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Wije v. Burns

United States District Court, W.D. Texas, Austin Division

May 5, 2017

SURAN WIJE, Plaintiff,
v.
DAVID A. BURNS, UNIVERSITY OF TEXAS, JANE DOE, and JOHN DOE, Defendants.

          ORDER

          SAM SPARKS UNITED STATES DISTRICT JUDGE.

         BE IT 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.

         Background

         Plaintiff 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 Doe.[1] 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.

         Wije, 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.

         On November 18, 2005, Wije voluntarily resigned from his position. See Original Compl. [#1-2] Ex. 198Id. (Employee Separation Form).[2] 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.

         Sometime 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.

         In his 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].

         On May 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 amend.").

         Analysis

         I. Legal Standard

         A 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.

         Pro 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).

         II. ...


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