Opinion
Case Nos. 1:01-CV-428
April 3, 2002
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT SABINE BAR PASS AND TRIBUTARIES PILOT COMMISSION'S MOTION TO DISMISS
This matter is before the court on "Defendant Sabine Bar, Pass And Tributaries Pilot Commission's Motion To Dismiss," filed on January 8, 2002 (Dkt. #16). Plaintiff failed to respond. Upon consideration of Defendant's motion and the applicable law, the court is of the opinion that Sabine Bar, Pass and Tributaries Pilot Commission's motion should be GRANTED.
I. BACKGROUND
Plaintiff Graylin Gant ("Plaintiff") brings this action against numerous defendants, including Defendant Sabine Bar, Pass And Tributaries Pilot Commission ("Commission"), alleging that he was subjected to racial discrimination when he applied for but was not selected to participate in Defendant Sabine Pilots Association's apprenticeship program. In particular, Plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981.
Although named as separate entities in the caption of this case, Plaintiff ostensibly refers to Sabine Pilots and Sabine Pilots Association as the same group in his first amended complaint. Thus, the court will treat them as the same entity.
Some background into the nature and composition of the Commission and its relationship to the other Defendants is in order. The Commission in question is comprised of five commissioners appointed by the Governor of Texas to serve as a pilot board in each port having a certain population. TEX. TRANSP. CODE § 63.001(a). Its duties include determining the qualifications of each applicant for branch or deputy pilot and recommending meritorious applicants to the governor, if new appointments are proper. TEX. TRANSP. CODE § 63.003(a)(1)-(2). Defendant Commission represents that it "has no employees and does not maintain an office." Def.'s Mot. Dismiss at 2.
The aforementioned branch pilots are appointed by the governor to four year terms at each port. TEX. TRANSP. CODE § 63.041(a)-(b). Currently, 19 individual branch pilots serve the Sabine River and basin in Texas, many of whom are named as Defendants in this case. Def.'s Mot. Dismiss at 2. These 19 branch pilots are organized as the Sabine Pilots Association, which is a non-profit corporation whose directors are maritime pilots that provide services in local navigational waters. Id.
To become a branch pilot, one must be licensed and otherwise qualified and must complete a period of apprenticeship as well as around one year of service as a deputy pilot. Id. "An apprenticeship program has been set up by the Commissioners . . . under which an individual can receive instruction and training under a sponsoring pilot for six months and can then be eligible to become a deputy pilot." Id. at 3. Subject to examination and approval of the Commission, each branch pilot may appoint two deputy pilots. TEX. TRANSP. CODE § 63.042(a). As mentioned, a person wanting to become a branch pilot must first serve as a deputy pilot for a probationary term of up to one year. TEX. TRANSP. CODE § 63.044(b).
Here, Plaintiff is an African-American male. He applied for the Sabine Pilots Association's apprenticeship program in August 1999, and was named on the list of candidates provided by the Commission to the Sabine Pilots Association. Plaintiff alleges that the Sabine Pilots Association controls "who will become Deputy Pilots with the apprenticeship program, and who will eventually be qualified to become a pilot with Sabine Pilots." Pl.'s First Amend. Compl. at 9. On October 6, 1999, the Sabine Pilots Association selected two qualified individuals to participate in its apprenticeship program; they did not choose Plaintiff. As a result, Plaintiff claims that he was passed over simply because of his race in favor of two lesser qualified non-African-Americans.
In the instant motion, the Commission argues that dismissal is proper pursuant to Rule 12 of the Federal Rules of Civil Procedure on three distinct grounds: (1) pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction; (2) pursuant to Rule 12(b)(2) for lack of personal jurisdiction; and (3) pursuant to 12(b)(6) for failure to state a claim. First, it argues that the court lacks subject matter jurisdiction to hear this case because Eleventh Amendment immunity bars Plaintiffs claims, and the Commission is not an "employer" as defined in Title VII. Second, it argues that Plaintiff fails to state a claim upon which relief can be granted against the Commission because the Commission did not participate in the apprenticeship selection process. The Commission fails to make any arguments or offer authority in support of its Rule 12(b)(2) assertion and, thus, the court will not analyze that assertion.
When considering a Rule 12(b)(1) motion and a Rule 12(b)(6) motion, the court must consider the jurisdictional attack before addressing the attack on the merits. Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 879 (N.D. Tex. 1998) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). The above requirement prevents a court without subject matter jurisdiction from dismissing a case with prejudice. Id. Dismissal of a plaintiff's case because the plaintiff lacks subject matter jurisdiction does not act as a determination on the merits. Id. (citation omitted).
Plaintiff has neglected to file a response to Defendants' motion. Therefore, pursuant to Local Rule CV-7(d), the court will assume that Plaintiff has "no opposition" to the motion and proceed accordingly. EASTERN DIST. TEX. R. CV-7(d).
III. DISCUSSION
A. 12(b)(1) Motion To Dismiss For Lack of Subject Matter Jurisdiction
1. Standard
The Commission first moves to dismiss Plaintiff's claims pursuant to Rule 12(b)(1) because this court lacks jurisdiction over the case. Rule 12(b)(1) allows a party to challenge the subject matter jurisdiction of the district court to hear a case. See FED. R. CIV. P. 12(b)(1). "In ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may evaluate (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." Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Rodriguez v. Tex. Comm'n on the Arts, 992 F. Supp. 876, 878 (N.D. Tex. 1998) (citations omitted).
The Fifth Circuit recognizes a distinction between a "facial attack" and a "factual attack" upon a complaint under Rule 12(b)(1). Rodriguez, 992 F. Supp. at 878. "A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction" by examining the allegations in the complaint, which are presumed to be true. Id. (citation omitted). However, if the defendant supports the motion with evidence, then the attack is "factual." Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Regardless, "[t]he plaintiff constantly bears the burden of proof that jurisdiction does exist." Rodriguez, 992 F. Supp. at 879 ("The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.") (citations omitted). The instant case is a facial attack because Defendant did not support its motion with evidentiary material.
Plaintiff's assert that this court has jurisdiction because his complaint raises federal questions under Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. § 1981. See Pl.'s First Amend. Compl. at 7; see also 28 U.S.C. § 1331. "To determine whether a federal question is involved requires the court to consider whether the complaint states a claim `arising under federal law.'" Rodriguez, 992 F. Supp. at 879 (citing O'Quinn v. Manuel, 773 F.2d 605, 607 (5th Cir. 1985)).
2. Analysis
The Commission first contends that the Eleventh Amendment to the United States Constitution bars Plaintiffs claim under 42 U.S.C. § 1981. The Eleventh Amendment provides as follows: "[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." U.S. CONST. amend. XI. The Supreme Court has interpreted the Eleventh Amendment as extending this immunity to bar a suit by a citizen against his or her own state. Rodriguez, 992 F. Supp. at 879 (citing Hans v. Louisiana, 134 U.S. 1 (1890)). In the present case, both Plaintiff and the Commission are citizens of Texas.
Moreover, when analyzing Eleventh Amendment immunity, a suit against a state agency is considered a suit against the state. See Penhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100-102 (1984). Pursuant to Texas state law, the Commission is a state agency because it is created pursuant to the Pilot Licensing and Regulatory Act and its members are appointed by the governor every two years. See TEX. TRANSP. CODE § 63.001(a)-(b). Further, Plaintiff recognizes that the Commission is a state agency. See Pl.s' First Amen. Compl. at 7, 9. Thus, the Commission is immune from prosecution as to Plaintiffs claim under 42 U.S.C. § 1981 unless an exception to Eleventh Amendment immunity exists.
There are two main exceptions to Eleventh Amendment immunity: (1) if the state or agency expressly consents to be sued in federal court; or (2) if Congress abrogates the state's sovereign immunity. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985); see also Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 55 (1996). The court finds that neither one of these exceptions apply to Plaintiff's § 1981 claim. It is undisputed that neither the State of Texas nor the Commission has consented to this suit. Additionally, the court finds that Congress has not abrogated Eleventh Amendment immunity for suits brought pursuant to § 1981. It is well settled that Congress did not intend to abrogate a state's Eleventh Amendment immunity under 42 U.S.C. § 1981. Chacko v. Tex. AM Univ., 960 F. Supp. 1180, 1197 (S.D. Tex. 1997); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989). Therefore, the court lacks jurisdiction over Plaintiff's § 1981 claim brought against the Commission because the Commission is immune pursuant to the Eleventh Amendment.
The court notes that Congress clearly has abrogated the states' Eleventh Amendment immunity with respect to Title VII. See Ussery v. State of La. on Behalf of La. Dept. of Health and Hosp., 150 F.3d 431, 434-35 (5th Cir. 1998).
Next, the Commission argues that Plaintiff's Title VII claim against it should be dismissed because the Commission was not an "employer" at the time of the alleged discriminatory act. In a motion to dismiss, "[a] party may claim that subject matter jurisdiction is lacking by virtue of the plaintiffs inability to prove the elements of the federal cause of action in question." Rodriguez, 992 F. Supp. at 879. Pursuant to Title VII, an "employee' may not discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. An "employe" includes any "person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person. . . ." 42 U.S.C. § 2000e(b) (emphasis added).
Even though Plaintiff has the burden to prove that jurisdiction exists, the court finds that the Commission was an "employer" as defined in Title VII when the alleged discrimination occurred. This conclusion is apparent from a reading of the facts and law in this case. Indeed, the Commission alleges that it has no employees and does not maintain an office, but it also asserts that it is a state agency created by the governor. The Texas government is an "employer" under the statute. Thus, the Commission, as an agency of an "employer," is included in the definition of an "employer." To hold otherwise would contradict the language of 42 U.S.C. § 2000e(b). Accordingly, the Commissions's motion to dismiss for lack of subject matter jurisdiction is granted as to Plaintiff's § 1981 claim.
B. 12(b)(6) Motion To Dismiss For Failure To State A Claim
Because the Commissions's jurisdictional attack on Plaintiff's claims succeeded only in barring Plaintiffs § 1981 claim, the court will now discuss the merits of Plaintiffs Title VII claim.
1. Standard
Rule 12(b)(6) provides that a party may move a court to dismiss an action for "failure to state a claim upon which relief can be granted." However, "`[t]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'" Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (9 Cir. 1982).
On motion under Rule 12(b)(6), the court must follow two principles. First, the court must decide whether the facts alleged in a complaint, if true, would entitle the plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The court must accept as true all material allegations in the complaint as well as any reasonable inferences to be drawn from them. See Kaiser Aluminum, 667 F.2d at 1050. The well-pleaded facts must be reviewed in the light most favorable to the plaintiff. See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995). Second, "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." Conley, 355 U.S. at 45-46; Kaiser Aluminum, 677 F.2d at 1050.
While these two principles are mandatory, the Fifth Circuit recognizes two exceptions to these principles. First, a plaintiff must allege specific facts, not conclusory allegations. See Elliot v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). Where a complaint asserts merely conclusory allegations, these conclusory allegations and unwarranted deductions of fact are not admitted as true. See Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Second, 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. Kaiser Aluminum, 677 F.2d at 1050.
2. Analysis
The Commission moves to dismiss Plaintiff's Title VII claim against it, arguing that Plaintiff does not allege that the Commission failed to perform any statutory duty or responsibility. Def.'s Mot. to Dismiss at 8. To determine whether Plaintiff has failed to state a Title VII claim, the court must first decide whether the facts alleged in a complaint, if true, would entitle the plaintiff to some legal remedy. See Conley, 355 U.S. at 45-46. In his complaint, Plaintiff makes few allegations concerning the Commission. He mentions that the Commission's required duties include "accepting applications for pilot licenses and certificates and determining whether each applicant meets the qualifications for a pilot, as well as providing names of all qualified applicants for certificates to each pilot association office." Pl.'s First Amen. Compl. at 9. Further, Plaintiff avers that the Commission placed his name on the list of candidates submitted to the Sabine Pilots Association, and that the Sabine Pilots Association considered his application and denied him admittance into the apprenticeship program.
When viewed in the light most favorable to Plaintiff, such assertions fail to state a claim upon which relief can be granted. That is because it is the Sabine Pilots Association which selected the two individuals to participate in the apprenticeship program. Under section 63.042 of the Texas Transportation Code, the Commission does not select new apprentices; rather, it examines and approves deputy pilots who successfully complete the apprenticeship program and are recommended for appointment. See TEX. TRANSP. CODE § 63.042(a). As a result, the Commission's motion to dismiss for failure to state a claim is granted as to Plaintiff's Title VII claim.
IV. CONCLUSION
After reviewing the motion and the applicable law, and considering the fact that Plaintiff has failed to respond to the motion, the court concludes that the Commission's motion to dismiss is hereby GRANTED. The Commission's Rule 12(b)(2) motion to dismiss for lack of subject matter jurisdiction is GRANTED as to Plaintiffs § 1981 claim. Consequently, Plaintiff's § 1981 claim against the Commission is DISMISSED on Eleventh Amendment immunity grounds. The Commissions's Rule 12(b)(6) motion to dismiss Plaintiffs Title VII claim is GRANTED. It is so ORDERED.