental entities; that DFPS is a state entity protected by the Eleventh Amendment and that Congress did not abrogate the states' Eleventh Amendment immunity by enacting 42 U.S.C. § 1981; and that because sovereign immunity prohibits a § 1981 claim against DFPS, it also prohibits a § 1981 claim against Specia in his official capacity. Sharp does not respond to defendants' contentions.
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 reference to actions "against one of the United States" has been interpreted to "encompass[] not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities." Sw. Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 937 (5th Cir. 2001) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). Eleventh Amendment "immunity applies unless it is waived by consent of a state or abrogated by Congress." Stiff v. Stinson, 2013 WL 3242468, at *3 (N.D. Tex. May 28, 2013) (Ramirez, J.) (quoting Curry v. Ellis Cnty., Tex., 2009 WL 2002915, at *3 (N.D. Tex. July 10, 2009) (Lindsay, J.)), rec. adopted, 2013 WL 3242468 (N.D. Tex. June 27, 2013) (Fitzwater, C.J.).
When Eleventh Amendment immunity applies, it deprives the court of subject matter jurisdiction. See, e.g., Ross v. Tex. Educ. Agency, 409 Fed. Appx. 765, 768 (5th Cir. 2011) (per curiam) ("We review Eleventh Amendment sovereign immunity determinations, as we do other questions of subject matter jurisdiction, as a question of law de novo."). A Rule 12(b)(1) motion challenging the court's subject matter jurisdiction can mount either a facial or factual challenge. See, e.g., Hunter v. Branch Banking & Trust Co., 2013 WL 607151, at *2 (N.D. Tex. Feb. 19, 2013) (Fitzwater, C.J.) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. May 1981)). When a party makes a Rule 12(b)(1) motion without including evidence, the challenge to subject matter jurisdiction is facial. Id. The court assesses a facial challenge as it does a Rule 12(b)(6) motion in that it "looks only at the sufficiency of the allegations in the pleading and assumes them to be true. If the allegations are sufficient to allege jurisdiction, the court must deny the motion." Id. (citing Paterson, 644 F.2d at 523).
"Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate claims." Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). "The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citations omitted).
The court grants defendants' motion to dismiss Sharp's § 1981 claims for lack of subject matter jurisdiction. Sharp does not dispute that DFPS is an arm or instrumentality of the State of Texas and that its immunity has not been waived. See Am. Compl. ¶ 2 (alleging that DFPS is a "Texas State Government Agency"); see also Thomas v. Tex. Dep't of Family & Protective Servs., 427 Fed. Appx. 309, 312 (5th Cir. 2011) (per curiam) ("[DFPS] is undisputedly a state entity that has not waived its immunity." (citing Stem v. Ahearn, 908 F.2d 1, 4 (5th Cir. 1990))); Smith-Lindley v. Tex. Dep't of Family & Protective Servs., 2013 WL 4766850, at *1 (N.D. Tex. Aug. 14, 2013) (Toliver, J.) ("Defendant State of Texas, Department of Family and Protective Services is immune from suit in this Court under the Eleventh Amendment of the United States Constitution."), rec. adopted, 2013 WL 4766850 (N.D. Tex. Sept. 5, 2013) (Kinkeade, J). And courts have held that Congress did not abrogate Eleventh Amendment immunity in enacting 42 U.S.C. § 1981. See Early v. S. Univ. & Agric. & Mech. Coll. Bd. of Supervisors, 252 Fed. Appx. 698, 700 (5th Cir. 2007) (per curiam) (holding that the Eleventh Amendment required dismissal of § 1981 claim asserted against state agency and defendants named in their official capacities). Accordingly, the court concludes that it lacks subject matter jurisdiction over Sharp's § 1981 claims brought against DFPS.
The court also concludes that it lacks subject matter jurisdiction over Sharp's § 1981 claims brought against Specia in his official capacity. It is clearly established that a suit against a government official in his official capacity is "only another way of pleading an action against an entity of which [the official] is an agent." Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is . . . treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 166 (1985). Because the Eleventh Amendment divests this court of subject matter jurisdiction over Sharp's § 1981 claims against DFPS, it also prevents the court from adjudicating Sharp's § 1981 claims brought against Specia in his official capacity.
In summary, in an order filed February 26, 2014, the court granted defendants' motion to dismiss Sharp's claim under 42 U.S.C. § 1991 and her claim for punitive damages. In Sharp I the court dismissed Sharp's Title VII claim for discrimination based on race, sex, or color on the ground that she had failed to exhaust her administrative remedies as to this claim. Sharp I, 2014 WL 2475894, at *2. The court is today dismissing Sharp's Title VIIbased retaliation claim on the ground that it is barred by limitations, and it is dismissing her § 1981 claims without prejudice for lack of subject matter jurisdiction.
For the foregoing reasons, the court grants defendants' motion for summary judgment dismissing Sharp's Title VII retaliation claim and grants their motion to dismiss Sharp's § 1981 claims without prejudice for lack of subject matter jurisdiction.
