United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE.
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
this Court are Defendants' Partial Motion to Dismiss
(Dkt. No. 21); Plaintiff's Response in Opposition (Dkt.
No. 26); and Defendants' Reply (Dkt. No. 27).
The District Court referred the above motion and related
filings to the undersigned Magistrate Judge for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1),
Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C
of the Local Rules of the United States District Court for
the Western District of Texas (“Local Rules”).
Benjamin Rosario (“Plaintiff”) worked for
Defendant Texas Veterans Commission (“TVC”) as a
full-time employee for about seven years. On November 7,
2017, a coworker accused Plaintiff of sexual harassment. Dkt.
No. 10 at ¶ 18. The coworker subsequently filed a formal
complaint against Plaintiff and TVC initiated an
investigation of the incident. Id. at ¶¶
19-20. Plaintiff was informed of the allegations against him
on November 17, 2017. Dkt. No. 10-4 at 3. On November 20,
2017, Plaintiff's former supervisor at TVC and another
TVC employee met with Plaintiff regarding the complaint and
informed Plaintiff that he was found responsible for engaging
in acts of sexual harassment. Dkt. No. 10 at ¶ 22. At
this meeting, the TVC employees forced Plaintiff to sign a
letter of resignation and escorted him off the property.
Id. Plaintiff contends the accusations of sexual
harassment were unfounded and that his supervisor stated that
“the termination would not have likely resulted from
this complaint had it been filed a year prior, before the
rise of the ‘Me Too' movement.” Id.
at ¶ 23. These events occurred shortly before Plaintiff
would have been eligible to retire and Plaintiff's
resignation prevented him from accruing his full retirement
benefits. Id. at ¶ 24.
one year later, on November 26, 2018, Plaintiff filed his
Original Complaint against TVC. Dkt. No. 1. TVC in turn filed
a Partial Motion to Dismiss. Dkt. No. 7. On February 8, 2019,
Plaintiff amended his Complaint to add claims and join as
defendants several former supervisors in their official
capacities, including Thomas Palladino, Victor Polanco,
William G. Tramel, Michael Jaeger, and Cruz Montemayor
(“Defendant Supervisors”). Dkt. No. 10. In his
Amended Complaint, Plaintiff asserts claims against all
Defendants for procedural and substantive due process
violations under 42 U.S.C. § 1983 and for breach of
contract. Id. at ¶¶ 43-66. The Amended
Complaint asserts two additional causes of action against TVC
for age discrimination under the Age Discrimination in
Employment Act (“ADEA”) and age and sex
discrimination in violation of Title VII of the Civil Rights
Act (“Title VII”). Id. at ¶¶
26-42. Plaintiff seeks monetary damages and permanent
injunctive relief in the form of reinstatement. Id.
at p. 13.
April 29, 2019, the Defendants jointly filed the instant
Partial Motion to Dismiss under Federal Rule of Civil
Procedure 12(b)(1) and 12(b)(6), alleging that all of
Plaintiff's claims, except his Title VII claim against
TVC, should be dismissed based on sovereign immunity or for
failure to state a claim. Dkt. No. 21.
Rule of Civil Procedure 12(b)(1) allows a party to assert
lack of subject matter jurisdiction as a defense to suit.
Federal district courts are courts of limited jurisdiction
and may exercise only such jurisdiction as is expressly
conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). A federal court properly dismisses a case
for lack of subject matter jurisdiction when it lacks the
statutory or constitutional power to adjudicate the case.
Home Builders Assn. of Miss., Inc. v. City of
Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001).
“Accordingly, the plaintiff constantly bears the burden
of proof that jurisdiction does in fact exist.”
Id. In ruling on a Rule 12(b)(1) motion, the court
may consider any of the following: (1) the complaint alone;
(2) the complaint plus undisputed facts evidenced in the
record; or (3) the complaint, undisputed facts, and the
court's resolution of disputed facts. Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
“When a Rule 12(b)(1) motion is filed in conjunction
with other Rule 12 motions, the court should consider the
Rule 12(b)(1) jurisdictional attack before addressing any
attack on the merits.” Ramming, 281 F.3d at
Rule of Civil Procedure 12(b)(6) allows a party to move to
dismiss an action for failure to state a claim on which
relief can be granted. In deciding a Rule 12(b)(6) motion to
dismiss for failure to state a claim, the court
“accepts all well-pleaded facts as true, viewing them
in the light most favorable to the [nonmovant].” In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th
Cir. 2007) (internal quotation marks omitted). The Supreme
Court has explained that a complaint must contain sufficient
factual matter “to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the [nonmovant] pleads factual
content that allows the court to draw the reasonable
inference that the [movant] is liable for the misconduct
alleged.” Ashcroft, 556 U.S. at 678.
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level
. . . .”
Twombly, 550 U.S. at 555 (internal quotation marks
and citations omitted). The court's review is limited to
the complaint, any documents attached to the complaint, and
any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC,
594 F.3d 383, 387 (5th Cir. 2010).
The Law of Sovereign Immunity
Eleventh Amendment provides: “The judicial power of the
United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. amend. XI.
The Eleventh Amendment codified the sovereign immunity of the
states. Idaho v. Coeur d'Alene Tribe of Idaho,
521 U.S. 261, 267 (1997). “Sovereign immunity is the
privilege of the sovereign not to be sued without its
consent.” Va. Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 253 (2011). Federal courts
“may not entertain a private person's suit against
a State, ” unless the State has waived its sovereign
immunity or Congress has abrogated it by legislation.
Id. at 253-54. Moreover, a State's consent to
suit under federal law requires a “clear declaration,
” meaning a statement with “the most express
language” or “such an overwhelming implication
from that text as will leave no room for any other reasonable
construction.” Sullivan v. Univ. of Texas Health
Sci. Ctr., 217 Fed.Appx. 391, 393 (5th Cir. 2007).
Sovereign immunity acts as a jurisdictional bar and applies
“regardless of the nature of the relief sought.”
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100 (1984).
well-established that sovereign immunity applies not only to
actions where a state itself is the named defendant, but also
to actions against state agencies and state
instrumentalities. Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 429 (1997). “[A] suit against
an arm or instrumentality of the State is treated as one
against the State itself.” Lewis v. Clarke,
137 S.Ct. 1285, 1293 (2017). Similarly, where a lawsuit is
brought against an employee in his or her official capacity,
the suit may be barred by sovereign immunity. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985). The Eleventh
Amendment bars suits against state officials in their
official capacity when “the state is the real,
substantial party in interest.” Pennhurst, 465
U.S. at 101 (internal citations omitted). “The state is
the real party in interest if the decision rendered in a case
would operate against the sovereign, expending itself on the
public treasury, interfering with public administration, or
compelling the state to act or to refrain from acting.”
Id. The Supreme Court's holding in Ex parte
Young serves as a limited exception to sovereign
immunity and provides that a suit against a state officer in
his official capacity can survive dismissal only where the
suit alleges a continuing violation of federal law and seeks
prospective injunctive relief. 209 U.S. 123, 155-56 (1908);
see also Warnock v. Pecos Cty., 88 F.3d 341, 343
(5th Cir. 1996).