United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT.
the Court is Defendant Robert M. Speer's (the Army) Motion
to Dismiss (Doc. 33), seeking dismissal of Plaintiff Dipankar
Chandra's discrimination claim for failure to exhaust
administrative remedies. For the reasons stated below, the
Court GRANTS the Army's Motion.
was hired by Defendant Bowhead Science & Technology, LLC
(Bowhead) as a Scientist/Microscopy Technician/Microscopy
Manager in October 2011. Doc. 3, Pl.'s Orig. Compl.
¶ 16; Doc. 38, Pl.'s Resp. to Def. Robert M.
Speer's Mot. to Dismiss and Br. in Supp. 1 [hereinafter
Pl.'s Resp.]. After being hired by Bowhead, Chandra was
contracted to work for Patrick J. Murphy, then the Secretary
of the United States Army. Doc. 38, Pl.'s Resp. 1.
“is a non-Caucasian American individual with Indian
national origin who possesses distinct racial features and
ethnic characteristics that are different from”
Caucasian Americans. Doc. 3, Pl.'s Orig. Compl. ¶
14. Chandra speaks English with an accent. Id.
¶ 15. Chandra alleges that he was the only Indian
employee in his unit. Id. ¶ 17.
hired Chandra by telephone and allegedly told him that he did
not need to conduct an in-person interview for the position.
Id. ¶ 20. Chandra relocated from Texas to
Maryland to begin the position. Id. ¶ 21.
Chandra states that he was not reimbursed for his relocation
expenses as promised by Bowhead over the telephone;
non-Indian employees, by contrast, allegedly were reimbursed.
Id. ¶¶ 21-22. Upon arrival, Chandra was
allegedly required to undergo several new in-person
interviews to secure the position. Id. ¶¶
23-24. Chandra claims that his supervisors could not
pronounce his name. Id. ¶ 25. So despite
Chandra's objections, they allegedly decided to use a
nickname and call him “David.” Id. The
supervisors also allegedly instructed other employees to
refer to Chandra as “David.” Id. One of
Chandra's supervisors purportedly required Chandra to
call her every time he arrived at the building but did not
require other non-Indian employees to do so. Id.
¶ 26. In November 2011, a fellow employee allegedly
referred to Chandra as a “low caste Indian from
Texas” in front of Chandra. Id. ¶ 27.
claims that he was not given an office for three weeks, did
not receive a working computer for two months, never received
a working phone, and never received an access badge that
worked properly despite complaining about it. Id.
¶¶ 28-29. Chandra was allegedly also not given
access to liquid nitrogen-a necessary component to properly
fulfill his responsibilities. Id. ¶¶
30-31. A supervisor allegedly responded to Chandra's
requests for liquid nitrogen by telling Chandra not to bother
him and to “fit in.” Id. ¶ 31.
Chandra claims to have been told multiple times to “fit
in” by supervisors while non-Indian employees were not
told to do so. Id. ¶ 32. Chandra states that he
was told not to perform certain tasks and then reprimanded
for not performing those tasks. Id. ¶¶
was terminated on or about December 21, 2011, for not being
in the building on time, not filling out his time sheets, and
lack of knowledge of electron microscopy. Id. ¶
37. Chandra claims that he was never given a working badge
which was required to enter the building, not given a working
computer for two months which was required to complete time
sheets, and praised for his knowledge of electron microscopy.
Id. ¶¶ 28, 38-40.
filed a formal complaint of discrimination with the Equal
Employment Opportunity Commission (EEOC) on August 7, 2012.
Doc. 33, Def. Robert M. Speer's Mot. to Dismiss ¶ 4
[hereinafter Army's Mot. to Dismiss]; Doc. 35-1, Ex. 1,
Charge of Discrimination. Chandra filed a Complaint with this
Court on February 10, 2016, alleging discrimination on the
basis of race and national origin in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§§ 2000e et seq. Doc. 3, Pl.'s Orig.
Compl. 1, 5-7.
Army, in turn, moved to dismiss Chandra's claims against
it under Federal Rules of Civil Procedure 12(b)(1) and,
alternatively, 12(b)(6) for failure to exhaust administrative
remedies. Doc. 33, Army's Mot. to Dismiss 1-2. Chandra
responded to the Motion, and the Army replied. See
Doc. 38, Pl.'s Resp.; Doc. 39, Def.'s Reply Br. in
Supp. of Def. Robert M. Speer's Mot. to Dismiss. Thus,
the Motion is ripe for the Court's review.
Federal Rule of Civil Procedure 12(b)(1)
courts are courts of limited jurisdiction.'”
MacKenzie v. Castro, No. 3:15-cv-0752-D, 2016 WL
3906084, at *2 (N.D. Tex. July 19, 2016) (quoting
Stockman v. Fed. Election Comm'n, 138 F.3d 144,
151 (5th Cir. 1998)). For that reason, they can adjudicate
claims only when subject matter jurisdiction “is
expressly conferred by the Constitution and federal statute.
Federal Rule of Civil Procedure 12(b)(1) provides the vehicle
through which” a party may challenge that jurisdiction.
Armstrong v. Tygart, 886 F.Supp.2d 572, 584 (W.D.
Tex. 2012) (internal citations omitted).
Rule 12(b)(1) motion can mount either a facial or factual
challenge.” MacKenzie, 2016 WL 3906084, at *2.
A facial challenge occurs “when a party files a Rule
12(b)(1) motion without including evidence.”
Id. A factual challenge, by contrast, occurs when a
party supports its Rule 12(b)(1) motion with evidence.
cases, the burden of proof “‘is on the party
asserting jurisdiction.'” Id. (quoting
Ramming v. United States, 281 F.3d 158, 161 (5th
Cir. 2001) (per curiam)). So Chandra must prove jurisdiction
exists. Yet that is no high bar: “‘[I]t is
extremely difficult to dismiss a claim for lack of subject
matter jurisdiction.'” Santerre v. AGIP Petrol.
Co., 45 F.Supp.2d 558, 566 (S.D. Tex. 1999) (quoting
Garcia v. Copenhaver, Bell & Assocs., 104 F.3d
1256, 1260 (11th Cir. 1997)).
facial challenge, courts consider just “the allegations
in the complaint because they are presumed to be true.”
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.
1981). And if they sufficiently allege a claim for recovery,
then the complaint stands and the court must entertain the
this is a factual challenge. Doc. 35, App. to Br. in Supp. of
Def. Robert M. Speer's Mot. to Dismiss. Plaintiffs enjoy
no presumption towards truthfulness here. Williamson v.
Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981). Instead,
they must “prove subject matter jurisdiction by a
preponderance of the evidence.” MacKenzie,
2016 WL 3906084, at *2 (citing Paterson, 644 F.2d at
523). To that end, each party may ...