Opinion
EP-03-CA-110-DB
July 17, 2003
MEMORANDUM OPINION AND ORDER
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.
BACKGROUND
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.
STANDARD
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 So. 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).
DISCUSSION
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) ("The test of whether a claim `arises under' the laws of the United States is not a precise one. It is clear, however, that something more than mere reference to a federal statute is required."). 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 Court may not force him to do otherwise. See Caterpillar, 482 U.S. at 392, 107 S.Ct. at 2429 ("The plaintiff is the master of his claim; he may avoid federal jurisdiction by exclusive reliance on state law."); see also Ashley v. Southwestern Bell Tel. Co., 410 F. Supp. 1389, 1392 (D.C. Tex. 1976) (citing City of Galveston v. Int'l. Organization of Masters, Mates and Pilots, 338 F. Supp. 907, 909 (S.D. Tex. 1972)) ("Removal is always proper where the real nature of the claim asserted in the complaint is federal, but where plaintiff has a choice of relying on state law and does so rely, there can be no removal except on the basis of diversity.").
Moreover, the Court does not find that Plaintiff has engaged in "artful pleading," in which the Plaintiff seeks to avoid federal jurisdiction by attempting to characterize a federal cause of action as a state cause of action. Pointer, 791 F. Supp. at 165, 166 (S.D. Tex. 1992) (recognizing that "artful pleading" applies in cases of federal preemption and that Title VII does not preempt the TCHRA). The "artful pleading" doctrine does not apply where, as here, the Plaintiff has "a choice between state and federal remedies [ ] and . . . merely ignored the federal cause of action." Brown v. Crop Hail Management, Inc., 813 F. Supp. 519, 523 (S.D. Tex. 1993).
Defendant raises a concern that Plaintiff could seek to assert a Title VII claim after remand of this action to state court. As noted by the court in Lamb v. Laird, 907 F. Supp. 1033 (S.D. Tex. 1995), "[i]f and when a claim is asserted under Title VII of the Civil Rights Act of 1964, or any other federal antidiscrimination statute, Defendant [ ] will enjoy the right to remove the action to federal court . . ." Id. at 1035. For the moment, however, it does not appear that such a claim has been asserted and Plaintiff has indicated to this Court that he does not intend to do so.
Finally, Defendant complains that Plaintiff should be required to draft his pleadings correctly to prevent removal in the first place. While Plaintiff could certainly have drafted his Complaint more carefully to convey his intention not to seek a federal cause of action, the Court must construe any ambiguities in favor of remand. Acuna v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000). Under the circumstances, the Court concludes that Defendant has failed to meet its burden of showing that federal question jurisdiction is present. Therefore, the Court is of the opinion that Plaintiff's Motion should be granted.
Accordingly, IT IS HEREBY ORDERED that Plaintiff Rafael Gardon's "Motion to Remand and Brief in Support" is GRANTED.
IT IS FURTHER ORDERED that the instant case is REMANDED to the 168th Judicial District Court of El Paso County, Texas.
IT IS FINALLY ORDERED that all other pending Motions, if any, are DENIED AS MOOT.