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Woods v. Torkelson

United States District Court, W.D. Texas, San Antonio Division

November 18, 2019

MARJORIE E. WOODS, Plaintiff,
v.
TOM TORKELSON, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          JASON PULLIAM UNITED STATES DISTRICT JUDGE

         The Court has under consideration Defendants' Rule 12(b)(6) Motion for Partial Dismissal (ECF No. 8); a Motion for Mediation (ECF No. 10) filed by Plaintiff in response; and a Motion for Summary Judgment (ECF No. 13) filed by Plaintiff. Other than the motion for mediation, Plaintiff has filed no timely response to the motion to dismiss although the motion for summary judgment could be considered an untimely response to the motion. Defendants have filed responses to both motions of Plaintiff. No. party has filed any formal reply brief, but the motion for summary judgment could be considered a reply brief in support of the mediation motion.

         I. BACKGROUND

         On April 29, 2019, Plaintiff commenced this pro se civil action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., naming IDEA Public Schools (CEO Tom Torkelson) and IDEA Walzem Academy (Principal Ryane Burke) as defendants. See Compl. (ECF No. 4). Among other things, she attached a “Civil Cover Sheet” that identifies the defendants as: Ryane Burke Principal and Tom Torkelson CEO. See ECF No. 4-1. Plaintiff alleges discrimination based upon her race (African American) and age, as well as retaliation. Compl. at 2-3. With respect to explaining events of retaliation, she merely states “Annual Evaluation.” Id. at 3. She claims defendants failed to promote her, forced her to resign, and provided no annual evaluation for employment. Id.

         Given the uncertain identification of the named defendants in this action, IDEA Public Schools; IDEA Walzem Academy; Tom Torkelson, CEO of IDEA Public Schools; and Ryane Burke, Principal of IDEA Walzem Academy jointly moved for partial dismissal on several grounds. They first argue that IDEA Public Schools employed Plaintiff and that IDEA Walzem Academy is not a legal entity subject to suit. Second, they argue that any claims against Tor-kelson and Burke in their individual capacities must be dismissed because Title VII does not provide for individual liability. Next, they argue that any claims against Torkelson and Burke in their official capacities must be dismissed because such claims are in effect claims against her employer - IDEA Public Schools - and are thus duplicative. Finally, they argue that Plaintiff has not alleged facts to state a plausible claim for retaliation.

         Plaintiff responded to the motion to dismiss through her motion for mediation. She essentially requests that the Court deny the motion to dismiss because Defendants have no defense and she moves for mediation. She explains that Principal Burke forced her to resign in retaliation for her reporting a co-worker to child protective services (“CPS”) for actions taken against a student. She concludes her motion with a plea for the Court to help her resolve her case and move on. She indicates that she is willing to settle the case for $1.5 million and an outstanding annual evaluation with new references. She just wants the case “to go away.”

         In her motion for summary judgment, which she purports to file pursuant to Fed.R.Civ.P. 12(b)(e), Plaintiff does little more than oppose dismissal and state her desire to mediate the case. She emphatically states that defendants have no defense and that she is entitled to relief under Rule8(a)(2). At no point does she invoke Fed.R.Civ.P. 56 or assert any summary judgment standard. As relief requested by the motion, she merely states that she has stated a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) and reiterates her desire to be compensated with or without mediation.

         In response to the motion to mediate, Defendants oppose mediation at this early stage of the litigation. They also point out that a motion to dismiss is limited to matters set out in the pleadings, including attachments, and Plaintiff's complaint does not include the factual allegations regarding CPS. They argue that adding the allegations to her pleading does not cure the deficiency regarding her retaliation claim because it does not constitute the required “protected activity.”

         Defendants' response to the motion for summary judgment accurately recognizes that (1) the substance of the “motion” is more akin to a response to the motion to dismiss and a reply to the motion for mediation; (2) there is no Rule 12(b)(e) in the Federal Rules of Civil Procedure; and (3) Plaintiff likely mislabeled her filing as a summary judgment motion. In an abundance of caution, they also argue that the summary judgment motion is premature and lacks merit.

         II. PLAINTIFF'S MOTIONS

         Both motions filed by Plaintiff are better construed as responsive to Defendants' motion to dismiss. And the Court will consider them in that respect. Nevertheless, to the extent Plaintiff intends them to be stand alone motions, the Court denies them. Plaintiff provides no basis to compel Defendants to engage in mediation, especially at this early stage of the litigation. Further, while she titles her second motion as one for summary judgment, it does not qualify as such a motion. Plaintiff does not invoke Fed.R.Civ.P. 56. Nor does she provide any evidence to consider or apply the standards for obtaining summary judgment. The substance of a filing, not its title, controls how courts approach a filing, especially for filings made by a pro se litigant. However, in an abundance of caution, the Court addresses the motion as one for summary judgment and denies it without prejudice as premature. See George v. Go Frac, LLC, SA-15-CV-943-XR, 2016 WL 94146, at *3 (W.D. Tex. Jan. 7, 2016); Griffin v. Am. Zurich Ins. Co., No. 14-CV-2470-P, 2015 WL 12748322, at *2 (N.D. Tex. Mar. 20, 2015).

         III. MOTION TO DISMISS

         Turning to the motion for partial dismissal, Defendants have properly invoked Fed.R.Civ.P. 12(b)(6) to obtain a partial dismissal of claims with a clear absence of legal or factual basis. While Plaintiff strenuously states that Defendants have no defense and that her claims have merit, as stated below, Defendants have stated legitimate bases for obtaining a partial dismissal. Because Defendants seek only a partial dismissal, the merits of claims not addressed herein are not currently at issue.

         Under Fed.R.Civ.P. 12(b)(6), litigants may move to dismiss asserted claims for “failure to state a claim for which relief can be granted.” As required by Fed.R.Civ.P. 8(a)(2), every pleading that states a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Such requirement provides opposing parties “fair notice of what the . . . claim is and the grounds upon ...


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