United States District Court, N.D. Texas, Dallas Division
ROBERT B. TAPLEY, Plaintiff,
SIMPLIFILE, LC, Defendant.
MEMORANDUM OPINION AND ORDER
BROWN UNITED STATES DISTRICT JUDGE
the Court is Defendant Simplifile, LC's Partial Motion to
Dismiss (Doc. No. 9). For the following reasons, the Court
GRANTS the motion.
following allegations are taken from plaintiff Robert B.
Tapley's Original Complaint (Doc. No. 1). Simplifile,
which sells software to assist in streamlining real estate
and mortgage transactions, employed Tapley as Regional Sales
Director from May 12, 2009 through November 19, 2018. Tapley,
the only African American ever hired by Simplifile,
“experienced severe discrimination, harassment and a
hostile environment at [Simplifile] based upon his
race” throughout his employment.
Tapley was terminated, he was told Simplifile was eliminating
his position. At the time, he had been earning in excess of
$250, 000 per year. Tapley learned the reason for his
termination was “a pretext” because his sales
territory was given to two younger Caucasian employees who
“were not performing at the same level as
[Tapley].” At the time, Tapley had been
“consistently in the top 3 persons in new business
sales for the past 6 years, ” “never had any
disciplinary write-ups, ” and never had been
“placed on a performance improvement plan.”
Simplifile offered Tapley a nine-week severance package. He
reluctantly accepted the package only to have Simplifile
rescind it, claiming he had violated a “company policy
of no moonlighting.” According to Tapley,
Simplifile's reason for rescinding the package also was
“a pretext” because Tapley fully complied with
Simplifile's Employee Handbook, which provided that
employees could “hold outside jobs as long as they meet
the performance standards of their job with Simplifile and do
not participate in or with any business that presents a
conflict of interest.” In this action, Tapley asserts
claims under 42 U.S.C. 1981, complaining Simplifile
“has engaged in a single, continuous course of conduct
of discrimination against [him] because of his race, and in
retaliation, in order to destroy [him], his career, and his
professional life.” He also alleges violations of
Chapter 21 of the Texas Labor Code for “discrimination,
retaliation, harassment and creation of a hostile
environment” “because of [his] race, color,
national origin and/or age.” See Tex. Lab.
Code Ann. §§ 21.001 et seq. (formerly, and
still often referred to as, the Texas Commission on Human
Rights Act (TCHRA)).
has filed a partial motion to dismiss (Doc. No. 9), seeking
dismissal of (1) Tapley's Chapter 21 claims because he
failed to exhaust his administrative remedies and (2)
Tapley's retaliation and hostile work environment claims
for failure to state a claim.
Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes a court to
dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Id. 12(b)(6). In considering a Rule 12(b)(6) motion
to dismiss, “[t]he court accepts all well-pleaded facts
as true, viewing them in the light most favorable to the
plaintiff.” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (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.” Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim
i s facially plausible if the plaintiff “pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. “The plausibility standard
. . . asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. Thus, a claim
“is implausible on its face when ‘the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct.'” Harold H.
Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796
(5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679);
see also Inclusive Communities Project, Inc. v. Lincoln
Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019).
Exhaustion of Administrative Remedies
21 contains an exhaustion requirement. Gorman v. Verizon
Wireless Tex., L.L.C., 753 F.3d 165, 169-70 (5th Cir.
2014). Modeled on Title VII and interpreted consistently with
federal cases construing Title VII, Chapter 21 requires
filing a complaint with the Texas Workforce Commission (TWC)
within 180 days of the alleged discriminatory act and then
allowing TWC 180 days to dismiss or resolve the complaint
before filing suit in state or federal court. Id.;
see also Tex. Lab. Code Ann. § 21.202, 21.208.
Although a plaintiff need not receive or even request a
right-to-sue letter to satisfy the exhaustion requirement,
suit may not be filed before the 180-day period has expired.
Gorman, 753 F.3d at 170; see also Acker v.
Deboer, No. 3:04-cv-01327-R, 2006 WL 1489265, at *3 (N.
D. Tex. May 24, 2006). “Administrative exhaustion is
important because it provides an opportunity for voluntary
compliance before a civil action is instituted.”
See Stroy v. Gibson, 896 F.3d 693, 698 (5th Cir.
2018) (Title VII exhaustion analysis) (citations omitted). It
is not a jurisdictional prerequisite, but it “is a
precondition to filing suit” under Chapter 21. See
Gorman, 753 F.3d at 168-70; In re United
Services Auto. Ass'n, 307 S.W.3d 299, 309-10 (Tex.
2010); see also Stroy, 896 F.3d at 698 (affirming
dismissal of Title VII claim when plaintiff waited only 178
days, “two days shy of the statutorily-mandated 180
complaint alleges he timely filed a charge of discrimination
with the TWC and EEOC and received a “Notice of Right
to Sue from the [TWC] with 60 days of the filing of this
Complaint.” However, the date stamp on the charge shows
it was received on January 29, 2019, which was the same day
Tapley's complaint was filed in this Court. Because Tapley
filed this suit without first allowing TWC 180 days to
dismiss or resolve the complaint, Simplifile moves to dismiss
Tapley's Chapter 21 claims for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
or, alternatively, for failure to state a claim under Rule
12(b)(6). In his response, Tapley acknowledges the premature
filing and erroneous representation in his complaint, but
argues a “partial dismissal without prejudice and later
refiling, would serve only to burden Court administration of
a motion to dismiss under Rule 12(b)(1) is procedurally
proper to challenge a federal district court's subject
matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
However, because the Chapter 21 exhaustion requirements are
conditions precedent to suit as opposed to a jurisdictional
prerequisite, the Court cannot dismiss Tapley's Chapter
21 claims for lack of subject matter jurisdiction. See,
e.g., Thomas v. Napolitano, No. 3:10-CV-0265-B, 2010 WL
11561730, at *2 (N.D. Tex. Nov. 8, 2010). However, Simplifile
alternatively moves for dismissal of the claims under Rule
12(b)(6). And, Tapley admits he filed this suit prematurely,
failing to exhaust his administrative remedies. He neither
gives a reason for, nor offers any waiver or estoppel
argument to excuse, his failure to do so. Because Tapley
failed to exhaust ...