United States District Court, N.D. Texas, Dallas Division
JOHN A. BENDER, Plaintiff,
DAVID J. SHULKIN, M.D., Secretary of Veteran's Affairs, Defendant.
SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge
March 23, 2017, the court issued an amended memorandum
opinion and order in this case granting in part and denying
in part Defendant's Motion for Summary Judgment.
See Doc. 69. With respect to Plaintiff John A.
Bender's claims against Defendant for violations of the
Texas Commission on Human Rights Act (“TCHRA”),
Texas Labor Code § 21.001 et seq., the court
noted that it had “serious concerns as to whether
Bender, a federal employee, can even assert state law
employment discrimination claims against the Veterans
Administration” and that further briefing on this
matter was required, “as neither party addressed this
issue.” Am. Mem. Op. & Order at 2, note 2. In that
vein, the court stated as follows:
Although not raised by Defendant, the court sua
sponte raises for summary judgment purposes whether
Plaintiff, as a federal employee, can assert state law
employment discrimination claims against the VA in light of
existing Supreme Court and Fifth Circuit precedent. In
particular, the Supreme Court has held that Title VII
provides the exclusive remedy for claims of employment
discrimination filed against the federal government, since
“Congress intended [Title VII] to be exclusive and pre-
emptive” regarding federal employment. Brown v.
General Servs. Admin., 425 U.S. 820, 829, 835 (1976).
The Fifth Circuit and lower federal courts in this circuit
have applied the Supreme Court's decision in
Brown to dismiss federal employees' federal and
state statutory and common law claims arising out of an
employment relationship when these claims were joined with
Title VII claims. See Smith v. Harvey, 265 F.
App'x 197, 200 (5th Cir. 2008) (citations omitted)
(affirming dismissal of all federal non-Title VII claims and
all state law claims); Rowe v. Sullivan, 967 F.2d
186, 189 (5th Cir. 1992) (citation omitted); Irwin v.
Veterans Admin., 874 F.2d 1092, 1095 (5th Cir. 1989)
(citation omitted); Porter v. Shinseki, 650
F.Supp.2d 565, 571 (E.D. La. 2009) (citations omitted).
Further, the court notes that pursuant to the doctrine of
sovereign immunity, federal courts do not have jurisdiction
over suits against the United States absent a statutory
waiver of sovereign immunity. United States v.
Mitchell, 445 U.S. 535, 538 (1980). The court is not
aware of any waiver of sovereign immunity by the United
States with respect to lawsuits under the TCHRA.
In light of this precedent, the court directs Plaintiff to
state whether authority exists for him to assert his
state-law claims of employment discrimination against
Defendant, and to provide the court with this authority in a
written response not to exceed five (5) pages. The deadline
for Plaintiff to file his response is March 29, 2017.
Defendant shall not reply unless directed to do so by the
court. Following receipt of Plaintiff's written response,
the court will determine whether its current ruling on
Defendant's Motion for Summary Judgment, supra,
requires amendment or supplementation with respect to
Plaintiff's state law employment discrimination claims.
Id. at 31-32 (original emphasis).
response to the court's directive, on March 23, 2017,
Plaintiff filed “Plaintiff's Statement Regarding
Texas Labor Code Claims” (Doc. 70), acknowledging that
Title VII is the exclusive remedy for employment
discrimination claims brought by a federal employee, and
stipulating to the dismissal of Plaintiff's state-law
discrimination and retaliation claims. Thus, this court
lacks jurisdiction to entertain any state-law
light of Plaintiff's concession and stipulation of
dismissal, the court hereby vacates all rulings in its
amended memorandum opinion and order pertaining to
Plaintiff's state-law discrimination and retaliation
claims under the Texas Labor Code, which are hereby dismissed
without prejudice for want of jurisdiction.
addition, the court vacates footnote 10 of the amended
memorandum opinion and order and replaces footnote 10 with
the following text:
“House nigger” or “house negro” is a
“pejorative term for a black person, used to compare
someone to a house slave of a slave owner from the historic
period of legal slavery in the United States.”
references by Milligan and a colleague to reading a book
called “The Monkey, ” happening at the same
meeting where Carroll called Bender a “house nigger,
” is sufficient for a reasonable jury to conclude that
the term “monkey” was being used as a derogatory
term for the African-American employees attending the
meeting. See, e.g., Walker v. Thompson, 214 F.3d
615, 626 (5th Cir. 2000), abrogated on other grounds by
Burlington Northern, 548 U.S. 53 (2006)) (A triable
issue was raised with regard to hostile work environment
where, inter alia, supervisors referred to African-American
employees as “monkeys.”). Finally, a reasonable
juror could easily conclude that Gregg's threat to kill
Bender, immediately after telling Bender that “all the
niggers” would be gotten rid of, is severe enough to
constitute a hostile work environment.
for trial are Plaintiff's Title VII hostile work
environment claim and retaliation claim, with the exception
of those portions of the retaliation claim the court has
dismissed. All portions of the court's amended
memorandum opinion and order, filed March 23, 2017 (Doc. 69),
that are not amended, modified, or replaced herein,
remain in full effect.
action will be three years old on July 18, 2017. Given the
age of this case, it will be tried in July, August, or by
mid-September 2017. The parties are directed to inform the
court of the number of days (allowing six hours per day of
testimony) it will take to try this case if it is not
resolved by settlement and to provide the court with dates in
each of the three listed months in which they can be
available to try this action. The parties shall provide this
information in writing to the court by April 17, 2017.