United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE
for consideration the motion of defendant, American Airlines,
Inc., to dismiss. The court, having considered the motion,
the response of plaintiff, Detra Barrett, the record, and
applicable authorities, finds that the motion should be
was employed by defendant. Doc. 8 at 2, ¶ 4. On April 11,
2011, she filed a charge of discrimination with the EEOC and
the Texas Workforce Commission, Civil Rights Division, on the
basis of color, sex, and retaliation. On June 20, 2011, she
filed an amended charge, and, in October 2 012, she filed
another charge alleging age discrimination and retaliation.
Doc. 8 at 4, ¶ 11. On July 7, 2015, the EEOC issued its
notice of right to sue. Doc. 10 at 004. On August 12, 2015, the
Texas Workforce Commission issued its notice of right to file
a civil action. Doc. 10 at 008.
September 29, 2015, plaintiff filed her original petition in
the 236th Judicial District Court of Tarrant
County, Texas. Doc. 10 at 010-019. Plaintiff alleged that she
was discriminated against on the basis of her sex and age and
that she was unlawfully retaliated against by defendant. Doc.
10 at 015. Plaintiff sought judgment against defendant
"as follows: 1. That this Court adjudge and decree that
Defendant has violated Texas Labor Code Ann. 21.051."
Doc. 10 a 017.
December 6, 2016, defendant filed a traditional motion for
summary judgment, alleging that plaintiff's claims were
barred by limitations because she had not filed her original
petition until more than two years after the filing of her
administrative complaint. Doc. 5, Ex. 1-K. Instead of filing
a response acknowledging that her state claims were barred
but that she had also asserted federal claims that were not
barred, plaintiff filed, on January 12, 2017, her first
amended petition. The amended petition was virtually
identical to the original, except that plaintiff added a
paragraph to the "discrimination" section of the
pleading to state that she sought relief pursuant to Title
VII, and she omitted any reference to the Texas Labor Code.
Doc. 5, Ex. 1-L. On February 9, 2017, defendant filed its
notice of removal, bringing the action before this court.
Doc. 1. Defendant stated that the notice of removal was
timely because the January 12 amended petition asserted for
the first time that plaintiff sought relief under Title VII.
Doc. 1, ¶ 1. Plaintiff did not file a motion to remand.
court ordered the parties to replead. On March 27, 2017,
plaintiff filed her amended complaint asserting claims for
sex discrimination and retaliation under Title VII. Doc. 8.
In response, defendant filed the motion to dismiss now before
Ground of the Motion
alleges that plaintiff's claims must be dismissed because
they were hot timely filed. Specifically, her Title VII
claims cannot relate back to the filing of plaintiff's
original petition because the original petition itself was
Applicable Legal Principles
motion to dismiss may be granted on a statute of limitations
defense where the pleadings show that the action is
time-barred. Taylor v. Bailey Tool, Mfg. Co., 744 P.3d 944,
946 (5th Cir. 2014); Jones v. Alcoa,
Inc., 339 F.3d 359, 366 (5th Cir. 2003).
Specifically, a Title VII action may be dismissed for
plaintiff's failure to. file suit within 90 days of
receipt of the EEOC's notice of right to sue. Harris
v. Boyd Tunica, Inc., 628 F.3d 237, 239 (5th
claims asserted in an amended pleading relate back to an
earlier pleading depends upon whether the amendment was filed
in state or federal, court. When a plaintiff amends her
pleading in state court prior to removal to federal court,
state court relation-back rules apply. Taylor, 744 P.3d at
947. And, under Texas law, an-amended petition does not
relate back to the original petition if the earlier pleading
was itself untimely. Id.; Tex. Civ. Prac. & Rem.
Code § 16.068 (amended and supplemental pleadings relate
back only if the original claim was not subject to a plea of
to Texas Labor Code § 21.256, a civil action must be
brought within two years of the filing of an administrative
complaint or the claim is time-barred. Goss v. City of
Houston, 391 S.W.3d 168, 171 (Tex. App.-Houston
[1st Dist. ] 2012, no pet.); Vu v. ExxonMobil
Corp., 98 S.W.3d 318, 320-21 (Tex. App.-Houston
[1st Dist.] 2003, pet. denied). The limitations
period under the statute is mandatory and jurisdictional.
Lottinger v. Shell Oil Co., 143 F.Supp.2d 743, 753
(S.D. Tex. 2 001). The failure of the Texas Workforce
Commission to issue a notice of ...