United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff Suran
Wije's Order of Dismissal Objections and Motion for Third
Amended Complaint (TAC) [#18]. Having reviewed the documents,
the governing law, and the file as a whole, the Court enters
the following opinion and orders.
Suran Wije, proceeding pro se, brings claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, and Section 1983 of the 1871 Civil Rights Act, 42
U.S.C. § 1983, against David A. Burns, the University of
Texas at Austin (the University), John Doe, and Jane
The facts of this case are described in detail in this
Court's Order of April 13, 2017 [#16], adopting
Magistrate Judge Mark Lane's recommendation that
Wije's claims be dismissed. See Order of Apr.
13, 2017 at 11. Thus, the Court will only recount a brief
summary of the facts here.
who is South Asian, worked in the Information Technology
Department (IT Department) at the McCombs School of Business
at the University from January 12, 2000, until November 18,
2005. See Compl. [#1-1] (Wije Aff.) ¶ 1. David
Bums, the Director of the IT Department, was Wije's
supervisor. See Id. ¶ 3. Sometime during his
employment, Wije states he tried to inform the IT Department
and other University personnel of "various concerns,
including for software quality engineering and the cutting of
corners on the software security lifecycle ...."
Id. ¶ 6.
November 18, 2005, Wije voluntarily resigned from his
position. See Original Compl. [#1-2] Ex.
198Id. (Employee Separation Form). The Employee
Separation Form states Wije "resigned and is relocating
to the Dallas area" and "was on Level 3 status and
has received an intent to terminate letter."
Id. The form also references "Code 101, "
which signifies Wije voluntarily "left without
notice." Id. Ex. 1981e (Usual Reasons and
Codes) at 1.
after his resignation, Wije began applying for jobs with the
University. See Wije Aff. ¶ 8. He claims he
applied for 35 to 45 jobs over more than a two-year period
and never received a request "for even a phone interview
by [the University]." More Definite Statement [#7]
¶ 4. Wije believes Mr. Burns "intentionally placed
a [ ] lie in [Wije's] personnel file vouching that [Wije]
'left without notice.'" Wije Aff. ¶ 8.
According to Wije, this note "ensure[d] that [Wije]
would never be rehired again" and constituted a "de
facto blacklist[ ]." Id.
pleadings, Wije brings three federal law claims-a Title VII
discrimination claim, a Title VII retaliation claim, and a
§ 1983 discrimination claim-as well as various state law
claims. See More Definite Statement [#7]
¶¶ l-9. In essence, Wije claims the
University discriminated against him because of his race and
retaliated against him because of his whistleblowing
regarding his concerns about the software. On January 9,
2017, the Magistrate Judge issued his Report and
Recommendation recommending dismissal of Wije's claims.
See R. & R. [#9]. In its Order of April 13,
2017, this Court adopted the Magistrate Judge's
recommendation that Wije's claims be dismissed. Order of
Apr. 13, 2017 [#16]. On the same day, the Court issued an
Order of Dismissal, dismissing all of Wije's claims
without prejudice. Order of Apr. 13, 2017 [#17].
1, 2017, Wije filed an Order of Dismissal Objections and
Motion for Third Amended Complaint [#18]. Because of
Wije's pro se status, the Court will treat this
filing as a motion to amend under Federal Rule of Civil
Procedure 15(a) and will analyze Wije's TAC under 28
U.S.C. § 1915(e)(2)(B). See Whitaker v. City of
Hous., Tex., 963 F.2d 831, 836 (5th Cir. 1992)
("The finality of [a district court's order
dismissing a complaint] is destroyed, ... if instead of
appealing the plaintiff files a Rule 15(a) motion to
district court "shall dismiss" a case brought
in forma pauperis at any time if the court
determines the action "(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief." 28 U.S.C. §
1915(e)(2)(B). A complaint is frivolous if it "lacks an
arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim
lacks an arguable basis in law when it is "based on an
indisputably meritless legal theory." Neitzke,
490 U.S. at 327. A claim lacks an arguable basis in fact when
it describes "fantastic or delusional scenarios."
Id. at 327-28.
se complaints are liberally construed in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 20-21
(1972). A petitioner's pro se status, however,
does not offer him an "impenetrable shield, for one
acting pro se has no license to harass others, clog
the judicial machinery with meritless litigation, and abuse
already overloaded court dockets." Farguson v.
MBankHous. N.A., 808 F.2d 358, 359 (5th Cir. 1986).