Opinion
Civil No. 3:03-CV-1726-H.
November 29, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant's Motion to Dismiss, filed August 20, 2004; Plaintiff's Response, filed September 13, 2004; and Defendant's Reply filed, September 28, 2004. For reasons that follow, Defendant's Motion is GRANTED IN PART and DENIED IN PART.
I. Background
Plaintiff Ibn Zakariya Muhammad alleges that he was employed, as a felony probation officer, by Defendant Dallas County Community Supervision and Corrections Department ("DCCSCD") (Pl.'s Compl. at 3, 4.) Plaintiff alleges racial discrimination in violation of Title VII of the Civil Rights Act. 42 U.S.C. §§ 2000e — e-17. ( Id. at 1, 4.) Plaintiff also alleges causes of action under 42 U.S.C. §§ 1981 and 1988, claiming discrimination, retaliatory discharge and respondeat superior liability. ( Id.) DCCSCD denies that it is Plaintiff's employer and files its Motion to Dismiss on the basis that it is not the proper party defendant. (Def.'s Mot. at 2.) DCCSCD argues that the Court lacks subject matter jurisdiction as a matter of law, because (1) DCCSCD is not Plaintiff's employer under the statutes alleged (Def.'s Mot. at 3, 4) and (2) the Eleventh Amendment bars § 1981 claims against DCCSCD. (Id. at 4, 5.) DCCSCD did not include in its Motion or Reply any affidavits, testimony, or other evidentiary materials. At this stage of the proceedings, neither party has submitted any evidence.
II. Standard of Review
"When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001), cert. denied, 536 U.S. 960 (2002). The district court may analyze subject matter jurisdiction from "any one of three instances: (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." Id. The burden of showing proper jurisdiction is on the party asserting jurisdiction. Id. Here, Plaintiff bears the burden. See id.
When ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must "liberally construe the complaint in favor of the plaintiff and assume the truth of all pleaded facts." Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2002). Granting motions to dismiss under Federal Rule of Civil Procedure 12(b)(6) is "disfavored in the law" and courts "will rarely encounter circumstances which justify granting such a motion." Mahone v. Addicks Util. Dist., 836 F.2d 921, 926 (5th Cir. 1988). A motion to dismiss is granted only "if 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 v. Gibson, 355 U.S. 41, 45-46 (1957); Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir. 2002) (citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
III. Analysis
DCCSCD baldly asserts both Federal Rules 12(b)(1) and 12(b)(6) as grounds for dismissal without specifying to which claims 12(b)(1) applies or to which claims 12(b)(6) applies. (Def. Mot. at 3 — 6.) Therefore the Court analyzes each claim under each rule. Pursuant to Ramming, the Court considers the jurisdictional attack before addressing any attack on the merits. Ramming, 281 F.3d at 161. Because neither party has submitted any evidence, the Court analyzes subject matter jurisdiction from "the complaint alone or . . . the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id.
A. Subject Matter Jurisdiction
1. Title VII Claim
DCCSCD misreads Oden v. Oktibbeha County, Miss., 246 F.3d 458, 465 (5th Cir. 2001), and relies heavily on state law for its argument that only the state employer, not DCCSCD can be a Title VII defendant. (Def.'s Mot. at 3,4.) Under Oden, "[f]ederal law controls whether a person is an employer under Title VII, but courts can look to state law to understand the nature of the employment relationship." Id., 246 F.3d at 465 (citing Calderon v. Martin County, 639 F.2d 271, 272-73 (5th Cir. Unit B Mar. 1981) ("[A] plaintiff's status as an employee under Title VII is a question of federal, rather than of state, law; it is to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand.")), cert. denied, 534 U.S. 948 (2001); see Clark v. Tarrant County, Texas, 798 F.2d 736, 742 (5th Cir. 1986); Teneyuca v. Bexar County, 767 F.2d 148, 150 (5th Cir. 1985). The permissive language used in Oden and Calderon, that "courts can look to state law," does not mean that state law controls whether a defendant is an employer under Title VII. Courts should look first to federal law, but when a court is unable to determine a defendant's status as an employer, the court may turn to state law to resolve the matter. See Oden, 246 F.3d at 465; Calderon, 639 F.2d at 272-73. As will be discussed, the Court need not resort to state law.
To resort to state law, at this stage of the case, is premature.
Existing federal case law on the issue of whether a person or entity is a Title VII employer guides the Court's resolution. See Torres v. Liberto Mfg. Co., Inc., No. 3-01-CV-1888-H, 2002 WL 2014426, *1 (N.D. Tex. Aug. 30, 2002), aff'd, 67 Fed.Appx. 252, 2003 WL 21195924 (5th Cir. May 12, 2003) (not selected for publication); Oden, 246 F.3d 458; Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir. 1993); Clark, 798 F.2d 736. The Fifth Circuit applies the "hybrid economic realities/common law control test" to determine whether a person or entity is a Title VII employer. Deal, 5 F.3d at 119 (citing Fields v. Hallsville Indep. Sch. Dist., 906 F2d 101 (5th Cir. 1990) (internal citations omitted)); see U.S. v. Matagorda County, Texas, 181 F.Supp.2d 673, 679 (S.D. Tex. 2002) ("The Fifth Circuit evaluates employment relationships in the context of Title VII by using `a hybrid economic realities/common law control test[.]'") (citing Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522, 526 (5th Cir. 2001)). "The right to control an employee's conduct is the most important component of this test." Deal, 5 F.3d at 119. The focus of the common law control component is "whether the alleged employer had the right to hire and fire, the right to supervise, the right to set the work schedule." Id. "The economic realities component . . . focuse[s] on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment." Id. In light of the aforementioned precedent, Plaintiff's pleadings are sufficient to survive DCCSCD's jurisdictional attack. The Court cannot conclude that DCCSCD is not Plaintiff's employer, as a matter of law.
The Court notes that DCCSCD's challenge to jurisdiction is a "facial attack" rather than a "factual attack." Irwin v. Veteran's Administration, 874 F.2d 1092, 1096 (5th Cir. 1989), aff'd, 498 U.S. 89 (1990); Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). "An attack is `factual' rather than `facial' if the defendant `submits affidavits, testimony, or other evidentiary materials.'" Irwin, 874 F.2d at 1096. Because DCCSCD did not include in its Motion or Reply any "affidavits, testimony, or other evidentiary materials," DCCSCD's Motion is a "facial attack." See id.
DCCSCD cannot prevail asserting a facial attack of Plaintiff's Title VII claim. Plaintiff's Second Amended Complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e — e-17. (Pl.'s Second Amend. Compl. at 1, 4, 6.) Plaintiff also alleges the requisite 28 U.S.C. §§ 1331, 1343(a)(4), and 2201 jurisdiction.
In paragraphs 13 — 16 and 22, among others, Plaintiff's Second Amended Complaint alleges that DCCSCD "at all times relevant hereto[,] Plaintiff's employer. . . ., intentionally engaged in unlawful employment [discrimination] practices [against Plaintiff because of his race]" in violation of Title VII. (Pl.'s Second Amend. Compl. at 2, 4, 6.) Presuming these allegations to be true, Plaintiff has met his burden. The Court cannot dismiss Plaintiff's Title VII claim under Rule 12(b)(1).
DCCSCD acknowledges, as it must, that there is no Eleventh Amendment immunity from Title VII claims. (Def.'s Mot. at 3); see Sessions, 648 F.2d at 1068-69; Clay, 728 F.2d at 716 (citing Sessions); Quern v. Jordan, 440 U.S. 332, 342-45 (1979). Therefore DCCSCD is not asserting Eleventh Amendment immunity as a bar to the Court's subject matter jurisdiction.
Because DCCSCD's challenge to jurisdiction is a "facial attack" the Court, looking merely to the sufficiency of the allegations in the complaint, which are presumed to be true, holds that the jurisdictional allegations are sufficient. See Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981) ("[I]f the defense merely files a Rule 12(b)(1) motion, the trial court is required merely to look to the sufficiency of the allegations in the complaint because they are presumed to be true. If those jurisdictional allegations are sufficient the complaint stands.") Title VII's inclusion of "governments, governmental agencies, political subdivisions" as employers, and Plaintiff's pleading that DCCSCD was at all relevant times his employer, belies DCCSCD's 12(b)(1) argument. At this stage of the litigation the record is insufficient to apply the hybrid economic realities/common law control test. Therefore the Court cannot hold that DCCSCD was not Plaintiff's employer. The Court cannot dismiss Plaintiff's Title VII claim under Rule 12(b)(1).
Under Title VII, the term "employer" includes, inter alia, governments, governmental agencies, political subdivisions, legal representatives, and joint-stock companies. 42 U.S.C. §§ 2000e(a), (b). Therefore, at this point in the proceedings, whether DCCSCD is a "governmental agency," "political subdivision," or "legal representative," it cannot prevail on 12(b)(1) grounds. The Court finds nothing in Title VII (or in Plaintiff's pleadings) that would preclude a finding that DCCSCD is Plaintiff's employer. Also, Calderon, 639 F.2d 271, and its progeny contradict DCCSCD's argument that the Court lacks subject matter jurisdiction. See Clark, 798 F.2d 736; Teneyuca, 767 F.2d 148.
2. Sections 1981 and 1988
Although Plaintiff correctly notes that DCCSCD's cited authority pertains to § 1983 claims, Plaintiff incorrectly argues that the Eleventh Amendment does not apply. (Pl.'s Resp. at 5.) DCCSCD asserts, as a bar to the Court's subject matter jurisdiction, Eleventh Amendment immunity against Plaintiff's §§ 1981 and 1988 claims. See Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281, 285, (5th Cir. 2000) (citing United States v. Texas Tech Univ., 171 F.3d 279, 285 n. 9, 288 (5th Cir. 1999) (Eleventh Amendment immunity deprives court of subject matter jurisdiction), cert. denied, 530 U.S. 1202 (2000)), cert. denied, 529 U.S. 1131 (2000). In federal courts, § 1981 claims against a state entity, are barred by the Eleventh Amendment. Sessions v. Rusk State Hospital, 648 F.2d 1066, 1068 (5th Cir. 1981). "Unlike Title VII, Section 1981 contains no congressional waiver of the state's [E]leventh [A]mendment immunity" Clay v. Texas Women's University, 728 F.2d 714, 716 (5th Cir. 1984) (citing Sessions, 648 F.2d 1066); 42 U.S.C. § 1981. Therefore, absent a waiver of immunity, a § 1981 claim against an arm of the state is precluded.
Whether DCCSCD is entitled to Eleventh Amendment immunity turns on its status as an arm of the state. The Fifth Circuit has "refined the arm-of-the-state analysis to require [an] examination of a variety of factors concerning the particular entity in question." Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 938 (5th. Cir. 2001) (citing Clark, 798 F.2d at 744-45), cert. denied, 534 U.S. 891 (2001). In Clark, a probation officer filed suit against the Tarrant County Adult Probation Department alleging Title VII and § 1983 violations. Applying the arm-of-the-state analysis, Clark held "that Adult Probation is an arm of the state within the meaning of the Eleventh Amendment, and that the federal courts lack subject matter jurisdiction over [plaintiff's] section 1983 claims against it." Clark, 798 F.2d at 745.
The Clark arm-of-the-state analysis factors include
(1) whether the state statutes and case law view the entity as an arm of the state; (2) the source of the entity's funding; (3) the entity's degree of local autonomy; (4) whether the entity is concerned primarily with local, as opposed to statewide, problems; (5) whether the entity has the authority to sue and be sued in its own name; and (6) whether it has the right to hold and use property. These factors are examined as a whole, and no single factor is dispositive. However, the second factor, the source of the entity's funding, is "of considerable importance."Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d at 936, 938 (5th. Cir. 2001) (citations omitted), cert. denied, 534 U.S. 891 (2001).
The Court is not persuaded by Plaintiff's attempt to distinguish Clark on the basis that Clark was a § 1983 case, while Plaintiff's is based upon § 1981. The arm-of-the-state factors are not contingent upon whether the cause of action is a § 1983 or § 1981 claim. The Court sees no reason why the Clark analysis would be inapplicable in determining DCCSCD's status as Plaintiff's employer in the instant case. Because Clark, albeit a § 1983 case, is otherwise directly on point, the Court need not analyze each of the Clark arm-of-the-state factors as they apply to the instant case. Pursuant to Clark, community supervision and corrections departments ("CSCD") are considered an arm of the state for Eleventh Amendment purposes. See id., 798 F.2d at 745. No features are present in the instant case to distinguish from the factual record of Clark. Clark, therefore, controls.
A § 1981 claim against a state or state actors, in federal court, may only be enforced through § 1983. See Jett v. Dallas Independent School Dist., 491 U.S. 701 (1989) (examining the relationship between §§ 1981 and 1983); Felton v. Polles, 315 F.3d 470 (5th Cir. 2002) (analyzing Jett). Accordingly, Clark is indistinguishable on that basis.
The Court adopts Clark's analysis and rationale to hold that DCCSCD "is an arm of the state within the meaning of the Eleventh Amendment, and that the federal courts lack subject matter jurisdiction over" Plaintiff's § 1981 claims against it. See id., 798 F.2d 736. Accordingly DCCSCD's Motion to Dismiss is GRANTED as to Plaintiff's § 1981 and related 1988 claim.
Since Clark, the Texas Legislature has enacted Section 76.002 of the Texas Government Code and the Texas Court of Appeals sitting in Austin addressed a virtually identical issue — but in the context of Texas Commission on Human Rights Act liability. See TEX. GOV'T CODE §§ 76.002(a)(1), (2) (Vernon Supp. 2004); Hardin County Cmty. Supervision and Corr. Dept. v. Sullivan, 106 S.W.3d 186, (Tex.App.-Austin 2003, pet. denied). The Court notes, however, that federal, not state law controls resolution of the issue.
Plaintiff cites to Section 76.006 of the Texas Government Code for the proposition that "DCCSCD employees are not State employees [and thus] the employer (DCCSCD) is not an arm of the state." (Pl.'s Resp. at 5.) Plaintiff's conclusion is insupportable in light of Texas Government Code §§ 76.002(a)(1), (2) (Vernon Supp. 2004), and Hardin County Cmty. Supervision and Corr. Dept., 106 S.W.3d 186. Both specify that a probation officer's employer is the district judge(s) of the judicial district, not the CSCD. Hardin concluded that plaintiffs' suit against HCCSCD, an entity with immunity, which was not plaintiffs' employer, was outside the trial court's subject matter jurisdiction. Hardin County Cmty. Supervision and Corr. Dept., 106 S.W.3d at 190. Thus if state law applied, Plaintiff's cited case would defeat their position.
Plaintiff's position is also flawed because a careful reading of Section 76.006 of the Texas Government Code and its cross-references indicates that for the purposes of liability for conduct in the scope of employment, department employees are employees of the state. See TEX. GOV'T CODE ANN. § 76.006(a) (Vernon Supp. 2004) ("Except as provided by Subsection (c), department employees are not state employees.") (cross-referencing to TEX. CIV. PRAC. REM. CODE ANN. § 104.001, .002. (Vernon Supp. 2004) (itemizing those instances where the state shall indemnify and thus consider employees as employees of the state)) (emphasis added). See also Clark, 798 F.2d at 744 ("[T]he Texas statute states that Adult Probation employees are not state employees, except for purposes of worker's compensation and where the employee causes damages resulting from negligence or a deprivation of federal or state constitutional rights or privileges.") (citing TEX. CODE CRIM.PROC.ANN. art. 42.12 § 10(g), (k)) (emphasis added).
B. 12(b)(6)
1. Title VII Claim
The Court's resolution is guided by Calderon, 639 F.2d 271, Oden, 246 F.3d 458, and Deal, 5 F.3d 117. Calderon concerned an plaintiff's employee status under Title VII. Calderon, 639 F.2d at 272-73. In Calderon the Fifth Circuit instructs courts to consider "the statutory language of the Act, its legislative history, existing federal case law and the particular circumstances of the case at hand" when determining a plaintiff's Title VII status. Id., 639 F.2d at 272-73. Applying Calderon, the Court finds the statutory language of 42 U.S.C. § 2000e(a) and (b), along with the statute's circular definitions of employee as "an individual employed by an employer," unavailing in determining DCCSCD's Title VII status. 42 U.S.C. § 2000e(f).
Because the Court finds guidance in existing federal case law, the Court need not consider the statute's legislative history.
At issue in Oden, 246 F.3d 458, was whether a defendant was a plaintiff's Title VII employer. Oden extended Calderon, 639 F.2d 271, to read that "[f]ederal law controls whether [an entity] is an employer under Title VII[.]" Oden, 246 F.3d at 465 (emphasis added). Although the Court disagrees with Oden's application of state law in lieu of the Calderon methodology, the Court agrees with Oden's extension of Calderon. Id. Deal, 5 F.3d 117, is also illustrative. Part of the process in "[d]etermining whether a defendant is an `employer' under Title VII" is to analyze the "employment relationship between the plaintiff and the defendant." Id., 5 F.3d at 118 n2. Although the employment relationship may be analyzed under either state law or federal law, the Court is compelled by Calderon and Fifth Circuit precedent to apply the hybrid economic realities/common law control test before looking to state law. Accordingly, reference to state law will be made only if necessary. Calderon, 639 F.2d at 272-73; see Hathcock, 262 F.3d at 525-26, Clark, 798 F.2d at 747.
The Court does not question that "courts can look to state law to understand the nature of the employment relationship," Oden, 246 F.3d at 465, but declines to apply the Oden shortcut. The Court notes that Oden did not overturn Calderon. Id., 246 F.3d 458.
Under the precedent cited above, Plaintiff's pleadings are sufficient to survive DCCSCD's Rule 12(b)(6) challenge. The Court accepts, as it must, Plaintiff allegation — that "Defendant . . ., a creation of the Judges of the Dallas County Judicial District . . . is a governmental entity [and] was at all times relevant hereto Plaintiff's employer" (Pl.'s Second Amend. Compl. at 2) — as true. Therefore Plaintiff, although not required to plead the hybrid economic realities/common law control test specifically, has pleaded that DCCSCD was his employer. Accordingly, the Court cannot dismiss Plaintiff's Title VII claim on Rule 12(b)(6) grounds.
At this stage of the proceedings, there is no evidence from which the Court could apply the hybrid economic realities/common law control test. DCCSCD disputes that it is Plaintiff's employer. The Court's resolution of said dispute, for the purposes of the instant motion only, is that DCCSCD is Plaintiff's employer.
2. Sections 1981 and 1988 Claims
Because the Court has GRANTED Defendants Motion to Dismiss Plaintiff's § 1981 and § 1988 claims under Rule 12(b)(1) and to the extent that Defendant moves for dismissal of these claims on Rule 12(b)(6) grounds, Defendant's Motion is DENIED as MOOT.
The Court notes that Plaintiff's complaint alleges in conclusory language that DCCSCD committed the "unlawful employment practices . . . with the full authorization or ratification [and] in the normal and routine course" of employment but points to no specific, identifiable unconstitutional policy. (Pl.'s Second Am. Compl. ¶¶ 13, 18 at 4.) Plaintiff must identify an unconstitutional DCCSCD policy concerning the discrimination. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985) (A plaintiff must identify the policy, connect the policy to the governmental entity itself and show that his injury was incurred because of the application of that specific policy.). Yet Plaintiffs identify no such policy, and plead no specific facts that connect his injuries to such an unconstitutional policy. As Plaintiffs pleads only conclusory allegations of liability on behalf of DCCSCD, Plaintiff's §§ 1981 and 1988 claims cannot survive dismissal for failure to state a claim.
IV. Conclusion
For the foregoing reasons, Defendants motion is GRANTED in part and DENIED in part. Specifically, Defendant's Motion is DENIED as to Plaintiff's Title VII claims and Defendant's Motion is GRANTED as to Plaintiff's § 1981 and § 1988 claims. Therefore Plaintiff's §§ 1981 and 1988 claims are DISMISSED with prejudice.
SO ORDERED.