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United States District Court, E.D. Texas.

SARA KIRCHHEINER, Plaintiff,

v.

HOME DEPOT U.S.A., INC., Defendant.

CIVIL ACTION NO. 1:19-CV-135

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Filed 06/01/2021

MEMORANDUM AND ORDER

MARCIA A. CRONE UNITED STATES DISTRICT JUDGE

Pending before the court is Plaintiff Sara Kirchheiner’s (“Kirchheiner”) Partial Motion for New Trial (#94). Defendant Home Depot U.S.A., Inc. (“THD”), filed a response in opposition (#95). Having considered Kirchheiner’s motion, THD’s response, the submissions of the parties, the record, and the applicable law, the court is of the opinion that the motion should be denied.

I. Background

Kirchheiner brought suit for an injury she sustained sometime in January 2018, the exact date unknown, while in the course and scope of her employment with THD, a non-subscriber to Texas workers’ compensation insurance. Specifically, Kirchheiner, who worked in the customer service department, claims that while attempting to retrieve a customer’s order, she pulled a box of tile from a six-foot, eight-inch tall shelf and the box fell onto her neck and shoulder area (the “Incident”). Kirchheiner contends that the Incident caused injuries to her neck and shoulder and that she was eventually diagnosed with cervical radiculopathy.

On January 31, 2019, Kirchheiner filed her Original Petition in state court, asserting a cause of action for negligence against THD. On March 14, 2019, THD removed the case to this court. On February 22, 2021, the parties proceeded to trial, and, on February 26, 2021, the jury returned a verdict.

The jury charge consisted of a general charge with instructions on the applicable law and how it should be applied, followed by two special verdict questions. The first question asked if the negligence, if any, of THD proximately caused the occurrence in question. The second question, conditioned on the first, asked what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Kirchheiner for her injuries, if any, that resulted from the occurrence in question, and went on to list seven categories of damages.1

The jury found that: (i) the negligence of THD proximately caused the occurrence in question; and (ii) Kirchheiner was entitled to $10,000 in damages for physical pain and mental anguish that she sustained in the past. The jury did not award her any recovery for the other categories of damages. Kirchheiner did not object to the jury verdict at the time it was announced, and, on March 10, 2021, the court entered Final Judgment (#88) on THD’s unopposed motion for entry of judgment (#87).

Kirchheiner contends that the damages awarded by the jury are so inadequate that the court should set aside the verdict and order a new trial on damages. Specifically, Kirchheiner asserts that she presented clear and uncontroverted evidence of damages for past medical expenses and past and future impairment.

II. Motion for a New Trial

“A new trial may be granted under Federal Rule of Civil Procedure 59 if the trial court finds that the verdict is against the weight of evidence; the damages awarded are excessive; the trial was unfair; or prejudicial error was committed.” Adams v. Ethyl Corp., 838 F. App’x 822, 827 (5th Cir. 2020) (citing Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991)); Six Dimensions, Inc. v. Perficient, Inc., 969 F.3d 219, 230 (5th Cir. 2020); Westfall v. Luna, No. 4:15-CV-00874-O, 2021 WL 750834, at *4 (N.D. Tex. Jan. 30, 2021). In a diversity case, such as this, federal law governs the sufficiency of evidence to warrant a new trial, while state law governs the scope of relevant evidence. McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 482 (5th Cir. 2015) (“In short, state law governs what the plaintiff must prove and how it may be proved; federal law governs whether the evidence is sufficient to prove it.”); Jackson v. Taylor, 912 F.2d 795, 797 (5th Cir. 1990).

“When a motion for new trial is based on insufficiency of the evidence, a stringent standard applies, and the motion should be granted only if the verdict ‘is against the great weight of the evidence, or it is quite clear that the jury has reached a seriously erroneous result.’ ” Westfall, 2021 WL 750834, at *4 (quoting Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 300 (5th Cir. 2005)). “Where a jury verdict is at issue, no abuse of discretion exists ‘unless there is a complete absence of evidence to support the verdict.’ ” Adams, 838 F. App’x at 827 (quoting Benson v. Tyson Foods, Inc., 889 F.3d 233, 234 (5th Cir. 2018)); accord Sabre Indus. Inc. v. Module X Sols., L.L.C., No. 19-30887, 2021 WL 365775, at *4 (5th Cir. Feb. 2, 2021) (“The district court thus ‘abuses its discretion by denying a new trial only when there is an absolute absence of evidence to support the jury’s verdict.’ ” (quoting Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013), cert. denied, 573 U.S. 904 (2014))). The court is “required under the Seventh Amendment to make a concerted effort to reconcile apparent inconsistencies in answers to special verdicts if at all possible.” Goff v. Pert, 741 F. App’x 211, 213 (5th Cir. 2018).

A. Medical Expenses

To recover past medical expenses, a plaintiff must establish that those medical expenses were (1) actually paid or incurred; and (2) reasonable and necessary. See Rutherford, 2015 WL 12582805, at *3 (explaining that medical expenses are limited to those actually paid or incurred); Metro. Transit Auth. v. Harris Cnty., No. 14-06-00513-CV, 2008 WL 4354503, at *6 (Tex. App. Aug. 26, 2008) (“Proof of amounts charged or paid is not proof of reasonableness, and the recovery of medical expenses will be denied in the absence of evidence showing the charges were reasonable and necessary.”); Wong v. Graham, No. 03-00-00440-CV, 2001 WL 123932, at *11 (Tex. App.—Austin Feb. 15, 2001, no pet.) (determining that, under the collateral source rule, the plaintiff should recover medical expenses “if the treatment and charges are reasonable to treat the patient,” regardless of whether the plaintiff, as opposed to the insurance company, paid for the service); see also Mascorro v. Wal-Mart Stores, Inc., No. EP-15-CV-00112-FM, 2016 WL 10567160, at *5 (W.D. Tex. May 2, 2016) (“A claim for past medical expenses requires evidence that the expenses incurred were reasonably necessary”).

While Kirchheiner concedes that THD’s medical expert, Bernie McCaskill, M.D. (“Dr. McCaskill”), contested the necessity of her surgery to treat cervical radiculopathy, she contends that she offered uncontroverted evidence of the necessity of her past medical treatment prior to her surgery, as well as the reasonableness of her past medical bills, through the testimony of her treating providers and via depositions by written questions that were attached to all of the medical records and bills presented to the jury. Depositions by written questions, however, do not conclusively establish the reasonableness and necessity of medical expenses, and the jury is not bound by these documents. See Gunn v. McCoy, 489 S.W.3d 75, 110 (Tex. App.—Houston [14th Dist.] 2016) (holding that, when reviewing a jury verdict, the court must consider “only the evidence and reasonable inferences favorable to the jury’s past medical expenses finding, and disregard[ ] all evidence and inferences to the contrary”), aff’d, 554 S.W.3d 645 (Tex. 2018); Gutierrez v. Martinez, No. 01-07-00363-CV, 2008 WL 5392023, at *10 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet.).

Moreover, as THD points out, the jury also heard evidence that disputed the cause, nature, and severity of Kirchheiner’s injuries, as well as evidence that called into question Kirchheiner’s motivation for seeking medical care. For instance, evidence was presented that Kirchheiner failed to report the Incident when it occurred, waiting approximately six weeks to tell her supervisor. There was additional evidence indicating that Kirchheiner did not require any immediate medical treatment following the Incident and that she did not experience bruising or contusions as a result; in fact, she continued to work for several days following the Incident without any apparent problems. Furthermore, when Kirchheiner finally reported the Incident, on or about March 12, 2018, she also reported another alleged workplace injury that occurred in January 2018, wherein she purportedly strained her shoulder while lifting a window.

In addition, the jury heard evidence that several weeks passed before Kirchheiner told her medical providers that she believed the Incident was the cause of her pain. Specifically, Kirchheiner first sought medical treatment on January 18, 2018, when she went to the Altus Emergency Room. Her medical records from that visit do not describe any specific occurrence as the cause of her pain. On January 29, 2018, Kirchheiner sought treatment from Prospero Arante, M.D. (“Dr. Arante”), in connection with complaints of insomnia and right shoulder pain. She advised Dr. Arante that the pain started two weeks prior to her visit but did not report any “obvious precipitating injury.”

Kirchheiner was next seen at an emergency medical facility on February 5, 2018, where she complained of pain in her right shoulder. The records from that visit indicate that Kirchheiner stated that the injury occurred at work while attempting to lift a box from a top shelf at THD. Her records from that visit also report no evidence of injury to her head and extremities, that her back was normal, and that her neck demonstrated a full range of motion and was supple. A radiograph was completed and described no clear evidence of a traumatic injury. That same day, Kirchheiner also consulted Dr. Arante—again for shoulder pain—without indicating the cause of the pain.

On March 7, 2018, Kirchheiner saw Sassan Ehdaie, M.D. (“Dr. Ehdaie”), who noted that Kirchheiner “has been having neck pain as well as some low back pain off and on for the last 2 years.” Dr. Ehdaie’s notes do not indicate the cause of her pain.

There was also evidence presented at trial that Kirchheiner’s description of her pain changed and was inconsistent over time. On March 2, 2018, Kirchheiner consulted Marco Silva, M.D. (“Dr. Silva”), for the first time. Notably, On April 17, 2019, Dr. Silva signed a certificate for return to work stating that “Sara Kirchheiner was seen today and can return to work on 4/18/2019.” Dr. Silva ultimately diagnosed Kirchheiner with cervical radiculopathy and performed anterior cervical discectomy and fusion (“ACDF”) surgery on her neck to correct the condition on July 2, 2019, approximately a year and a half after the Incident.

THD’s expert witness, Dr. McCaskill, testified that Kirchheiner’s complaints were consistent with cervical radiculopathy, but stated that he did not believe there was any objective evidence of injury to explain those complaints. In addition, Dr. McCaskill testified that it was possible for cervical radiculopathy to develop without a precipitating injury. Dr. Silva agreed that there could be multiple other causes of disc herniations and protrusions, including “luck of draw.” Specifically, Dr. Silva acknowledged that Kirchheiner’s shoulder strain associated with lifting a heavy window at work, or even her prior automobile accident that occurred years before she began experiencing symptoms, could have caused her cervical radiculopathy. Dr. McCaskill also noted that more time had passed between the Incident and Kirchheiner’s onset of symptoms than he would expect if the Incident was indeed the cause of her cervical radiculopathy. Finally, as Kirchheiner concedes, Dr. McCaskill testified that he would not have recommended Kirchheiner for surgery to treat her cervical radiculopathy.

In addition, the jury heard evidence that Kirchheiner had a history of addiction to pain medication. In fact, in April 2018, Kirchheiner told Dr. Arante that she was addicted to pain medication, and subsequently, Dr. Arante terminated the doctor-patient relationship due to Kirchheiner’s drug-seeking behavior. THD argued that her addiction may have motivated her to seek medical treatment in order to acquire narcotics.

Thus, while the jury found that THD’s negligence proximately caused the Incident and awarded Kirchheiner $10,000 for past physical pain and mental anguish, the jury reasonably determined that her medical treatment and expenses were not necessitated by the Incident, but rather, were attributable to some other injury or motive.

B. Past and Future Impairment

Physical impairment is a distinct injury from pain and suffering and includes limitations on physical activities. See Estrada v. Dillon, 44 S.W.3d 558, 561-62 (Tex. 2001).

Physical impairment, which is sometimes called loss of enjoyment of life, encompasses the loss of the injured plaintiff’s former lifestyle. To receive damages for physical impairment, the injured party must prove that the effect of [her] physical impairment extends beyond any impediment to [her] earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which [she] should be compensated. A plaintiff must produce some evidence showing the tasks or activities she is unable to perform, unless the separate and distinct loss is obvious. However, a plaintiff need not prove an inability to perform an act that she was previously able to perform. Nor must a plaintiff prove egregious injuries to recover physical-impairment damages.

Lara Munoz v. Castillo, No. 13-18-00451-CV, 2020 WL 1856476, at *15 (Tex. App.—Corpus Christi Apr. 9, 2020, no pet.) (quoting Telesis/Parkwood Retirement I, Ltd. v. Anderson, 462 S.W.3d 212, 242 (Tex. App—El Paso 2015, no pet.)), supplemented sub nom. De Jesus Lara Munoz v. Castillo, No. 13-18-00451-CV, 2020 WL 1887807 (Tex. App.—Corpus Christi Apr. 14, 2020, no pet.).

With respect to Kirchheiner’s claims for past and future impairment, the jury heard evidence that Kirchheiner continued to work for weeks following the Incident and that many of the physicians she consulted during that time period did not impose any physical restrictions on her. Moreover, following the Incident, Kirchheiner’s mother-in-law, Stacy Kirchheiner, posted photographs to social media that portrayed Kirchheiner as physically active (e.g., working out at the gym, swimming with her children, and playing soccer with her husband). In addition, Stacey Kirchheiner testified that her daughter-in-law is able to take care of her four children and that she has an active lifestyle. Further, as previously mentioned, the jury heard evidence of Kirchheiner’s drug-seeking behavior, which may have affected her credibility regarding her subjective complaints of pain and impairment. The jury may have considered this evidence in deciding that Kirchheiner did not experience any cognizable impairment above and beyond pain and suffering. Thus, the jury reasonably concluded that Kirchheiner did not suffer compensable impairment as a result of the Incident.

C. Physical Pain and Mental Anguish in the Past

In Texas, there “is no set formula for finding the value that should be awarded for physical pain and mental anguish.” Conley v. Driver, 175 S.W.3d 882, 885 (Tex. App.—Texarkana 2005, no pet.). Because of the difficulty inherent in an assessment of such amorphous damages, the trier of fact “must be given discretion in finding mental anguish damages that would fairly and reasonably compensate the plaintiff.” Weidner v. Sanchez, 14 S.W.3d 353, 368 (Tex. App.—Houston [14th Dist.] 2000, no pet.); accord Primoris Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 761 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting Figueroa v. Davis, 318 S.W.3d 53, 62-63 (Tex. App.—Houston [1st Dist.] 2010, no pet.)); PNS Stores v. Munguia, 484 S.W.3d 503, 517-18 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“In personal injury cases, the jury has discretion over the amount of damages.”). A fact-finder’s award of damages will be upheld as long as a plaintiff has “introduced direct evidence of the nature, duration, and severity of [her] mental anguish ... [establishing] that there was a substantial disruption in [her] daily routine.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); accord Wolf v. Starr, 617 S.W.3d 898, 904 (Tex. App.—El Paso 2020, no pet.).

Here, Kirchheiner appears to assert that the jury’s award of $10,000 in damages for past physical pain and mental anguish necessitated an award of damages for past medical expenses and past and future impairment. Texas law, however, does not preclude a jury from awarding minimal damages for pain and mental anguish and excluding other categories of damages. As detailed above, evidence was presented at trial that would allow the jury to find reasonably that, although Kirchheiner experienced some pain from the Incident, an award of damages for past medical expenses and for past and future impairment was not warranted.

III. Conclusion

Accordingly, Kirchheiner’s Partial Motion for New Trial (#94) is DENIED.

SIGNED at Beaumont, Texas, this 1st day of June, 2021.

Footnotes

1

The seven categories included the following: (1) medical care expenses incurred in the past by Kirchheiner; (2) physical pain and mental anguish sustained in the past by Kirchheiner; (3) physical pain and mental anguish that, in reasonable probability, Kirchheiner will sustain in the future; (4) physical impairment sustained in the past by Kirchheiner; (5) physical impairment that, in reasonable probability, Kirchheiner will sustain in the future; (6) disfigurement sustained in the past by Kirchheiner; and (7) disfigurement that, in reasonable probability, Kirchheiner will sustain in the future.

ARTURO ELIZONDO, JR., Plaintiff,

v.

ADHAN ABBIKADIR AND MBA, TRANSPORT OF COLUMBUS, LLC Defendant.

CIVIL ACTION NO. 1:19-CV-459

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Filed 01/08/2021

REPORT AND RECOMMENDATION ON DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFF’S LOSS OF INCOME CLAIMS

Zack Hawthorn United States Magistrate Judge

In accordance with 28 U.S.C. § 636(b) and the Local Rules for the United States District Court for the Eastern District of Texas, the District Court referred all pretrial matters in the above-captioned civil action to the undersigned United States Magistrate Judge. (Doc. No. 6.) Pending before the court is the Defendants’ Motion for Partial Summary Judgment on Plaintiff’s Loss of Income Claims. (Doc. No. 18.) The Plaintiff filed Plaintiff’s Response in Opposition to Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Loss of Income Claims. (Doc. No. 20.)

I. Background1

The plaintiff, Arturo Elizondo, Jr., is employed with Tideport Distributing, Inc. as a driver. On July 26, 2017, Elizondo was driving a Tideport owned 18-wheeler westbound on IH-10. Adkan Abbikadir was also driving westbound on IH-10 in an 18-wheeler owned by his employer, MBA Transport of Columbus, LLC. Abbikadir changed lanes and rear-ended Elizondo’s vehicle causing Elizondo personal injuries that required medical treatment. Both employees are alleged to have been in the course and scope of their employment at the time of the accident. Elizondo filed an Original Petition in Texas state court on July 25, 2019, against Abbikadir alleging he was negligent in the operation of the vehicle, and against Abbikadir’s employer, Columbus, for negligent entrustment of the vehicle to Abbikadir, and under the doctrine of respondeat superior. (Doc. No. 28.) On September 26, 2019, the case was removed to federal court based on diversity jurisdiction. Elizondo claims to have incurred loss of earnings in the past, and “loss of earning capacity which will, in all probability, be incurred in the future.” (Doc. 1-1, p. 6.)

Defendants Abbikadir and Columbus moved for summary judgment on the Plaintiff’s past loss of income and loss of future earning capacity damage claims. (Doc. No. 18.)

II. Summary Judgment Standard

Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A genuine dispute about a material fact exists if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it is relevant or necessary to the outcome of the case. Id. The moving party bears the initial burden of demonstrating that there are no genuine disputes of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Harvill v. Westward Commc’ns, LLC, 433 F.3d 428, 433 (5th Cir. 2005). The movant must support its assertion by “citing to particular parts of materials in the record ... or showing that the materials cited do not establish the ... presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1)(A)-(B).

“If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). “If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Id. at 1075. The nonmovant cannot satisfy its burden with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

The court resolves any doubts and draws all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); United States ex rel. Longhi v. United States, 575 F.3d 458, 465 (5th Cir. 2009). But the court “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); Anderson v. Liberty Lobby, 477 U.S. at 255.

III. Defendants’ Motion

Defendants have moved for partial summary judgment on Elizondo’s “claims of past or future loss of income” alleging Elizondo is unable to prove either proximate cause or damages. (Doc. No. 18.) Defendants argue that even though Elizondo claims he has lost income in the past and will lose income in the future, the evidence does not support the claims. Moreover, Defendants argue that Elizondo failed to produce records or evidence demonstrating that he has been deemed unable to perform his job as a truck driver.

In support of the motion, Defendants submit Elizondo’s personnel record from Tideport Distributing, Inc. (Doc. 18-2, pg. 1-7.) This record consists of a four-page database printout showing minimal information related to Elizondo’s pay rate, hire date, and scheduled deductions. The record shows that Elizondo’s last pay change was on September 24, 2019, his last check was dated February 28, 2020, that his direct deposit is currently disabled, and that he is seemingly assigned to the “CV-Drivers” department. (Id.) Although it shows that Elizondo was paid a rate of $14.00 per hour or an approximate annual salary of $29,120.00, it does not include the cumulative pattern of pay rates (including increases or decreases) or job positions held. It is unclear whether Elizondo’s pay ever increased or decreased, or whether he is still employed and if so, his current job title. The Defendants also rely on two documents from Elizondo’s medical record. The first—a notice from Gonzalez Family & Occupational Medicine dated June 25, 2018. (Doc. 18-3, p. 4.) This letter, signed by Julian J. Gonzalez, M.D., states that Elizondo is able to perform the essential functions of “this job” without accommodations. (Doc. 18-3.) “This job” is not defined on Dr. Gonzalez’s letter, although the medical forms attached to the exhibit include a form signed by Medical Examiner Billie Botello, also dated June 25, 2018, that states Elizondo meets the standards for 49 C.F.R. § 391.4 (defining the physical qualifications for commercial drivers).

IV. Elizondo’s Response

Elizondo’s response to the motion for summary judgment contains wage and income transcripts from the Internal Revenue Service (albeit without a business record affidavit) showing income of $34,550 for the year 2010, $33,573 for the year 2011, $33,471 for the year 2012, $37,644 for the year 2013, $40,534 for the year 2014, $29,395 for 2015, $32,538 for the year 2016, $22,260 for the year 2017, $17,056 for the year 2018, and $18,628 for the year 2019. (Doc. No. 20-6.) These records show a decrease in Elizondo’s post-accident wages. (Id.)

Elizondo also offers numerous Texas Workers’ Compensation (“TWC”) Status Reports from Gonzalez Family & Occupational Medicine that predate and postdate the June 25, 2018 report relied on by the Defendant. Every TWC form signed by Dr. Gonzalez and attached to the plaintiff’s response indicates that Elizondo is restricted from driving. (Doc. 20-1.)2 Notably, the TWC report dated June 21, 2018 (only four days prior to the letter relied on by the Defendants) states that Elizondo can work but is restricted from driving, inter alia.3

Additionally, Elizondo submitted a functional capacity evaluation report dated July 10, 2018, by Dr. Silvio Bruna of the Magnolia Chiropractic Clinic, Inc. (Doc. 20-4, p. 1-22.) Dr. Bruna’s report consists of 22 pages of carefully documented, objective test results and his ultimate findings. Dr. Bruna concludes:

For an 18 wheeler TRUCK DRIVER, the MD Guidelines classify the job description as MEDIUM PDL WORK ... [whereas] Elizondo is capable of LIGHT-MEDIUM PDL WORK duty work ... But the issue in this particular case is NOT the amount of LIFTING but rather his RETURNING TO DRIVING, something he would prefer to do, unfortunately the issue with his right ankle/foot and what I opine is FOOT DROP, he and I agree it would be unsafe to do, as he requires his right foot for accelerating and braking.

(Doc. No. 20-4, p. 5) (emphasis added).

V. Discussion

This case is pending in federal court based on diversity jurisdiction, so Texas state substantive law applies. Regardless of the evidence submitted by either party, the undersigned recognizes that a loss in actual earnings does not necessarily establish a loss in earning capacity. Loss of past earning capacity refers to the plaintiff’s diminished capacity to earn a living during the period between the injury and the date of trial. See Bituminous Cas. Corp. v. Cleveland, 223 S.W.3d 485, 491 (Tex. App.—Amarillo 2006, no pet.); Border Apparel—E., Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex. App.—El Paso 1993, no writ). The proper measure of damages is loss of earning capacity, not loss of earnings. See Dallas Ry. & Terminal Co. v. Guthrie, 210 S.W.2d 550, 552 (Tex. 1948); Pilgrim’s Pride Corp. v. Cernat, 205 S.W.3d 110, 120 (Tex. App.—Texarkana 2006, pet. denied); Decker v. Latham, 446 S.W.2d 113, 116 (Tex. Civ. App.—El Paso 1969, writ ref’d n.r.e.). The central questions are (1) what was the plaintiff’s capacity to earn, and (2) to what extent was that capacity impaired by the injury. Bituminous Cas. Corp., 223 S.W.3d at 491.

To support an award of damages for loss of past earning capacity, the plaintiff must introduce evidence sufficient to allow the jury to reasonably measure his earning capacity before the injury in monetary terms. See Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959); Big Bird Tree Serv. v. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied); Bituminous, 223 S.W.3d at 491; City of Houston v. Howard, 786 S.W.2d 391, 395—96 (Tex. App.—Houston [14th Dist.] 1990, writ denied). The plaintiff should introduce evidence of past earnings, time missed from work, and any other factors that illustrate the plaintiff’s reduced ability to perform work in the past. See Ryan v. Hardin, 495 S.W.2d 345, 350 (Tex. App.—Austin 1973, no writ); McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943).

Elizondo has submitted evidence in the form of medical records, IRS transcripts, and a cumulative wage summary that support his claims. Thus, the undersigned finds that there is a genuine dispute of material fact as whether Elizondo’s alleged injury caused a loss in actual earnings or earning capacity and recommends denying Defendants’ Motion for Partial Summary Judgment on Plaintiff’s Loss of Income Claims.

VI. Conclusion and Recommendation

For the reasons stated above, the undersigned recommends denying Defendants’ Motion for Partial Summary Judgment on Plaintiff’s Loss of Income Claims (Doc. No. 18) without prejudice.

VII. Objections

*4 Pursuant to 28 U.S.C. § 636(b)(1)(c) (Supp. IV 2011), each party to this action has the right to file objections to this report and recommendation. Objections to this report must (1) be in writing, (2) specifically identify those findings or recommendations to which the party objects, (3) be served and filed within fourteen days after being served with a copy of this report; and (4) be no more than eight pages in length. See 28 U.S.C. § 636(b)(1)(c); FED R. CIV. P. 72(b)(2); LOCAL RULE CV-72(c). A party who objects to this report is entitled to a de novo determination by the United States District Judge of those proposed findings and recommendations to which a specific objection is timely made. See 28 U.S.C. § 636(b)(1)(c); FED R. CIV. P. 72(b)(3).

SIGNED this 8th day of January, 2021.

Footnotes

1

As alleged in the plaintiff’s Original Petition. (Doc. No. 1-1.)

2

The first record is dated just after the accident, on August 3, 2017, restricting Elizondo to lifting, pushing, and pulling no greater than 10 pounds, no squatting, no climbing, crawling, jumping, stooping, and no driving. The restriction is until September 7, 2017. The Texas Workers’ Compensation Status Report dated August 10, 2017, allows Elizondo to return to work on August 10, 2017 until September 21, 2017, with the same restrictions. The Texas Workers’ Compensation Status Report dated August 17, 2017 allows Elizondo to return to work August 17, 2017 until September 28, 2017 restricting him to light duty, with the same restrictions, including not driving. On August 24, 2017, the Texas Workers’ Compensation Status Report allows Elizondo to work the same day with the same restrictions until October 5, 2017. On September 15, 2017, the Texas Workers’ Compensation Status Report provides that Elizondo can return to work on that day until October 27, 2017, with the same restrictions. On September 22, 2017, the Texas Workers’ Compensation Status Report provides that Elizondo may work from that date until November 11, 2017 with the same restrictions. On October 13, 2017, the Texas Workers’ Compensation Status Report sets forth that Elizondo may return to work that same day until December 8, 2017, with the same restrictions, that still include not driving. On December 22, 2017, the Texas Workers’ Compensation Status Report shows that Elizondo may work on that date until January 12, 2018 with the same restrictions and the addition of no jumping or bending. On January 2, 2018, the Texas Workers’ Compensation Status Reports shows that Elizondo can work on that date until January 20, 2018 restricted to light duty, no driving an 18-wheeler, no lifting, pulling, or pushing more than 25 pounds. On March 19, 2018 the Texas Workers’ Compensation Status Report reflects a return on that same date until April 9, 2018, with no driving, no lifting, pulling, or pushing more than 20 pounds.

3

The record contains another TWC report dated June 21, 2018, except the restriction dates are from July 19, 2018 until August 16, 2018. Presumably, it is a typographical error on the date of the report.

United States District Court, W.D. Texas, El Paso Division.

SHERMAN BOLIVAR ARON KASPAR, JR, Plaintiff,

v.

RYDER INTEGRATED LOGISTICS, INC. and RYDER TRUCK RENTAL, INC., Defendant.

EP-20-CV-00245-RFC

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Filed 11/17/2020

ORDER DENYING MOTION FOR REMAND

ROBERT F. CASTANEDA UNITED STATES MAGISTRATE JUDGE

*1 ON THIS DAY came for consideration “Plaintiff’s Corrected Motion for Remand.” (ECF No. 4.) Both parties consented to trial on the merits before a United States Magistrate Judge and on October 23, 2020, the Honorable Judge David C. Guaderrama transferred the case to this Court for trial and entry of judgment pursuant to 28 U.S.C. § 636(c) and Appendix C of the Local Court Rules of this district. (ECF No. 5.) After due consideration, the Court is of the opinion that the Motion should be DENIED.

I. PROCEDURAL AND FACTUAL BACKGROUND

On August 20, 2020, Plaintiff filed suit against Defendant in County Court at Law Number 7 in El Paso County, Texas, asserting the applicability of the Texas Workers’ Compensation Act (“TWCA”). (ECF No. 1:1); Tex. Labor Code Ann. § 406.033. Defendant was served with notice of suit on August 28, 2020, and then timely filed its Notice of Removal with this Court on September 21, 2020, alleging diversity jurisdiction. (ECF No. 1.)

On October 16, 2020, Plaintiff filed his Motion to Remand, arguing that this “cause of action arises under the workers’ compensation laws of the State of Texas and may not be removed.” (ECF No. 4:1), citing 28 U.S.C. § 1445(c). On October 23, 2020, Defendant filed its Response, arguing that Plaintiff’s cause of action arises under Texas common law, and was thus properly removed on diversity grounds. (ECF No. 7.)

II. DISCUSSION

a. Standard of Review

“The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id. “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).

b. Analysis

Plaintiff argues that this case should be remanded to state court because negligence claims against nonsubscribing1 employers are nonremovable pursuant to 28 U.S.C. § 1445(c). (ECF No. 4:3.)

28 U.S.C. § 1445 makes certain actions nonremovable. Relevant to this case, “a civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.” 28 U.S.C. § 1445(c). The Fifth Circuit has held that “arising under” in § 1445(c) should be construed in the same manner as “arising under” in § 1331, the federal question statute. Jones v. Roadway Exp., Inc., 931 F.2d 1086, 1092 (5th Cir. 1991). To determine whether a claim “arises under” federal law, the Court first asks whether a federal law creates the cause of action. Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006). If not, the Court then asks whether the plaintiff's right to relief in the cause of action necessarily depends on the resolution of a substantial question of federal law. Id.

*2 There is a presumption against a broad construction of “arising under” in the context of § 1331. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (2017) (“[F]ederal courts are courts of limited jurisdiction … [and] it should be presumed that a cause lies outside of that limited jurisdiction.”) As Judge Cardone noted in Gomez v. O'Reilly, there is a tension between the restrictive construction of “arising under” in § 1331 and § 1445(c) on the one hand and the broad construction of § 1445(c) in favor of remand on the other. Gomez v. O'Reilly Automotive Stores, Inc., 283 F.Supp.3d 569, 572 (W.D. Tex. Dec. 19, 2017).

Plaintiff’s Motion depends on the applicability of the TWCA to a negligence claim against a nonsubscribing employer. In essence, this Court must decide whether the source of Plaintiff’s negligence claim is the TWCA or common law. In the latter instance, the TWCA could be thought of as a statutory modification to the common law claim of negligence. On this issue, the Fifth Circuit’s opinion in Rentech and the Supreme Court of Texas’ opinion in Kroger are instructive. Am. Int’l Specialty Lines Ins. Co. v. Rentech Steel LLC, 620 F.3d 558 (5th Cir. 2010); Kroger v. Keng, 23 S.W. 3d 347 (Tex. 2000).

In Kroger, the Supreme Court of Texas explained in dicta how the TWCA modified negligence claims against nonsubscriber employers. 23 S.W. 3d at 350-351 (“In enacting section 406.033 and its predecessors, the Legislature intended to delineate explicitly the structure of an employee’s personal-injury action against his or her nonsubscribing employer.”). The Court explained that the TWCA merely altered the possible defenses and potential liability of a defendant subject to a common law negligence scheme. Id.

The Fifth Circuit, commenting on Kroger v. Keng, succinctly summarized that Court’s reasoning as follows: “The Texas Supreme Court in Kroger [citation] indicated in dicta that a negligence claim against a non-subscriber is modified by the TWCA, but remains a claim at common law.” Rentech, 620 F.3d at 564. Reasoning by analogy, the Court wrote: “Many common-law claims are ‘governed’ by statutes of limitations, but those statutes neither give rise to the cause of action they govern, nor do they obligate any party to pay a judgment arising from a governed claim.” Id. at 565.

The Court is persuaded by the reasoning in Rentech and Kroger that the TWCA does not create Plaintiff’s cause of action, but merely modifies aspects of it. Rather, Plaintiff’s negligence claim against Defendant arises from Texas common law. Kroger, 23 S.W. 3d at 350. As such, Plaintiff’s claims for negligence against Defendant do not “arise under” a workmen’s compensation law of the state of Texas, and are thus not subject to remand. 28 U.S.C. § 1445(c).

The Court notes that this issue has been addressed several times recently in the Western District of Texas’ El Paso division, with differing outcomes. Compare Trevizo v. Home Depot U.S.A., Inc., No. EP-17-CV-00071-DCG, 2017 U.S. Dist. LEXIS 183490 (W.D. Tex. April 28, 2017) (remanding on substantially similar facts, citing split sister court decisions as evidence of ambiguity) with Gomez v. O’Reilly Auto Stores, Inc., 283 F.Supp.3d 569 (W.D. Tex. Dec. 19, 2017) (denying remand, following reasoning in Rentech and Kroger) and Casas v. R & L Carriers, Inc., No. EP-17-CV-122-PRM, slip op. at 7 (W.D. Tex. June 12, 2017) (same).

“[T]he fact that district courts come out differently on this issue does not, by itself, create sufficient ambiguity such that remand is appropriate ... just because other courts have found [differently] does not prevent this Court from conducting its own analysis.” Poljanec v. Home Depot U.S.A. Inc., No. SA-14-CV-318-XR, 2014 WL 2050946 (W.D. Tex. May 19, 2014). Moreover, the Court finds that a growing consensus favoring remand has emerged amongst the Fifth Circuit’s Texas district courts since Trevizo was decided. See Gomez, 283 F.Supp.3d at 578 (collecting cases); Mendez v. Wal-Mart Assocs., Inc., No. EP-18-CV-189-PRM, 2018 WL 7288581 (W.D. Tex. Sept. 10, 2018); Varela v. Home Depot U.S.A., Inc., No. 4:18-CV-952-A, 2019 WL 1041335 (N.D. Tex. Mar. 4, 2019); Wagner v. FedEx Freight, Inc., 315 F. Supp. 3d 916 (N.D. Tex. 2018); Odom v. Tyson Foods, Inc., No. 6:10-CV-667, 2011 WL 13141414 (E.D. Tex. Feb. 10, 2011).

*3 As there appears to be a consensus amongst Texas federal district courts, and as the Court finds the reasoning in Rentech and Kroger to be persuasive on the issue, the Court concludes that Plaintiff’s Motion should be denied.

III. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Remand (ECF No. 4) is DENIED.

IT IS SO ORDERED.

SIGNED this 17th day of November, 2020.

Footnotes

1

“A ‘nonsubscribing employer is one that is not covered by workers’ compensation insurance obtained in a manner authorized by Tex. Lab. Code Ann. § 406.003. An employer covered by workers’ compensation is subject to limited liability for death and injury sustained by an employee in the course and scope of employment without regard to whether the employer acted negligently. A nonsubscribing employer is subject to unlimited liability for death and injury sustained by an employee in the course and scope of employment, but only where the employer acted negligently.” Casas v. R & L Carriers, Inc., No. EP-17-CV-122-PRM, 2017 U.S. Dist. LEXIS 181925, at *3 (W.D. Tex. June 12, 2017).

FELTON THOMAS Plaintiff,

v.

PFG TRANSCO, INC.; PERFORMANCE FOOD GROUP, INC. d/b/a PERFORMANCE FOOD GROUP – CUSTOMIZED DISTRIBUTION; AND PFGC, INC. Defendants.

CIVIL ACTION NO. 4:17-CV-00785

|

11/10/2020

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. #63). Having considered the motion and the relevant pleadings, the Court finds that Defendants’ motion should be GRANTED in part and DENIED in part.

BACKGROUND

This case arises from injuries sustained by Plaintiff following a motor vehicle accident. Defendants PFG Transco, Inc., Performance Food Group, Inc. d/b/a Performance Food Group– Customized Distribution, and PFGC, Inc. (Collectively, “PFG”) constitute a food delivery company that operates one of the largest commercial trucking fleets in the United States. Plaintiff is a former delivery driver for PFG.

On January 8, 2016, Plaintiff was scheduled to make a commercial delivery for PFG to Fort Smith, Arkansas. Plaintiff fell asleep while driving the vehicle and caused a one-vehicle collision while traveling eastbound on Interstate 40 near Muskogee, Oklahoma. The accident caused Plaintiff’s left arm to be pinned beneath the truck. While Plaintiff was unable to vacate the vehicle, a second collision occurred, injuring Plaintiff further.

PFG terminated Plaintiff’s employment after determining that the January 8, 2016 accident was preventable, and that Plaintiff was responsible for causing it. At all relevant times and to the present, PFG is a nonsubscriber to Texas worker’s compensation. PFG does, however, provide wage replacement and medical expense reimbursements to injured employees pursuant to its Texas Injury Benefits Plan.

On August 19, 2020, PFG filed the present motion (Dkt. #63). On September 9, 2020, Plaintiff filed his response (Dkt. #71). On September 16, 2020, PFG filed their reply (Dkt. #72). On September 23, 2020, Plaintiff filed his surreply (Dkt. #73).

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Summary judgment is proper under Rule 56(a) of the Federal Rules of Civil Procedure “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Substantive law identifies which facts are material. Id. The trial court “must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment.” Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981).

The party seeking summary judgment bears the initial burden of informing the court of its motion and identifying “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” that demonstrate the absence of a genuine issue of material fact. FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323. If the movant bears the burden of proof on a claim or defense for which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge the burden by showing that there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248–49). A nonmovant must present affirmative evidence to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 257. Mere denials of material facts, unsworn allegations, or arguments and assertions in briefs or legal memoranda will not suffice to carry this burden. Rather, the Court requires “significant probative evidence” from the nonmovant to dismiss a request for summary judgment. In re Mun. Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982) (quoting Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 114 (5th Cir. 1978)). The Court must consider all of the evidence but “refrain from making any credibility determinations or weighing the evidence.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

ANALYSIS

Defendants argue that they are entitled to summary judgment on six issues. First, Defendants claim they owed no duty to Plaintiff. Second, Defendants assert that they did not proximately cause Plaintiff’s injuries. Third, Defendants claim that they did not engage in conduct that would entitle Plaintiff to recover punitive damages. Fourth, two of the Defendants— Performance Food Group, Inc. d/b/a Performance Food Group – Customized Distribution and PFGC, Inc.—were not Plaintiff’s employers and thus are not liable for Plaintiff’s damages under the claims alleged. Fifth, Defendants assert an entitlement to a dollar-for-dollar settlement credit against any judgment that may ultimately be rendered against it in the amount paid by settling Defendants Kenneth Paul Lockhart and Navigators Logistics, Inc. Finally, Defendants claim an entitlement to a credit against any judgment that may ultimately be rendered against it in the amount already paid on Plaintiff’s behalf in medical expense and lost wage reimbursements pursuant to the Performance Food Group Texas Injury Benefit Plan.

Plaintiff responds that Defendants are not entitled to summary judgment on Plaintiff’s negligence claim because the undisputed material facts prove the elements of duty and causation. Further, Plaintiff argues that Defendants are not entitled to summary judgment on the issue of gross negligence. Plaintiff claims that the Court is required to reduce the amount of damages in an amount equal to the settling Defendants’ settlement with Plaintiff after the jury returns a verdict. Finally, Plaintiff contends that Defendants have not established that they are entitled to an offset or credit for the amounts paid under the Injury Benefits Plan.

The Court will address each argument in turn.

I. Existence of Duty

Defendants claim Plaintiff has not identified a breach of any cognizable employer duty. In support of their argument, Defendants point to the duties that the Federal Motor Carrier Safety Administration’s (“FMCSA”) Hours of Service (“HOS”) Regulations impute upon employers versus those imputed upon employees.

Section 390.11 of the General Federal Motor Carrier Safety Regulations (“FMCSR”) states that “[w]henever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.” 49 C.F.R. § 390.11. Although an employer may not be required to perform certain specific duties laid out in the Regulations—i.e., properly observe HOS rules or record activity accurately on HOS logs—the employer must require observance of such duties by drivers.

Defendants state that “the core structure of the FMCSR HOS regulations is to require drivers to properly observe HOS rules and to record their activities accurately on HOS logs, while requiring the employers of drivers to require adherence to these obligations” (Dkt. #63 at p. 17) (emphasis in original). Further, Defendants state that “[h]ere, the undisputed material facts establish that [Defendants] observed [their] duties, while Plaintiff failed to observe his” (Dkt. #63 at p. 18).

Defendants appear to not be arguing that no duty exists, but rather that no duty was breached. After a careful review of the record, the Court is not convinced that Defendants have met their burden demonstrating that there is no material issue of fact as to this claim entitling them to judgment as a matter of law.

II. Proximate Cause of Injuries

Defendants also argue that they were not the proximate cause of Plaintiff’s injuries. However, Plaintiff contends that Defendants violation of the FMCSA Regulations—specifically, § 392.3—proximately caused his injuries. Section 392.3 states that:

...[A] motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin to continue to operate the commercial motor vehicle.

49 C.F.R § 392.3.

After a careful review of the record, the Court is not convinced that Defendants have met their burden demonstrating that there is no material issue of fact as to this claim entitling them to judgment as a matter of law.

III. Gross Negligence Entitling Plaintiff to Punitive Damages

Defendants argue that they are entitled to summary judgment in their favor on Plaintiff’s claim of gross negligence because the undisputed material facts establish that Defendants did not engage in any conduct constituting gross negligence.

Plaintiff contends that Defendants are not entitled to summary judgment on gross negligence when the evidence is looked at in full and in a light most favorable to Plaintiff.

After a careful review of the record, the Court is not convinced that Defendants have met their burden demonstrating that there is no material issue of fact as to this claim entitling them to judgment as a matter of law.

IV. Employer Status of Performance Food Group, Inc. d/b/a Performance Food Group – Customized Distribution and PFGC, Inc.

Defendants argue that PFG Transco, Inc. (“Transco”) is the only proper defendant to this action, and the two other PFG entities are entitled to summary judgment in their favor. Specifically, Defendants contend that “Plaintiff’s claims are for negligence against a non-subscribing employer, but only one of the Defendants was his employer” (Dkt. #63 at p. 22).

Plaintiff responds that “[he] has not uncovered any evidence that is contrary to Defendants’ evidence that only one of the moving Defendants, PFG Transco, Inc., was [Plaintiff’s] employer” and “[a]s such, [Defendants’] appear to be entitled to summary judgment that only PFG Transco, Inc. was [Plaintiff’s] employer” (Dkt. #71 at p. 10).

It is undisputed that only Transco employed Plaintiff. The claims and alleged breaches of duties brought by Plaintiff—negligence and gross negligence against a non-subscribing employer—preclude liability for any non-employer Defendant. Thus, Performance Food Group, Inc. d/b/a Performance Food Group – Customized Distribution and PFGC, Inc. are entitled to summary judgment as to all claims against them.

V. Entitlement to Settlement Credit

The parties do not dispute that Defendants are entitled to a settlement credit under Texas Civil Practice and Remedies Code § 33.012. Plaintiff only disputes when the Court should determine that entitlement.

Defendants have shown that they are entitled to a settlement credit. Defendants have put the settlement credit amount on the record. See Utts v. Short, 81 S.W.3d 822, 828 (concluding “the common law requires only that the record show…the settlement credit amount” to show that a party is entitled to a settlement credit). Defendants have filed the Settlement Agreement—and consequently the settlement amount—between Plaintiff and the settling Defendants under seal as an attachment to the present motion (Dkt. #66). Plaintiff has not disputed the entitlement to or the amount of the settlement credit. Thus, the Court finds that Defendants are entitled to summary judgment as to their right to a settlement credit in an amount equal to the settlement received by Plaintiff from Navigator Logistics, Inc.’s settlement. See Byrd v. Woodruff, 891 S.W.2d 689, 702 (Tex. App.—Dallas 1994, writ denied) (noting that the granting of summary judgment on a party’s entitlement to a statutory settlement credit was proper). The settlement credit itself will not be applied until an award amount is found by the factfinder.

VI. Entitlement to Credit for Payments Already Made

Defendants claim they are entitled to an offset or credit for amounts paid to Plaintiff under its occupational injury benefit plan (the “Plan”). Defendants pled its entitlement to an offsetting credit as an affirmative defense.

Plaintiff claims that Defendants have not proven an entitlement to an offset or credit. Plaintiff states that Defendants have not cited any authority for pursuing an offset or credit rather than the contractual right of reimbursement when a settling defendant is involved. Plaintiff also argues that Defendants will reap a windfall and be unjustly enriched if an offset is allowed without reducing it by a proportionate share of the attorneys’ fees and costs incurred regarding the settlement with the settling Defendants, and Defendants will “double dip” if they receive both a reduction under Texas Civil Practice and Remedies Code § 33.012(b) and an offset or credit for payments already made under the Plan.

The collateral source rule “precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeaser.” Johnson v. Dallas Co., 195 S.W.3d 853, 855 (Tex. App.—Dallas 2006, no pet.) (citing Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Further, “[p]ayments made pursuant to an employee benefit plan have been determined to be a collateral source if the benefit plan constitutes a fringe benefit for the employee, but if the primary purpose of the benefit plan is to protect the employer, then the plan is not a collateral source as against the employer.” Rentech Steel, L.L.C. v. Teel, 299 S.W.3d 155, 162 (Tex. App.—Eastland 2009, pet. dismissed) (citing multiple Texas appellate court cases supporting the same proposition).

The second paragraph of the preamble to the Performance Food Group Texas Injury Benefit Plan states that:

[T]he Company desires to establish an employee welfare benefit plan...to provide a means by which the Company and other adopting employers can protect themselves from certain liabilities as nonsubscribers to the Texas workers’ compensation insurance system by providing non-fringe...benefits with respect to any covered injury sustained by the Texas Associates in the course and scope of employment

(Dkt. #63, Exhibit 8 at p. 10). The language of the Plan indicates that its primary purpose is to protect Defendants. Further, the Plan states that it provides non-fringe benefits to its employees. Plaintiff has not offered any contrary evidence. The Plan is therefore not subject to the collateral source rule, and Defendants are entitled to an offsetting credit in the amounts paid to Plaintiff under the Plan: namely, $248,568.70 in medical expense reimbursements and $1,933.36 in wage replacement payments.

Plaintiff cites no authority for his contention that Defendants will receive a windfall if the credit is given. Further, the credit applies only to the amount awarded to Plaintiff for the two categories already paid under the plan—medical expenses and lost wages. No windfall would result if Defendants were credited with what they are entitled under the law.

CONCLUSION

It is therefore ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #63) is hereby GRANTED in part and DENIED in part.

It is further ORDERED that Plaintiff’s claims against Defendants Performance Food Group, Inc. d/b/a Performance Food Group – Customized Distribution and PFGC, Inc. are dismissed with prejudice and the Clerk’s Office shall terminate these two parties.

It is further ORDERED that Defendant Transco is entitled to receive a dollar-for-dollar credit in an amount equal to Navigator Logistics, Inc.’s settlement with Plaintiff pursuant to Texas Civil Practice and Remedies Code § 33.012. Further, Transco is entitled to receive an offsetting credit for $248,568.70 in medical expense reimbursements and $1,933.36 in wage replacement payments paid pursuant to the Plan. The offsets will be applied following a verdict by the factfinder.

The Court denies all other relief requested by Defendants.

United States District Court, E.D. Texas, Sherman Division.

Felton THOMAS, Plaintiff,

v.

PFG TRANSCO, INC.; Performance Food Group, Inc. d/b/a Performance Food Group – Customized Distribution, and PFGC, Inc., Defendants.

Civil Action No. 4:17-CV-00785

|

Signed 09/09/2019

Attorneys & Firms

David Bruce Koch, Jimmie A. Franklin, The Law Offices of Tim O’Hare, Carrollton, TX, for Plaintiff.

Jennette Elizabeth DePonte, James Eamonn Sherry, McCathern, LLP, Grace H. Sundberg, Reagan McLain & Hatch, LLP, Dallas, TX, for Defendant PFG Transco, Inc.

Jennette Elizabeth DePonte, James Eamonn Sherry, McCathern, LLP, Dallas, TX, for Defendants Performance Food Group, Inc., PFGC, Inc.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

*1 Pending before the Court is the parties’ Joint Motion to Lift Stay to Reconsider Order Referring Determination of the Gateway Issue of the Arbitrability to Arbitrator (Dkt. #47).

Having considered the Joint Motion in light of the United States Supreme Court’s recent decision in New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019), the Court finds that the parties’ Joint Motion should be GRANTED.

BACKGROUND

I. Fact Summary

On July 5, 2013, Plaintiff Felton Thomas (“Thomas”) began working as a dispatcher for Defendant PFG Transco, Inc., working out of the 500 Metro Park Drive, McKinney, Texas warehouse. According to the terms of Thomas’s employment, the parties agreed to mandatory, final, and binding arbitration of disputes for on-the-job injuries pursuant to PFG Transco Inc.’s Texas Injury Benefit Plan (the “Benefit Plan”) as a non-subscriber under the Texas Workers’ Compensation Statute. Thomas signed an acknowledgment of having agreed to mandatory arbitration of such disputes (Dkt. #7-1, Exhibit 3). Appendix A to the Benefit Plan states:

The Employer hereby adopts a mandatory company policy requiring that the following claims or disputes must be submitted to final and binding arbitration under this Appendix: (A) any legal or equitable claim or dispute relating to enforcement or interpretation of the arbitration provisions in a Receipt, Safety Pledge and Arbitration Acknowledgement form or this Appendix; and (B) any legal or equitable claim by or with respect to an Associate for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma (including, but not limited to, claims of negligence or gross negligence or discrimination; claims for intentional acts, assault, battery, negligent hiring/training/supervision/retention, emotional distress, retaliatory discharge, or violation of any other noncriminal federal, state or other governmental common law, statute, regulation or ordinance in connection with a job-related injury, regardless of whether the common law doctrine was recognized or whether the statute, regulation or ordinance was enacted before or after the effective date of this Appendix). This includes all claims listed above that an Associate has now or in the future against an Employer, its officers, directors, owners, Associates, representatives, agents, subsidiaries, affiliates, successors, or assigns.

...

The determination of whether a claim is covered by this Appendix shall also be subject to arbitration under this Appendix. Neither an Associate nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Appendix.

(Dkt. #7-1, Exhibit 1 at p. 58).

II. Procedural History

On March 25, 2018, the Court issued a Memorandum Opinion and Order staying further proceedings against Defendants PFG Transco, Inc., Performance Food Group, Inc., and PFGC, Inc. (collectively “PFG”) pending the arbitrator’s decision whether Thomas’s claims against PFG fall within the scope of the arbitration agreement (Dkt. #28). On April 3, 2019, the parties filed a joint motion to lift the stay (Dkt. #47) in light of the United States Supreme Court’s decision in New Prime v. Oliveira, 139 S. Ct. 532 (2019).

LEGAL STANDARD

*2 “The Federal Arbitration Act (“FAA”) expresses a strong national policy favoring arbitration of disputes, and all doubts concerning the arbitrability of claims should be resolved in favor of arbitration.” Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004). The FAA, “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).

When considering a motion to compel arbitration, the Court must address two questions. Graves v. BP America, Inc., 568 F.3d 221, 222 (5th Cir. 2009) (citing Fleetwood Enterprises Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002)). “First, whether there is a valid agreement to arbitrate, and second, whether the dispute in question falls within the scope of the arbitration agreement.” Id. Concerning the first question of contract validity, the Court should apply “ordinary state-law principles that govern the formation of contracts.” Id. (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). The second question of scope is answered “by applying the ‘federal substantive law of arbitrability....’ ” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)).

ANALYSIS

The parties jointly request that the Court lift the stay of the present action to reconsider its determination that the decision whether Thomas’s claims against PFG are arbitrable is for the arbitrator and not the Court. The parties argue that, according to the United States Supreme Court’s recent decision in New Prime v. Oliveira, the enforceability of an arbitration clause is a determination for the district court to make rather than an arbitrator, even when the contract in question includes a delegation provision. The Court agrees.

New Prime involved a dispute between an interstate trucking company, New Prime, and one of its drivers, Dominic Oliveira. New Prime, 139 S. Ct. at 536. Mr. Oliveira had agreed to perform work for New Prime pursuant to an agreement that contained an arbitration clause and a delegation provision giving the arbitrator authority to decide threshold questions of arbitrability. Id. Eventually, a dispute arose about whether New Prime paid its drivers lawful wages under the Fair Labor Standards Act, which gave rise to a class action lawsuit against New Prime in federal district court. Id. In that action, New Prime asked the district court to compel arbitration under the Federal Arbitration Act (“FAA”) according to the terms of the parties’ agreement. Id.

The district court declined to compel arbitration, holding that despite the delegation clause, the applicability of the transportation workers exclusion to § 1 of the FAA is a threshold inquiry for the district court that cannot be delegated to the arbitrator. Id. at 537. The First Circuit agreed. Id. The Supreme Court then affirmed unanimously,1 holding that before invoking its statutory authority under the FAA to stay litigation and order arbitration, the district court must first know whether the contract itself falls within or beyond the boundaries of §§ 1 and 2. Id.

Here, there is clearly a dispute about whether Thomas’s claims against PFG fall within the scope of the arbitration agreement. Indeed, the Court recognized as much in its March 25, 2018 Memorandum Opinion and Order (Dkt. #28), declining to take a position on the enforceability of the arbitration clause and staying the case until the arbitrator made that determination. In light of New Prime, however, the Court withdraws its determination that the scope of the arbitration clause with regard to Thomas’s claims against PFG should be determined by the arbitrator; instead, the Court will resolve the matter itself after appropriate briefing by the parties.

CONCLUSION

*3 It is therefore ORDERED that the parties’ Joint Motion to Lift Stay to Reconsider Order Referring Determination of the Gateway Issue of the Arbitrability to Arbitrator (Dkt. #47) is GRANTED. The stay ordered on March 25, 2018 is hereby lifted and the parties are permitted to submit briefing on the question whether the arbitration provision is enforceable.

IT IS SO ORDERED.

Footnotes

1

The Supreme Court affirmed 8-0, with Justice Kavanaugh taking no part in the consideration or decision of the case.

United States District Court, E.D. Texas, Sherman Division.

Jorge MOCTEZUMA, et al., Plaintiffs,

v.

Dion ISLAS, d/b/a Advanced Electric d/b/a MI Skyler Construction and Custom Homes, Defendant.

CIVIL ACTION NO. 4:18-CV-00342-ALM-CAN

|

Signed 04/26/2019

Attorneys & Firms

Shana Hope Khader, Equal Justice Center, Dallas, TX, Christopher Joseph Willett, Equal Justice Center, Austin, TX, for Plaintiffs.

Dion Islas, Corinth, TX, pro se.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE

*1 Pending before the Court are Defendant Dion Islas’s (“Defendant”) Motions to Dismiss [Dkts. 23; 36]. After reviewing the Motions to Dismiss, Plaintiffs Jorge Moctezuma (“Moctezuma”) and Jesus Garcia’s (“Garcia”) Responses [Dkts. 28; 40], and all other relevant filings, the Court recommends that the Motions to Dismiss be DENIED, as set forth herein.

BACKGROUND

On May 10, 2018, Moctezuma and Garcia (collectively, “Plaintiffs”) filed a Complaint alleging that Defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. and the Texas Minimum Wage Act (“TMWA”), and breached employment contracts under state law [Dkt. 1 at 1].1 Plaintiffs’ Complaint alleges that Defendant failed to satisfactorily pay Plaintiffs for performing construction and electrical services on two projects in North Texas that spanned an approximately five-week period in February and March of 2017 [Dkt. 1 at 1]. Plaintiffs aver that Defendant failed to pay Plaintiffs: (1) wages “for most of the work they performed;” and (2) overtime wages “for hours worked in excess of 40 hours per week” [Dkt. 1 at 1]. Plaintiffs state that Defendant “entered into employment contracts” with them and maintain that they were Defendant’s employees during the entire relevant period [Dkt. 1 at 3]. In support, Plaintiffs attest that Defendant supervised and exercised control over their work through actions, such as “setting [their] hourly wage rates, providing a company vehicle, providing materials and reviewing and approving orders for additional materials, and controlling [their] work schedules, including requiring [them] to work late into the evening” [Dkt. 1 at 4-5]. Plaintiffs indicate that they generally worked under Defendant for 10 to 15 hours per day, four to six days per week, and that during some weeks, they worked “up to 65 to 80 hours, as required by Defendant” [Dkt. 1 at 3]. Plaintiffs further assert that Defendant agreed to compensate Moctezuma at an hourly rate, and separately agreed to pay Garcia on a piece-rate basis for a portion of his labor [Dkt. 1 at 3]. Plaintiffs allege, however, that Defendant provided only partial payment for their first week of employment and that Defendant entirely failed to pay them for their work over the remaining four weeks [Dkt. 1 at 3]. Plaintiffs claim that Defendant breached their employment contracts through such failure to compensate [Dkt. 1 at 4]. Moreover, Plaintiffs claim that such failure further violated the federal and state minimum wage requirements in violation of the FLSA and TMWA, as well as the FLSA’s obligatory overtime provision for forty-plus hour workweeks [Dkt. 1 at 4]. Finally, Plaintiffs aver that Defendant “failed to maintain and preserve complete and accurate records” of their hours worked and wages received, as required by the FLSA and TMWA [Dkt. 1 at 5].

*2 Defendant, acting pro se, filed his first Motion to Dismiss on October 26, 2018, seeking to dismiss Plaintiffs’ claims for failure to state a claim [Dkt. 23]. Plaintiffs filed a Response on November 16, 2018 [Dkt. 28]. Rather than filing a reply, Defendant filed a second Motion to Dismiss on December 17, 2018 [Dkt. 36]. Defendant’s second Motion to Dismiss, which supersedes the First Motion to Dismiss,2 avers Plaintiffs have failed to state a claim because: (1) Plaintiffs were not employees of Defendant; and (2) Defendant adequately compensated Plaintiffs for their services as subcontractors [Dkt. 36 at 3]. Defendant asserts Plaintiffs are independent contractors per subcontractor non-disclosure and non-compete agreements, a subcontractor residential agreement, and Texas Workers Compensation Commission documents [Dkt. 36 at 3]. In Response, Plaintiffs contend they have adequately pleaded that: (1) Plaintiffs were employees of Defendants; (2) Defendant failed to fully compensate Plaintiffs for work performed pursuant to their employment contracts and the FLSA and TMWA; and (3) Plaintiffs cannot waive their rights to minimum wage or overtime wages under the FLSA and/or TMWA [see Dkt. 40].3

LEGAL STANDARD

Defendant moves to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. A 12(b)(6) motion to dismiss argues that irrespective of jurisdiction, the complaint fails to assert facts that give rise to legal liability of the defendant. The Federal Rules of Civil Procedure require that each claim in a complaint include “a short and plain statement ... showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The claims must include enough factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. It follows, that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’ ” Id. (quoting Fed. R. Civ. P. 8(a)(2)).

*3 In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency of a complaint in the context of a Rule 12(b)(6) motion. First, the Court identifies conclusory allegations and proceeds to disregard them, for they are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 681. Second, the Court “consider[s] the factual allegations in [the complaint] to determine if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the necessary claims or elements.” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009). This evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. The Court must accept as true all well-pleaded facts contained in Plaintiffs’ Complaint and view them in the light most favorable to Plaintiffs. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

When considering a motion to dismiss, 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) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)).

ANALYSIS

Plaintiffs’ Complaint asserts four causes of action against Defendant: (1) violation of the FLSA’s overtime provision; (2) violation of the FLSA’s minimum wage provision; (3) violation of the TMWA’s minimum wage provision; and (4) breach of contract [Dkt. 1].

FLSA Claims

Plaintiffs assert that Defendant violated the FLSA’s minimum wage and overtime provisions [Dkt. 1]. To state a claim for unpaid overtime or minimum wages under the FLSA, “Plaintiff[ ] must show by a preponderance of the evidence: ‘(1) that there existed an employer-employee relationship during the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage of the FLSA; (3) that the employer violated the FLSA’s overtime [or minimum] wage requirements; and (4) the amount of overtime [or minimum wage] compensation due.’ ” Beck v. Access eForms, LP, No. 4:16-cv-00985, 2018 WL 295414, at *3 (E.D. Tex. Jan. 4, 2018) (quoting Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014)); Williams v. Superior Hospitatlity Staffing, Inc., No. 18-2793, 2019 WL 118013, at *2 (E.D. La. Jan. 7, 2019) (indicating that the pleading requirements under the overtime and minimum wage provisions of the FLSA are the same). Defendant raises two arguments as to why Plaintiff’s FLSA claims should be dismissed: (1) Plaintiffs were not employees; and (2) Defendant paid Plaintiffs in full.

Employer-Employee Relationship

“A plaintiff bears the burden of establishing that he is an employee under the FLSA.” Devore v. Lyons, No. 3:16-cv-01083-BN, 2016 WL 6277810, at * (N.D. Tex. Oct. 25, 2016) (citing Sobrinio v. Med. Ctr. Visitor’s Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007)). The FLSA defines “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e). Because of the circular nature of that definition, the United States Supreme Court has provided a practical test for determining whether a specific individual is an “employee” for FLSA purposes by stating that “employees are those who as a matter of economic reality are dependent upon the business to which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130 (1947); see also Usery v. Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1311 (5th Cir. 1976). “The definition of employee under the FLSA is particularly broad.” Faulkner v. Patternson-UTI Drilling Co., LLC, Nos. 6:12-cv-104, 6:12-cv-219, 2014 WL 12567150, at *1 (E.D. Tex. Jan. 30, 2014) (quoting Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008)).

*4 Similarly, in order to establish that Defendant is bound by FLSA requirements, Plaintiffs must also adequately plead that Defendant is their “employer.” See Blundell v. Lassiter, No. 3:17-CV-1990-L-BN, 2018 WL 6738046, at *4 (N.D. Tex. May 21, 2018) (quoting Donovan v. Grim Hotel Co., 747 F.2d 966, 971 (5th Cir. 1984) (“To be bound by the requirements of the Fair Labor Standards Act, one must be an ‘employer.’ ”) (citing 29 U.S.C. §§ 206-207)). The FLSA defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 209(d). The Fifth Circuit has explained that the “remedial purposes of the FLSA require the courts to define ‘employer’ more broadly than the term would be interpreted in traditional common law applications.” McLaughlin v. Seafood, Inc., 867 F.2d 875, 877 (5th Cir. 1989). The Fifth Circuit has approved the use of the “economic realities” test to determine who is an employer under the FLSA. Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010); McNeal v. Markum Enters., LLC, No. 6:16-cv-118-RWS-KNM, 2017 WL 4249402, at *4-5 (E.D. Tex. Aug. 29, 2017) (“Whether an entity is an employer for the purpose of the FLSA turn on the ‘economic reality’ of the working relationship.”) (internal quotations and citations omitted).

To determine whether an individual or entity is an employer, a court considers whether the alleged employer: (1) possessed the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records. Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012) (quoting Williams, 595 F.3d at 620). “The fact that a worker and [his] employer used an ‘independent contractor’ label does not determine the outcome of the economic realities test or the application of the FLSA.” Coronado v. D N.W. Hous., No. H-13-2179, 2014 WL 2779548, at*3 (S.D. Tex. 2014). Indeed, because employer-employee status is based on the economic realities of the relationship, the subjective beliefs of the alleged employee or employer are irrelevant to a worker’s status. See Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1049 (5th Cir. 1987). “Moreover, the determination of an employment relationship ‘does not depend on ... isolated factors but rather upon the circumstances of the whole activity.’ ” Devore, 2016 WL 6277810, at *7 (quoting Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)); Faulkner, 2014 WL 12567150, at *1 (“No factor is determinative; rather, the totality of the factors must indicate economic dependence of the alleged employee on the employer.”).

As an initial matter, the Court finds that Defendant’s labeling of Plaintiffs as independent contractors is irrelevant. See Cook v. Mississippi Farm Bureau Cas. Ins. Co., 1:18-CV-0076-GHD-DAS, 2018 WL 5929629, at *2 (N.D. Miss. Nov. 13, 2018) (“The ‘label’ that each party may apply to the individual in the course of their working relationship does not matter. Despite Defendants assertions, then, it is irrelevant that Cook entered into agreements that stated he would be an ‘independent contractor.’ ”) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 729 (1947) (“Where the work done, in its essence, follows the usual path of an employee, putting on an ‘independent contractor’ label does not take the worker from the protection of [FLSA].”)). Instead, considering the economic realities of Plaintiffs and Defendant’s relationship, Plaintiffs have adequately pleaded at this stage of the litigation the existence of an employee-employer relationship. Plaintiffs assert that Defendant hired them, set their wages, promised hourly pay, and at Defendant’s direction, Plaintiffs worked, and often exceeded, a full time forty-hour work week [Dkt. 1 at 3-4]. Plaintiffs further aver that Defendant exercised control over the terms and conditions of their employment by “setting [their] hourly wage rates, providing a company vehicle, providing materials and reviewing and approving orders for additional materials, and controlling Plaintiffs’ work schedules including requiring Plaintiffs to work later into the evening,” as well as supervising the work they actually performed [Dkt. 1 at 4-5]. Taken as true, these allegations suffice for the Court to draw the reasonable inference that Defendant was Plaintiffs’ employer under the FLSA and that Plaintiffs are employees. See Blundell, 2018 WL 6738046, at *5.

*5 Similar allegations to these have been found by other courts sufficient to survive a motion to dismiss. See, e.g., McCollim v. Allied Custom Homes, Inc., No. H–08–3754, 2009 WL 1098459 at *3 (S.D. Tex. April 23, 2009) (denying defendants’ motion to dismiss where they moved to dismiss on the ground that the plaintiff failed to allege detailed facts that would establish that she was an employee rather than an independent contractor); Cook, 2018 WL 5929629 at *3-4 (holding plaintiff sufficiently plead employee-status by alleging that defendant controlled ability to fire plaintiff, set his work schedule, tracked when plaintiff worked, plaintiff was required to follow a code of conduct, and controlled how plaintiff could offer services); Blundell, 2018 WL 6738046, at *4.4

FLSA Coverage

“A plaintiff may establish the second element by showing that he was ‘employed in an enterprise engaged in commerce or in the production of goods for commerce.’ ” Calixtro-Calixtro v. Estate of Hodges, No. 1:17-CV-394, 2018 WL 5839690 (W.D. Tex. Nov. 11, 2018) (quoting Sobrinio v. Med. Ctr. Visitor’s Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007) (per curiam) (citing 29 U.S.C. § 207(a))); Haynes v. Viking Drilling, LLC, No. 1:15-CV-00396-LY-ML, 2015 WL 11423655, at *2 (W.D. Tex. Sept. 8, 2015), report and recommendation adopted, No. 1:15-CV-396-LY, 2015 WL 11430841 (W.D. Tex. Oct. 2, 2015) (citing Lindgren v. Spears, Civil Action No. H-10-1929, 2010 WL 5437270, at *3 (S.D. Tex. Dec. 27, 2010) (holding that FLSA coverage must be alleged because it is an element of the claim)). The FLSA defines an “enterprise engaged in commerce or in the production of goods for commerce” as one that “has employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and is an enterprise whose annual gross volume of sales made or business done is not less than $ 500,000 (exclusive of excise taxes at the retail level that are separately stated).” 29 U.S.C. § 203(s)(1)(A). “Commerce,” under the FLSA, “means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C. § 203(b).

Here, Plaintiffs assert that Defendant is an enterprise engaged in commerce within the meaning of the FLSA because Defendant’s annual gross volume of sales exceeds $ 500,000, exclusive of excise taxes at the retail level which are separately stated, and Defendant’s employees handle goods (including construction goods such as cables, lamps, switches, outlet, ladders, and fans imported from other countries and/or states) that have been moved or produced from other countries and states [Dkt. 1 at 4]. See 29 U.S.C. § 203(s)(1); see also Haynes, 2015 WL 11423655, at *2 (finding plaintiff sufficiently alleged defendant’s enterprise coverage by asserting workers handled or worked on goods/equipment that were produced outside of Texas and/or the United States and plaintiff believed defendant had gross volume of sales of not less than $ 500,000.00); Ecoquij-Tzep v. Le Arlington, Inc., No. 3:16-cv-625-BN, 2017 WL 6527317, at *7 (N.D. Tex. Dec. 21, 2017) (finding that the plaintiffs’ identification of specific goods and materials that allegedly traveled through interstate commerce and were handled in the defendants’ business was sufficient to plead the first prong of enterprise coverage); Landeros v. Fu King, Inc., 12 F. Supp. 3d 1020, 1025 (S.D. Tex. 2014) (“Plaintiffs’ allegation that these materials had previously been moved in or produced for commerce suffices at this stage of the litigation to complete the statutory fit and plausibly bring Defendants within FLSA coverage under the handling clause.”). Plaintiff’s allegations are sufficient, at this stage of the litigation, to state a claim for relief.

Allegations of Wages Paid/Hours Worked

*6 Lastly, under the FLSA’s minimum-wage provision, an employer must pay an employee at least $ 7.25 per hour. 29 U.S.C. § 206(a)(1). And under the overtime provision, an employer must pay all non-exempt employees that work more than 40 hours in one workweek one and one-half time the employee’s regular-hourly-wage for all excess hours. 29 U.S.C. § 207(a). In the instant case, Plaintiffs allege that they worked 10 to 15 hours per day for four to six days per week, often working up to 65 to 80 hours per week [Dkt. 1 at 3-4]. Plaintiffs further assert Plaintiffs were provided with only partial payment for the first week of their employment (approximately February 2017), and for approximately four weeks following, Plaintiffs were paid nothing at all for the work they performed [Dkt. 1 at 3-4]. Plaintiffs adequately pleaded that they were paid less than minimum wage and paid no overtime. See Blundell, 2018 WL 6738046, at *12 (N.D. Tex. May 21, 2018); see also Howard v. John Moore, LP, No. Civ. A. H-13-1672, 2014 WL 1321844, at *3 (S.D. Tex. Mar. 31, 2014) (“Plaintiff has provided sufficient factual allegations by describing being paid ‘below the minimum wage (or [paid] nothing at all).’ ”). Moreover, Defendant has not attempted to show that Plaintiffs are exempt from either the wage or overtime provisions of the FLSA. See 29 U.S.C. § 213(b)(12); Beck v. Access eForms, LP, 4:16-CV-00985, 2018 WL 295414, at *3 (E.D. Tex. Jan. 4, 2018) (“If the employer claims that the employee is exempt from the overtime requirement, the burden rests with the employer to prove that they employee falls within the exempted category.”) (citing Johnson, 758 F.3d at 630) (citing Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001)).

In sum, Plaintiffs allege facts sufficient to state a claim upon which relief can be granted under the FLSA.5

TMWA Claim

Plaintiffs also assert a claim under the TMWA, which requires that employers pay employees the federal minimum wage. A person covered by the FLSA’s minimum wage provisions may not also recover under Texas law; however, “[t]he pleading of alternative theories is expressly permitted by Federal Rule of Civil Procedure 8(d)(2).” Sandles v. Wright, No. 1:12-cv-309, 2013 WL 5497788, at *8 (E.D. Tex. Oct. 3, 2013) (internal quotations and citations omitted) (finding dismissal of plaintiff’s TMWA claim inappropriate at summary judgment stage as plaintiff can plead alternative theories of recovery); Orozco v. Plackis, No. A-11-CV-703-LY, 2012 WL 2577522, at *9 (W.D. Tex. July 3, 2012) (declining to dismiss plaintiff’s TMWA claim where defendant alleged he was not a proper defendant under the FLSA). Moreover, given that Defendant asserts that the FLSA is inapplicable to this case, it is appropriate for Plaintiffs to pursue this alternative claim.

Pursuant to the TMWA, a plaintiff has the burden to show that: (1) Plaintiff is or has been employed by the defendant at any time during the two years preceding the institution of the action; (2) the original petition filed by or on behalf of the plaintiff is verified; and (3) the defendant failed to pay the plaintiff minimum wage. Tex. Labor Code § 62.204. Plaintiffs have alleged sufficient facts to place Defendant on notice of their claim under the TMWA; Plaintiffs allegations are sufficient to withstand dismissal. Sandles v. Wright, 2013 WL 5497788, at *9-10.

Breach of Contract Claim

The next question is whether Plaintiffs’ breach of contract claims should be dismissed.6 To succeed on a breach of contract claim under Texas law, a plaintiff must show: “(1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Sport Supply Grp., Inc. v. Columbia Casualty Co., 335 F.3d 453, 465 (5th Cir. 2003).

*7 According to Plaintiffs in their Complaint, Defendant employed Plaintiffs and agreed to pay wages to Moctezuma at an hourly rate for work performed and further agreed to pay Garcia on a piece-rate basis for a portion of the labor [Dkt. 1 at 3]. Plaintiffs aver that in spite of the agreement, “Defendant did not compensate Plaintiffs at the agreed rates of pay” [Dkt. 1 at 3]. According to Plaintiffs, Plaintiffs worked more than forty hours per week on a routine basis regularly working between 65 to 80 hours per week, as required Defendant [Dkt. 1 at 3].

The Court finds that Plaintiffs have sufficiently alleged their breach of contract claim. Plaintiffs have alleged that: (1) Defendant entered into employment contracts with Plaintiffs, and under those contracts, was obligated to pay Plaintiffs wages on an hourly rate and/or piece-rate basis; (2) Plaintiffs performed under the contracts—specifically, working in excess of forty (40) hours a week regularly; (3) Defendant breached the employment contracts by failing to fully compensate Plaintiffs; and (4) Plaintiffs sustained damages by not receiving payment for work performed. See Zamalloa v. Thompson Landscape Servs., Inc., No. 4:17-cv-00519-ALM-KPJ, 2018 WL 3032677, at *5 (E.D. Tex. May 3, 2018) (concluding plaintiffs’ breach of contract claim was sufficiently pleaded where “Plaintiffs allege[d] that Defendants entered into employment contracts with Plaintiffs and, under those contracts, were obligated to pay Plaintiffs the promised prevailing wage rate for all hours worked ... [and] Plaintiffs allege[d] that Defendants breached those contracts when they failed to pay Plaintiffs the promised rate for all hours worked”) (Priest-Johnson, J.), report and recommendation adopted by, No. 4:17-cv-00519-ALM-KPJ, 2018 WL 2928083 (E.D. Tex. June 12, 2018) (Mazzant, J.); Calixtro-Calixtro, 2018 WL 5839690, at *4 (finding breach of contract claim sufficiently pled under Texas law); Doan v. Portable Prod. Services, LP, CIV.A. H-11-0261, 2011 WL 2038580, at *4 (S.D. Tex. May 19, 2011). Plaintiffs have offered more than “naked assertions devoid of further factual enhancement” or “unadorned, the-defendant-unlawfully-harmed-me-accusations.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At this stage in the litigation, Defendant has been sufficiently put on notice of the grounds upon which Plaintiffs’ Complaint rests, such that dismissal under Rule 12(b)(6) would be improper.

CONCLUSION AND RECOMMENDATION

Based on the foregoing, it is recommended that Defendant’s First Motion to Dismiss be DENIED AS MOOT [Dkt. 23], and Defendant’s Second Motion to Dismiss be DENIED [Dkt. 36].

Within fourteen (14) days after service of the magistrate judge’s report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

Footnotes

1

Plaintiffs’ suit originally included an additional plaintiff, Pedro Hernandez; the Court dismissed Hernandez’s claims without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for his failure to comply with the Court’s Orders and to diligently prosecute his case [see Dkt. 49]. Only Plaintiffs Moctezuma and Garcia remain in this action [see Dkt. 49].

2

Defendant’s First Motion to Dismiss is superseded by his Second Motion to Dismiss; as such, the Court denies the First Motion to Dismiss as moot. See Robinson v. RWLS, LLC, No. 5:16-cv-201-OLG-JWP, 2016 WL 9308525, at *1 (W.D. Tex. Sept. 16, 2016) (denying first motion to dismiss as moot and taking up and granting in part second motion to dismiss); Larkin v. UnitedHealthCare Ins. Co., No. 17-2061, 2017 WL 4390418, at *2 (E.D. La. Oct. 3, 2017) (“Because defendant’s two motions make the same arguments and seek the same relief, the Court finds that defendant’s first motion to dismiss is moot.”). The Court further notes that attached to the First Motion to Dismiss is an affidavit [Dkt. 23-1]. A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6) context include attachments to the complaint. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Documents “attache[d] to a motion to dismiss are considered to be part of the pleadings, if they are referred to in the plaintiff’s complaint and are central to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). “Although the ... Fifth Circuit has not articulated a test for determining when a document is central to a plaintiff’s claims, the case law suggests that documents are central when they are necessary to establish an element of one of the plaintiff’s claims.” “However, if a document referenced in the plaintiff’s complaint is merely evidence of an element of the plaintiff’s claim, then the court may not incorporate it into the complaint.” Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011). As Defendant’s Affidavit is not a part of the pleadings and is not referenced in Plaintiff’s Complaint, the Court cannot consider such record at this juncture. The Court notes however, that much of what is discussed in Defendant’s Affidavit is later alleged in the Second Motion to Dismiss [compare Dkts. 23-1 with 36].

3

Plaintiffs additionally assert that to the extent Defendant moves to dismiss Plaintiffs’ Complaint on the basis that they have not complied with the scheduling order, the Court should deny the motion as Plaintiffs have complied by timely filing and serving their responses to the Court’s interrogatories on Defendant [Dkt. 28 at 7]. To the extent Defendant moves for dismissal on such argument, the Motion to Dismiss should be denied.

4

Moreover, definitively determining Plaintiffs’ employee status is a fact intensive inquiry that is more appropriately addressed at the summary judgment stage. See Dixon v. Local Express, Inc., No. 4:16-cv-2081, 2017 WL 2778245, at *2 (S.D. Tex. June 26, 2017) (holding that “it would be premature to dismiss [FLSA claim] ... as the Court cannot adequately ascertain whether the defendant is an ‘employer’, and the Plaintiff an ‘employee’ as those terms are defined under the FLSA”).

5

The Court notes that generally claims brought under the FLSA cannot be waived, and therefore, to any extent Defendant moves for dismissal on such basis, the Motion to Dismiss should be denied. See Bodle v. TXL Mortg. Corp., 788 F.3d 159, 164-65 (5th Cir. 2015) (“The general rule establishes that FLSA claims ... cannot be waived.”) (citing Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706-08 (1945)).

6

“The Fifth Circuit has not published an opinion concerning whether the FLSA preempts state law claims—such as contract, quantum meruit, unjust enrichment, or fraud—that are premised on an alleged violation of the FLSA.” Aponte v. Texas Health Presbyterian Hospital, No. 4:15-cv-00422, 2016 WL 11472649, at *6 (E.D. Tex. Nov. 7, 2016). However, “the majority view is the FLSA does not preempt state-law based wage and hour claims that are not duplicative of the FLSA claims.” Id. at n.1.

United States District Court, E.D. Texas, Tyler Division.

Akia STANTON, Plaintiff,

v.

JARVIS CHRISTIAN COLLEGE, Defendant.

CIVIL ACTION NO. 6:18-CV-00479-JDK

|

Signed January 25, 2019

Attorneys & Firms

Katherine Elvira Britton, Law Office of Katherine Britton, Dallas, TX, for Plaintiff.

Maurice Owens, Jr., Owens PLLC, DeSoto, TX, for Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE

*1 Before the Court is Defendant Jarvis Christian College’s (“Defendant” or “Jarvis”) Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(c). (Doc. No. 11.) Plaintiff Akia Stanton (“Plaintiff” or “Ms. Stanton”) has filed a response (Doc. No. 21), to which Jarvis has filed a reply (Doc. No. 23). Upon consideration of the parties’ arguments, the Court RECOMMENDS that Jarvis’s Motion (Doc. No. 11) be DENIED-IN-PART and GRANTED-IN-PART as set forth herein.

BACKGROUND

On September 10, 2018, Plaintiff Akia Stanton filed this action against Defendant Jarvis. (Doc. No. 1.) Plaintiff alleges claims of (1) sex discrimination and retaliation pursuant to 42 U.S.C. § 2000e-(2)(a); (2) Family Medical Leave Act (“FMLA”) interference; (3) FMLA retaliation; (4) libel; and (5) negligent supervision, training, and retention. (Doc. No. 1.)

Plaintiff Akia Stanton was formerly employed by Jarvis as the Head Women’s Basketball Coach from August 2014 to July 2018. (Doc. No. 1, at ¶ 14.) Plaintiffs allegations arise out of her time employed by Jarvis as the Head Women’s Basketball coach. Specifically, Plaintiff alleges that during her first year of coaching, Jarvis’s Vice President of the dorms, Dr. Chaney, made a pass at Plaintiff after a game by texting her, “you sure look good in that dress,” which Plaintiff alleges she reported to her immediate supervisor, Dr. Friar. Id. at ¶ 25. Plaintiff contends that she also reported this text message to the Director of Athletics, Bobby Ladner, who “responded that if he were younger that he would have ‘shot his shot too,’ or would have attempted to date Plaintiff as well.” Id. at ¶ 43. Plaintiff alleges that “on or about Wednesday January 10, 2018, Plaintiff came to Cynthia Hollman-Stancil, the Chief of Staff, Executive Assistant, Director of Administrative Management Programs and Director of Title III, and reported Mr. Ladner’s treatment, his comment about Plaintiff’s looks, his comment supporting Dr. Chaney’s 2014 text message, and reported that Mr. Ladner would “adjust and/or scratch his crotch ‘continuously’ around Plaintiff’s team members and in Plaintiff’s presence but not around male staff.” Id. at ¶ 47. Plaintiff contends that thereafter she filed a charge of discrimination in person at the Equal Employment Opportunity Commission’s (“EEOC”) office in Dallas, Texas on or about February 13, 2018. Id. at ¶ 51. Plaintiff alleges that Jarvis received Plaintiff’s EEOC charge on February 21, 2018, and that on March 2, 2018, Mr. Ladner was overheard saying to athletes’ parents that he is trying to find any reason to fire Plaintiff. Id. at ¶¶ 55, 56.

Plaintiff alleges that after a campus-wide meeting on June 8, 2018, she experienced an anxiety and/or panic attack. Id. at ¶ 76. Plaintiff saw her doctor and was issued a two-week release from work from June 8, 2018 to June 25, 2018 from her doctor’s office. Id. Plaintiff alleges that on that same date she gave her doctor’s release from work to the Director of Admissions, Mr. Wooten, as well as Dr. Singleton, the Director of Human Resources and Professional Development. Id. at ¶ 77. On June 15, 2018, Dr. Singleton emailed Plaintiff informing Plaintiff that more information was needed to approve her FMLA leave request, and attaching a FMLA form for Plaintiff and her healthcare provider to complete. Id. at ¶ 79. Plaintiff alleges that her doctor’s office faxed the completed FMLA form to Dr. Singleton’s attention on that same day. Id. at ¶ 80. Plaintiff alleges that she emailed Dr. Singleton on June 18, 2018 to inquire as to the status of her FMLA leave and Dr. Singleton responded on June 20, 2018 stating that her FMLA paperwork was “insufficient” and “too vague and ambiguous to make a determination at the time regarding your leave request,” and instructed her to submit a revised form in seven days. Id. at ¶ 83. Plaintiff alleges that further communications were had regarding what was needed and that Plaintiff’s healthcare provider was out of the office until June 28, 2018. Id. at ¶ 84. Plaintiff alleges that on June 29, 2018, she was sent an email, without prior warning, stating that she was fired because she cleaned out her office, destroyed property, documents, and stole Jarvis’s property. Id. at ¶ 85.

*2 Based on these allegations, Jarvis has moved to dismiss all of Plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(c). (Doc. No. 11.)

LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The standard for dismissal under Rule 12(c) is the same as that for dismissal for failure to state a claim under Rule 12(b)(6). Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). Motions to dismiss under Rule 12(b)(6) for failure to state a claim “are viewed with disfavor and are rarely granted.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570 (5th Cir. 2005); Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). The Court utilizes a “two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, the Court identifies and excludes legal conclusions that “are not entitled to the assumption of truth.” Id. Second, the Court considers the remaining “well-pleaded factual allegations.” Id. The Court must accept as true all facts alleged in a plaintiff’s complaint, and the Court views the facts in the light most favorable to a plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff’s complaint survives a defendant’s Rule 12(b)(6) motion to dismiss if it includes facts sufficient “to raise a right to relief above the speculative level.” Id. (quotations and citations omitted).

In other words, the Court must consider whether a plaintiff has pleaded “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). “ ‘[D]etailed factual allegations’ ” are not required. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Nevertheless, a complaint must allege “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950.

DISCUSSION

A. Title VII Claims

Jarvis moves to dismiss Plaintiff’s Title VII claims because Jarvis contends that she failed to exhaust her administrative remedies. (Doc. No. 11, at 10.) Specifically, Jarvis argues that Plaintiff did not file her sex discrimination and harassment claims with the EEOC and only filed claims for wage disparity and overall quality of life between the male and female basketball teams in her charge. Id. at 12. Jarvis further dissects Plaintiff’s Title VII claims and contends that condescending language is not a basis for a cognizable claim under Title VII, that no facts support a retaliation claim because Plaintiff’s facts allege her employment contract was renewed after she filed a charge with the EEOC, and that any allegation prior to April 19, 2017 is time barred because the charge must be filed within 300 days of when the alleged unlawful practice occurred. Id. at 13–14. Plaintiff contends that her EEOC charge properly included her Title VII claims because it identified her January 11, 2018 meeting and boxes for “sex” and “retaliation” were checked. (Doc. No. 21, at 13.) Plaintiff contends that Jarvis mischaracterizes her claim and that the fulcrum of her allegations is the protected activity that occurred on January 11, 2018 and her charge was within the 300-day deadline. Id. Plaintiff further contends that she has alleged facts to support retaliation because she filed a charge on February 21, 2018, and on March 2, 2018, Mr. Ladner was overheard telling players’ parents that he was going to fire Plaintiff and she was fired four months later. Id. at 14.

a. Exhaustion of Administrative Remedies Pertaining to Sexual Harassment and Discrimination Claims

*3 It is well-settled in the Fifth Circuit that “employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court. Exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue.” Taylor v. Books A311 f.supp.2d 573 Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002). “Courts should not condone lawsuits that exceed the scope of EEOC exhaustion, because doing so would thwart the administrative process and peremptorily substitute litigation for conciliation.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (citing Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir. 2006) ).

“Nevertheless, competing policies underlie judicial interpretation of the exhaustion requirement.” Id. “On one hand, the scope of an EEOC charge should be liberally construed for litigation purposes because Title VII ‘was designed to protect the many who are unlettered and unschooled in the nuances of literary draftsmanship.’ ” Id. (internal citations omitted). “On the other hand, the ‘primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in [an] attempt to achieve non-judicial resolution of employment discrimination claims.’ ” Id. (citing Pacheco, 448 F.3d at 788–89).

To reconcile these policies, the Fifth Circuit construes an EEOC complaint “broadly but in terms of the administrative EEOC investigation that ‘can reasonably be expected to grow out of the charge of discrimination.’ ” Id. The Fifth Circuit conducts a “ ‘fact-intensive analysis’ of the administrative charge that looks beyond the four corners of the document to its substance.” Id. A Title VII lawsuit may therefore include allegations “like or related to allegation[s] contained in the [EEOC] charge and growing out of such allegations during the pendency of the case before the Commission.” Id.

Several district courts in the Eastern District of Texas have applied these principles to either disallow or allow a variety of claims not raised in the EEOC charge. See, e.g., Harvill v. Westward Commc’ns, LLC, 311 F.Supp.2d 573, 585 (E.D. Tex. 2004) (refusing to allow a constructive discharge claim that was not asserted in the EEOC charge); Brooks v. Firestone Polymers, LLC, 70 F.Supp.3d 816, 841–42 (E.D. Tex. 2014) (plaintiff was foreclosed from pursuing a “failure to promote due to disability” claim where he failed to mention or allude to any facts in the charge that would have put the EEOC on notice of his disability discrimination claim); see also Jefferson v. Christus St. Joseph Hosp., 374 F. App’x. 485, 490 (5th Cir. 2010) (affirming district court’s ruling that certain claims were unexhausted where plaintiffs failed to either check the appropriate box on the EEOC form or describe the discriminatory conduct in the charge); but cf. Gallentine v. Hous. Auth. of City of Port Arthur, Tex., 919 F. Supp. 2d 787, 798 (E.D. Tex. 2013) (defendant’s motion to dismiss for failure to exhaust claims was denied where allegations of race discrimination in the charge and those in her complaint were generally similar enough to exhaust administrative remedies even though plaintiff’s complaint mentioned some incidents not included in her EEOC charge); Sellers v. BNSF Ry. Co., No. 1:11-CV-190, 2013 WL 1181458, at *7–8 (E.D. Tex. Mar. 18, 2013) (alleged discrimination and retaliation in 2008 could reasonably be expected to grow out of plaintiff’s allegations regarding discrimination and retaliation brought forth in 2007 where claims involved the same supervisor responding to similar rule violations occurring within a short period of time).

*4 In her charge, Plaintiff checked the “sex” “retaliation” and “other” discrimination boxes and alleged the following personal harm:

a. On Tuesday, November 28, 2018, I complained to Athletic Director, Mr. Bobby Ladner, about the disparities in the wages and overall quality of life between the Female basketball team and the Male basketball team, but nothing was done.

b. On Thursday, January 11, 2018 [sic], I complained to Ms. Cynthia Stancil, Chief of Staff, and Daphene Singleton, Director of Human Resources, regarding the disparities in the wages and overall quality of life between the Female basketball team and the Male basketball team, and about the way that Mr. Ladner speaks to me in a condescending manner, but nothing was done.

c. All Male Coaches are provided with Assistant Coaches while Female Coaches are not. In addition, members of the Men’s basketball program are provided with more per diem funding than members of the Women’s basketball program.

(Doc. No. 11-1, at 4.)1

Here, Plaintiff’s EEOC charge does not expressly discuss the 2014 text message and conduct of Mr. Ladner she contends is the “fulcrum” of her Title VII harassment claim. Id. Plaintiff contends that by referring to the January 11, 2018 meeting and checking the “sex” “retaliation” and “continuing action” boxes she has sufficiently included her harassment allegation in her EEOC charge. (Doc. No. 21, at 13.) Notably, in her complaint, Plaintiff does not reference a January 11, 2018 meeting, but does allege facts pertaining to a meeting on January 10, 2018 involving Mrs. Stancil and Dr. Singleton. (Doc. No. 1, at ¶ 47.) Specifically, these allegations state as follows:

On or about Wednesday January 10, 2018, Plaintiff came to Mrs. Stancil and reported Mr. Ladner’s treatment, his comment about Plaintiff’s looks, his comment supporting Dr. Chaney’s 2014 text message, and report that Mr. Ladner would adjust and/or scratch his crotch “continuously” around Plaintiff’s team members and in Plaintiff’s presence but not around male staff. Ms. Stancil called Dr. Singleton into the meeting. Ms. Stancil and Dr. Singleton told Plaintiff that they would meet with Mr. Ladner to discuss her report.

Id.

As discussed, Plaintiff’s EEOC charge makes no factual allegations that correlate to the facts alleged in her complaint related to her January 10, 2018 meeting with Mrs. Stancil and Dr. Singleton. Rather, Plaintiff’s description of that meeting in her EEOC charge was “regarding the disparities in the wages and overall quality of life between the Female basketball team and the Male basketball team,” and “about the way that Mr. Ladner speaks to [her] in a condescending manner.” (Doc. No. 11-1, at 4.) The charge does not contain any 2014 text message, follow up commentary from Mr. Ladner, or any alleged acts of sexual harassment. Id. Indeed, the only mention of Mr. Ladner in the charge as it pertains to the January 10, 2018 meeting is that Plaintiff addressed with Mrs. Stancil and Dr. Singleton that Mr. Ladner speaks to her in a condescending manner. But again, this statement was made in the context of what Plaintiff described as a meeting about disparities in the wages and overall quality of life between the women’s basketball team and the men’s basketball team. Id. Without any further facts, one cannot reasonably interpret those allegations to be that of sexual harassment, particularly when there is a total disconnect between the subject of that meeting in her charge versus what is contained in her complaint. Moreover, simply checking the boxes pertaining to “sex” and “discrimination” does not sufficiently inform a claim of sexual harassment. See Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000) (stating that simply checking sex discrimination box did not allow sexual harassment claim because EEOC charge only complained of disparate treatment, a wholly diverse claim from harassment). Thus, the Court recommends that Jarvis’s Motion (Doc. No. 11) be granted as to Plaintiff’s Title VII claim for sexual harassment, and that Plaintiff’s sexual harassment claim be dismissed for failure to exhaust her administrative remedies.2

*5 As to her claim of discrimination, that claim was clearly presented in her EEOC charge and similarly alleged in her complaint. In her charge, Plaintiff states that on November 28, 2018 and January 11, 2018 she complained about the disparities in the wages and overall quality of life between the women’s basketball team and the men’s basketball team. (Doc. No. 11-1, at 4.) Plaintiff asserts factual allegations related to these disparities in her complaint. See Doc. No 1, at ¶¶ 24, 33, 53. As the failure to exhaust is the only basis presented for dismissal on the sexual discrimination claim and the Court finds that Plaintiff has exhausted her administrative remedies on that claim, the Court recommends that Jarvis’s Motion (Doc. No. 11) be denied as it pertains to Plaintiff’s Title VII sex discrimination claim.

b. Retaliation Claim

Finally, as to Plaintiff’s Title VII retaliation claim, Jarvis contends that Plaintiff has alleged no facts to support a claim for retaliation. (Doc. No. 11, at 13.) Specifically, Jarvis argues that Plaintiff’s retaliation claim cannot stand because the alleged facts show that her employment contract was renewed after Plaintiff filed her charge with the EEOC. Id. Plaintiff contends that she has alleged facts to support retaliation because she filed a charge on February 21, 2018, and on March 2, 2018, Mr. Ladner was overheard telling players’ parents that he was going to fire Plaintiff and she was fired four months later. (Doc. No. 21, at 14.)

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: (1) she participated in a Title VII protected activity, (2) she suffered an adverse employment action by her employer, and (3) there is a causal connection between the protected activity and the adverse action. Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 331 (5th Cir. 2009). However, Plaintiff need not establish her prima facie case to survive a motion to dismiss. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511, (2002) (“This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.”); see also Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). Instead, the ordinary rules for assessing the sufficiency of a complaint pursuant to Rule 8(a)(2) apply. See id. (“[U]nder a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case.”); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).

Here, Plaintiff alleges that she engaged in protected activity when she filed an EEOC charge on February 13, 2018 and it was received by Jarvis on February 21, 2018. (Doc. No. 1, at ¶¶ 51, 55.) Plaintiff further alleges she suffered an adverse employment action when she was terminated just four months later, and that the temporal proximity of that decision and the statements made by Mr. Ladner to Plaintiff’s players’ parents that he was trying to find a reason to fire her, support her claim. Id. at ¶¶ 56, 59, 85. While Jarvis contends that this claim cannot be supported because Plaintiff alleges her employment contract was renewed on June 8, 2018, Jarvis cites no support for the proposition that a renewed employment agreement would defeat any claim for retaliation. Indeed, here, Plaintiff alleges she was terminated just twenty odd days after her contract was renewed. Id. at ¶ 64, 85. The Court finds these allegations sufficient to satisfy Plaintiff’s burden of pleading a claim for Title VII retaliation. As such, the Court recommends that Jarvis’s Motion (Doc. No. 11) be denied as to Plaintiff’s Title VII claim for retaliation.

B. FMLA Claims

*6 Jarvis contends that Plaintiff cannot asserts claims for violations of the FMLA because Plaintiff failed to comply with the regulations. (Doc. No. 11, at 15.) Specifically, Jarvis argues that Plaintiff’s FMLA request did not contain the medical evidence necessary to comply with FMLA guidelines. Id. at 16. Plaintiff contends that Jarvis was required to explain in writing what additional information was necessary to complete her FMLA certification and that, as alleged, she requested this information on June 21, 2018. (Doc. No. 21, at 15.) Plaintiff contends that Jarvis was required to provide her seven calendar days to cure any deficiency in her paperwork. Id. at 16. Plaintiff alleges that Jarvis then terminated Plaintiff exactly seven days after informing Plaintiff it found her certification to be deficient, just one business day after Plaintiff’s doctor returned to the office to possibly cure any such deficiency. Id. at 17. As such, Plaintiff argues that Jarvis interfered with her FMLA rights and retaliated against her for requesting FMLA leave. Id.

a. FMLA Interference

FMLA’s interference provision makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,” any substantive FMLA right. 29 U.S.C. § 2615(a)(1); see also Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004). To establish a prima facie interference case under the FMLA, a plaintiff must show that (1) she was an eligible employee; (2) the defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled to leave; (4) the plaintiff gave proper notice of her intention to take FMLA leave; and (5) the defendant denied the plaintiff the benefits to which she was entitled under the FMLA. Lanier v. Univ. of Tex. Sw. Med. Ctr., 527 F. App’x. 312, 316 (5th Cir. 2013). Here, Plaintiff alleges that she was an eligible employee, that Jarvis was subject to the FMLA’s requirements, that she was entitled to leave, that she gave notice of her leave, and that Jarvis failed to provide her the proper correspondence to approve or deny her FMLA leave. Doc. No. 1, at ¶¶ 8–14, 76, 77, 79–81, 83–85. Specifically, Plaintiff alleges that Jarvis did not provide Plaintiff with individualized notice that she was eligible to take FMLA leave and was required to provide her such notice within five business days of when they acquired knowledge that her leave may be for an FMLA-qualifying reason pursuant to 29 C.F.R. § 825.300(b)(1). Id. at ¶ 101. Plaintiff therefore alleges that Jarvis’s failure to follow 29 CFR § 825.300(b)(1)’s notice requirements constituted interference with the exercise of her FMLA rights. Id. at ¶ 102. The Court finds these allegations sufficient to state a claim for interference.

Jarvis’s argument is essentially that Plaintiff’s FMLA request was insufficient because it did not contain the necessary medical evidence and Plaintiff failed to comply with Jarvis’s request that the form be revised and submitted within seven days. (Doc. No. 11, at 16.) Whether or not Plaintiff’s certification was sufficient and whether or not Plaintiff properly complied with the requests of Jarvis, or whether Jarvis complied with the FMLA guidelines, are all questions of fact that are not appropriate for this Court to resolve on the pleadings. Discovery is essential to develop the facts regarding whether Plaintiff had taken the necessary steps to invoke her FMLA rights and whether Jarvis interfered with her attempts to take FMLA leave. Accordingly, the Court recommends that Jarvis’s Motion (Doc. No. 11) be denied as to Plaintiff’s FMLA interference claim.

b. FMLA Retaliation

To establish a prima facie retaliation case under the FMLA, a plaintiff must show that (1) she was protected under the FMLA; (2) she suffered an adverse employment action; and (3) the adverse employment action was taken because she sought protection under the FMLA. Ion v. Chevron USA, Inc., 731 F.3d 379, 390 (5th Cir. 2013). Jarvis makes the same arguments that Plaintiff failed to take the steps necessary to secure her FMLA leave. (Doc. No. 11, at 16–17.) For the same reasons discussed above, the Court cannot resolve whether Plaintiff or Jarvis complied with FMLA regulations on a motion to dismiss as those questions raise factual disputes between the parties that need further development in the record. The Court also finds it inappropriate to convert the motion to one for summary judgment where further factual development of the record is warranted here. The Court simply looks to whether the facts as pled are sufficient. Here, Plaintiff has alleged she filed for FMLA leave and that her exercise of those rights was a motivating factor in her termination. (Doc. No. 1, at ¶¶ 111–16.) The Court finds the allegations sufficient to state a claim for FMLA retaliation. Indeed, Jarvis does not challenge the sufficiency of the allegations pertaining to a claim for FMLA retaliation. Accordingly, the Court recommends that Jarvis’s Motion (Doc. No. 11) be denied as to Plaintiff’s FMLA retaliation claim.

C. Libel Claim

*7 Jarvis argues that Plaintiff’s libel claim fails because the alleged communication—Jarvis’s publication to law enforcement—is privileged. (Doc. No. 11, at 18–19.) Specifically, Jarvis argues that the only allegation of publication is the report of a suspected crime to law enforcement and that Texas has long recognized a qualified privilege for the communication of wrongful acts to an official authorized to protect the public. Id. at 19. Plaintiff contends that she alleges Jarvis acted with actual malice in publishing a fact which impeached her honesty, injured her business reputation, and imputed a crime against her. (Doc. No. 21, at 11.) Plaintiff further contends that the facts supporting this claim are well pled in that she alleged that Mr. Ladner had been trying to find a reason to fire Plaintiff.

“In cases of libel and slander, Texas has long recognized at least ‘a qualified privilege’ for ‘the communication of alleged wrongful acts to an official authorized to protect the public from such acts.’ ” Campbell v. City of San Antonio, 43 F.3d 973, 980 (5th Cir. 1995) (quoting Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.—Corpus Christi 1977, no writ) ). Qualified privilege operates as an affirmative defense and, “the defendant bears the burden of proving privileged publication unless the plaintiff’s petition affirmatively demonstrates privilege.” Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014) (citing Denton Pub. Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970) ). “If a defendant establishes the privilege, the burden shifts to the plaintiff to prove that the defendant made the statements with actual malice. Actual malice, in the defamation context, means ‘the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true.’ Qualified privilege presents a question of law when the statements at issue employ unambiguous language and where the facts and circumstances of publication are undisputed.” Id. (internal citations omitted).

Here, while Jarvis has invoked the affirmative defense of qualified privilege, Plaintiff alleges that “Defendant Jarvis Christian College, Inc. with actual malice published a false statement of fact referring to Plaintiff which impeached Plaintiff’s honesty, injured Plaintiff’s business reputation and imputed a crime against Plaintiff.” (Doc. No. 1, at ¶ 120.) While it is not expressly stated in her complaint, the factual basis underlying this allegation presumably relates to the theft report made by Jarvis relating to property Plaintiff alleged removed from her office. See id. at ¶ 89. In this regard, Plaintiff has alleged facts to infer actual malice in that she alleges that “Mr. Ladner was overheard saying to athletes’ parents that he is trying to find any reason to fire Plaintiff” and telling them that “changes would be made.” Id. at ¶¶ 56, 59. Thus, although Jarvis has raised privilege, taking these allegations as true, Plaintiff has alleged facts to sufficiently suggest the statements in question were made with actual malice. As such, the Court recommends that Jarvis’s Motion (Doc. No. 11) be denied as to Plaintiff’s libel claim.

D. Negligence Claims

Finally, Jarvis argues that Plaintiff’s claims for negligent supervision, training, and retention are barred by the Texas Workers Compensation Act (“the Act”). (Doc. No. 11, at 17.) Specifically, Jarvis argues that Plaintiff’s negligence claims are that she was harmed by another employee while trying to perform her job duties and that Jarvis failed to respond adequately. Id. at 18. Therefore, Jarvis argues that the claims are pre-empted by the Act. Id. Plaintiff does not respond to this argument. (Doc. No. 21.)

Because Plaintiff has failed to respond in opposition to this argument, the Court presumes that Plaintiff does not controvert this argument and has no evidence to offer in opposition. See L.R. CV-7(d) (“A party’s failure to oppose a motion in the manner prescribed herein creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition to the motion.”). On this basis alone, the Court finds that Jarvis’s Motion (Doc. No. 11) should be granted as to Plaintiff’s negligence claims. However, even considering the allegations, the Court finds that Jarvis’s Motion (Doc. No. 11) should be granted as to Plaintiff’s negligence claims.

*8 Here, the entirety of Plaintiff’s allegations as to negligent supervision, training, and retention, are as follows:

Plaintiff alleges that the conduct of Defendant Jarvis Christian College, Inc. constituted negligent supervision, training and retention. Plaintiff alleges that Defendant Jarvis Christian College, Inc. did not properly screen, evaluate, investigate, or take any reasonable steps to determine whether Dr. Singleton and Bobby Ladner were unfit, incompetent, or a danger to third parties. Defendant Jarvis Christian College, Inc. knew or should have known that Dr. Singleton and Bobby Ladner was unfit and could foresee that Dr. Singleton and Bobby Ladner would come in contact with Plaintiff, creating a risk of danger to Plaintiff. Defendant JCC’s failure to exercise reasonable care in the supervision, training and retention of Dr. Singleton and Bobby Ladner was the proximate cause of damages to Plaintiff for which Plaintiff hereby sues.

(Doc. No. 1, at ¶ 121.)

Indeed, these negligence allegations are based upon the alleged danger Plaintiff faced in the workplace by Jarvis’s hiring, supervision, and retention of her fellow coworkers. Id. Jarvis is correct in that “[t]he Act provides the exclusive remedy for injuries sustained by an employee in the course of his employment as a result of his employer’s negligence.” 102 F.3d 199, 203 (5th Cir. 1997). Because Plaintiff’s allegations are based upon the negligence of Jarvis in its supervision, training, and retention of Dr. Singleton and Mr. Ladner, her recovery on these claims is foreclosed by the Act. See id. (finding that plaintiff’s negligence claims were foreclosed where her allegations were based on harm that occurred while plaintiff was trying to do her job and defendant failed to respond adequately). Accordingly, the Court recommends that Jarvis’s Motion (Doc. No. 11) be granted as to Plaintiff’s negligence claims.

CONCLUSION

For the reasons stated herein, the Court RECOMMENDS that Jarvis’s Motion (Doc. No. 11) be GRANTED as to Plaintiff’s claims for Title VII sexual harassment and negligence and DENIED as to Plaintiff’s claims for Title VII discrimination and retaliation, FMLA interference and retaliation, and libel.

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may serve and file written objections to the findings and recommendations contained in the Report. A party’s failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen (14) days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996).

So ORDERED and SIGNED this 25th day of January, 2019.

Footnotes

1

The Fifth Circuit has stated that a court may consider documents attached to a responsive pleading when the documents are referred to in the pleadings and are central to plaintiff’s claim. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). As Plaintiff’s EEOC charge is integral to her discrimination claims, the Court will consider the charge.

2

Because the Court recommends dismissal of Plaintiff’s Title VII harassment claim, the Court need not consider whether condescending language creates a cognizable claim under Title VII at this time. Further, because the Court has found that Plaintiff has not exhausted her administrative remedies as to her sexual harassment claims, the Court need not consider whether the claims were timely raised.

United States District Court, E.D. Texas, Sherman Division.

Felton THOMAS

v.

PFG TRANSCO, INC., Performance Food Group, Inc., Navigators Logistics, Inc., Kenneth Paul Lockhart, and PFGC, Inc.

Civil Action No. 4:17-CV-00785

|

Signed 03/25/2018

Attorneys & Firms

Jimmie A. Franklin, The Law Offices of Tim O’Hare, Carrollton, TX, for Felton Thomas.

Jennette Elizabeth DePonte, James Eamonn Sherry, McCathern, LLP, Mary Leslie Davis, Hermes Law PC, Grace H. Sundberg, Reagan McLain & Hatch, LLP, Dallas, TX, for PFG Transco, Inc., Performance Food Group, Inc., Navigators Logistics, Inc., Kenneth Paul Lockhart, and PFGC, Inc.

MEMORANDUM ORDER AND OPINION

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

*1 Pending before the Court is Defendant PFG Transco, Inc. Defendant Performance Food Group, Inc., and PFGC, Inc.’s (collectively, “PFG”) Motion to Dismiss (Dkt. #7).1 The Court, having considered the relevant pleadings, finds the motion is granted in part and denied in part.

BACKGROUND

On July 5, 2013, Plaintiff Felton Thomas began working as a dispatcher for PFG, working out of the 500 Metro Park Drive, McKinney, Texas warehouse. According to the terms of his employment, the parties agreed to mandatory, final, and binding arbitration of disputes for on-the-job injuries pursuant to PFG’s Texas Injury Benefit Plan (the “Benefit Plan”) as a non-subscriber under the Texas Workers’ Compensation Statute. Plaintiff signed an acknowledgment of having agreed to mandatory arbitration of such disputes by arbitration (Dkt. #7-1, Exhibit 3). Appendix A to the Benefit Plan states:

The Employer hereby adopts a mandatory company policy requiring that the following claims or disputes must be submitted to final and binding arbitration under this Appendix: (A) any legal or equitable claim or dispute relating to enforcement or interpretation of the arbitration provisions in a Receipt, Safety Pledge and Arbitration Acknowledgement form or this Appendix; and (B) any legal or equitable claim by or with respect to an Associate for any form of physical or psychological damage, harm or death which relates to an accident, occupational disease, or cumulative trauma (including, but not limited to, claims of negligence or gross negligence or discrimination; claims for intentional acts, assault, battery, negligent hiring/training/supervision/retention, emotional distress, retaliatory discharge, or violation of any other noncriminal federal, state or other governmental common law, statute, regulation or ordinance in connection with a job-related injury, regardless of whether the common law doctrine was recognized or whether the statute, regulation or ordinance was enacted before or after the effective date of this Appendix). This includes all claims listed above that an Associate has now or in the future against an Employer, its officers, directors, owners, Associates, representatives, agents, subsidiaries, affiliates, successors, or assigns.

...

The determination of whether a claim is covered by this Appendix shall also be subject to arbitration under this Appendix. Neither an Associate nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Appendix.

(Dkt. #7-1, Exhibit 1 at p. 58).

On December 6, 2017, PFG filed a motion to dismiss (Dkt. #7). On December 18, 2017, Plaintiff filed his response (Dkt. #8). On December 28, 2017, PFG filed a reply (Dkt. #11).

LEGAL STANDARD

“The Federal Arbitration Act (“FAA”) expresses a strong national policy favoring arbitration of disputes, and all doubts concerning the arbitrability of claims should be resolved in favor of arbitration.” Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 263 (5th Cir. 2004). The FAA, “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985).

*2 When considering a motion to compel arbitration, the Court must address two questions. Graves v. BP America, Inc., 568 F.3d 221, 222 (5th Cir. 2009) (citing Fleetwood Enterprises Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002)). “First, whether there is a valid agreement to arbitrate, and second, whether the dispute in question falls within the scope of the arbitration agreement.” Id. Concerning the first question of contract validity, the Court should apply “ordinary state-law principles that govern the formation of contracts.” Id. (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). The second question of scope is answered “by applying the ‘federal substantive law of arbitrability....’ ” Id. (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985)).

ANALYSIS

When ruling on a motion to compel arbitration, the Court must first determine whether there is a valid agreement to arbitrate applying ordinary state-law principles that govern the formation of contracts. Graves, 568 F.3d at 222. “In applying state law, however, due regard must be given to the federal policy favoring arbitration.” Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996). “In determining whether the parties agree to arbitrate a certain matter, courts apply the contract law of the particular state that governs the agreement.” Wash. Mut. Fin. Grp., LLC v. Bailey, 364 F.3d 260, 264 (5th Cir. 2004). The Court finds Texas contract law applies.2 Under Texas law, a binding contract exists when each of the following elements are established: (1) an offer; (2) an acceptance; (3) a meeting of the minds; (4) a communication that each part consented to the terms of the contract; (5) execution and delivery of the contract with the intent that it be mutual and binding; and (6) consideration. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

Plaintiff does not argue that the Arbitration Agreement is not a valid agreement to arbitration. Plaintiff asserts that this lawsuit involves two separate collisions “that happened virtually at the same time, (the first collision caused by PFG, and the second collision caused immediately thereafter by Defendant, Navigators Logistics, Inc., (‘Navigators’))”, and Navigators is not a signatory to the arbitration agreement (Dkt. #7 at pp. 1–2). Defendant Kenneth Paul Lockhart (“Lockhart”), the driver for Navigators, is alleged to be an employee of Navigators, acting in the full course and scope of his employment during the second collision. Thus, Lockhart is also not a signatory to the arbitration agreement. Plaintiff argues that his arbitrable claims against PFG and non-arbitrable claims against Navigators (and Lockhart) are factually “intertwined”, and since Navigators is a non-signatory, “no enforceable arbitration agreement, as to these specific matters, exists.” (Dkt. #7 at pp. 1-2).3

*3 The Supreme Court has rejected this “intertwining” theory and held when a complaint contains both arbitrable and nonarbitrable claims, the FAA “requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985). Further, the Supreme Court recently confirmed that courts must look no further than the arbitrability of a particular claim when determining whether to compel arbitration: “[C]ourts must examine a complaint with care to assess whether any individual claim must be arbitrated,” and “[t]he failure to do so is subject to immediate review.” KPMG LLP v. Cocchi, 565 U.S. 18, 22 (2011).

However, the parties have clearly agreed that an arbitrator should make this determination through a delegation clause. Plaintiff does not challenge his “assent to the agreement (including the delegation clause)” or argue that the specific provision stated above does not delegate the issue of arbitrabiltiy to the arbitrator. See Beaumont Foot Specialists, Inc. v. United Healthcare of Texas, Inc., No. 1:15-CV-216, 2015 WL 9703796, at *3 (E.D. Tex. Dec. 22, 2015), report and recommendation adopted, No. 1:15-CV-216, 2016 WL 165023 (E.D. Tex. Jan. 14, 2016); see Van Buren v. Pro Se Planning, Inc., CIV.A. 14–2099, 2014 WL 6485653, at *5 (E.D. La. Nov. 18, 2014) (“[T]he Plaintiff’s failure to articulate a specific challenge to the delegation clause requires the Court to abstain from deciding the merits of any dispute concerning enforceability of the arbitration agreement or the underlying contract and refer the matter to arbitration.”).

“[P]arties may agree that the ‘gateway’ question of arbitrability should be decided by an arbitrator, rather than a court.” Beaumont Foot Specialists, 2015 WL 9703796, at *2 (citing Rent–A–Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68–69 (2010)). “Pursuant to such a ‘delegation’ clause, an arbitrator is empowered to determine whether the agreement in fact requires the parties to arbitrate the dispute at hand. Id. (citing Rent–A–Ctr., W., Inc., 561 U.S. at 68–69). Appendix A states “[t]he determination of whether a claim is covered by this Appendix shall also be subject to arbitration under this Appendix. Neither an Associate nor an Employer shall be entitled to a bench or jury trial on any claim covered by this Appendix.” (Dkt. #7-1, Exhibit 1 at p. 58). Appendix A is even more explicit about the agreements delegation and deference to the arbitrator’s authority regarding the arbitrability of Plaintiff’s claims against PFG:

The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement, including but not limited to any claim that all or any part of this agreement is void or voidable.

(Dkt. #7-1, Exhibit 1 at p. 59).

In Rent–A–Ctr., W., Inc. v. Jackson, the plaintiff argued that because he was required to sign the arbitration as a condition of his employment, the arbitration agreement was unconscionable. 561 U.S. at 68–69. The contract contained an identical delegation clause:

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable.

Jackson v. Rent-A-Ctr., W., Inc., No. 03:07-CV-0050-LRH (RAM), 2007 WL 7030394, at *1 (D. Nev. June 7, 2007), aff’d in part, rev’d in part sub nom. Jackson v. Rent-A-Ctr. W., Inc., 581 F.3d 912 (9th Cir. 2009), rev’d, 561 U.S. 63 (2010). The Supreme Court held that “any challenge to the validity of the Agreement as a whole for the arbitrator.” Rent–A–Ctr., W., Inc., 561 U.S. at 72.

*4 Despite the delegation clause, the Court need not allow an arbitrator to make the decision whether Plaintiff’s claims against Navigators (and Lockhart) are arbitrable because there is absolutely no basis for concluding Navigators (and Lockhart) agreed to allow an arbitrator to address its claims as a non-signatory. Any assertion that Navigators (and Lockhart) agreed to arbitrate claims as a non-signatory to an arbitration agreement is “wholly groundless.” See Douglas v. Regions Bank, 757 F.3d 460, 464 (5th Cir. 2014) (allowing a court to decide an arbitrability question that is “wholly groundless,” despite a delegation provision). Plaintiff’s claims against Navigators (and Lockhart) are not arbitrable, will remain with the Court. See 9 U.S.C. § 3.

However, the undersigned takes no position on the enforceability or scope of the arbitration clause with regard to Plaintiff’s claims against PFG, which will be determined by the arbitrator in accordance with the parties’ agreement pursuant to the delegation clause. See Beaumont Foot Specialists, 2015 WL 9703796, at *3.

The FAA additionally mandates, upon application of a party, a stay of the legal proceedings if there is an issue referable to arbitration. 9 U.S.C. § 3. Generally, this mandatory stay provision only applies to the parties of an arbitration agreement. Adams v. Ga. Gulf Corp., 237 F.3d 538, 540 (5th Cir. 2001). No party has requested a stay of the proceedings as to Navigators and Lockhart, and the Court will not determine if one is necessary in this case at this time. However, those that are arbitrable against PFG must be stayed pending the completion of arbitration. See 9 U.S.C. § 3.

CONCLUSION

It is therefore ORDERED that Defendants PFG Transco, Inc. and Performance Food Group, Inc.’s Motion to Dismiss (Dkt. #7), and Defendant PFGC, Inc.’s Motion to Dismiss (Dkt. #23) are hereby GRANTED in part and DENIED in part. The arbitrator must make the determination whether Plaintiff’s claims against PFG fall within the scope of the arbitration agreement and the Court stays the case as to PFG at this time. Plaintiff’s claims against Navigators and Lockhart shall proceed at this time.

Footnotes

1

On February 20, 2018, Defendant PFGC, Inc. joined Defendant PFG Transco, Inc. and Defendant Performance Food Group, Inc.’s Motion to Dismiss in full (Dkt. #23). That same day, Plaintiff filed an identical response (Dkt. #24).

2

This choice-of-law analysis was not raised in either parties’ briefing and neither party disputes that Texas law should apply. Plaintiff’s employment for Defendant was located in Collin County, Texas, and he has alleged claims seeking protection under Texas law. Therefore, the Court finds that Texas “has [a] substantial relationship to the parties” or “application of the law of [Texas] would [not] be contrary to a fundamental policy of a state which has materially greater interest than [Texas]. Cardoni v. Prosperity Bank, 805 F.3d 573, 581 (5th Cir. 2015).

3

Generally, in order to be subject to arbitral jurisdiction, a party must be a signatory to a contract containing an arbitration clause. Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 353 (5th Cir. 2003). “Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648 (1986)(citation omitted). However, “federal courts have held that so long as there is some written agreement to arbitrate, a third party may be bound to submit to arbitration.” Bridas, 345 F.3d at 355. Courts have compelled nonsignatories to arbitration under various theories of contract and agency law including: (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego or veil piercing; (5) equitable estoppel; and (6) third-party beneficiary. Graves v. BP America, Inc., 568 F.3d 221, 223 (5th Cir. 2009) (citing Bridas, 345 F.3d at 356).

United States District Court, E.D. Texas, Sherman Division.

Ronnie G. JACKSON, Plaintiff,

v.

CITY OF SHERMAN, TEXAS, Defendant

CASE NO. 4:16-CV-774-KPJ

|

Signed 10/23/2017

Attorneys & Firms

Ronald R. Huff, Attorney at Law, Robert Edward Richardson, Richardson Law Firm, Sherman, TX, for Plaintiff.

Darrell G.-M. Noga, Christopher A. Klement, David V. Denny, Kimberly Beth Herbert, Cantey Hanger LLP, Dallas, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE

*1 Now before the Court is Defendant City of Sherman, Texas’s (“Defendant” or the “City”) Amended Motion for Summary Judgment (Dkt. 59). Plaintiff Ronnie G. Jackson (“Plaintiff”) filed a response in opposition (Dkt. 67), and Defendant filed a reply (Dkt. 69). Also before the Court is Defendant’s Motion to Dismiss Plaintiff’s Workers’ Compensation Claim Under 12(b)(1) (Dkt. 60),1 to which Plaintiff filed a response in opposition (Dkt. 70), and Defendant filed a reply (Dkt. 79). As set forth below, the motion for summary judgment (Dkt. 59) is DENIED, and the motion to dismiss (Dkt. 60) is GRANTED.

I. BACKGROUND

This lawsuit arises from Plaintiff’s federal law claim that his employment with the City of Sherman was terminated in violation of 42 U.S.C. § 12101, et seq, the Americans with Disabilities Act of 1990, as amended (the “ADA”). Plaintiff also asserts a claim for violation of Texas Labor Code § 451.000, et. seq., and “vicarious liability.” See Dkt. 24. Plaintiff’s vicarious liability claim is predicated on his assertion that Defendant was liable for the wrongful acts of its agents, employees, and/or representatives. Plaintiff alleges he was demoted and denied reasonable accommodation in violation of the ADA. See Dkt. 24. The ADA prohibits workplace discrimination on the basis of a disability. Plaintiff also alleges Defendant violated Section 451.001 of the Texas Labor Code, which prohibits retaliation for filing a workers’ compensation claim.

Plaintiff was employed by the City for over nine (9) years. Plaintiff injured his right knee on or about July 11, 2014, while performing his duties as a Lead Mechanic. Dkt. 24 at ¶ 6-7. Plaintiff reported his injury and filed a workers’ compensation claim with the Division of Workers’ Compensation of the Texas Department of Insurance. Id. at ¶ 6-7. He alleges that on or about September 2, 2015, he was discharged effective September 30, 2015, and at the time of his discharge, he was employed in “Data Entry in the RTA system.” Id. at ¶ 5. Plaintiff alleges that a Texas Workers’ Compensation Work Status Report describing Plaintiff’s physician-prescribed physical restrictions played a role in his termination. Id. at 3.

II. LEGAL STANDARD

A. RULE 12(B)(1) MOTION TO DISMISS

A party may seek dismissal in a pretrial motion based on any of the defenses set out in Rule 12(b) of the Federal Rules of Civil Procedure. FED. R. CIV. P. 12(b); see also Albany Ins. Co. v. Almacenadora Somex, 5 F.3d 907, 909 (5th Cir. 1993).

Rule 12(b)(1) governs challenges to a court’s subject matter jurisdiction. Federal courts have limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims. In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th Cir. 2012). Under Rule 12(b)(1), a claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. Id. To determine whether a federal question is involved requires the court to consider whether the complaint states a claim “arising under” federal law. Rodriguez v. Texas Comm’n of Arts, 992 F. Supp. 876, 879 (N.D. Tex. 1998), aff’d sub nom. Rodriguez v. Texas Comm’n on the Arts, 199 F.3d 279 (5th Cir. 2000).

*2 A motion to dismiss based on the complaint alone presents a “facial attack” that requires the court to merely decide whether the allegations in the complaint, if presumed to be true, sufficiently state a basis for subject matter jurisdiction. If a governmental entity is immune, the court lacks subject matter jurisdiction. See Capozzoli v. Tracey, 663 F.2d 654, 657 n. 2 (5th Cir. 1981). As the party asserting jurisdiction, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional requirements have been met. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The court should dismiss a suit for lack of subject matter jurisdiction if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.

B. MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate when, viewing the evidence and all justifiable inferences in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v. Cromartie, 526 U.S. 541, 549 (1999). The appropriate inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). In sustaining this burden, the movant must identify those portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party, however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point out the absence of evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996).

In response, the non-movant “may not rest upon mere allegations contained in the pleadings, but must set forth and support by summary judgment evidence specific facts showing the existence of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Anderson, 477 U.S. at 255-57). Once the moving party makes a properly supported motion for summary judgment, the nonmoving party must look beyond the pleadings and designate specific facts in the record to show there is a genuine issue for trial. Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required to “scour the record” to determine whether the evidence raises a genuine issue of material fact. E.D. Tex. LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions” will satisfy the nonmovant’s burden. Stults, 76 F.3d at 655.

III. ANALYSIS

As explained above Plaintiff brings a federal claim under the ADA, as well as a workers’ compensation claim under Texas Labor Code § 451.001, et seq. Defendant seeks dismissal of Plaintiff’s workers’ compensation claim on the basis that the Court lacks subject matter jurisdiction. See Dkt. 59.

A. PLAINTIFF’S WORKERS’ COMPENSATION CLAIM

1. The Courts Previous Denial on the Basis of Supplemental Jurisdiction

The Court previously denied Defendant’s request for dismissal of Plaintiff’s workers’ compensation claim. See Dkt. 32. However, the asserted basis for dismissal at that time was the Court’s exercise of supplemental jurisdiction over Plaintiff’s state law claim. See id. Defendant then argued the Court should not exercise supplemental jurisdiction because Plaintiff’s state law claim did not “derive from a common nucleus of operative fact.” See Dkt. 27 at. at 5-6; see also United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966), However, the Court found that Plaintiff’s state law claim did arise from the same nucleus of operative fact, namely Plaintiff’s termination and his alleged claims associated with said termination. See Dkt. 32 at 3.

2. Timeliness of Defendants Jurisdictional Challenge

*3 Defendant now argues that Plaintiff’s workers’ compensation claim should be dismissed because the City’s governmental immunity bars Plaintiff’s workers’ compensation claim. See Dkt. 60. Plaintiff argues that Defendant’s motion to dismiss Plaintiff’s workers’ compensation claim is untimely because it was filed after the dispositive motion deadline in this case. See Dkt. 70. However, as noted above, Defendant first raised the issue of the Court’s lack of subject matter jurisdiction in its motion for summary judgment, which was timely filed. See Dkt. 59 at 20-21. Even were that not the case, Plaintiff’s argument must fail.

A party may raise objections to subject matter jurisdiction at any time. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011), see also FED. R. CIV. P. 12(h)(3). Accordingly, a party may move to dismiss a case because the trial court lacked subject matter jurisdiction even after trial. Id. at 435. In the Fifth Circuit, “a factual attack under Rule 12(b)(1) may occur at any stage of the proceedings, and plaintiff bears the burden of proof that jurisdiction does in fact exist.” Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980) (citations omitted)). A motion to dismiss based on governmental immunity challenges a court’s subject-matter jurisdiction. See Capozzoli v. Tracey, 663 F.2d 654, 657 n. 2 (5th Cir. 1981); Stanley v. Centr. Intelligence Agency, 639 F.2d 1146, 1157 (5th Cir. 1981). As such, Defendant may bring its jurisdictional motion even though the deadline for motions to dismiss has passed. Moreover, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3); see also Henderson, 562 U.S. at 434. Accordingly, Defendant’s jurisdictional challenge is not time barred.

3. The Merits of Defendants Jurisdictional Challenge

Having addressed Plaintiff’s challenges to Defendant’s motion on the basis that the Court previously denied the motion and the timeliness of the jurisdictional challenge, the Court turns to the substantive issue of whether the City is entitled to governmental immunity. Upon review of the case law cited by Defendant, the Court agrees with Defendant’s argument that both federal courts and the Texas Supreme Court recognize governmental immunity from suit when a plaintiff brings a claim for discrimination under the Texas Anti-Retaliation Law. See TEX. LAB. CODE § 451.001(1). In Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-59 (Tex. 2011) (concluding that in light of the 2005 legislative amendment to Chapter 504, “a retaliatory discharge claim may not be brought against the government without its consent and the Political Subdivisions Law no longer provides such consent by waiving the government’s immunity”); see also Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528 (Tex. 2012) (reexamining and upholding the decision in Travis); Elmore v. Collin County, Texas, 2012 WL 1554883 (E.D. Tex. 2012) (citing Travis, 342 S.W.3d at 56 (finding that “sovereign or governmental immunity generally protects the government from liability for the performance of governmental functions, such as the hiring and firing of employees”)); Gore v. Cedar Hill Indep. Sch. Dist., 2016 WL 4597513, at *1 (N.D. Tex. 2016), report and recommendation adopted, 2016 WL 4593515 (N.D. Tex. 2016) (finding that as a “political subdivision” of Texas, Cedar Hill ISD is “protected by governmental immunity”).

Based on the foregoing, the Court finds the City is entitled to governmental immunity, and Plaintiff’s claim pursuant to Chapter 451 of the Texas Labor Code should be dismissed for lack of subject matter jurisdiction. Accordingly, Defendant’s motion to dismiss (Dkt. 60) is GRANTED.

B. PLAINTIFF’S ADA CLAIM

*4 Defendant alleges that Plaintiff cannot satisfy the necessary elements to bring a claim under the ADA because: (1) he could not perform the essential functions of his job, and therefore, is not a qualified individual; and (2) the City had a non-discriminatory reason for his discharge, and therefore, Plaintiff was not subject to an adverse employment action because of his disability. See Dkt. 59.

Plaintiff counters that the because the essential functions of the position he held at the time of his discharge did not require any of the physical restrictions placed on him, Defendant’s stated reason for his discharge (being unable to perform essential functions of his job) is false. See Dkt. 67; see also Dkt. 24 ¶ 17-18. Plaintiff also argues that Defendant failed to engage in an interactive process to work with Plaintiff in good faith as required by the ADA. See Dkt. 67 at 1, 9-10. According to Plaintiff, he could have performed the duties of Lead Mechanic with minimal restrictions. See Dkt. 67 at 10.

Plaintiff contends he was a “qualified individual” at the time of his discharge. See Dkt. 67. The ADA defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). Defendant argues that the summary judgment evidence Plaintiff offers in support of his claim fails to show that Plaintiff could have performed the essential functions of a Lead Mechanic with reasonable accommodation. See Dkt. 68. However, Plaintiff avers that the “modified duty position specifically tailored to [him]” constituted a reasonable accommodation and a “bona fide offer of employment.” See Dkt. 67 at 7-8. According to Plaintiff, Defendant revoked its reasonable accommodation when it learned that Plaintiff’s physical restrictions would be permanent. See Dkt. 67 at 8.

Plaintiff points to a letter from the City dated April 6, 2017 (the “Modified Duty Letter”), wherein the City assigned Plaintiff to perform the duties of “Data Entry in the RTA system.” See Dkt. 67-8. The Modified Duty Letter specifically states that it is a “bona fide offer of employment pursuant to TWCC Rule 129.6,” and that the Data Entry position was designed using guidelines from Plaintiff’s treating physician “relating to [his] current medical condition and [ ] ability to work.” See id. Plaintiff was required to—and did—sign the Modified Duty Letter accepting the offer. Id. Defendant argues that the Modified Duty Letter was not intended to create a new position separate from Plaintiff’s position as Lead Mechanic. See Dkt. 69 at 5. Defendant argues that although Plaintiff was assigned to perform the duties of “Data Entry in the RTA System,” his position remained Lead Mechanic. See Dkt. 69 at 5. According to Defendant, the Data Entry position was intended to be temporary, and “it was not required to create a new permanent position or wait indefinitely for Plaintiff’s health to improve.” See Dkt. 59 at 14 (citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996)). Defendant also avers that “the position was always understood to be temporary because the data-input function [ ] was [in the process] of being outsourced.” Id. at 16.

Defendant further argues the language “pursuant to TWCC Rule 129.6” is critical in that reading the term “modified duty position” in the context of TWCC Rule 129.6 can “only properly be read as offering a temporary modified duty position.” Dkt. 59 at 16 (emphasis in original). Plaintiff counters that Defendant misrepresents TWCC Rule 129.6. See Dkt. 67 at 12. Directing the Court to the testimony of Wayne Blackwell (“Blackwell”), the City’s former Director of Human Resources, Plaintiff argues that TWCC Rule 129.6 relates only to the payment of temporary benefits and does not mandate that all modified job offers are only temporary. Id.; Dkt 67-5 at 5, 16: 1,4-18. Defendant also argues that Blackwell lacked authority to create a new position. See Dkt. 59 at 17. Although Defendant makes conclusions about what these facts must mean, based on the record before it, the Court cannot conclude there is no genuine issue of material fact as to the meaning and effect of the Modified Duty Letter. Accordingly, summary judgment is not proper on this ground.

*5 Plaintiff also argues that Defendant violated the ADA by terminating Plaintiff without engaging in an “interactive process.” See Dkt. 67 at 10; see also Liner v. Hosp. Serv. Dist. No. 1 of Jefferson Parish, 230 Fed. Appx. 361, 364 (5th Cir. 2007) (quoting 29 C.F.R. § 1630.2(o)(3)) (unpublished); Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999). Plaintiff argues that Defendant made the decision to terminate Plaintiff once it learned Plaintiff’s restrictions would be permanent. See Dkts. 67 and 67-2 at 22. Plaintiff avers he could have performed the essential functions of the Lead Mechanic position with minimal reasonable accommodation. See Dkt. 67 at 10. Defendant counters that it engaged in the interactive process even before Plaintiff returned to work and argues that Plaintiff did not suggest or seek any further accommodation after the City determined Plaintiff’s modified duty position would be eliminated. See Dkt. 69 at 9.

Based on the record, it is unclear whether, or to what extent, Defendant engaged in an interactive process once it learned of Plaintiff’s permanent restrictions. The record is also unclear regarding what happened from the time Defendant was notified of Plaintiff’s permanent restriction (May 7, 2015) to the time Defendant informed Plaintiff he would be terminated (September 2, 2015). See Dkts. 59 at 8-9 and 59-1 at 7, 41. In light of Defendant’s position that the modified duty position was intended to be temporary (see Dkt. 59 at 15-16), the record evidence indicating that Defendant was awaiting the final outcome of Plaintiff’s medical restrictions to determine the length of the temporary position (see Dkt. 67-2 at 22), and the lack of any record evidence that Plaintiff and Defendant engaged in an interactive process between May 2015, and September 2015, the Court concludes that this is a fact issue that should be presented to a jury.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (Dkt. 59) is DENIED as to Plaintiff’s ADA claim and DENIED as moot as to Plaintiff’s workers’ compensation claim. Defendant’s motion to dismiss (Dkt. 60) is GRANTED. Plaintiff’s ADA claim shall proceed to trial, and Plaintiff’s workers’ compensation claim is dismissed for lack of subject matter jurisdiction.

It is SO ORDERED.

Footnotes

1

The Court notes that Defendant’s challenge to the Court’s subject matter jurisdiction over Plaintiff’s workers compensation claim is also asserted in its summary judgement motion. See Dkt. 59 at 20-21.

United States District Court, E.D. Texas, Sherman Division.

Darlene C. AMRHEIN

v.

UNITED STATES of America, et al.

Civil Action No. 4:16-CV-223

|

Signed 09/06/2017

Attorneys & Firms

Darlene C. Amrhein, McKinney, TX, pro se.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

*1 Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On June 23, 2017, the report of the Magistrate Judge (Dkt. #12) was entered containing proposed findings of fact and recommendations that Plaintiff Darlene C. Amrhein’s First Amended Petition/ Pleadings from Original Petition with Stated Claims, Elements, Case Law & Specific Details as the Court Ordered & Pleads for Relief (“Amended Complaint”) (Dkt. #11) be dismissed. Having received the report of the Magistrate Judge (Dkt. #12), having considered each of Plaintiff’s objections (Dkt. #17), and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the Court hereby adopts the Magistrate Judge’s report (Dkt. #12) as the findings and conclusions of the Court.

BACKGROUND

The underlying facts are set out in further detail by the Magistrate Judge and need not be repeated here in their entirety (see Dkt. #12). Accordingly, the Court sets forth herein only those facts pertinent to Plaintiff’s objections.

Plaintiff filed this lawsuit on March 31, 2016, and contemporaneously filed a Motion for Leave to Proceed In Forma Pauperis (Dkt. #4). The Court provisionally granted the Motion and ordered Plaintiff to file an amended complaint setting forth “(1) [t]he basis for this Court’s jurisdiction over this litigation; (2) [e]ach claim/cause of action Plaintiff alleges or intends to allege[,] ... specifically identify[ing] which claims/causes of action are asserted against which Defendants in this litigation; [and] (3) [t]he specific factual allegations regarding each Defendant for each claim asserted” (Dkt. #6). Plaintiff thereafter filed the Amended Complaint (the live pleading in this matter) on November 15, 2016 (Dkt. #11), naming over 160 defendants, including Plaintiff’s previous employer, certain insurance providers, various attorneys, judges, and judicial staff, and numerous governmental entities and agents.

Plaintiff’s claims stem from disputes between Plaintiff and her prior employer, La Madeleine, Inc. Plaintiff alleges La Madeleine and its employees mistreated her at work, caused her to suffer on-the-job injuries, and subsequently refused to pay for certain medical procedures Plaintiff attempted to claim under her employee insurance plan, among other things (see, e.g., Dkt. #11 at 1, 6-7, 11-13, 20, 29 (asserting claims against La Madeleine, Inc., other employees who worked with Plaintiff, and other entities allegedly associated with La Madeleine, Inc.)). Plaintiff raises claims related to the purported denial of insurance against certain insurance companies and their agents, as well as against certain physicians. Plaintiff asserts each of these persons and entities worked to deprive her of insurance benefits guaranteed through her employer (see, e.g., Dkt. #11 at 1-3, 6-7, 11-13). Additionally, Plaintiff makes various allegations against lawyers, judges, and court staff associated with the 1996 state court litigation she initiated on these same claims and prosecuted unsuccessfully (through numerous appeals) for years (see Dkt. #11, Exhibits 18-24, 26-34,37-38). See also, e.g., Amrhein v. La Madeleine, Inc. (Amrhein State), No. 06-12-00107-CV, 2013 WL 839227, at *1 (Tex. App.—Texarkana, Mar. 6, 2013, pet. denied) (the state court case and appeals thereon are hereinafter and collectively referred to as the “Amrhein State litigation”).

*2 In the Amrhein State litigation, Plaintiff “initially sued La Madeleine, Inc., for failing to provide a safe workplace, alleging primarily that she developed carpal tunnel syndrome from the repetitive motion of tossing or mixing salads over a period of less than five months.” Amrhein State, 2013 WL 839227, at *1. After Plaintiff lost in the trial court (and following numerous appeals and remands), Plaintiff raised a vast number of issues on appeal related to what Plaintiff perceived as improper court procedure and treatment of her claims in the trial court (see Dkt. #12 at 3 (citing Amrhein State, 2013 WL 839227, at *1-2)). The state appeals court affirmed the trial court’s dismissal of Plaintiff’s claims, specifically noting Plaintiff’s “incomprehensible” briefing could “accurately be described as a fifty-page denunciation of perceived slights by the legal system and [Plaintiff’s] belief that because she has not prevailed, the system has treated her unfairly at every turn.” Amrhein State, 2013 WL 839227, at *2. The Texas Supreme Court denied review on February 7, 2014. Prior to the Texas Supreme Court’s denial through April 22, 2014, when the lower appeals court denied Plaintiff’s final motion, Plaintiff repeatedly filed for reconsideration before both the lower appeals court and the Texas Supreme Court. See Case record in Texas Court of Appeals Case No. 06-12-00107-CV.

On August 16, 2011, while the Amrhein State litigation was ongoing, Plaintiff filed suit in the United States District Court for the Eastern District of Texas; the Court transferred Plaintiff’s case to the Northern District of Texas on August 26, 2011. See Amrhein v. La Madeleine, Inc. (Amrhein NDTX I), No. 3:11-CV-02440-P, 2012 WL 12840376, (N.D. Tex. Dec. 21, 2012), aff’d, 589 Fed.Appx. 258 (5th Cir. 2015) (per curiam) (the proceedings before the Northern District of Texas and subsequent appeal to the Fifth Circuit are hereinafter referred to as the “Amrhein NDTX I litigation”). In the Amrhein NDTX I litigation, Plaintiff’s “employment dispute” at the center of her claims in the Amrhein State litigation “grew into allegations against all branches of government for the State of Texas[,]” including various judges, their staff, legislators, and executive branch members. Id. at *1. Plaintiff also named various attorneys allegedly involved in the Amrhein State litigation as defendants in the Amrhein NDTX I litigation. Id. The Northern District dismissed Plaintiff’s claims with prejudice, finding Plaintiff had failed to state a claim upon which relief could be granted. See id. at *3-4.

In the instant action, Plaintiff now raises for the third time all of the same claims she raised in the Amrhein NDTX I litigation, and has appended claims against every member of the judiciary remotely associated with the Amrhein NDTX I litigation, as well as their staff and any attorney representing other parties to that litigation (see, e.g., Dkt. #11 at 1-4, 8-10). Further, Plaintiff attempts to raise claims against various members of Congress, the federal executive branch, and every justice of the United States Supreme Court (see, e.g., Dkt. #11 at 9-10). Specifically, Plaintiff raises the same claims of conspiracies, frauds, and biased judges who worked with attorneys representing other parties (as well as many entities and members of the federal and Texas state governments) to deny her fair proceedings and to cause her damages as a result. These claims, which Texas state courts and the Northern District of Texas court have in large part already considered and dismissed, are now before the Court for screening pursuant to 28 U.S.C. § 1915(e) (“Section 1915”). For ease of reference, the Court adopts the Magistrate Judge’s grouping of Defendants (more fully identified in the margin) into three primary sets, namely: (1) the Northern District of Texas Defendants;1 (2) the Related Defendants;2 and (3) the Federal Lawsuit Defendants.3 (To the extent the Court has inadvertently omitted any named defendant in the lists included herein, the Court clarifies that this Memorandum Adopting Report and Recommendation of United States Magistrate Judge addresses all named defendants and all claims raised by Plaintiff in her Amended Complaint.)

*3 The Magistrate Judge also noted and the Court reiterates here Plaintiff’s prior litigation history: she has filed more than six suits before numerous Texas state and federal courts (including this one), and courts have dismissed each of these cases for frivolousness and/or for failure to comply with basic pleading or procedural requirements. See, e.g., Amrhein State, 2013 WL 839227; Amrhein NDTX I, 2012 WL 12840376; Balistreri v. Remax Realty, No. 05-10-00611-CV, 2011 WL 149984, at *1 (Tex. App.—Dallas Jan. 19, 2011) (pet. denied); Balistreri-Amrhein v. AHI, No. 05-09-01377-CV, 2012 WL 3100775, at *1 (Tex. App.—Dallas July 6, 2011) (pet denied); Amrhein-Macon v. Wood, No. 2-05-158-CV, 2005 WL 1654762, at *1 (Tex. App.—Fort Worth July 14, 2005) (pet. denied); Amrhein v. Riechert, No. 3:12-CV-03707-G-BK, 2013 WL 1155473, at *13-14 (N.D. Tex. Feb. 1, 2013), report and recommendation adopted, No. 3:12-CV-3707-G BK, 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013) (Amrhein NDTX II); Balistreri-Amrhein v. Verrilli, No. 4:16-CV-112, 2017 WL 726919, at *1 (E.D. Tex. Feb. 24, 2017). After reviewing these prior cases, the Court concurs with the Magistrate Judge’s observation that, in each of these cases, Plaintiff “has filed flurries of largely incomprehensible motions, letters, and other requests for relief both prior to and following the respective court’s disposition of her claims” and that courts have previously admonished Plaintiff for such behavior (Dkt. #12 at 6). Indeed, as a result of Plaintiff’s contumacious filing conduct in a case before the Northern District, the Northern District Court found entry of a broad pre-filing injunction appropriate:

Darlene Amrhein is prohibited from filing any new civil action in any United States district court unless she first files a motion requesting leave of court to do so and attaches thereto copies of (1) her proposed complaint, (2) the magistrate judge’s findings, conclusions and recommendation in this case, (3) this court’s order accepting the findings, conclusions and recommendation of the United States Magistrate Judge, and (4) the judgment in this case.

Amrhein NDTX II, 2013 WL 1155473, at *13-14; report and recommendation adopted, No. 3:12-CV-3707-G BK, 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013) (hereinafter the “Pre-Filing Injunction”). This Court has also recently examined Plaintiff’s prolific filing history and Plaintiff’s continued failure to comply with the Northern District of Texas Pre-Filing Injunction. See Balistreri-Amrhein, No. 4:16-cv-112, 2017 WL 726919, at *5-6 (E.D. Tex. Feb. 24, 2017) (hereinafter “Amrhein EDTX I”).

Following review of Plaintiff’s litigation history and screening the instant claims under Section 1915, the Magistrate Judge entered a report and recommendation on June 23, 2017 (Dkt. #12), recommending Plaintiff’s claims be dismissed with prejudice. On July 21, 2017, Plaintiff filed Plaintiff’s 108 Objections & Points of Error for “Good Cause” Reasons to Deny June 23, 2017 Report & Recommendations to Dismiss this Lawsuit (Dkt. #17).

OBJECTIONS

A party who files timely written objections to a magistrate judge’s report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). As a threshold matter, the Court notes Plaintiff’s objections (more than twenty pages in excess of the Court’s eight-page limit) seemingly take issue with the entirety of the Magistrate Judge’s findings and recommendations. Moreover, a number of Plaintiff’s objections are duplicative of one another and repetitive of the allegations in the Amended Complaint. After reviewing Plaintiff’s filing under the relaxed pleading standard afforded pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the Court discerns that Plaintiff objects specifically to the Magistrate Judge’s use of Section 1915: (a) to screen the Amended Complaint and recommend dismissal with prejudice of Plaintiff’s claims without ordering service of process; (b) to find that Plaintiff’s claims against the Northern District of Texas Defendants and Related Defendants should be dismissed with prejudice; and (c) to find that Plaintiff’s claims against the Federal Lawsuit Defendants should be dismissed with prejudice (see, e.g., Dkt. #17 at 2, 5, 7, 30).

*4 Plaintiff primarily objects to the Magistrate Judge’s use of Section 1915 to screen the Amended Complaint because: (a) Plaintiff is not a prisoner; and (b) Plaintiff believes the Court must “send summons for an indigent person for free” (Dkt. #17 at 2, 5). Plaintiff further contends that the Magistrate Judge erred in recommending Plaintiff’s claims against each of the groups of Defendants be dismissed with prejudice (e.g., Dkt. #17 at 5, 7-14).

A. Application of Section 1915

District courts have authority under Section 1915 to dismiss a complaint sua sponte where the complaint “[1] is frivolous or malicious; [2] fails to state a claim on which relief may be granted; or [3] seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Kenechukwu v. Holder, No. 9:15-CV-62, 2016 WL 3961714, at *1-2 (E.D. Tex. June 10, 2016), report and recommendation adopted, 2016 WL 3926576 (E.D. Tex. July 21, 2016). A court may dismiss a complaint under this standard “if it lacks an arguable basis in law or fact.” Siglar, 112 F.3d at 193; see Moore v. Mabus, 976 F.2d 268, 269-70 (5th Cir. 1992) (explaining the distinction between factual and legal frivolousness in in forma pauperis complaints). Although courts construe pro se filings liberally in this context, see, e.g., Flanagan v. LaGrone, No. 9:16-CV-59-MHS, 2016 WL 4163557, at *1 (E.D. Tex. July 6, 2016), report and recommendation adopted, 2016 WL 4140751 (E.D. Tex. Aug. 3, 2016), dismissal is appropriate where the claims have no chance of success, cf. Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir. 1993) (noting dismissal of claims with “some chance” of success is inappropriate at screening stage but affirming dismissal where pro se plaintiff’s claim “[was] based upon an indisputably meritless legal theory”).

Moreover, “[t]he statute applies equally to prisoner and non-prisoner cases.” Kenechukwu, 2016 WL 3961714, at *1-2 (citing Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002) (per curiam) (applying Section 1915 to non-prisoner pro se litigant)); see, e.g., Booker, 2 F.3d at 115 (applying Section 1915 to non-prisoner, former arrestee who claimed wrongful arrest and affirming dismissal under Section 1915); Patel v. United Airlines, 620 Fed.Appx. 352 (5th Cir. 2015) (per curiam) (applying Section 1915 to non-prisoner pro se litigant); James v. Richardson, 344 Fed.Appx. 982, 983 (5th Cir. 2009) (per curiam) (“Section 1915(e)(2)(B) requires dismissal of frivolous IFP actions even if those actions are brought by non-prisoner plaintiffs.”); Walters v. Scott, No. H–14–1637, 2014 WL 5878494, at *1 (S.D. Tex. Nov. 11, 2014) (“Section 1915(e)(2)(B) applies equally to prisoner and non-prisoner in forma pauperis cases.”); Sanchez v. Waguespack, No. 09-6130, 2010 WL 1727836, at *2 (E.D. La. Mar. 31, 2010) (same); Hamilton v. Landmark of Richardson, No. 3–02–CV–2681–K, 2003 WL 131722, at *1 n.1 (N.D. Tex. Jan. 8, 2003) (same); Haqq v. Tex. Dep’t of Hum. Servs., No. EP-07-CA-0156-FM, 2007 WL 1958611, at *1 (W.D. Tex. June 29, 2007) (“Section 1915(e)(2)(B) applies to both prisoner and non-prisoner in forma pauperis cases.”); cf. Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997) (interpreting Section 1915 and determining sections using either or both nouns “persons” and “prisoners” applied to non-prisoners and prisoners, while sections using only noun “prisoner” applied only to prisoners); 28 U.S.C. § 1915(e)(1)-(2) (using the term “person,” not “prisoner”). The Court finds in accord with these authorities that Section 1915(e)(2)(B) applies to non-prisoners and prisoners alike. See Amrhein EDTX I, 2017 WL 726919, at *3-4 (considering the same objection by Plaintiff in another case before the Court).

*5 Further, courts appropriately dismiss claims with prejudice under Section 1915(e)(2)(B) in certain circumstances. See Shabazz v. Franklin, 380 F. Supp. 2d 793, 802 (N.D. Tex. 2005) (citing Denton v. Hernandez, 504 U.S. 25, 32-33 (1992), and Marts v. Hines, 117 F.3d 1504, 1505 (5th Cir. 1997) (en banc)). The Fifth Circuit has held that when presented with one of the following situations, a court may dismiss an in forma pauperis complaint with prejudice: “(1) ‘complaints containing claims which, on their face, were subject to an obvious meritorious defense’; (2) when the plaintiff had been ‘given an opportunity to expound on the factual allegations’ through a questionnaire or hearing and still ‘could not assert a claim with an arguable factual basis’; and (3) ‘claims without an arguable basis in law.’ ” Shabazz, 380 F. Supp. 2d at 802-03 (noting this includes “ ‘dismissals as frivolous or malicious’ under the IFP screening statute[,]” citing Marts, 117 F.3d at 1505, and United States v. Coscarelli, 149 F.3d 342, 343 (5th Cir. 1998)). Further, the Fifth Circuit has interpreted the U.S. Supreme Court’s decision in Denton as follows:

The rule that the in limine dismissals of actions by the district court generally are to be with prejudice particularly fits dismissals under the former 28 U.S.C. § 1915(d), now a part of 28 U.S.C. § 1915(e)(2). Dismissals under the in forma pauperis statute are in a class of their own, acting not as dismissals on the merits but, rather, as denials of in forma pauperis status. Typically, but not exclusively, such dismissals may serve as res judicata for subsequent in forma pauperis filings, but they effect no prejudice to the subsequent filing of a fee-paid complaint making the same allegations. Exceptions included complaints containing claims which, on their face, were subject to an obvious meritorious defense, or instances in which the plaintiff was given an opportunity to expound on the factual allegations by a Watson questionnaire or a Spears hearing and could not assert a claim with an arguable factual basis, or claims without an arguable basis in law.

On en banc reconsideration, considering the distinct features of such in forma pauperis proceedings, we now hold that dismissals as frivolous or malicious should be deemed to be dismissals with prejudice unless the district court specifically dismisses without prejudice....

Marts, 117 F.3d at 1505-06 (interpreting Denton) (footnotes omitted). In light of the Fifth Circuit’s clear instruction in Marts, the Court finds the Magistrate Judge’s recommendations to dismiss with prejudice appropriate.

Plaintiff’s objection that the Court improperly withheld service in this matter until completion of screening under Section 1915 also lacks merit. Although Federal Rule of Civil Procedure 4(m) prescribes service of process “within ninety days after the complaint is filed,” it also permits a court to toll that period in certain circumstances. See Fed. R. Civ. P. 4(m). Relevant here, a court may withhold service where the plaintiff proceeds in forma pauperis pending the court’s screening of the complaint for frivolousness under Section 1915. See, e.g., Shabazz, 380 F. Supp. 2d at 799-800; Coleman v. Colvin, No. 3:16-cv-2608-D-BK, 2017 WL 2348812, at *1 (N.D. Tex. Apr. 13, 2017) (“Plaintiff’s pro se complaint was referred to the United States magistrate judge for judicial screening. The Court granted the motion to proceed in forma pauperis, but did not issue process pending preliminary screening.”); cf. Osborne v. Texas, No. A-13-CV-528-LY, 2013 WL 5556210, at *3 (W.D. Tex. Oct. 8, 2013) (noting courts have a “duty to screen for frivolousness” in certain cases and finding sua sponte examination of the merits of a plaintiff’s case prior to service proper).4

B. Dismissal of Claims against Northern District of Texas and Related Defendants as Frivolous

*6 The Magistrate Judge found that: (1) “Plaintiff raises the same or substantially similar claims against [the Northern District of Texas and Related Defendants] as Plaintiff raised in the Amrhein NDTX I litigation;” and (2) any “new factual allegations/claims are the same clearly baseless types of claims that were dismissed for failure to state a claim in the Northern District” (Dkt. #12 at 13-15). Accordingly, the Magistrate Judge recommended that “each and every one of the claims asserted by Plaintiff against the Northern District of Texas Defendants and the Related Defendants must be dismissed ... as frivolous and malicious for duplicating her previously dismissed claims” (Dkt. #12 at 13-14). The Court agrees.

Cases “duplicative of a pending or previous lawsuit” are malicious. Potts v. Texas, 354 Fed.Appx. 71 (5th Cir. 2009) (per curiam) (citing Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993) and Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)); see also McBarron v. Fed. Bureau of Prisons, 332 Fed.Appx. 961, 963-64 (5th Cir. 2009) (per curiam) (“The majority of ... claims involved the same general series of events, facts, and conditions that were at issue in an earlier ... proceeding[ ] and therefore constituted ‘[r]epetitious litigation of virtually identical causes of action’ that were properly dismissed as malicious.”). This is so even where the plaintiff “raise[s] new claims,” so long as those claims “grow out of the same allegations” as were presented in the prior or pending suit(s). Id.; see also Potts v. Texas, No. 1:07-CV-632, 2008 WL 4525007, at *3 (E.D. Tex. Sept. 26, 2008) (finding the addition of new defendants and claims did not merit consideration where “the new factual allegations are the same ‘clearly baseless,’ ‘fanciful,’ ... types of claims that were dismissed as frivolous in [plaintiff’s previous cases]”). A court may dismiss a case either as malicious or as frivolous for being duplicative. See Silva v. Stickney, No. 3:03-cv-2279-D, 2005 WL 2445433, at *4 (N.D. Tex. Sept. 30, 2005) (“Courts may appropriately dismiss an in forma pauperis action as frivolous, when the action ‘seek[s] to relitigate claims which allege substantially the same facts arising from a common series of events which have already been unsuccessfully litigated by the IFP plaintiff.’ ” (quoting Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989))); see also Yarborough v. Sheriff, Tarrant Cty., Civil Action No. 4:11-cv-207-Y, 2011 WL 4736302, at *1-2 (N.D. Tex, Oct. 5, 2011) (Claims presented that “are duplicative of claims already asserted and dismissed in [a] previous case ... may be dismissed as frivolous or malicious[,]” or, “[a]lternatively, [because they] are ... barred by the doctrine of res judicata[.]”).

Here, Plaintiff’s claims and allegations against the Northern District of Texas Defendants and the Related Defendants duplicate the claims Plaintiff previously raised (and the Northern District previously dismissed with prejudice) in the Amrhein NDTX I litigation. The Amrhein NDTX I litigation revolved around Plaintiff’s earlier claims before Texas state courts against her prior employer, La Madeleine, Inc., for alleged workplace wrongs. 2012 WL 12840376. After Plaintiff unsuccessfully litigated against her employer for “over fourteen years” in the state courts, her initial claims against her employer “grew into allegations against all branches of government for the State of Texas” and members of the state judiciary. Id. Plaintiff perceived those entities had wronged her throughout the state litigation, and attempted before the Northern District to raise new claims against them. Id. To that end, Plaintiff submitted “200 pages of pleadings and supplementary filings” wherein she “vent[ed] general frustration toward the legal process in state court and then—defendant-by-defendant—list[ed] all causes of action she pursue[d] against each entity”; the Northern District found this “litany of claims” did not meet federal pleadings standards and accordingly dismissed Plaintiff’s claims with prejudice. Id. In the instant case, Plaintiff operates in the same manner—submitting voluminous, rambling briefing listing various statutes and causes of action5—and attempts again to state the same claims on the same allegations as she raised before the Northern District. Compare Amrhein NDTX I, Northern District of Texas Case No. 3:11-cv-2440, Dkt. #1, with Eastern District of Texas Case No. 4:16-cv-223, Dkt. #12. Plaintiff raises only the same “clearly baseless ... types of claims that were dismissed as frivolous” in the Amrhein NDTX I litigation. See Potts, 2008 WL 4525007, at *3. The Court overrules Plaintiff’s objection.

C. Dismissal of Claims against Federal Lawsuit Defendants as Frivolous

*7 “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Newsome, 301 F.3d at 231-32 (finding dismissal of pro se litigant’s APA claim appropriate under Section 1915 because APA accorded litigant no right to sue EEOC given that EEOC had engaged in no final agency action); see, e.g., Neitzke, 490 U.S. at 327-28 (“Examples ... [include] claims against which it is clear that the defendants are immune from suit,....”); Billbrew v. Johnson, 239 Fed.Appx. 49, 50 (5th Cir. 2007) (per curiam) (affirming dismissal claim of deliberate medical indifference under Section 1915 because “wholly conclusional”).

Likewise, claims lack an arguable basis in fact where based upon an “fantastic or delusional scenarios.” Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (Section 1915 “accords judges ... the unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual allegations are clearly baseless.”); Denton, 504 U.S. at 32-33 (“[A] court may dismiss a claim as factually frivolous only if the facts alleged are ‘clearly baseless,’ ... a category encompassing allegations that are ‘fanciful,’ ... ‘fantastic,’ ... and ‘delusional[.]’ ”). Though an “initial assessment of the in forma pauperis plaintiff’s factual allegations must be weighed in favor of the plaintiff[,]” a court should consider “judicially noticeable facts” in determining whether the allegations have any basis in fact. Denton, 504 U.S. at 32. Indeed, a complaint merits dismissal under Section 1915 where it “appears that no relief could be granted under any set of facts that could be proven consistent with the allegations.” Newsome, 301 F.3d at 231 (citing Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999)).

In the present case, the Magistrate Judge considered each of Plaintiff’s allegations with regard to each of the groups of Federal Lawsuit Defendants6 and found that each should be dismissed pursuant to Section 1915(e)(2)(B)(ii) for failure to state a claim on which relief may be granted (Dkt. #12 at 16-21). In so finding, the Magistrate Judge determined that immunity barred Plaintiff’s claims against each group of the Federal Lawsuit Defendants (see Dkt. #12 at 16-18 (finding judicial immunity absolutely bars Plaintiff’s claims against the Defendant Judges and Courts), Dkt. #12 at 19 (finding immunity accorded judicial staff when executing court orders or matters of judicial discretion applied to bar Plaintiff’s claims against Defendant Court Staff and Clerks), Dkt. #12 at 19-21 (finding the Defendant Attorneys and Law Firms are immune to Plaintiff’s claims), Dkt. #12 at 21 (finding Plaintiff’s allegations against the Government Defendants conclusory and without any basis in law)). After conducting a de novo review of the Amended Complaint, the Court finds Plaintiff’s claims against each of the Federal Lawsuit Defendants should be dismissed with prejudice. Plaintiff’s claims against the Defendant Judges and Courts clearly are barred by immunity given that neither the allegations (nor the objections) demonstrate that any of the Defendant Judges and Courts “acted in the ‘clear absence of all jurisdiction’ ” in any of the relevant proceedings. See, e.g., Stump v. Sparkman, 435 U.S. 349, 355-57 (1978). Plaintiff’s claims against the Defendant Court Staff and Clerks are clearly barred by immunity, as well, because neither the allegations nor the objections show that any of the Defendant Court Staff and Clerks acted other than as they were “specifically required to do under court order or at a judge’s discretion.” See, e.g., Clay v. Allen, 242 F.3d 679, 682 (5th Circ. 2001) (per curiam) (citing Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. 1981)). Likewise, each of the Defendant Attorneys and Law Firms—none of whom represented Plaintiff in any of the relevant proceedings—has absolute immunity to Plaintiff’s claims expounded in the Amended Complaint, which alleges only “conduct [that] was ‘the kind of conduct in which an attorney engages when discharging ... duties to [a] client.’ ” See, e.g., Troice v. Proskauer Rose, L.L.P., 816 F.3d 341, 346-49 (5th Cir. 2016). Finally, with regard to the Government Defendants, it “appears that no relief could be granted under any set of facts that could be proven consistent with the allegations[,]” Newsome, 301 F.3d at 231. Plaintiff asserts only that the Government Defendants have failed to assist, explain, remedy, or otherwise respond to complaints Plaintiff has “Reported & Disclosed” to them (e.g., Dkt. #11 at 11). Plaintiff’s complaints against the Government Defendants accordingly lack an arguable basis in law. The Court finds Plaintiff’s claims against each and every of the Federal Lawsuit Defendants should be dismissed with prejudice. Accordingly, the Court overrules Plaintiff’s objection.

CONCLUSION

*8 Having considered each of Plaintiff’s objections (Dkt. #17) and having conducted a de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts the Magistrate Judge’s report (Dkt. #12) as the findings and conclusions of the Court.

Accordingly, it is ORDERED that Plaintiff’s First Amended Petition / Pleadings from Original Petition with Stated Claims, Elements, Case Law & Specific Details as the Court Ordered & Pleads for Relief (Dkt. #11) be DISMISSED, and that each and every of Plaintiff’s claims be DISMISSED with prejudice.

All relief not previously granted is DENIED.

The Clerk is directed to CLOSE this civil action.

IT IS SO ORDERED.

Footnotes

1

In the Amrhein NDTX I litigation, Plaintiff named the following entities and persons, alleging each was directly or indirectly involved in the employment-related matters or engaged in some misconduct or bias in adjudicating or litigating the underlying state actions: La Madeleine, Inc., State Bar of Texas; Governor Rick Perry, Texas Attorney General (then Gregg Abbott), Texas Secretary of State (then Hope Andrade), the Texas State Legislature, Dallas County, John F. Warren (County Clerk and Records), Dallas Texas Courts & Judges (specifically, County Court at Law No. 3, Judge Sally Montgomery, County Court at Law No. 1, Judge D’Metria Benson, and Judge Ted Akin, as well as “All Court[s] & Judges” in the George L. Allen Building), the Regional Administrative Court, Judge John Ovard, the County Court at Law Fifth District of Texas, the Supreme Court of Texas, Attorney Jerry Fazio, Owen & Fazio Law Firm, Attorney Brent Cornwell, Attorney Robert Clarkson, Judge Jack Pierce, Judge Russell Roden, Judge Robert Jenevein, Union Security Insurance Company, Michelle Falen, the Texas Department of Insurance, and the Texas Insurance Commissioner. These defendants are hereinafter and collectively referred to as “the Northern District of Texas Defendants.” Plaintiff already pursued claims against each of these defendants in the Amrhein NDTX I litigation, wherein all defendants were dismissed.

2

Plaintiff names the following entities and persons in the Amended Complaint, alleging each was directly or indirectly involved in the employment-related matters or engaged in some misconduct or bias in adjudicating or litigating the underlying state actions: La Madeleine of Texas, Inc., La Madeleine, de Corps, Inc., Groupe Le Duffe, Inc., Patrick Leon Esquerre (Founder, Owner, Advisor & Seller), Mr. John Corcoran (President/CEO), John Cahill (President), Duncan Davis (Vice President), Wallace B. Doolin (CEO), Fortis Benefits Insurance Company & Agents, Assurant Employee Benefits, Occupational Health (La Madeleine Company Healthcare Provider), Dr. John Touhey (Company Physician & Reporting Agent), Gwynn Carver, M.D. (Company Physician & Drug Testing), Mark S. Hutzel (La Madeleine Operations & Direct Manager), Karen Gentry (La Madeleine Employee & Supervisor), Sharon Crane (La Madeleine Employee & Long Term Disability Insurance), Steve Roos (La Madeleine Employee Corporate Office), “Other La Madeleine Employees Witnesses—Becky, Monique, Judith, Carlos, et al.,” Essilor Vision Foundation, Esquerre Enterprises, Le Madeleine (Florida) Inc., La Madeleine Boca Raton, The Wine Gourmet, Inc., Holder Services, Inc., LMI Investment #1 Company LTD, Esquerre Property Company LTD, Attorney John Owen, Attorney Tracy Stoker, Dodge, Fazio, Anderson & Jones, Attorney Jason Kipness, Kipness Law Firm, Attorney S. Russell Headrick, Lathrop & Gage, LLP, Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Attorney Erika M. Kane, Attorney Peter Harlan, Attorney Michael James Patterson, Attorney Cynthia Canfield Hamilton, Attorney Susan Farris, Law Offices of Gallerson & Yates, Vincent, Sarafino, Geary, Waddell & Jenevein, Attorney David R. Gibson, The Gibson Group, Judge Mark Greenberg, Attorney Michael R. Snipes (Retired Judge), Broden, Mickelsen, Helms, & Snipes LLP, Judge Bill F. Coker, Judge Tom Fuller, Judge Mary Murphy, Bailiff Gary Christensen, Dallas Sheriff’s Department Lt. Dohmann, Dallas County Sheriff Department Lupe Valdez, Dallas County Internal Affairs/Bailiffs, Lt. B. Terrell Internal Affairs Dallas Sheriff’s Department, Cheryl Duncan (Transcription Reporter), Cayse Coskey (Court Reporter), Richard Rhode (Court Reporter), Fawn Cave (Court Reporter), Denise Jay (Court Reporter), Veronica Hood, Aneesah Anderson, Court Chief Deputy Claudia McCoy, Court Clerk Lisa Matz, Fifth District Court of Appeals at Dallas, Justice Joseph Morris, Justice Mark Whittington, Justice Michael O’Neill, Justice Carolyn Wright, Justice Elizabeth Lang-Miers, Justice Martin Richter, Justice Douglas Lang, Justice Linda Thomas, Justice David Bridges, Justice Kerry P. Fitzgerald, Sixth District Court of Appeals at Texarkana, Justice Josh R. Morriss III, Justice Jack Carter, and Justice Bailey Moseley. These defendants are hereinafter and collectively referred to as “the Related Defendants.” Plaintiff raises claims against each of these defendants related to the same underlying facts as were raised in Amrhein NDTX I and, as best the Court can tell, does so for the first time in the present case.

3

Plaintiff also names the following entities and persons in the Amended Complaint, alleging that each was either directly or indirectly involved in and acting unlawfully with regard to the Amrhein NDTX I litigation: United States District Court for the Eastern District of Texas (“Judge Don Bush Venue Transfer 2011”), United States Northern District Court, Judge Jorge Solis, Magistrate Judge Renee Toliver, Judge A. Joe Fish, Clerk of Court Karen Mitchell (Northern District), Chief Judge Carl E. Stewart, Shelly Saltzman (Fifth Circuit), United States Court of Appeals Fifth Circuit, Judge Thomas Reavely, Judge Leslie H. Southwick, Judge James L. Dennis, Clerk of Court Lyle W. Cayce, United States Supreme Court & Justices; Justice Sonia Maria Sotomayor; Justice Stephen Gerald Breyer; Justice Samuel Anthony Alito, Jr.; Justice Elena Kagan; Justice Clarence Thomas; Justice Antonin Gregory Scalia (Deceased); Justice Anthony McLeod Kennedy; Justice Ruth Joan Bader Ginsburg; Chief Justice John G. Roberts; Clerk Advisor Jacob C. Travers; Supreme Court Clerks Scott S. Harris and James Atkinson, United States of America; President Barack Hussein Obama, Vice President Joseph Biden, United States Solicitor General Donald B. Verilli, Jr., United States Attorney General Loretta Elizabeth Lynch, United States Department of Justice, U.S. Attorney’s Office for the Northern District of Texas; John R. Parker (Northern District); Malcolm Bales (U.S. Attorney’s Office); Federal Bureau of Investigation; FBI Director James B. Comey; United States Senate Judiciary Committee; Judiciary Senate Chairman Charles E. “Chuck” Grassley, United States House Judiciary Committee; Judiciary House Chairman Robert Bob Goodlatte; Ted Cruz (U.S. Senator and Senate Judicial Chairman), John Cornyn (U.S. Senator and Senate Judicial Committee); United States Senate (114th Congress), United States House (114th Congress); Administrative Office of United States Courts, Office of General Counsel, United States Attorneys Office (Malcolm Bales), Texas Office of Court Administration, Dan Patrick (Texas Lt. Governor), Texas Ethics Commission, Texas Workers Compensation Division, Robert Shipe & Richard F. Reynolds, Texas Senate; Texas Senate Members, City of Dallas, Mayor of Dallas Mike Rawlings, Dallas County Judge Clay Jenkins, Dallas City Hall, Dallas County District Attorney’s Office (Susan Hawk), and Dallas City Council & Members. These defendants are hereinafter and collectively referred to as “the Federal Lawsuit Defendants.” Plaintiff attempts to raise claims against each of these defendants that are in some manner related to the Amrhein NDTX I litigation.

4

The Court addresses this same issue its previous Order (Dkt. #19) disposing of Plaintiff’s Motion to Recuse & Mandatory Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good Cause Reasons” & to Stay this Lawsuit (Dkt. #18).

5

The Magistrate Judge noted and the Court observes that “Plaintiff purports to claim recovery through at least thirty different statutes and causes of action ... [but] asserts no facts in connection with such [authorities]. In most instances she merely lists or includes citations to these statutes and/or causes of action in the body of the Amended Complaint” (Dkt. #12 at 15 n.5).

6

The Magistrate Judge defines the following groups of Federal Lawsuit Defendants: (1) Defendant Judges and Courts, (2) Defendant Court Staff and Clerks, (3) Defendant Attorneys and Law Firms, and (4) Government Defendants (Dkt. #12 at 16).

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