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Tapley v. Simplifile LC

United States District Court, N.D. Texas, Dallas Division

January 14, 2020

ROBERT B. TAPLEY, Plaintiff,
v.
SIMPLIFILE, LC, Defendant.

          MEMORANDUM OPINION AND ORDER

          ADA BROWN UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Simplifile, LC's Partial Motion to Dismiss (Doc. No. 9). For the following reasons, the Court GRANTS the motion.

         Background

         The 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.

         When 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)).

         Simplifile 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.

         Legal Standard

         Under 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. 2000).

         To 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).

         Analysis

         1. Exhaustion of Administrative Remedies

         Chapter 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 days”).

         Tapley's 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.[1] 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 this case.”

         Filing 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 ...


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