United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT & UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Second Motion to Dismiss
(Dkt. #57). Having considered the relevant pleadings and
motion, the Court finds the motion should be granted.
suit arises out of Plaintiff Janna Robin's employment
(and ultimate termination) as a detention officer for
Defendant, the City of Frisco, Texas (the
“City”). On June 22, 2016, Plaintiff sued
Defendants in state court alleging race and gender
discrimination, harassment, hostile work environment, and
retaliation in violation of state and federal law. On August
3, 2016, Defendants removed this action based upon federal
question jurisdiction (Dkt. #1). On September 6, 2016,
Plaintiff filed an amended complaint (Dkt. #11).
April 5, 2017, the Court issued an Order denying
Defendants' motion to dismiss (Dkt. #23). On November 15,
2017, the Court issued a Memorandum Opinion and Order (the
“Order”) granting in part and denying in part
Defendants' motion for summary judgment (Dkt. #49). The
Court granted Defendants' motion as to all of
Plaintiff's claims except her claims for (1) Title VII
retaliation, (2) § 1981 and § 1983 retaliation
against Defendant Smith in her individual capacity for
issuing the PIP and negative performance review, (3) civil
conspiracy, (4) aiding and abetting, and (5) declaratory and
November 27, 2017, Defendants filed this Motion to Dismiss,
seeking to dismiss Plaintiff's conspiracy and
aiding-and-abetting claims for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1) (Dkt. #57). On December 11, 2017, Plaintiff filed a
response (Dkt. #59). On December 14, 2017, Defendants filed a
reply (Dkt. #63). On December 21, 2017, Plaintiff filed a
sur-reply (Dkt. #65).
immunity exists to protect the State and its political
subdivisions from lawsuits and liability for money damages
and defeats a court's subject matter jurisdiction.”
Quinn v. Guerrero, 2016 WL 4529959, at *1 (E.D. Tex.
Aug. 9, 2016), report and recommendation adopted,
2016 WL 4508227 (E.D. Tex. Aug. 28, 2016),
aff'd, 863 F.3d 353 (5th Cir. 2017). Federal
Rule of Civil Procedure 12(b)(1) authorizes dismissal of a
case for lack of subject matter jurisdiction when the
district court lacks statutory and constitutional power to
adjudicate the case. Home Builders Ass'n of Miss.,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). If a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the Court will consider the
jurisdictional attack under Rule 12(b)(1) before addressing
any attack on the legal merits. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
deciding the motion, the Court may consider “(1) the
complaint alone; (2) the complaint supplemented by the
undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the
[C]ourt's resolution of disputed facts.” Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008)
(quoting Barrera-Montenegro v. United States, 74
F.3d 657, 659 (5th Cir. 1996)). The Court will accept as true
all well-pleaded allegations set forth in the complaint and
construe those allegations in the light most favorable to the
plaintiff. Truman v. United States, 26 F.3d 592, 594
(5th Cir. 1994). Once a defendant files a motion to dismiss
under Rule 12(b)(1) and challenges jurisdiction, the party
invoking jurisdiction has the burden to establish subject
matter jurisdiction. See Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980). The Court will
grant a motion to dismiss for lack of subject matter
jurisdiction only if it appears certain that the claimant
cannot prove a plausible set of facts to support a claim that
would entitle it to relief. Lane, 529 F.3d at 557.
preliminary matter, at the Final Pretrial Conference held on
December 15, 2017, Plaintiff's counsel raised the issue
that the Court's Order on Defendants' Motion for
Summary Judgment was unclear as to whether her state law
workplace retaliation claims survived. The Court's Order
denied Defendants' summary judgment as to Plaintiff's
claim for Title VII retaliation (Dkt. #49 at p. 14-20). To
clarify, the Court finds denial of summary judgement is
proper as to Plaintiff's state law retaliation claims
because the City is not entitled to governmental immunity.
Texas Commission on Human Rights Act (“TCHRA”)
was enacted by the Texas Legislature in 1993 and amended in
1995. Among its objectives are to:
(1) provide for the execution of the policies of Title VII of
the Civil Rights Act of 1964 and its subsequent amendments; .
(4) secure for persons in this state, including persons with
disabilities, freedom from discrimination in certain
employment transactions, in order to ...