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Berghorn v. Texas Workforce Commission

United States District Court, N.D. Texas, Dallas Division

November 15, 2017

KYLE BERGHORN, Plaintiff,
v.
TEXAS WORKFORCE COMMISSION and XEROX CORPORATION, Defendants.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY, UNITED STATES DISTRICT JUDGE.

         Before the court is Defendant Xerox Corporation's Motion for Partial Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 4), filed May 26, 2017; and the Joint Stipulation to Clarify Cause of Action Before the Court (“Joint Stipulation”) (Doc. 15), filed October 30, 2017. In its motion to dismiss, Defendant Xerox Corporation (“Xerox”) requests that the court dismiss all of Plaintiff Kyle Berghorn's (“Plaintiff” or “Berghorn”) employment law claims against it. In the Joint Stipulation, the parties seek an order from the court clarifying that only Plaintiff's claims against Xerox were removed to federal court. After considering the motion to dismiss, briefs, pleadings, and applicable law, the court grants in part and denies in part Xerox Corporation's Motion for Partial Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 4). Further, the court concludes that, notwithstanding the state court order granting the Texas Work Force Commission's (“TWC”) unopposed motion to sever, Plaintiff's state law and federal employment law claims were removed to federal court, but severance and remand of Plaintiff's state law claim against the TWC are required under 28 U.S.C. § 1441(c)(2).

         I. Factual and Procedural Background

         Berghorn originally filed this action on September 2, 2016, in the 192nd Judicial District Court, Dallas County, Texas, against the TWC and Xerox, seeking judicial review of the TWC's administrative decision to deny him unemployment compensation benefits under the Texas Unemployment Compensation Act (“TUCA”). On April 21, 2017, Berghorn amended his pleadings and for the first time alleged that Xerox violated Title VII of the Civil Rights Act of 1964 by terminating his employment because he is gay and failed to conform to Xerox's gender stereotypes. In his Amended Petition, the live pleading, Berghorn alleges that he suffered unlawful employment discrimination under Title VII based on sexual orientation and gender stereotyping. Berghorn seeks injunctive and equitable relief, compensatory and punitive damages, attorney's fees, and prejudgment and postjudgment interest.

         On May 5, 2017, the TWC filed an unopposed motion to sever the claims against it, which was granted by the state court on May 19, 2017. On the same date, Xerox filed its Notice of Removal and removed Plaintiff's Title VII claims against it to federal court based on federal question jurisdiction. On May 26, 2017, Xerox moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss Plaintiff's Title VII claims against it. Although styled as motion for partial dismissal, Xerox moves to dismiss all of the claims asserted by Plaintiff against it.

         On July 10, 2017, the TWC filed a copy of the state court order granting its unopposed motion to sever. A Joint Stipulation that was signed by Plaintiff's and Xerox's counsel and filed on October 30, 2017, states that Berghorn, Xerox, and the TWC stipulate that Berghorn's state law claim against the TWC was severed from his Title VII claims against Xerox before Xerox filed its Notice of Removal such that the only claims before this court are Plaintiff's Title VII claims against Xerox. The Joint Stipulation requests that the court enter an order clarifying that Plaintiff's Title VII claims were the only claims removed to federal court and are the only claims presently before the court.

         II. Stipulation and Request Regarding Removal of Plaintiff's Claim Against the TWC

         As explained, the Joint Stipulation signed by Plaintiff and Xerox seeks clarification from the court as to whether Plaintiff's state law claim against the TWC was removed to federal court as a result of Xerox's Notice of Removal. The Joint Stipulation states that Plaintiff, the TWC, and Xerox stipulate that only Plaintiff's Title VII claims against Xerox are before the court but clarification from the court in this regard is still sought because the unopposed motion to sever Plaintiff's claim against the TWC was granted in the state court action on May 19, 2017, the same date that Xerox filed its Notice of Removal, and it is unclear whether the unopposed motion to sever was granted before Xerox filed its Notice of Removal.

         Xerox's Notice of Removal states that removal is based on 28 U.S.C. § 1441(c) because Plaintiff's state law claim against the TWC regarding the denial of unemployment benefits is separate and independent from Plaintiff's employment law claims asserted against Xerox. The Notice of Removal notes that the TWC filed an unopposed motion to sever the state law claim against it before the Notice of Removal was filed, and the unopposed motion was pending at the time of removal. Xerox contends that Plaintiff's state law claim against the TWC must be remanded under section 1441(c)(2) because it is nonremovable.

         Xerox acknowledges in its Notice of Removal that the TWC's unopposed motion to sever the state law claim against it was pending when Xerox filed its Notice of Removal. Moreover, the docket in the underlying state court Case No. DC-16-10991 indicates that the case was closed on May 22, 2017, as a result of Xerox's Notice to State Court of Removal of Civil Action filed on the same date. From this, it appears that the state court determined that the entire action was removed to federal court. For all of these reasons, the court similarly determines that Xerox's Notice of Removal was filed before the unopposed motion to sever was granted and, as a result, all of Plaintiff's claims against Xerox and the TWC were removed to federal court. For the reasons that follow, however, the court agrees with Xerox that remand of the state law claim against the TWC is required under 28 U.S.C. § 1441(c)(2).

         Section 1441(c)(1) states that, when there is “a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of [such a claim].” 28 U.S.C. § 1441(c)(1)(A)-(B). Section 1441(c)(2) provides that upon removal of an action under section 1441(c)(1), the district court must sever from the action and remand all claims not within the original or supplemental jurisdiction of the district court and claims that are nonremovable by statute. Federal courts have original jurisdiction over “all civil actions arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. Federal courts have supplemental jurisdiction over “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” Id. § 1367.

         The court was unable to find any authority that has held that TUCA claims are nonremovable, and the parties cited none. Moreover, TUCA claims are not among the actions that are listed as nonremovable under 28 U.S.C. § 1445. Regardless, Plaintiff's state law claim against the TWC regarding the administrative decision denying his unemployment benefits does not fall within the court's original jurisdiction and is not so related to his federal Title VII claims for sexual harassment against Xerox to fall within the court's supplemental jurisdiction. Accordingly, severance and remand of the state law claim against the TWC are required under section 1441(c)(2). Pursuant to section 1441(c)(2), the court, therefore, severs and remands Plaintiff's state law claim under TUCA against the TWC to the 192nd Judicial District Court, Dallas County, Texas, from which it was removed. As a result, only Plaintiff's federal Title VII claims against Xerox, which are the subject of Xerox's motion to dismiss, shall remain in this court.

         III. Xerox's Motion to Dismiss Plaintiff's Title VII Claims

         A. Legal Standard ...


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