Opinion
3:02-CV-2698-M
September 30, 2003
MEMORANDUM AND ORDER
Before the Court are the 12(b)(6) Motions to Dismiss of Defendant Texas State Employees Union, Communications Workers of America Local 6186/AFL-CIO ("TSEU"), filed March 13, 2003, and Defendant Michael Gross ("Gross"), filed February 27, 2003. Upon review of the pleadings, briefs, and applicable law, the Court is of the opinion for the reasons stated below that Defendant TSEU's Motion to Dismiss should be GRANTED in part and DENIED in part, and that Defendant Gross's Motion to Dismiss should be GRANTED.
BACKGROUND
Plaintiff sues TSEU, which allegedly employed Plaintiff as a union organizer from 1985 until December 2000, Gross, and Danny Fetonte ("Fetonte"), Andy Milburn ("Milburn"), Sandy Rusher ("Rusher"), Lynn McCray ("McCray"), Marilyn Hart ("Hart"), and Boone Taylor ("Taylor"), employees of TSEU, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17, and 42 U.S.C. § 1983. As part of his employment, Plaintiff apparently worked at various Texas Youth Commission ("TYC") facilities. Prior to his employment by TSEU, Plaintiff was employed by TYC.
TYC is Texas's juvenile correction agency.
According to the Complaint, during his tenure at TSEU, Plaintiff undertook investigations into TSEU's election procedures and the treatment of minority union members employed by TYC. Plaintiff alleges that TSEU ultimately terminated his employment due to his investigations. An outline of the events leading up to Plaintiffs termination follows.
The Complaint alleges that Plaintiff filed an Open Records Request with TYC in December 1998, requesting a disciplinary action report on all TYC employees at a particular facility who had been disciplined for child abuse during the preceding five-month period. According to the Complaint, when Plaintiff followed up on his request on January 25, 1999, TSEU, at the instigation of TYC, informed Plaintiff that he was being relieved of his duties at three TYC facilities. The Complaint alleges that TSEU told Plaintiff that he was being relieved due to his health problems. On the same day, Plaintiff maintains that he sent TSEU a fax advising TSEU that he was seeking protection under the Americans With Disabilities Act. Allegedly, in a January 27, 1999 letter, TSEU informed Plaintiff that he was being relieved of his duties not because of his health, but because of the existence of unnecessary overlapping territories between Plaintiff and others at TSEU.
Plaintiff asserts that in September 1999, he announced his candidacy for a position on TSEU's regional Executive Board. While it is unclear from the Complaint when the election took place, on October 14, 1999, Plaintiff filed an election challenge with the Executive Board. The challenge contended that TSEU management candidates had received an unfair advantage during the election. Plaintiff claims that on December 28, 1999, he filed another complaint regarding the election, in which he argued that TSEU management illegally used union membership dues to influence the election's outcome. It is unclear from the Complaint whether TSEU investigated Plaintiffs allegations.
The Complaint further alleges that, on February 7, 2000, after receiving from TSEU members numerous complaints of racial discrimination and disparate treatment, Plaintiff filed a grievance with the Governor's Office. According to the Plaintiff, the Governor's Office investigated Plaintiffs grievance, and as a result, one of TYC's superintendents was transferred. Plaintiff alleges that on March 20, 2000, TYC Executive Director Steve Robinson made a libelous statement to the Governor's Office that Plaintiff had been terminated from TYC in 1985 for failing to report child abuse. The Complaint alleges that this statement was made to discredit Plaintiff. It further contends that Robinson notified TSEU of Plaintiff s correspondence with the Governor's Office. On April 13, 2000, TSEU forbade Plaintiff from contacting TYC without TSEU's permission.
In a letter dated April 28, 2000, and postmarked May 6, 2000, the TSEU President allegedly admitted that TSEU had provided Executive Board management candidate Edna Wiley with a free ticket to attend the TSEU-sponsored B.B. King Blues Festival and had also provided her with a "membership list of members to phone bank." Compl. at ¶ 29. Plaintiff claims the letter stated that both the ticket and the membership list were paid for with membership dues. Plaintiff maintains that on August 27, 2000, he renewed his complaint of the illegal use of membership dues to influence the Executive Board election.
Plaintiff further alleges that TSEU placed Plaintiff under surveillance on October 21, 2000, thereby creating a hostile work environment. Plaintiff claims that two days later, he faxed a request for stress leave to Gross, who did not respond. As a result, Plaintiff continued to work.
On October 26, 2000, Plaintiff allegedly complained to coworker Taylor about being placed under surveillance. According to Plaintiff, Taylor notified TSEU management about Plaintiffs complaint.
The Complaint asserts that on October 27, 2000, Gross and McCray informed Plaintiff that he was being placed on administrative leave for failing to attend TSEU's General Assembly. On October 28, 2000, Plaintiff complained to CWA International and Milburn about TSEU's interference with the Executive Board election and about an alleged lack of due process regarding some of his other complaints. Allegedly, on November 5, 2000, TSEU notified Plaintiff by letter that he was being terminated, effective December 30, 2000. Plaintiff then filed a wrongful termination claim with the TSEU President.
Plaintiff alleges that TSEU, Fetonte, Milburn, Rusher, Gross, McCray, Hart, and Taylor violated Title VII and § 1983 by retaliating against him "for reporting and opposing illegal spending, and the disparate and unequal treatment" of minority union members. Id. at ¶ 46. TSEU and Gross argue that Plaintiff has failed to state a claim under Title VII or § 1983. The other Defendants apparently were never served.
STANDARD OF REVIEW
Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim that would entitle him to relief. Taylor v. Books A Million. Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). When considering a motion to dismiss, the Court accepts as true all well-pled allegations in the Complaint and views them in the light most favorable to the plaintiff. Malina v. Gonzales. 994 F.2d 1121, 1125 (5th Cir. 1993). In addition, Complaints filed by pro se litigants are held to less stringent standards than are formal pleadings drafted by attorneys. Taylor, 296 F.3d at 378. However, regardless of whether a plaintiff is represented by counsel, conclusory allegations or legal conclusions set forth as factual conclusions will not prevent dismissal. Id.; Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993).
ANALYSIS
I. Plaintiffs § 1983 Claims:
Both TSEU and Gross contend that Plaintiffs claims under § 1983 should be dismissed because TSEU and Gross are not state actors and because such claims are barred by the statute of limitations. Because the Court finds that Plaintiffs claims are time-barred by the applicable Texas statute of limitations, the Court does not address whether TSEU or Gross are state actors.
A statute of limitations defense maybe raised in a 12(b)(6) motion to dismiss, provided that the defense clearly appears meritorious on the face of the complaint. Bush v. U.S., 823 F.2d 909, 910 (5th Cir. 1987) (citing Kaiser Aluminum's Chem. Sales. Inc. v. Avondale Shipyards. Inc., 677 F.2d 1045, 1050 (5th Cir. 1982)). Thus, to the extent Plaintiffs Complaint clearly alleges facts that indicate that his claims are time-barred, Defendants have properly asserted a statute of limitations defense. The Court must therefore determine the applicable limitations period and assess whether the facts alleged in the Complaint clearly demonstrate that Plaintiffs § 1983 claims are barred.
Since federal law does not provide a limitations period for § 1983 actions, a court should look to the forum state's personal injury statute of limitations for the applicable limitations period. See Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001). Under Texas law, the limitations period is two years. TEX. Civ. PRAC. REM. CODE § 16.003(a) (West 2003). Although the statute of limitations is determined by reference to state law, the issue of when a cause of action accrues is a question of federal law. D.O. Kline v. N. Texas State Univ., 782 F.2d 1229, 1232 (5th Cir. 1986). Under federal law, the limitations period for a § 1983 cause of action accrues when the plaintiff "'becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.'" Hitt v. Cornell, 301 F.3d 240, 246 (5th Cir. 2002) (quoting Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987)). In Chardon v. Fernandez, 454 U.S. 6 (1981), the Supreme Court held that in § 1983 actions in which the plaintiff alleges wrongful termination, the cause of action accrues on the date the plaintiff receives notice of termination, not on the date when employment ceases. Id. at 7-8. Because this Court finds the present case governed by Chardon, the Court holds that Plaintiffs § 1983 claims against TSEU and the individual Defendants are barred by the applicable Texas statute of limitations.
In Chardon, the plaintiffs were nontenured administrators in the Puerto Rico Department of Education. They alleged a violation of § 1983 when their employment was terminated. Id. at 6-7. The Department of Education had notified each plaintiff by letter that his employment would terminate on a specific date in the future. Id. at 7. More than a year after receipt of the Department's letter, but less than a year after his employment ended, one administrator filed suit in federal court alleging a violation of § 1983. The district court dismissed the suit as untimely. Following Delaware State College v. Ricks, 449 U.S. 250 (1980), the Supreme Court affirmed. Chardon, 454 U.S. at 8. The Court held that the allegedly discriminatory act occurs when the decision to terminate is made and communicated to the employee. Id. The Court noted that there were no allegations by the respondent that any discriminatory acts occurred subsequent to the date the decision to terminate was communicated. Thus, continuity of employment beyond the date of notice of termination was immaterial to the limitations period. Id.
Similar to the administrator in Chardon, Plaintiff in this case clearly alleges that he received an unambiguous notice of termination from his employer. The notice, delivered in the form of a letter dated November 5, 2000, informed Plaintiff that his employment would end on December 30, 2000. Compl. ¶ 39. While after receiving that notice, Plaintiff complained to TSEU that he was being wrongfully terminated, Compl. at ¶ 40, this fact is not determinative. Following Chardon, this Court finds that the two-year statute of limitations began to ran when Plaintiff received the November 5, 2000 notice of termination. Plaintiff filed this suit against TSEU and the individual Defendants on December 17, 2002, more than two years after his receipt of that letter. Therefore, the Court holds that Plaintiffs § 1983 claims against TSEU and Gross are time-barred by the statute of limitations and are therefore dismissed with prejudice. II. Plaintiffs Title VII Claims
Because Gross is the only individual Defendant served, he is the only individual Defendant who raised the statute of limitations affirmative defense. The Court has no reason to believe that this issue would be resolved differently as to any of the other individual Defendants, were they before the Court. If Plaintiff now serves those Defendants and similar motions are brought by those Defendants and granted by this Court, this Court will consider whether sanctions of the Plaintiff under FED. R. Civ. P. 11 are warranted.
A. Are Plaintiffs Title VII Claims Time-Barred?
TSEU and Gross contend that Plaintiffs Title VII actions are time-barred because he did not file his Complaint within ninety days of his receipt of a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). A Title VII claim must be brought within ninety days of receipt of a right-to-sue letter from the EEOC. Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). A right-to-sue letter indicates that the claimant has exhausted all available administrative remedies and that the allegedly aggrieved party may initiate judicial proceedings. 42 U.S.C. § 2000e-5(f)(1). The Fifth Circuit has held that the ninety-day statute of limitations for Title VII actions is to be strictly construed. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) (citing Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986); Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1251 (5th Cir. 1985).
TSEU and Gross argue that because Plaintiff failed to state specifically in his Complaint the date on which he received his right-to-sue letter, the Court should use the date of issuance as the presumed date of receipt. According to the Complaint, the EEOC issued the right-to-sue letter on September 17, 2002. Compl. at 8 (no paragraph given). Because Plaintiff filed his suit on December 17, 2002, ninety-one days after the EEOC's issuance of the letter, TSEU and Gross maintain that Plaintiffs Title VII claims should be dismissed as untimely. In response, Plaintiff argues that Rule 6(e) of the Federal Rules of Civil Procedure provides him three additional days beyond the ninety-day period. Rule 6(e) applies whenever a party is required to do some act or initiate proceedings within a prescribed period, and that party is served by mail. Under Rule 6(e) a party served in such a manner is given three additional days outside of the normal prescription period in which to respond. According to Plaintiff, because the EEOC sent its letter through the mail, Rule 6(e) entitles him to three additional days. If the Rule applies as Plaintiff contends, the limitations period would be extended to ninety-three days from the date the notice was mailed. Because Plaintiff filed his Title VII claims ninety-one days after the EEOC issued the right-to-sue letter, his filing would be timely.
In Taylor v. Books A Million, 296 F.3d 376 (5th Cir. 2002), the Fifth Circuit held that receipt of the right-to-sue letter may be presumed when the precise receipt date is unknown. Id. at 379. In that case, a former employee filed a Title VII suit against Books A Million. Id. at 378. While the plaintiffs Complaint stated that the EEOC had issued a right-to-sue letter, he failed to allege receipt. Id. The district court dismissed the plaintiffs claim due to this omission. Id. On appeal, however, the Fifth Circuit held that a three-to seven-day presumption should be applied to determine the date of receipt. Id. at 379-80. The plaintiffs complaint was ultimately dismissed because it was filed on the ninety-eighth day, one day beyond the court's presumed seven-day extension. Id. at 380. While the court did not expressly link the presumption to Rule 6(e), Books A Million nonetheless supports, at least, a three-day presumption for the receipt of the right-to-sue letter.
The court in Books A Million mentions Rule 6(e), but only parenthetically. Books A Million, 296 F.3d at 379.
In the present case, Plaintiff alleges that the EEOC issued a right-to-sue letter on September 17, 2002. Under Books A Million, the Court must at least presume that Plaintiff received the right-to-sue letter on September 20, 2002, three days after its issuance and eighty-eight days before the Complaint was filed on December 17, 2002. Plaintiff must sue in ninety days; thus, Plaintiffs Title VII claims are timely filed.
B. May Plaintiff Bring a Title VII Claim Against the Individual Defendants?
Plaintiff is precluded from bringing a Title VII claim against Defendant Gross in his individual capacity.
The Court has no reason to believe that this issue would be resolved differently as to any of the other individual Defendants, were they before the Court. If Plaintiff now serves those Defendants and similar motions are brought by those Defendants and granted by this Court, this Court will consider whether sanctions against Plaintiff under FED. R. Civ. P. 11 are warranted.
Under Title VII, individuals are protected from actions taken by their employers. Title VII defines "employer" as "a 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 person." 42 U.S.C. § 2000e(b)(2003). Despite the express reference to an employer's agents, the Fifth Circuit has held that Title VII does not impose individual liability. Smith v. Amedisys. Inc., 298 F.3d 434, 449 (5th Cir. 2002); Indest v. Freeman Decorating. Inc., 164 F.3d 258, 262 (5th Cir. 1999). Congress's purpose in including agents within the definition of employer was to incorporate respondeat superior liability into the statute. Indest, 164 F.3d at 262 (citing Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994)); Jackson v. Assocs. Credit Card Servs., Inc., 2002 WL 742602, at *2 (N.D. Tex. Apr. 25, 2002). As a result, an individual may sue his employer for respondeat superior liability, but may not sue the involved agent for Title VII liability.
Plaintiff contends that Barger v. Kansas, 630 F. Supp. 88 (D. Kan. 1985), supports the proposition that individuals may be held liable for back pay in their individual capacities. However, Plaintiff misreads the case. In Barger, the district court specifically concludes, "[P]ublic officials may be held liable for back pay under Title VII only in their official capacities and not in their individual capacities." Id. at 90.
Therefore, movant Gross is not a proper individual party on the Title VII claim, and the claim against him is therefore dismissed with prejudice.
Neither may Plaintiff bring a Title VII claim against Gross in his official capacity. In Indest v. Freeman Decorating, the Fifth Circuit recognized that if an individual was permitted to bring a Title VII action against an organization and an officer of that organization acting in his official capacity, the organization could potentially be held liable twice for the same act. 164 F.3d at 262. The court concluded, "[A] party may not maintain a suit against both an employer and its agent under Title VII." Id. at 262. Therefore, because Plaintiff is bringing a Title VII action against TSEU, he is prohibited from bringing such an action against Gross in his official capacity. Therefore, the Court dismisses with prejudice Plaintiffs claim against Gross in his official capacity.
C. Has Plaintiff Stated a Title VII Claim Against TSEU?
Next, the Court must consider whether Plaintiff has properly stated a Title VII claim against TSEU. Plaintiffs Complaint contains two counts. Count One alleges that TSEU violated Title VII by retaliating against Plaintiff. Count Two alleges that TSEU violated Title VII by wrongfully terminating Plaintiff. However, Title VII does not specifically provide a cause of action for wrongful termination, as opposed to wrongful termination as an aspect of retaliation. Accordingly, to the extent Count Two alleges a Title VII wrongful termination action, such an action will be treated as an extension of Plaintiff s retaliation claim. To the extent Count Two alleges a § 1983 claim, such a claim is barred by the statute of limitations. Plaintiff admits in his opposition to TSEU's motion to dismiss that he is not asserting a race discrimination claim under Title VII. PL's Opp'n Br. at 6. Thus, the sole issue for the Court is whether Plaintiffs Complaint states a claim for retaliation under Title VII.
In order for Plaintiff to prevail on his Title VII claim, he must first establish a prima facie case of retaliation. A party establishes a prima facie case by demonstrating that: (1) he has engaged in activity protected by Title VII; (2) he has suffered from an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. Mattern v. Eastman Kodak, 104 F.3d 702, 705 (5th Cir. 1997). However, while the Fifth Circuit has not specifically addressed the issue, the Supreme Court's decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), indicates that Plaintiff does not need to make out aprima facie case in order to survive a 12(b)(6) motion to dismiss. InSwierkiewicz, the Court held that the district court erred in granting the defendant's 12(b)(6) motion when the plaintiff failed to allege aprima facie case of employment discrimination under Title VII. Id. at 508. In so holding, the Court noted that the prima facie case requirement, which originated from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), was an evidentiary standard and not a pleading requirement. Swierkiewicz, 534 U.S. at 510. The Court further explained:
This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss. . . . Consequently, the ordinary rules for assessing the sufficiency of a complaint apply.Id., at 511.
Thus, the Court concluded that the district court should have analyzed plaintiffs Complaint using the notice pleading standard of Federal Rule of Civil Procedure 8(a)(2), which provides that a Complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." According to the Court, such a statement must simply "'give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Id. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
While Swierkiewicz dealt with a Title VII employment discrimination claim, the Supreme Court's rationale is equally applicable to a Title VII retaliation claim. Such a claim operates in a similar procedural manner to a discrimination claim, requiring the party alleging a violation to make out a prima facie case before the burden shifts to the defendant. Moreover, the prima facie requirement in the retaliation context clearly operates as an evidentiary burden and not as a pleading requirement. Accordingly, Plaintiff need not allege a prima facie retaliation claim in order to survive TSEU's motion to dismiss; rather, the Complaint need only provide TSEU with fair notice of his claim.
The Complaint is at times unclear, and many of the facts alleged are inapplicable to a Title VII retaliation claim. Nonetheless, the Court is of the opinion that the Complaint sufficiently notifies TSEU of Plaintiff s Title VII claim. First, the Complaint puts TSEU on notice that Plaintiff engaged in activity that may be protected under Title VII. Specifically, Plaintiff alleges that on February 7, 2000, Plaintiff filed a grievance with the Governor's Office after receiving complaints from union members of race discrimination and disparate treatment. Compl. at ¶ 22. Such action may constitute protected opposition activity. Second, by alleging Plaintiff's termination, the Complaint puts TSEU on notice that there was adverse employment action. Compl. at ¶ 39, 40. Third, the Complaint alleges facts that put TSEU on notice that Plaintiff claims he was terminated for engaging in protected activity. Specifically, the Complaint alleges that TYC contacted TSEU regarding Plaintiff's correspondence with the Governor's Office and that TSEU terminated Plaintiff due, in part, to such correspondence. Compl. at 23-25, 39, 46, 50. Accordingly, the Court holds that Plaintiff's Complaint provides TSEU with adequate notice of Plaintiff's claim. TSEU's Motion to Dismiss is therefore denied as to Plaintiff's Title VII retaliation claim.
For example, the Complaint includes allegations that TSEU misused membership dues money in order to influence the outcome of union elections. Compl. at ¶ 49. However, opposition to the misuse of union dues is not protected activity under Title VII.
An employee has engaged in protected activity when he has "opposed any practice made an unlawful practice under [Title VII]," or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a) (emphasis added). Title VII makes it unlawful for an employer to discriminate against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Id 2000e-2(a)(1). Furthermore, Title VII prohibits labor unions from discriminating against their members or from retaliating against their members for opposing unlawful employment practices. I 2000e-2(c), 2000e-3(a).
The Complaint is unclear whether the union members were complaining of discriminatory treatment by TSEU or TYC. However, Title VII prohibits retaliation against an employee for opposing "any practice" made unlawful under the statute. 42 U.S.C. § 2000e-3(a). Thus, if Plaintiff was opposing TYC's treatment of its union member employees, his contact with the Governor's Office may constitute protected opposition activity, which can serve as the basis for wrongful retaliation by TSEU.
CONCLUSION
The Court GRANTS with prejudice Defendant TSEU's Motion to Dismiss as to Plainti 1983 claim and DENIES the Motion as to Plaintiff's Title VII retaliation claim. The Court GRANTS with prejudice Defendant Gross's Motion to Dismiss as to Plain 1983 and Title VII claims.
SO ORDERED.