Rosario v. Texas Veterans Commission

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE.

         TO: THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before this Court are Defendants' Partial Motion to Dismiss (Dkt. No. 21); Plaintiff's Response in Opposition (Dkt. No. 26);^[1] 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”).

         I. BACKGROUND

         Plaintiff 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.

         Approximately 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.

         On 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.

         II. LEGAL STANDARDS

         A. Rule 12(b)(1)

         Federal 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 161.

         B. Rule 12(b)(6)

         Federal 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).

         III. ANALYSIS

         A. The Law of Sovereign Immunity

         The 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).

         It is 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).

         B. ...