As a preliminary matter, Gusman asserts—and Kroger does not dispute—that Kroger is a nonsubscriber under the Texas Workers’ Compensation Act (TWCA). “To encourage employers to obtain workers’ compensation insurance, [the TWCA] penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees’ personal-injury actions[.]” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000). Thus, in an action against a nonsubscriber-employer “to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment,” the TWCA precludes a nonsubscriber from asserting that “(1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.” Tex. Lab. Code. § 406.033; see also Odom v. Kroger Tex., L.P., 2014 WL 585329, at *3 (N.D. Tex. Feb. 14, 2014) (“Kroger is a non-subscribing employer...Kroger cannot rely on the defense of contributory negligence, assumption of risk, or the fellow-servant rule.”). Accordingly, Kroger can only defend against Gusman’s negligence claims by demonstrating that Gusman cannot establish one or more elements of her claims. See Odom, 2014 WL 585329, at *3. And indeed, that is what Kroger attempts to do.

First, Kroger argues that Gusman’s claims fail because Gusman “cannot establish the threshold element of ‘duty.’ ” Doc. 38, Def.’s Br., 1. Next, Kroger argues that Gusman “was the sole proximate cause of her injur[y],” thus negating the element of causation. Id. The Court addresses both arguments below and finds that genuine issues of material fact exist as to whether Gusman may succeed on her claims.

1. Existence of a duty

“The existence of a duty is a threshold question of law,” and “[t]he nonexistence of duty ends the inquiry into whether negligence liability may be imposed.” Saucedo v. Horner, 329 S.W.3d 825, 830 (Tex. App.—El Paso 2010, no pet.). Kroger argues that summary judgment is proper because it did not owe a duty to Gusman to warn or protect her from “the risk of trying to move a train of 50 or more shopping carts[.]” Doc. 38, Def.’s Br., 15. The Court disagrees.

“[A]s [Gusman]’s employer, [Kroger] had the nondelegable duty to use ordinary care in providing [Gusman] with a safe workplace.” Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996) (citations omitted). This duty required Kroger to “warn [Gusman] of the hazards of employment and provide needed safety equipment or assistance.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam) (citations omitted). However, “an employer is not an insurer of its employees’ safety.” Id. And under Texas law, Kroger thus “owe[d] no duty to warn of hazards that are commonly known or already appreciated by” Gusman. Id.

Kroger suggests that Gusman already appreciated the hazard that led to her injury because of the safety training she received from Kroger. Doc. 38, Def.’s Br., 5–8. However, genuine issues of material fact exist as to whether Gusman appreciated the dangers of assisting Van Buren in moving the large train of carts. Though Gusman asserts that she was not trained on moving carts, Doc. 34, Pl.’s Br., 19–20, Kroger shows that Gusman “admitted that she was trained in response to [Kroger’s] Requests for Admissions[.]” Doc. 41, Def.’s Resp., 6. Even if Gusman was trained, however, the Court cannot determine from the evidence whether the training was adequate or the policies were subsequently enforced such that Gusman appreciated the dangers of “mov[ing] a train of 50 or more shopping carts[.]” See Doc. 38, Def.’s Br., 15. Thus, a genuine issue of material fact exists as to whether Gusman appreciated the hazard at issue.

Next, Kroger argues that, regardless of Gusman’s training, Kroger “ow[ed] no duty to [Gusman] to warn of the hazards” that led to her injury because “there can be no question that the risk of trying to move a train of 50 or more shopping carts is obvious and commonly known to any reasonable person.” Doc. 38, Def.’s Br., 15, 19–20. In support, Kroger cites three opinions of the Texas Supreme Court in which the court found that certain hazards were commonly known. See Doc. 38, Def.’s Br. 13–14.

First, in Brookshire Grocery Co. v. Goss, a grocery store employee was injured when she hit her shin on a “lowboy” cart⁵ after she had previously “successfully stepped over the cart[.]” 262 S.W.3d 793, 795 (Tex. 2008) (per curiam). There, the Texas Supreme Court found that the employer did not owe a duty to warn its employee of the dangers of tripping over the lowboy, as “[a] stationary, loaded lowboy is easily visible, and [the employee] saw it upon entering the” area where she fell. Id. Indeed, the danger of “stepping over a lowboy...is a danger apparent to anyone, including [the employee].” Id. And the employee in Goss clearly appreciated the danger, as she “had both previously encountered lowboys in the course of her work and was able to safely navigate around this lowboy[.]” Id.

Next, in Kroger Co. v. Elwood, the plaintiff-employee “was injured when a customer shut her vehicle door on his hand while he was transferring items from a grocery cart to the vehicle[.]” 197 S.W.3d at 794. In light of the employee’s admission that “he knew it was dangerous to place his hand in a vehicle’s doorjamb,” and in the absence of “evidence that other courtesy clerks sustained similar injuries,” the Texas Supreme Court concluded that defendant-employer did not owe a duty to the employee to warn about the dangers of placing one’s hand in a doorjamb. Id. at 795.

Finally, in Jack in the Box, Inc. v. Skiles, a lift gate on a food delivery truck broke while items were still inside. 221 S.W.3d 566, 567 (Tex. 2007) (per curiam). Though the defendant-employer’s policy required delivery persons to suspend deliveries until the lift gate could be fixed, the plaintiff-employee attempted to use a ladder to climb over the broken lift gate and was injured in the process. Id. There, the Texas Supreme Court did not impose a duty on the employer to warn against that action, as “[t]he dangers associated with the use of a ladder to climb over a lift gate are common and obvious to anyone.” Id. at 569.

However, the facts of this case are different than those in the cases cited by Kroger, and the Court does not find that the risk of trying to move a train of 50 or more shopping carts is obvious or commonly known. In Goss, Elwood, and Skiles, the dangers faced by the employees were those dangers inherent in everyday life. See id. at 567; 262 S.W.3d at 794; 197 S.W.3d at 794. Indeed, nearly any person with the ability to walk has tripped over a low-sitting object. And nearly any person with hands and fingers has caught them in a door or hinge. Further, the dangers of ladders are commonly known, especially where used incorrectly. Here, however, the act of moving multiple grocery carts is not a task undertaken by most people. And the risk of having one’s arm “crush[ed]” between grocery carts is not a commonly encountered risk, like the risk of tripping, getting one’s hand caught in a door, or injuring oneself by misusing a ladder. See Doc. 34, Pl.’s Br., 9.

Whether an employer has the duty to warn its employees “depends on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.” Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008). And these factors do not weigh against finding a duty in this case. Indeed, Kroger does not argue that the dangers of moving multiple carts are commonly known. Rather, Kroger takes issue with the number of carts that Gusman and Van Buren moved. See Doc. 38, Def.’s Br., 19–20. Kroger claims that Gusman “knew she was not allowed to move more than eight carts at a time,” pursuant to Kroger’s 2015 policy. Id. at 5. But it is not common knowledge that moving more than eight carts is any more dangerous than moving eight or less. Indeed, while a “50-cart train” may be “near-impossible” to physically move, the risk of “wedg[ing]” one’s arm “between two carts” is not any more foreseeable for the average person than it is during an attempt to move a five-cart train. See id. at 10, 19–20. Moreover, the fact that two employees—Gusman and Van Buren—were moving the carts, rather than one, seems to diminish the risks associated with the act. Accordingly, the Court does not find that Gusman’s act of assisting Van Buren in moving the cart-train was a hazard that is commonly known.

Finally, Kroger’s duty to Gusman “include[d] an obligation to provide adequate help under the circumstances for the performance of required work.” Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995) (citing W. Union Tel. Co. v. Coker, 204 S.W.2d 977, 978 (1947)). Here, Gusman has alleged and provided evidence that the Store “was busy and understaffed” and that “[a]ll of Kroger’s [cart] straps were either broken or missing” on the day that she was injured. Doc. 34, Pl.’s Br., 5–6. Though Kroger asserts that “the fact that a cart strap was not available on the day of the Incident is wholly irrelevant,” Doc. 38, Def.’s Br., 8, the Court finds that it is relevant to the determination of whether Kroger breached its “duty to furnish [Gusman] with safe and suitable equipment so that [s]he may carry on the work with reasonable safety.” See McMillian v. Hearne, 584 S.W.3d 505, 512 (Tex. App.—Texarkana 2019, no pet.). Although “a cart strap could not have been used on a train of 50 shopping carts,” Doc. 38, Def.’s Br., 8, this does not excuse Kroger from its duty, as it is entirely possible that Van Buren would not have attempted to move that many carts had Kroger furnished the safety straps.

Overall, Kroger owed the “duty to use ordinary care in providing [Gusman] with a safe workplace.” Leitch, 935 S.W.2d at 118 (citations omitted). And a genuine issue of material fact exists as to whether Kroger breached that duty.

2. Sole proximate cause

Even if Kroger and Van Buren were negligent, Gusman must prove that their negligence proximately caused Gusman’s injury. See Gutierrez, 106 F.3d at 687. Kroger asserts that summary judgment should be granted in its favor because Gusman cannot prove that Kroger or Van Buren proximately caused Gusman’s injury. See Doc. 38, Def.’s Br., 20. Rather, Kroger states that Gusman’s “dangerous decision and risky behavior directing and assisting [Van Buren] to move a 50-cart train of shopping carts was the sole proximate cause of [Gusman’s] accident and injur[y].” Id. “[B]ut for [Gusman’s] decision to assist Van Buren in violating Kroger policy,” Kroger argues, “her injury would not have occurred.” Id. at 21–22. The Court declines to agree at this stage and finds that the proximate cause of Gusman’s injury is a question for the jury.

“In Texas, proximate cause has two factors: cause in fact and foreseeability.” Gutierrez, 106 F.3d at 687 (citation omitted). “Cause in fact is ‘but for cause,’ meaning the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred.” El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). “Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligence created.” Gutierrez, 106 F.3d at 687 (citing Poole, 732 S.W.2d at 313). Proximate cause “must be established by probative evidence, not by mere conjecture or guess.” Id. (citing Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex.1995)). Thus, “[c]ausation is a question of fact for the jury, and the jury has broad latitude to infer proximate cause from the evidence and circumstances surrounding an event.” Id. (citations omitted).

A jury could find that Kroger was negligent in failing to warn Gusman or furnish necessary equipment, and that Van Buren was negligent in attempting to move the carts. And a jury could find that Kroger or Van Buren’s negligence was a but-for cause of Gusman’s injury and that Gusman’s injury was foreseeable. See Poole, 732 S.W.2d at 313. Thus, while a jury could find that Gusman’s actions were the sole proximate cause of her injury, the jury could also find that her injury was proximately caused by Kroger’s and/or Van Buren’s negligence. And because the TWCA precludes Kroger from asserting a defense of contributory negligence, it is of no consequence that Gusman’s own negligence may have contributed to her injury, so long as Kroger’s or Van Buren’s negligence was one of the contributing proximate causes.

In sum, genuine issues of material fact exist as to whether Kroger breached a duty to Gusman and whether any such breach was a proximate cause of Gusman’s injury. Thus, the Court DENIES Kroger’s motion for summary judgment (Doc. 37).

B. Gusman’s Motion for Partial Summary Judgment Is Denied. Gusman seeks “summary judgment as to Kroger’s liability in this case[,]...leaving only

Gusman’s damages to be determined” by the jury. Doc. 34, Pl.’s Br., 5. Indeed, Gusman asserts that the evidence proves that Kroger is vicariously liable for the negligence of Van Buren, as well as directly liable for Kroger’s own negligence. Id. at 12–20. The Court DENIES Gusman’s motion for partial summary judgment, as genuine issues of material fact exist as to all of Gusman’s claims.

1. Vicarious liability

Gusman seeks to hold Kroger vicariously liable for the acts of its employee, Van Buren. Doc. 1-2, Notice of Removal Exs., 12. “Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employee only when the employee is acting within the course and scope of employment.” Doe v. Apostolic Assembly of Faith in Christ Jesus, 452 F.Supp.3d 503, 517 (W.D. Tex. 2020) (citing Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 576 (Tex. 2002)). Gusman claims that in “attempt[ing] to move 50 carts at once,” Van Buren acted negligently, and that his “negligence was a proximate cause of Gusman’s injury.” Doc. 34, Pl.’s Br., 13, 15. Indeed, Gusman points out that Van Buren failed to abide by Kroger’s training and policies, which “prohibited its courtesy clerks from moving more than six to eight carts at any one time, and expressly required that they use a cart strap anytime they were moving more than two.” Id. at 13–14.

The parties do not dispute that Van Buren acted within the scope of his employment with Kroger when Gusman was injured. Id. at 12; see generally Doc. 38, Def.’s Br.; Doc. 41, Def.’s Resp.; Doc. 50, Def.’s Reply. And they agree that Van Buren pushed the large cart-train and injured Gusman. Doc., 34, Pl.’s Br., 8–9; Doc. 38, Def.’s Br., 9–10. What is in dispute, however, is whether Van Buren’s acts constituted negligence. “[G]enerally, questions of negligence...are quintessential jury questions.” UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 105 (Tex. 2017) (Willett, J., concurring). This case is no exception.

To prove negligence, “a plaintiff must show that a defendant either did something an ordinarily prudent person exercising ordinary care would not have done under the circumstances, or that the defendant failed to do that which an ordinarily prudent person would have done in the exercise of ordinary care.” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 541 (5th Cir. 2005) (citing Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas 2004, pet. denied)). However, “[t]he Texas Supreme Court has refused to create a standard of care or duty based upon internal policies, and the failure to follow such policies does not give rise to a cause of action[.]” Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) (citing FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2006); Guerra v. Regions Bank, 188 S.W.3d 744, 747 (Tex. 2006)). While Kroger’s policies “may be evidence of the standard of care,” they are not determinative of fault or the applicable standard of care in this negligence case. See Mills v. Angel, 995 S.W.2d 262, 268 (Tex. App.—Texarkana 1999, no pet.). Thus, while Gusman’s evidence shows that Van Buren failed to abide by Kroger’s policies, such a failure does not necessarily mean that Van Buren “failed to do that which an ordinarily prudent person would have done in the exercise of ordinary care.” See id. In other words, failure to abide by Kroger’s policy does not, as a matter of course, equate to negligence. The jury must decide whether Van Buren acted negligently in violating Kroger’s policies.

Because a genuine issue of material fact exists as to whether Van Buren’s actions constituted negligence, Gusman’s request for summary judgment on her vicarious liability claim is DENIED.

2. Direct liability claims

Gusman seeks summary judgment on her negligence claims against Kroger for two alleged failures on Kroger’s behalf. Doc. 34, Pl.’s Br., 16, 19. First, Gusman claims that Kroger was negligent by “fail[ing] to provide its employees with safe and suitable equipment with which to perform their jobs.” Id. at 16. Second, Gusman claims that “Kroger failed to provide its employees safe conditions in which to work” by “fail[ing] to adequately staff or train its employees.” Id. at 19. However, genuine issues of material fact exist as to Kroger’s direct liability.

First, a genuine issue of material fact exists as to whether Kroger’s “failure to provide...safe and suitable equipment” caused Gusman’s injury. Id. at 16. Though the parties do not dispute that the Store lacked working cart straps, id. at 5; see Doc. 38, Def.’s Br., 8, “a cart strap could not have been used on a train of 50 shopping carts.” Doc. 38, Def.’s Br., 8.

Further, a genuine issue of material fact exists as to whether Kroger was negligent in failing to provide safe working conditions. Despite Gusman’s arguments to the contrary, see Doc. 34, Pl.’s Br., 19, Gusman previously “admitted that she was trained” to retrieve shopping carts. Doc. 41, Def.’s Resp., 6. And though Gusman asserts that Kroger “failed to adequately staff” the Store on the day of her injury, she has not shown that the alleged failure to staff caused her injury. See Doc. 34, Pl.’s Br., 19. Indeed, the parties dispute whether cart retrieval was part of Gusman’s duties. See Doc. 34, Pl.’s Br., 7; Doc. 38, Def.’s Br., 4. Thus, Gusman may have performed those duties regardless of additional employees and may have suffered the same injury. Therefore, genuine issues of material fact exist as to both of Gusman’s theories of Kroger’s direct liability.

Gusman has not met her burden for summary judgment on her claims against Kroger for vicarious or direct liability. Accordingly, the Court DENIES Gusman’s motion.

C. Gusman’s Objections to Evidence Are Moot.

Gusman objects to several pieces of Kroger’s summary-judgment evidence, specifically “documents Kroger relies on to claim that Gusman was trained regarding the handling of carts.” Doc. 43, Pl.’s Resp., 8–9. However, in light of Gusman’s response to Kroger’s Requests for Admissions, see Doc. 41, Def.’s Resp., 6, and Gusman’s failure to provide compelling evidence that she was not trained, the Court did not need to rely on the documents in reaching its conclusion that Gusman has not proved a failure to train. See supra Section III.B.2. Thus, the Court does not rely on the objected-to evidence in this Order and Gusman’s objections are MOOT.

IV.

CONCLUSION

For the reasons stated above, the Court DENIES Kroger’s Motion for Summary Judgment (Doc. 37) and DENIES Gusman’s Motion for Partial Summary Judgment (Doc. 33). Further, Gusman’s objections, as set forth in her response (Doc. 43) to Kroger’s motion are MOOT.

SO ORDERED.

SIGNED: August 2, 2021.

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

KENNETH COUNCIL, et al. Plaintiffs,

v.

JOSELYN HOOD, et al. Defendants.

No. 3:20-cv-01618-N (BT)

|

Filed 07/08/2021

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE

Pro se Plaintiffs Kenneth Council (“Council”) and Roshell Pickens (“Pickens”) filed this action under 42 U.S.C. §§ 1983 and 1985 for damages and injunctive relief stemming from a denial of workers’ compensation benefits. See (ECF No. 3). Plaintiffs sue five defendants affiliated with the Texas Department of Insurance: (1) Joselyn Hood, a benefit review officer; (2) Cassandra Brown, the “Commissioner of Workers’ Comp;” (3) Monica Zahn, an administrative law judge; (4) Allen Craddock, a director with the Texas Department of Insurance; and (5) John Doe, presumably an employee with the Texas Department of Insurance (referred to collectively as the “State Defendants”). See (ECF No. 3 at 3-6). Plaintiffs also sue private defendants unaffiliated with the state: (1) John Doe, a representative of Hartford Casualty Insurance Company; (2) Jane Doe, a human resources employee with Sun Coast Resources; (3) Jane Doe 2, a representative of Sedwick; (4) Travis Holland, an insurance lawyer; and (5) Joe Anderson, an insurance lawyer (referred to collectively as the “Private Defendants”).

The Court granted Plaintiffs leave to proceed in forma pauperis but withheld issuing service pending judicial screening. See ECF No. 6. For the following reasons, the Court should dismiss Plaintiffs’ claims against the State Defendants in their official capacities pursuant to the Eleventh Amendment and dismiss the remaining claims against all Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted.

Background

Plaintiffs’ claims arise out of state workers’ compensation proceedings in which Pickens was denied benefits. Plaintiffs contend that various errors and omissions by Defendants violated their federal rights. Plaintiffs specifically allege as follows:

Pickens suffered a compensable illness or injury for purposes of the Texas workers’ compensation statute (TEX. LAB. CODE §§ 401.001-506.002). On September 2, 2019, Plaintiffs, with Council (a layman) acting as Pickens’s legal representative, faxed a Texas Department of Insurance Form (“DWC041”) to the Texas Workforce Commission Office, thereby alerting all Defendants of Pickens’s claim for workers’ compensation benefits. Id. at 7. Pickens claimed to have suffered a “high intake of fuel vapor” and was experiencing a “constant headache and confusion.” Id. at 11. Plaintiffs attached a handwritten account of Pickens’s injuries to the DWC041.

However, the Private Defendants failed to timely respond to the DWC041, thereby waiving all defenses to the claim except for the defense that the claim was not supported by objective medical evidence. See id. at 11; see also TEX. LAB. CODE § 409.021 (providing that if an insurance carrier does not contest the compensability of an injury on or before the 60^th day after notification of the injury, the carrier waives the right to contest compensability).

On September 19, 2019, Plaintiffs requested a benefit review conference in according with Texas workers’ compensation procedure. See TEX. LAB. CODE. § 410.021. The disputed issues were whether Pickens “suffered inhalation toxicity” on the job and was being treated for “pain and confusion.” (ECF 3 at 13). A benefit review conference was held on November 6, 2019, but Defendant Hood conducted the benefit review conference in manner that was contrary to Texas law. Specifically, Defendant Hood indicated that Pickens needed a licensed attorney and could not be represented by Council, but “[n]owhere in [the] Texas Administrative Codes does it say an injured person has to be represented by a lawyer.” Id. at 15. The “hearing was terse and brief due to Hood’s refusal to accept the fact that Council was a capable lay representative.” Id. at 15. Defendant Hood failed to “delineate the disputed issues” and to resolve the disputed issues in violation of Texas workers’ compensation law. Id. Council specifically complained that the Private Defendants waived any defense to Pickens’s claim, other than their defense that Pickens failed to provide objective evidence of injury. Id. at 16.

Defendant Hood—despite the DWC041 form and attachments thereto—stated that there needed to be another benefit review conference because there was no exchange of information. Id. at 17. In drafting a statement regarding the rescheduling of the benefit review conference, Defendant Hood “filed a statement totally excluding the disputed issues relevant to Plaintiffs, crafting a statement beneficial to [the Private Defendants],” thereby denying Plaintiffs due process and access to the courts. Id. Specifically, Defendant Hood failed to determine whether the Private Defendants waived their right to contest compensability due to their dilatory response to the initial DWC041.

Council then complained in writing to the Texas Department of Insurance and the Texas Attorney General about the initial benefit review conference. Id. Defendant Craddock “on behalf of Defendants Brown and John Doe” responded to Council’s complaint in a manner that was not satisfactory to him. Id. at 18. Defendant Craddock attempted to mislead Pickens into hiring an actual attorney or accepting free representation from the Office of Injured Employee Counsel, which caused Pickens to become upset, as it implied that Council’s representation was defective. Id. at 19. The letter also implied that Pickens signed a medical release form—causing her to, in essence, abandon her waiver argument. Plaintiffs contend that Defendant Craddock’s response letter was “fraudulent,” and that defendant Craddock instructed Defendant Hood that “the waiver issue was to be ignored.” Id.

Apparently, Defendant Hood, despite prior protestations that a second benefit review conference was necessary, proceeded instead to draft a written report for purposes of a contested case hearing, which is the next step in the process of resolving a benefits dispute. Id. at 27; see also TEX. LAB. CODE § 410.151. However, Defendant Hood failed to prepare a written report that details each issue that is not resolved at the benefit review conference, in contravention of Texas law. Id. Specifically, Defendant Hood’s report omitted the waiver issue. Id. “The federal court has jurisdiction on this issue because the moment the Defendants collaborated and conspired and did exclude the affirmative waiver defense (from the list of disputed issues) is the moment a constitutional breach occurred and State remedies were exhausted.” Id. at 28.

Finally, at the contested case hearing, Defendant Zahn again refused to consider the waiver issue and refused to “include Council’s response to Hood’s dispute statement.” Id. at 29. Defendant Zahn did, however, allow the Private Defendants to file an untimely response to Defendant Hood’s benefit review response. Id. Defendant Craddock then “conspired with and approved of Zahn [sic] unlawful and equal treatment of Plaintiffs during the contest [sic] case hearing ... [w]hen he upheld Defendant Zahn’s unlawful and unconstitutional actions.... ” Id. at 30.

Plaintiffs seek injunctive relief, compensatory damages, and punitive damages. Id. at 32.

Legal Standards

Under 28 U.S.C. § 1915(e)(2)(B), a district court may summarily dismiss a complaint filed in forma pauperis if it concludes the action is: (1) 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). A complaint is frivolous when it “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A court may dismiss a complaint as frivolous when it is based on an indisputably meritless legal theory or when the factual contentions are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). The latter category encompasses allegations that describe “fanciful, fantastic, and delusional” scenarios, or that “rise to the level of the irrational or the wholly incredible.” Id. at 33.

Analysis

A. Plaintiffs cannot state a claim against the Private Defendants because they are not state actors and the conspiracy allegations are conclusory.

Plaintiffs’ suit against the Private Defendants should be dismissed because they are not state actors for purposes of section 1983, and Plaintiffs’ allegations that the Private Defendants conspired with state actors—bringing them within the ambit of section 1983—are too conclusory to support relief.

To state a claim under section 1983, a plaintiff must allege that he was deprived of a constitutionally protected right “under color of state law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). “The under color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful.’ ” Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982). “For a private citizen ... to be held liable under section 1983, the plaintiff must allege that the citizen conspired with or acted in concert with state actors.” Priester v. Lowndes Cnty., 354 F.3d 414, 420 (5th Cir. 2004) (citation omitted). To state such a claim, the plaintiff must allege: “(1) an agreement between the private and public defendants to commit an illegal act and (2) a deprivation of constitutional rights.” Id. (citing Cinel v. Connick, 15 F.3d 1338, 1343 (1994)). “Allegations that are merely conclusory, without reference to specific facts, will not suffice.” Priester, 354 F.3d at 420 (citing Brinkmann v. Johnson, 793 F.2d 111, 113 (5th Cir. 1986)).

Here, Plaintiffs provide only conclusory allegations of a conspiracy between the State and Private Defendants. They do not allege a specific agreement to commit an illegal act, nor do they supply facts demonstrating such an agreement. Thus, Plaintiffs’ claims against the Private Defendants under section 1983 should be dismissed.

Similarly, Plaintiffs’ section 1985(3) claim is too conclusory to state a claim for relief. Section 1985(3) requires “some racial, or perhaps otherwise class-based, invidiously discriminatory animus” behind the alleged unlawful action.¹ Griffin v. Breckenridge, 403 U.S. 88, 91 (1971). Thus, to show a private conspiracy in violation of section 1985(3), a plaintiff must show that “(1) that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action,’ and (2) that the conspiracy ‘aimed at interfering with rights’ that are ‘protected against private, as well as official, encroachment.’ ” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68 (1993) (citation omitted). Here, Plaintiffs make no allegations that the Private Defendants discriminated against them with “some racial, or perhaps otherwise class-based, invidiously discriminatory animus,” so their claim under section 1985(3) should be dismissed.

B. Plaintiffs’ claims against the State Defendants are not cognizable.

1. The Eleventh Amendment bars Plaintiffs’ official-capacity claims against the State Defendants.

Plaintiffs have sued Defendants Hood, Brown, Zahn, Craddock, and John Doe 1—each a state official—in their official and individual capacities. “The Eleventh Amendment prohibits a private citizen from bringing suit against a state in federal court unless the state consents.” Daigle v. Gulf State Utils. Co., 794 F.2d 974, 980 (5th Cir. 1986) (citing Hans v. Louisiana, 134 U.S. 1, 10 (1890)). This prohibition applies with full force to agencies of the state. See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 326 (5th Cir. 2002). An exception to Eleventh Amendment immunity exists when suit is brought against a state officer, in his official capacity, seeking prospective relief to enjoin an ongoing violation of federal law. Ex Parte Young, 209 U.S. 123 (1908). However, this exception does not apply to requests for retrospective relief. See Fan v. Brewer, 2009 WL 1743824, at *4 (S.D. Tex. June 17, 2009) (noting that Eleventh Amendment would bar request for retrospective injunctive relief against State of Texas).

Here, The Texas Department of Insurance is “clearly a state agency, created by the laws of the state of Texas.” Corporate Health Ins. v. Texas Dept. of Ins., 12 F.Supp.2d 597, 605 (S.D. Tex. 1999) (citations omitted). Thus, Plaintiffs’ claims against the State Defendants in their official capacities for monetary relief are barred by the Eleventh Amendment. And the Eleventh Amendment also bars Plaintiffs’ request for retrospective injunctive relief, which asks the Court to “issue an injunction against the Defendants and require the Defendants to reset or redo the entire workers’ compensation process relevant to this case ....” See ECF No. 3 at 32.

2. Plaintiffs fail to state a claim against the State Defendants in their individual capacities.

While the Eleventh Amendment does not prohibit Plaintiffs’ suit against the State Defendants in their individual capacities, their allegations nevertheless fail to state a claim upon which relief can be granted. Plaintiffs maintain that the failure of these Defendants to abide by Texas workers’ compensation procedures deprived them of due process, equal protection, and the right to access the courts.

Initially, the Court finds that Plaintiffs’ individual-capacity claims against the State Defendants are barred by absolute quasi-judicial immunity. Judges have absolute judicial immunity from suit for their judicial actions. See Mireles v. Waco, 502 U.S. 9, 11 (1991). “This immunity also extends to administrative officials performing functions closely associated with the judicial process because the role of the hearing examiner or administrative law judge ... is functionally comparable to that of a judge.” Butz v. Economou, 438 U.S. 478, 513 (1978) (internal quotation marks and citation omitted); see also Howery v. Chanis, 2017 WL 2773594, at *3 (E.D.N.Y. (June 26, 2017) (finding that doctrine of absolute quasi-judicial immunity barred the plaintiff’s individual-capacity suit against worker’s compensation judge and three members of the workers’ compensation board); Person v. White, 2010 WL 2723210, at *5 n.4 (E.D.N.Y. July 2, 2010) (same).

Here, as best the Court can tell, Plaintiffs’ claims against the State Defendants all relate to their roles as arbiters of Pickens’s claim for workers’ compensation benefits and there is “nothing in the Complaint from which the Court could reasonably construe that any alleged misconduct occurred outside of that capacity or that any of the Defendants lacked jurisdiction over the proceedings.” Howery, 2017 WL 2773594, at *3.

But even were absolute quasi-judicial immunity inapplicable, Plaintiffs nevertheless fail to state a claim. As for substantive due process, “[a] government violates substantive due process when it deprives an individual of constitutional rights by an arbitrary use of its power.” Smith v. City of Bastrop, 2021 WL 256823, (W.D. Tex. Jan. 26, 2021), rep. and rec. adopted, 2021 WL 256823 (W.D. Tex. Mar. 16, 2021) (citing Simi Inv. Co. v. Harris Cnty., 236 F.3d 240, 249 (5th Cir. 2000)). “[T]he substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as arbitrary, or conscience shocking in the constitutional sense.’ ” Reyes v. North Texas Tollway Authority, (NTTA), 861 F.3d 558, 562 (5th Cir. 2017) (citations omitted).

Here, the Court, in line with other courts to have considered similar claims, finds that the State Defendants’ conduct in denying Pickens’s workers’ compensation claim is not the kind of government conduct that “shocks the conscience” for purposes of stating a substantive due process claim. See, e.g, Gale v. SAIF Corp., 2019 WL 2488719, at *8 (D. Or. Mar. 15, 2019) (rejecting § 1983 substantive due process claims premised upon denial of worker’s compensation benefits and noting that “[a]s a matter of law, Plaintiff’s allegations simply are not the type of government conscience-shocking behavior that courts have found to support substantive due process claims”); Wilson v. Ayers, 2010 WL 174111, at *3 (D. Nev. Jan. 14, 2010), aff’d, 470 F. App’x. 654, 655 (9th Cir. 2012) (dismissing § 1983 substantive due process claims premised on denial of worker’s compensation benefits). Thus, to the extent urged, Plaintiffs’ substantive due process claims should be dismissed.

Next, to the extent that Plaintiffs claim that they were denied procedural due process, “[t]he first inquiry in every procedural due process challenge is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.’ ” Johnson v. Thompson-Smith, 203 F.Supp.3d 895, 905-06 (N.D. Ill. 2016) (quoting Am. Mfgs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)). “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must, instead have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

In Sullivan, the Supreme Court considered whether a plaintiff had a constitutionally-protected property interest in state workers’ compensation benefits. The Supreme Court held that the plaintiff did not have a protected interest. Unlike other cases in which the Supreme Court had held that a property interest accrued in government benefits—like the welfare assistance in Goldberg v. Kelly, 397 U.S. 254 (1970) and the disability benefits in Mathews v. Eldridge, 424 U.S. 319 (1976)—under Pennsylvania law, workers’ compensation payments for medical treatment were not automatic and were instead subject to an initial determination of reasonableness and necessity, a showing that the plaintiffs there failed to make.

That rationale is controlling here, as Texas law also preconditions payment of workers’ compensation benefits on a compensable injury and determinations of reasonableness and necessity. See TEX. LAB. CODE §§ 401.011(19)(31); see also Aguirre v. Tristar Risk Management, 2011 WL 6002642, at *6 (S.D. Tex. Nov. 30, 2011) (explaining that a claimant is entitled to Texas workers’ compensation benefits if he can demonstrate (1) that he has suffered a compensable injury, and (2) that the treatments he requests are medically necessary to treat that injury) (citations omitted).

Because Plaintiffs have only pleaded facts showing a unilateral expectation in workers’ compensation benefits and not an actual entitlement to them, they have failed to show a protectable property interest. See Sullivan, 526 U.S. at 60; see also Johnson, 203 F.Supp.3d at 905 (granting motion to dismiss takings claim and procedural due process claims related to denial of workers compensation benefits and noting that “[b]ecause Johnson never proved his eligibility for workers’ compensation, he does not have a protectable property interest in medical or fringe benefits as claimed”); Sherwin v. Piner, 2003 WL 24051575, at *3-4 (E.D.N.C. July 22, 2004) (dismissing procedural due process claim premised upon the denial of workers’ compensation benefits in light of Sullivan and noting that the plaintiff’s “unilateral belief” that he was entitled to workers’ compensation benefits was insufficient to establish his entitlement to them); Holt v. Texas Dept. of Ins.-Div. of Workers’ Compensation, 2018 WL 6695725, at *8 (Tex. App.—Austin Dec. 20, 2018, pet. denied) (mem. op.) (rejecting, as part of takings-claim analysis, argument that the plaintiff had vested property right in workers’ compensation benefits and noting that “[c]ase law indicates that an injured worker has ‘a mere expectancy’ in receiving temporary income benefits because once the worker is determined to have reached MMI, the insurance carrier may immediately stop making those payments,” and “[b]ecause an injured employee is entitled to temporary income benefits only until he reaches MMI, at which point he may be entitled to a different kind of benefits, temporary income benefits are by their very nature contingent upon a doctor’s determination and, therefore, cannot be considered a vested right”).

Further, even if Plaintiffs could show a protected property interest, they fail to demonstrate that they were deprived of constitutionally adequate procedural due process. Procedural due process requires that individuals be given notice of an impending deprivation as well as an opportunity to be heard prior to the deprivation. See generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Plaintiffs, though, do not complain about the notice that they received. Nor do they claim that they were deprived of a hearing; they complain, instead, that Defendants violated the Texas workers’ compensation statute. Thus, Plaintiffs fail to state a procedural due process claim.

Plaintiffs also claim that Defendants’ actions violated their Equal Protection rights, but they provide no explanation as to how. “To state a claim under the Equal Protection Clause, a § 1983 plaintiff must either allege that (a) “a state actor intentionally discriminated against [him] because of membership in a protected class [,]” Williams v. Bramer, 180 F.3d 699, 705 (5th Cir. 1999) (citation omitted), or (b) he has been “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiffs fail to include any such allegations here, so their equal protection claim should be dismissed.

Plaintiffs also fail to state a claim for deprivation of their right of access to the courts. “[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983). To succeed on an access-to-courts claim, a plaintiff must show that he lost an actionable claim or was preventing from presenting such a claim because of the alleged denial. See Lewis v. Casey, 518 U.S. 343, 353 (1996); Eason v. Thaler, 73 F.3d 1322, 1328 (5th Cir. 1996) (holding that to state a sufficient claim of denial of access to the courts, plaintiff must demonstrate that his position as a litigant was prejudiced as a direct result of the denial of access). The “injury requirement is not satisfied by just any type of frustrated legal claim.” Lewis, 518 U.S. at 353. “Rather, a plaintiff must demonstrate that the lack of access has prevented him from filing or caused him to lose a pending case that attacks either his conviction or seeks to vindicate basic constitutional rights in a civil rights action.” Barela, 2019 WL 4648262, at *6 (quoting Lewis, 518 U.S. at 353-54 (internal quotation marks omitted) (citation omitted)).

Here, Plaintiffs “cannot state a First Amendment claim for denial of access to courts because [they have] alleged nothing to suggest [they were] actually prevented from presenting ... [their] underlying claims to this [C]ourt.” West v. Putman, 2018 WL 4211749, at *4 (S.D. Tex. Apr. 12, 2018).

Recommendation

The Court should dismiss Plaintiffs’ claims against the State Defendants in their official capacities pursuant to the Eleventh Amendment and dismiss the remaining claims against all Defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted.

Ordinarily, pro se plaintiffs should be granted leave to amend their complaint prior to dismissal, however, leave to amend is not required where the plaintiffs “ha[ve] already pleaded [their] ‘best case.’ ” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). For the reasons stated, Plaintiffs’ claims are fatally infirm. Thus, the Court concludes that granting leave to amend would be futile and cause needless delay.

SO RECOMMENDED.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). 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 aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

FIROOZ DELJAVAN, Plaintiff,

v.

GOODWILL INDUSTRIES OF FORT WORTH, et al., Defendants.

Civil Action No. 4:20-cv-01258-BP

|

05/28/2021

Hal R. Ray, Jr., UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER

Before the Court are the First Amended Motion to Dismiss and Brief in Support (ECF No.

21) filed by Defendants Elizabeth Butler, Rosemary Cruz, and Terry Willet on January 14, 2021; Defendant Goodwill Industries of Fort Worth’s Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted and Brief in Support (ECF No. 24) filed on January 20, 2021; Plaintiff’s Replies and Briefs in Support (ECF Nos. 35, 36, 42, 43) filed on March 2, 4, and 31, 2021, respectively; and Defendants’ Replies (ECF Nos. 44 and 45) filed on April 2, 2021.

After considering the pleadings and applicable legal authorities, the Court GRANTS Defendants’ Motions to Dismiss (ECF Nos. 21 and 24) and DISMISSES WITHOUT PREJUDICE Plaintiff’s claim under Title VII of the Civil Rights Act of 1964 (“Title VII”) for failure to exhaust administrative remedies; DISMISSES WITH PREJUDICE his claims under the Age Discrimination in Employment Act of 1967 (“ADEA”), the Americans with Disabilities Act (“ADA”), and the Fair Labor Standards Act (“FLSA”); and DISMISSES WITHOUT PREJUDICE Plaintiff’s state law claims for retaliation under the Workers’ Compensation Act, breach of contract, and fraud because the Court declines to exercise ancillary jurisdiction over these claims.

I. BACKGROUND

In this employment discrimination case, Firooz Deljavan (“Deljavan”) sues his former employer, Goodwill Industries of Fort Worth (“Goodwill”), and Goodwill’s Vice President of Human Resources, Elizabeth Butler (“Butler”), Vice President of Donated Goods/Retail, Rosemary Cruz (“Cruz”), and Retail Director, Terry Willet (“Willet”). ECF No. 18. The following facts come from the Amended Complaint, and the Court accepts them as true for purposes of considering the Defendants’ Motions to Dismiss. See Manguno v. Prudential Prop. & Case. Ins. Co., 276 F.3d 720, 725 (5th Cir. 2002).

Deljavan began working for Goodwill at its Camp Bowie store in Fort Worth as a donation attendant on September 9, 2018. ECF No. 18 at 7. In January 2020, he was accused of offering a female coworker $1,000 in exchange for sex. Id. at 9. Deljavan denied the allegations and claimed that the female coworker only made them to “express her rage” at him because of the “mental pressure” she was under due to her abusive relationship. Id. Deljavan reported these accusations to his manager and was asked to complete an affidavit. Id. On January 22, 2020, Deljavan met with Willet, who was investigating the allegations. Id. Willet questioned why Deljavan was trying to help his coworker and how he planned on helping her get psychiatric treatment. Id. Deljavan told Willet that he had just come from his doctor’s office and had asked them about different facilities that might be available to his coworker. Id. Deljavan claims that upon mentioning that he was at the doctors, Willet became more interested in why he was there than in investigating his coworker’s complaint. Id. at 9-10. Deljavan states that he told Willet that he was receiving temporary medical treatment for a “locking finger.” Id. at 35.

Deljavan met with Willet again, and Willet told him that he was closing the case and “[b]ury[ing] the [h]atchet.” Id. at 10. Deljavan interpreted this as an enforceable oral agreement as he had “an obligation not to discuss the case with any co-worker[s].” Id. On January 29, 2020, Willet informed Deljavan that his employment was terminated due to his sexual misconduct, which Deljavan claims “breached” their previous oral agreement. Id. at 10-12.

While Deljavan acknowledges that he was terminated for allegedly sexually harassing a female coworker, he claims that Willet used this as a “pretext” to terminate him because of his age and disability. Id. at 11, 13, 36. Deljavan asserts that the Defendants violated the ADEA, the ADA, Title VII, the Texas workers’ compensation anti-retaliation provisions, and the FLSA, and breached an oral contract by terminating him. Id. 40-41, 47-49, 57, 88-89. Deljavan also alleges that Defendant Goodwill defrauded him. Id. at 41.

In their Motion to Dismiss, Butler, Cruz, and Willet assert that Deljavan’s ADEA and ADA claims fail as a matter of law because the ADEA and ADA both preclude personal liability suits against individuals who are not the plaintiff’s employer. ECF No. 21 at 4. Defendant Goodwill asserts that Deljavan’s ADEA and ADA claims against it fail since he did not plead a valid claim of age or disability discrimination. ECF No. 24 at 6-11.

All of the Defendants further argue for dismissal of Deljavan’s Title VII claims for failure to state a claim and exhaust administrative remedies. ECF Nos. 21 at 6 and 24 at 17-18. Specifically, the Defendants allege that despite his many references to Title VII throughout his Amended Complaint, Deljavan did not allege discrimination or retaliation on the basis of his race, color, religion, sex, or national origin as required to state a claim under Title VII. Furthermore, Deljavan did not allege any Title VII claims in his charge of discrimination. Id.

Defendants contend that the Court should dismiss Deljavan’s workers’ compensation retaliation claim because he made no factual allegations to prove any of the elements required to state such a claim. Id. at 7-8 and 20-21. Additionally, the Defendants assert that Deljavan has failed to allege any facts to support his FLSA claims as he did not contend that he was required to perform any principal activities while he was made to stay late at work. Id. at 8-9 and 22-23.

The Defendants seek dismissal of Deljavan’s breach of contract claims because he was an at-will employee, and the alleged “oral agreement” was not in writing as required by law. Id. at 9-10 and 23-24. Finally, Defendant Goodwill argues for dismissal of Deljavan’s fraudulent concealment claim against it because he failed to plead any of the elements of a fraud claim and did not plead facts with particularity. ECF No. 24 at 19-20.

In response to Defendants Butler, Cruz, and Willet’s Motion to Dismiss, Deljavan claims that this Court should follow the Seventh Circuit and allow his ADA, ADEA, and Title VII personal liability claims against the defendants despite them not being his employer. ECF No. 42 at 79. Deljavan also contends that his FLSA claim should not be dismissed because the Defendants “enforced the policy everyone must exit at the same time on the night shift and clock out if they finished their task,” which Deljavan claims resulted in him working for free. Id. at 74. Deljavan also alleges for the first time that the Defendants violated their alleged fiduciary duties owed to him and violated the Volunteer Protection Act of 1997, the Uniform Prudent Management of Institutional Funds Act, and the Sarbanes-Oxley Act of 2002. Id. at 8-11.

In his response to Goodwill’s Motion to Dismiss, Deljavan argues against dismissal of his ADA claims since Goodwill had a copy of his physical examination performed by a “Goodwill doctor,” and therefore terminated him because it knew he was a qualified disabled person. Id. at 97. He contends that the Court should not dismiss his ADEA claims because Goodwill promoted younger employees to cashier positions instead of him, proving that Goodwill terminated him due to his age. Id. at 90. Deljavan also reasserts that Goodwill violated the FLSA by making him stay after his shift was over without paying him, so dismissal of that claim is not warranted. Id. at 105. Deljavan argues that his fraud claim should not be dismissed because Goodwill made a false representation and intended for him to act in reliance on that false representation. ECF No. 42 at 62. Deljavan did not respond to Goodwill’s Motion concerning his Title VII, breach of contract, and workers’ compensation retaliation claims. See ECF No. 41.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

Rule 12(b)(6) permits dismissal of a complaint for failure to state a claim upon which relief can be granted. The Rules require that each complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief....” Fed. R. Civ. P. 8(a). A complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In considering a Rule 12(b)(6) motion, courts “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff...and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.’ ” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S. at 547). “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.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

In ruling on a motion to dismiss, a court may consider documents outside the complaint when they are: (1) attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to the plaintiff’s claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Additionally, a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment. See Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (“Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.”) (citation and quotation marks omitted).

B. Pro se pleading standards

A pro se plaintiff’s pleadings are liberally construed. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A “pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Id.

C. Dismissal with or without prejudice

There exists a “well-established policy that the plaintiff be given every opportunity to state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). It is federal policy to decide cases on the merits rather than technicalities, and thus when possible the Fifth Circuit has recommended that suits be dismissed without prejudice on Rule 12 motions. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district court to dismiss without, instead of with, prejudice). As a result, courts generally allow plaintiffs at least one opportunity to amend following a Rule 12 dismissal on the pleadings. Great Plains Tr. Co., 313 F.3d at 329; see In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig., 997 F. Supp. 2d 526, 548–49 (N.D. Tex. 2014) (Boyle, J.) (dismissing for failure to state a claim without prejudice, as dismissing with prejudice would be “too harsh a sanction”).

Nonetheless, courts may appropriately dismiss an action with prejudice if the court finds that the plaintiff has alleged its best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Likewise, a court may dismiss an action with prejudice without affording plaintiff the chance to amend where the court invited the plaintiff to respond to the motion to dismiss, but he failed to do so. Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995). If the court “outline[s] in [its] opinion the deficiencies” of plaintiff’s pleading and “plaintiff nevertheless cannot...amend to satisfy [the relevant pleading standard,] the court can then dismiss the complaint with the assurance that plaintiff has been shown all the deference he is due.” Sims v. Tester, No. 3:00-CV-0863-D, 2001 WL 627600, at *2-*3 (quoting Barber v. G.H. Rodgers, No. CA3-84-1750-D (N.D. Tex. Sept. 13, 1988)). Moreover, courts may dismiss an action with prejudice without permitting amendment if the defendant is entitled to absolute immunity because the “plaintiff will never have a claim against the defendant based on the particular facts alleged.” Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).

D. Supplemental jurisdiction standard

When a suit contains federal law and state law claims, the district court has federal jurisdiction over the federal law claims and has discretion whether to exercise supplemental jurisdiction over the remaining state law claims. Pennie v. Obama, 255 F. Supp. 3d 648, 677 n.5 (N.D. Tex. 2017) (citing 28 U.S.C. § 1367). But, a district court may “decline to exercise supplemental jurisdiction” when it “has dismissed all claims over which it has original jurisdiction.” Alford v. State Parking Servs., No. 3:13-cv-4546-L, 2014 WL 6977639, at *6 (N.D. Tex. Dec. 10, 2014) (see also 28 U.S.C. § 1367(c)(3)).

III. ANALYSIS

A. The Court does not consider allegations raised in Deljavan’s Responses.

As noted above, in his response to Defendants Butler, Cruz, and Willet’s Motion to Dismiss, Deljavan alleged for the first time that the Defendants violated their fiduciary duties owed to him and violated the Volunteer Protection Act of 1997, the Uniform Prudent Management of Institutional Funds Act, and the Sarbanes-Oxley Act of 2002. ECF No. 42 at 8-11. The Court does not consider the additional facts Deljavan states in support of these new claims because he did not assert them in his Amended Complaint. Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 263 (5th Cir. 2008) (“[W]hen deciding, under Rule 12(b)(6), whether to dismiss for failure to state a claim, the court considers, of course, only the allegations in the complaint”); Coach, Inc. v. Angela’s Boutique, No. H-10-1108, 2011 WL 2634776, at *2 (S.D. Tex. July 5, 2011) (“Allegations contained in a response to a motion to dismiss are not appropriately considered in a Rule 12(b)(6) motion, which evaluates the sufficiency of the complaint itself and does not consider allegations not contained in the pleadings.” (citation omitted)).

B. Deljavan did not state a claim for violation of the ADEA and ADA.

1. Butler, Cruz, and Willet are not liable under the ADEA and ADA because they were not Deljavan’s employer.

Deljavan alleges that Butler, Cruz, and Willet violated his rights under the ADEA and ADA by terminating him due to his age and disability. ECF No. 18 at 13. Specifically, he contends that Butler violated his rights by failing to assign a neutral investigator to his sexual harassment claim and did not conduct his investigation according to Goodwill’s policies and procedures. He argues that Cruz refused to accept his voluntary resignation instead of terminating him based on sexual misconduct. He asserts that Willet engaged in an improper investigation of sexual misconduct that lead to his termination. Id. at 12, 40, 49-50.

Butler, Cruz, and Willet urge dismissal of Deljavan’s claims under the ADEA and ADA because only a plaintiff’s employer may be personally liable under the ADEA and ADA. ECF No. 21 at 4. Additionally, they contend that Deljavan’s claim that the Defendants are personally liable under the economic reality test is misguided as the Fifth Circuit has not adopted that test in ADEA or ADA cases, and even if it had, Deljavan has not alleged any facts to show that he meets the required factors. Id. at 4-5.

The ADEA makes it unlawful for an employer to discriminate against an individual based his or her age. 29 U.S.C. § 623(a). The ADEA defines “employer” as a person “engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year….” 29 U.S.C. § 630(b). “Employer” also includes “any agent of such a person….” Id.

The ADA prohibits employment discrimination against a qualified individual with a disability “in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The Act also protects employees from retaliatory discharge. See id. § 12203(a). Therefore, the ADA prohibits an employer from “discriminat[ing] against any individual because such individual has opposed any act or practice made unlawful by this chapter....” Id. The ADA definition of “employer” mirrors the ADEA’s definition. See id. § 12111(5)(a).

Deljavan argues that the inclusion of the employer’s agents in the definition of “employer” allows for claims against supervisory personnel, such as Butler, Cruz, and Willet, in their individual capacities. However, the Fifth Circuit has held that the ADEA provides no basis for individual liability for supervisory employees. Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996). Given the similarity in the definitions of “employer” under the ADEA and the ADA, this Court has held that “personal capacity suits are likewise prohibited under the ADA” against supervisors. Shabazz v. Texas Youth Com’n, 300 F. Supp. 2d 467, 476 (N.D. Tex. 2003); Bailey v. Dallas Cty. Sch., No. 3:16-cv-1642-M, 2016 WL 7368146, at * 4 n. 6 (N.D. Tex. Dec. 9, 2016), rec. adopted, No. 3:16-cv-1642-M, 2017 WL 57836 (N.D. Tex. Jan. 4, 2017).

Deljavan argues that despite this prohibition against personal liability for persons such as Butler, Cruz, and Willet, the economic reality test makes them personally liable. ECF No. 18 at 49. Courts use the economic reality test in FLSA cases to determine whether an employer/employee relationship exists. See, e.g., Williams v. Henagan, 595 F.3d 610, 620 (5th Cir. 2010). In Title VII, ADEA, and ADA cases, the courts have adopted a hybrid version of the economic realities test that combines it with a common-law control test. Schweitzer v. Advanced Telemktg. Corp., 104 F.3d 761, 764 (5th Cir. 1997) (applying the hybrid test to ADEA claims) (citing Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017 (5th Cir. 1990)); Bloom v. Bexar Cnty., 130 F.3d 722, 726 (5th Cir. 1997) (applying the hybrid test in an ADA suit). Under the hybrid test, courts view the “right to control” as the most important consideration in determining whether an entity acted as the employer of the plaintiff. Fields, 906 F.2d at 1019. To determine whether an individual or entity is an employer, the 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. Mares v. Marsh, 777 F.2d 1066, 1068 (5th Cir. 1985).

Deljavan makes conclusory statements that Butler, Cruz, and Willet are responsible under the economic reality test due to their high-level positions and longevity of working for Goodwill. He does not plead facts to show how any of them hired or fired employees, controlled the conditions of employment, determined the rate and method of payment, or maintained employment records. Simply being a highly paid or longstanding employee does not make a person an employer who may be personally liable under the AEDA or ADA. The Court concludes that neither Butler, Cruz, nor Willet were Deljavan’s employer as Deljavan has not shown that any of them had the right to exercise direct control over the terms of his employment. Therefore, Deljavan cannot recover against Butler, Cruz, and Willet under the AEDA or ADA.

2. Deljavan has failed to state a claim against Goodwill under the ADEA and ADA.

Deljavan alleges that Goodwill violated his rights under the ADEA and the ADA because he was a 70-year-old disabled man when it fired him. ECF No. 18 at 36-41. He asserts that Goodwill used his alleged sexual harassment as a pretext to terminate him and replace him with younger, non-disabled workers. Id. Specially, he points to other younger employees who received promotions over him as evidence of age discrimination. Id. at 37. Goodwill responds that Deljavan did not plead a valid claim of disability discrimination, age discrimination, or retaliation under the ADEA or ADA. ECF No. 24 at 6-16.

To state a claim of disability discrimination under the ADA, Deljavan must show that at the time of his termination he: (1) was disabled, regarded as disabled, or had a record of having a disability; (2) was qualified for the job at issue; (3) experienced an adverse employment action based on the disability or perception of the disability; and (4) was replaced by or treated less favorably than a non-disabled employee. E.E.O.C. v. Chevron, 570 F.3d 606, 615 (5th Cir. 2009). Once the plaintiff proves each element, the burden shifts to the defendant to establish that a legitimate, non-discriminatory reason for the adverse employment action. Id. After the defendant fulfills that burden, the burden once again shifts back to the plaintiff to prove, by a preponderance of the evidence, that the legitimate, non-discriminatory reason offered by the defendant-employer is merely a pretext for discrimination. Id.

“The threshold requirement in an [ADA] case is to determine whether the plaintiff has a disability.” Waldrip v. General Elec. Co., 325 F.3d 652, 654 (5th Cir. 2003). If the plaintiff cannot establish an actual or perceive disability, he fails to state a claim under the ADA. Id. The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C.A. § 12102(1).

Deljavan claims that he is disabled because of a metal implant in his left arm and right wrist and a scar from open heart surgery on his chest, and because he is diabetic. ECF No. 18 at 31. Deljavan claims that Goodwill knew this because he assumed his medical test report was kept in a “confidential drawer” by the Goodwill’s Human Resources department. Id. at 31-32. Deljavan also claims that he was seeking medical treatment for a “locking finger,” but he does not clarify whether he consider this as one of his disabilities. Id. at 32.

To qualify as a disability under the ADA, an impairment must substantially limit a plaintiff’s major life activity. Deljavan has not pleaded facts to show that he suffered from such a physical impairment. Deljavan’s Amended Complaint does not provide any facts to indicate impairments that substantially impaired his ability to perform manual tasks, seeing, walking, standing, speaking, concentrating, or communicating. Seeking temporary medical treatment for his locking finger and needing help to lift heavy furniture are not enough to show that Deljavan was substantially limited in a major life activity, nor do metal plates in the body, a scar on his chest, or the mere fact that he has diabetes. Accordingly, Deljavan has not pleaded sufficient facts that, if proven, would establish that he was disabled within the meaning of the ADA.

Deljavan also contends that Goodwill terminated him due to his age. ECF No. 18 at 36. In support of this claim, he states that Goodwill hired cashiers younger than him who were not disabled. Id. Additionally, he claims that Goodwill promoted a younger, disabled co-worker over him, despite having a similar job performance. Id. at 37. Goodwill responds that Deljavan has not pleaded that someone outside the protected class or a younger person replaced him. ECF No. 24 at 10-11. It also asserts that Deljavan has not pleaded other facts to show that he was discharged because of his age and not due to his sexual misconduct. Id.

The ADEA makes it “unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA’s prohibitions against age discrimination in employment are subject to several exceptions set forth in 29 U.S.C. § 623(f). Under one of these exceptions, an employer can avoid liability under the ADEA if the adverse employment action is “based on reasonable factors other than age.” Id. at § 623(f)(1). When a plaintiff states a claim of discrimination under the ADEA, he is required to allege the following prima facie elements: that he

(1) is a member of a protected group; (2) was qualified for the position at issue; (3) was discharged or suffered some adverse employment action by the employer; and (4) was replaced by someone outside his protected group or was treated less favorably than other similarly situated employees outside the protected group.

McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007) (citing Wheeler v. BL Dev. Corp., 415 F.3d 399, 405 (5th Cir. 2005)). However, to state a prima facie case of discrimination in order to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff is not required to submit evidence of his discrimination. Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Nevertheless, while plaintiffs do not “have to submit evidence to establish a prima facie case of discrimination at this stage, [they must] plead sufficient facts on all of the ultimate elements of a disparate treatment claim to make [their] case plausible.” Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 470 (5th Cir. 2016).

If a plaintiff’s disparate treatment claim depends on circumstantial evidence, he will “ultimately have to show” that he can satisfy the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (5th Cir. 2005). Id. In such cases, the Fifth Circuit has held that it can be “helpful to reference” that framework when the court is determining whether a plaintiff has plausibly alleged the ultimate elements of the disparate treatment claim. Id. at 470-71. Under the McDonnell test, the burden shifts to the plaintiff to show that (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. Rachid v. Jack in the Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004) (citations and internal quotation marks omitted). If the plaintiff makes out his prima facie case, then the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 395 (5th Cir. 2002). If the defendant can establish that the plaintiff was adversely treated due to a nondiscriminatory reason, the plaintiff may then attempt to prove discrimination by offering evidence that the defendants’ stated reason is pretextual. Id. (“In a disparate treatment case ...a plaintiff must produce sufficient evidence to rebut a showing by the employer that there was a legitimate, non-discriminatory reason for [differentially treating] a particular employee.”).

Here, Deljavan contends that Goodwill promoted younger employees over him and discriminated against him because of his “old face appearance.” From these allegations, the Court must infer that Goodwill promoted other employees other than Deljavan because they wanted younger workers even if they were not as qualified as Deljavan. “If an inference is required for the evidence to be probative as to [Deljavan’s] discriminatory animus in firing [Deljavan,] the evidence is circumstantial, not direct.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897-98 (5th Cir. 2002). Since Deljavan has only pleaded circumstantial evidence he will “ultimately have to show” that he can satisfy the framework established in McDonnell. Chhim, 836 F.3d at 470.

Deljavan has not pleaded sufficient facts to meet his burden and establish that his termination was because of his age. In his Amended Complaint, he did not state any facts to indicate that another employee who is similarly situated to him outside his protected class was treated differently than him in order to make a plausible claim that Goodwill terminated him because of his age. Instead, he attempts to allege that Goodwill perceived him as having an “old face appearance” and promoted younger employees to the cashier’s position instead of him.

However, Deljavan’s pleadings undercut this allegation. Deljavan attempts to support his claim by contending that Goodwill promoted younger employees, despite his being equally qualified and having the same work performance, but he is unable to establish that these younger employees received more favorable treatment. Deljavan stated that he was offered the same cashier position as a younger employee, but declined the offer because he believed it to be a demotion. See ECF No. 18 at 38. At most, Deljavan has made a conclusory allegation that Goodwill terminated him because of his age. However, the pleading standards set by Rule 8 require more than conclusory statements and even taking Deljavan’s allegations as true and construing them liberally, the Court cannot “draw the reasonable inference that [Goodwill] is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Stone v. Louisiana Dept. of Revenue, 590 F. App’x 332, 339 (5th Cir. 2014). Accordingly, Deljavan has not met his burden of pleading that his termination was pretextual.

Deljavan contends that the Defendants retaliated against him for questioning Goodwill’s policies and the actions of his supervisors. ECF No. 18 at 41-44. Goodwill responds that Deljavan did not exhaust his administrative remedies regarding these claims and failed to allege any facts to show that he is entitled to recover for retaliation under the ADEA or ADA. To sufficiently plead a claim of retaliation, Deljavan must show: (1) that he engaged in activity protected by the ADEA or ADA; (2) that there was an adverse employment action; and (3) that there was a causal connection between the participation in the protected activity and the adverse employment decision. Shirley v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992); Seaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir. 1999).

While Deljavan did check the box for retaliation on his charge of discrimination filed with the Equal Employment Opportunities Commission (“EEOC”), he states no facts to show how his various comments were an activity that either the ADEA or ADA protect, or how these comments adversely affected his employment. None of Deljavan’s comments that allegedly motivated Willet to terminate him had anything to do with either his age or disability. He also does not provide any facts besides his conclusory statements that these comments led to his termination. As a result, Deljavan did not plead a retaliation claim under both the ADEA and the ADA.

C. Deljavan did not state a claim under Title VII.

Title VII makes it unlawful for an employer to discharge or otherwise discriminate against a person “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiffs who allege employment discrimination under Title VII “must exhaust administrative remedies before pursuing claims in federal court.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). Administrative exhaustion “occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue,” id. at 379, or when he “files a timely charge with a state or local agency with authority to grant or seek relief from the alleged unlawful employment practice.” Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996).

In his Amended Complaint, Deljavan claims that all of the Defendants violated “Title VII as codified in 42 U.S.C. § 1983” through disparate treatment, hostile work environment, and retaliation. ECF No. 18 at 51-54. As Title VII is codified at 42 U.S.C § 2000e, et seq., it is unclear if Deljavan intended to assert both a Title VII claim and a claim under 42 U.S.C. § 1983. Regardless of his intent, neither claim is viable. Because the Fourteenth Amendment protects liberty and property interests only against the invasion by the state, a plaintiff who brings a claim under § 1983 must also show that state action caused his injury. Landry v. A–Able Bonding, Inc., 75 F.3d 200, 203 (5th Cir. 1996). Here, none of the Defendants are state actors. Accordingly, Deljavan cannot bring a claim against them under § 1983.

Additionally, nowhere in his Amended Complaint does Deljavan assert that the Defendants terminated or otherwise discriminated against him on the basis of his race, color, religion, sex, or national origin as required for a Title VII claim. Instead, Deljavan claims he was discriminated against “solely” because of his age, medical conditions, and physical disabilities. ECF No. 18 at 51-52. Deljavan claims the Defendants’ hostility towards “injured and disabled older workers” created a hostile work environment and violated Title VII. Id. at 53.

However, even if Deljavan were correct in asserting that Title VII covers acts of discrimination based on age or disabilities, he has not exhausted his administrative remedies for such a claim. In his EEOC Charge of Discrimination, Deljavan only alleged that he was discriminated against in violation of the ADEA and the ADA. Id. at 64. Additionally, he did not check the boxes for race, color, sex, or national origin to even indicate his intent to allege violations under Title VII. Id. Nor did he plead facts from which the EEOC or Defendants would have been put on notice that he asserted a claim other than under the ADEA and the ADEA. Accordingly, since Deljavan did not exhaust his administrative remedies by filing a Title VII discrimination charge with the EEOC or with a state or local agency, his Title VII claims are unexhausted and must be dismissed. Goswami v. Unocal, No. H-12-2953, 2013 WL 5520107, at *7 (S.D. Tex. Oct. 3, 2013) (“An employee’s failure to include a claim in [his] EEOC charge prevents the employee from suing on that claim, unless what was in the charge would have led the EEOC to investigate and would have put the employer on notice that [the employee] would be pursuing that claim.”). The Court dismisses without prejudice Title VII claims that were not administratively exhausted. Martin K. Eby Const. Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 n. 5 (5th Cir. 2004) (citing Taylor v. United States Treasury Dep’t, 127 F.3d 470, 478 (5th Cir. 1997) (“[w]hen a district court dismisses a claim under Rule 12(b)(6) for failure to exhaust administrative remedies, the dismissal is without prejudice to the claimant’s right to return to court after it has exhausted its administrative remedies.”); Story v. Gibson, 896 F.3d 693, 698 n.2 (5th Cir. 2018); Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035, 1037 (5th Cir. 1986)).

D. Deljavan did not allege a claim under the FLSA.

The FLSA requires employers to pay employees a minimum hourly rate for each hour worked and overtime compensation for hours worked over forty hours in a workweek. 29 U.S.C. §§ 206(a), 207(a). In 1947, Congress passed the Portal-to-Portal Act to clarify what “work” and “workweek” meant under the FLSA. 29 U.S.C. § 254(a); Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 32-33 (2014). The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows:

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

29 U.S.C. § 254(a). The Supreme Court has consistently interpreted “the term ‘principal activity or activities’ [to embrace] all activities which are an ‘integral and indispensable part of the principal activities.’ ” IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 252-253 (1956)). “An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Busk, 574 U.S. at 33. In determining whether an activity is integral, the court must ask whether the activity is “tied to the productive work that the employee is employed to perform.” Bridges, 875 F.3d at 226 (internal quotations and citations omitted) (emphasis in original). If employees are required to arrive early to work, in which they are able to use their time as they wish, they are not required to be compensated under the FLSA as they are not performing principal activities. Id. at 227.

Deljavan claims that after the store was closed and he was off the clock, he was not allowed to leave until the night shift manager closed the books, and “[t]herefore, [was] forced to work for free.” ECF No. 18 at 38, 42. Deljavan does not claim that he was instructed to perform any work activities during this time that would require him to be compensated under the FLSA. Merely being asked to stay until the manager could close the books is not a principal activity, as Deljavan does not indicate that he was not allowed to use that time as he wished, only that he was not allowed to leave the store. Since Deljavan did not plead any facts alleging that he was required to perform any principal activities while he was required to stay late, he fails to state a claim under the FLSA.

Additionally, as to Defendants Butler, Cruz, and Willet, Deljavan has not shown that they were his employers as required for liability under the FLSA. See 29 U.S.C. § 206(a). The FLSA defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The designation of “employer” under the FLSA does not automatically include those who have supervisory responsibility or have been designated as a manger, but rather, to be an employer, an individual must “independently exercise control over the work situation.” Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984) (holding corporation’s president liable because “only he who could authorize compliance with the Fair Labor Standards Act”). This requires not only a sufficient level of control, but also a nexus to the protected rights at issue. Id. Courts generally have not held lower-level supervisors of other employees individually liable. Rudy v. Consol. Rest. Companies, Inc., No. 3:08-cv-0904-L-BF, 2010 WL 3565418, at *5 (N.D. Tex. Aug. 18, 2010), rec. adopted, No. 3:08-cv-0904-L, 2010 WL 3565422 (N.D. Tex. Sept. 3, 2010) (citations omitted).

To determine whether an individual is an employer, the Fifth Circuit looks to the economic realities test. Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990). As noted above, Butler, Cruz, and Willet were not Deljavan’s employer under the economic realities test since Deljavan has not shown that any of them had the right to exercise direct control over the terms of his employment. Therefore, Deljavan cannot recover against Butler, Cruz, and Willet under the FLSA for this additional, independent reason.

E. The Court declines to exercise supplemental jurisdiction over Deljavan’s claims for retaliation for filing a workers’ compensation claim, breach of contract, and fraud.

Finally, Deljavan alleges that Defendants retaliated against him for filing a claim for workers compensation, breached its contract with him, and defrauded him. ECF No. 18 at 43, 46, 48, 50. Although the Court has federal question jurisdiction over his claims for violation of the ADEA, ADA, Title VII, and the FLSA, the Court has only supplemental jurisdiction over his remaining claims because the parties are not of diverse citizenship and no other ground of subject matter jurisdiction exists on the facts alleged. Deljavan’s claims for workers compensation retaliation, breach of contract, and fraud do not raise any issue of federal law. Accordingly, the Court declines to exercise supplemental jurisdiction over these claims and instead will dismiss them without prejudice. Pennie, 225 F. Supp. 3d at 677 n.5.

F. The Court does not grant Deljavan leave to amend his Amended Complaint.

Deljavan requests leave to amend his Amended Complaint in order to plead his best case.

However, the Court has already provided Deljavan an opportunity to amend his complaint, and his Amended Complaint is still deficient. Additionally, Deljavan does not indicate how he would cure his complaint if the Court gave him another chance to amend his complaint. See Benfield v. Magee, 945 F.3d 333, 339-40 (5th Cir. 2019). Under these circumstances, the Court does not grant Deljavan leave to amend his Amended Complaint because it is clear that he has pleaded his best, though legally deficient, case.

IV. CONCLUSION

For these reasons, the Court GRANTS Defendants’ Motions to Dismiss (ECF Nos. 21 and 24) and DISMISSES WITHOUT PREJUDICE Plaintiff’s Title VII claim for failure to exhaust his administrative remedies; DISMISSES WITH PREJUDICE Plaintiff’s claims under the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, and the Fair Labor Standards Act for failure to state a claim; and DISMISSES WITHOUT PREJUDICE Plaintiff’s state law claims for retaliation under the Workers’ Compensation Act, breach of contract, and fraud because the Court declines to exercise supplemental jurisdiction over these claims.

It is so ORDERED on May 28, 2021.

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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

OLENYNIS VEGA, Plaintiff,

v.

TYSON FOODS, INC., Defendant.

Civil Action No. 3:19-CV-1647-L

|

03/14/2021

Sam A. Lindsay, United States District Judge

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc.

16), filed July 16, 2020. After considering the motion, briefs, admissible summary judgment evidence, and applicable law, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16), and dismisses with prejudice this action.

I. Factual and Procedural Background

Oleynis Vega (“Plaintiff” or “Ms. Vega”) originally brought this personal injury action against Tyson Foods, Inc. (“Defendant” or “Tyson”) in the 160^th Judicial District Court, Dallas County, Texas, on May 14, 2019. On July 10, 2019, the action was removed to federal court based on diversity jurisdiction. In Plaintiff’s Original Petition, Ms. Vega asserts causes of action for negligence and premises liability, and she seeks damages in the form of past and future: medical expenses, pain and suffering, mental anguish, physical impairment, and lost wages, in addition to prejudgment and postjudgment interest, and costs of court. Her claims arise from an on-the-job injury she sustained to her left hand on May 16, 2017, while working for Tyson as an assembly line meat packaging operator.

On July 16, 2020, Tyson moved for summary judgment on its affirmative defense of waiver. Tyson contends that it is entitled to judgment on Plaintiff’s claims based on her election to participate in Tyson’s Workplace Injury Settlement Program (“WISP”), pursuant to which “an employee automatically receives Basic Benefits and may elect to become a Participant in the program by signing the WISP Acceptance and Waiver (“Waiver”) in order to receive Comprehensive Benefits if the employee sustains an injury in the course and scope of [his or her] employment.” Def.’s Mot. 1-2; Def.’s App. 2-3. Tyson asserts that, by signing the Waiver on June 14, 2017, Ms. Vega elected to become a Participant in WISP with respect to the on-the-job injuries she sustained on May 16, 2017 (“the Incident”) and is bound by its terms. Tyson argues that it has presented sufficient evidence to establish that the Waiver signed by Ms. Vega is enforceable under the Texas Labor Code, such that Ms. Vega settled and released all personal injury claims against Tyson arising out of the Incident and “waived any cause of action at common law or under any statute to recover damages for personal injuries, occupational disease, or death sustained in the course and scope of employment, including but not limited to claims based on negligent and grossly negligent acts or omissions.” Def.’s Mot. 2.

Plaintiff does not address Tyson’s contentions regarding the applicability of the Texas Labor Code to the Waiver in this case or whether its evidence is sufficient to establish the validity of the Waiver under the Texas Labor Code. Plaintiff, instead, focuses on whether the Waiver is unenforceable on two other grounds. In this regard, Plaintiff asserts that the Waiver she signed following the Incident does not preclude her from bringing the claims asserted in this case because it: (1) was procured by fraud; and (2) is not supported by valid consideration.

Tyson argues that Ms. Vega’s defenses to its waiver argument based on fraudulent inducement and lack of consideration are not supported by Texas law or competent evidence. Tyson, therefore, contends that these defenses are insufficient to raise a genuine dispute of material fact regarding the enforceability of the Waiver. Tyson also objects to and moves to strike Plaintiff’s affidavit on the ground that it is a “sham affidavit” that conflicts with her prior deposition testimony.

II. Motion for Summary Judgment Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’ ” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment motion. 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.

III. Discussion

A. Waiver

Waiver is an affirmative defense. Fed. R. Civ. P. 8(c)(1). As the party alleging waiver, Tyson has the burden of proof. JM Walker LLC v. Acadia Ins. Co., 356 F. App’x 744, 748 (5th Cir.2009) (citing In re State Farm Lloyds, Inc., 170 S.W.3d 629, 634 (Tex. App.—El Paso 2005, no pet.)). While Tyson bears the ultimate burden of proof on this issue, the burden of production shifts to Ms. Vega if Tyson makes a prima facie showing that there is no genuine dispute as to the facts on which the defense is based. See Hernandez v. Lasko Prods., 3:11-CV-1967-M, 2012 WL 4757898, at *2 (N.D. Tex. Oct. 5, 2012) (explaining the shifting summary judgment burdens for the affirmative defense of waiver).

To be valid under the Texas Labor Code, an employee’s waiver of a cause of action against a non-subscribing employer like Tyson¹ for job-related injuries must comply with Texas Labor Code §§ 406.033(f) and (g). Subsection (f) states that a cause of action by an employee after the employee’s injury may not be waived unless:

(1) the employee voluntarily enters into the waiver with knowledge of the waiver’s effect;

(2) the waiver is entered into not earlier than the 10th business day after the date of the initial report of injury;

(3) the employee, before signing the waiver, has received a medical evaluation from a nonemergency care doctor; and

(4) the waiver is in a writing under which the true intent of the parties is specifically stated in the document.

Tex. Lab. Code Ann. § 406.033(f)(1)-(4). Subsection (g) further provides that “[t]he waiver provisions under Subsection (f) must be conspicuous and appear on the face of the agreement.” Id. § 406.033(g). Waiver provisions are “conspicuous” within the meaning of the statute if they “appear in type larger than the type contained in the body of the agreement or in contrasting colors.” Id.

Here, it is undisputed that Ms. Vega signed the Waiver; that the Waiver was entered into not less than the tenth business day after her injury was reported; that the Waiver was entered into after she received a medical evaluation from a nonemergency care provider;² that the Waiver provision is conspicuous within the meaning of the statute, and that her negligence and premises liability claims fall within the subject matter of the released claims. Tyson also submitted evidence to establish that Ms. Vega voluntarily executed the Waiver with knowledge of its effect,³ which is sufficient to meet its initial burden of establishing a prima facie showing that there is no genuine dispute as to the material facts underpinning its waiver defense.

As noted, Ms. Vega does not dispute whether the Waiver in this case satisfies the Texas Labor Code. She, instead, argues that the Waiver is not enforceable because it was procured by fraud and is not supported by valid consideration. The court’s remaining analysis, therefore, focuses on these arguments to determine whether Ms. Vega has established a genuine dispute of material fact regarding the enforceability of the Waiver based on her contention that it was procured by fraud and is not supported by valid consideration.

B. Lack of Consideration

Plaintiff contends that the Waiver lacks the requisite consideration needed to make it enforceable because “it purports to release Tyson from further liability from suit without offering anything to [her] in exchange.” In this regard, Plaintiff asserts:

Under Tyson’s WISP program, an employee automatically receives basic benefits and may elect to become a plan participa[nt] in order to receive [C]omprehensive [B]enefits in the event of a workplace injury. Tyson also provides [its] employees an opportunity to receive health insurance benefits through [its] employment with the company. In order to receive health insurance, a portion of an employee’s paycheck is deducted to cover the health insurance. Vega opted to pay into health insurance coverage provided by Tyson and had health care coverage through Blue Cross Blue Shield (“BCBS”).

...

In this particular case, there is no valid consideration, as Vega would have been able to procure treatment for her injuries through her BCBS coverage and did not receive an additional benefit by signing the Waiver. Without any additional benefit to Vega or detriment to Tyson, there is no valid consideration. Without valid consideration, the Waiver is legally insufficient.

Pl.’s Resp. 10-11 (footnotes omitted) (emphasis added). In other words, Plaintiff argues that, although she received Comprehensive Benefits under Tyson’s WISP program after signing the Waiver, the program offered her no additional benefit in exchange for her waiver of liability because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). To support the statements in the first of these two paragraphs, Plaintiff relies on her executed Waiver⁴ and her affidavit⁵ that she submitted in response to Defendant’s motion.

“[C]onsideration sufficient to support a release must consist of either a benefit to the releaser or a detriment to the person released.” Flatt v. Hill, 379 S.W.2d 926 (Tex. Civ. App.— Dallas 1964, writ ref’d n.r.e). Ms. Vega does not dispute that she received Comprehensive Benefits under the WISP program or that the treatment she received for her injury as a result of the Waiver was paid in full by Tyson. Instead, as correctly noted by Tyson, the argument that Ms. Vega received no additional benefit in exchange for her signing the Waiver is necessarily predicated on her assertion that the Comprehensive Benefits and treatment she received under the WISP program did not constitute an additional benefit because she “would have been able to procure treatment for her [workplace] injuries through her BCBS coverage.” Pl.’s Resp. 11.

At most, Plaintiff’s evidence shows that she had health insurance through BCBC. Plaintiff has offered no evidence that her personal health insurance through BCBS would have covered a work-related injury, or that BCBS would have provided her with the same or substantially similar coverage for such an injury at no additional cost to her. Thus, her unsupported and conclusory argument to the contrary that the Comprehensive Benefits she received under Tyson’s WISP program after signing the Waiver did not constitute as an additional benefit because she already had personal health insurance coverage through Blue Cross Blue Shield (“BCBS”). Accordingly, Plaintiff’s evidence is not sufficient to raise a genuine dispute of material fact in response to Defendant’s waiver defense based on lack of consideration.

C. Fraudulent Inducement

In support of her argument that the Waiver is unenforceable because she was fraudulently induced by Tyson to sign it, Ms. Vega contends, “In exchange for signing the Waiver, Tyson represented to [her] that she would be receiving proper and adequate medical treatment for her injury.” Pl.’s Resp. 12 (citing Ex. A [Pl.’s Aff.] & Ex. B [Pl.’s Nov. 13, 2019 Dep. Tr.] ) (emphasis added).⁶ Relying on her affidavit, Plaintiff further contends that:

Tyson also represented to [her] that the only way to receive any medical treatment for her injury was to sign the Waiver; however, this statement is a false representation, as [she] had health insurance through her employment with Tyson and could have obtained treatment using her BCBS coverage. When [she] was told by Tyson representatives that she would not receive any treatment for her hand if she did not sign the Waiver, she believed that statement to mean she would also be precluded from using her BCBS health insurance for treatment, as her BCBS was also a benefit that she received through her employment with Tyson. Because [she] already had health insurance through BCBS, she did not understand that the [C]omprehensive WISP [B]enefits were a different type of benefit. She believed them to be the same coverage, and when she was told that she would lose all medical care for her injury if she did not sign the Waiver, she believed that she would not have access to any medical care. This in fact was not true. Had [she] not been pressured into signing the Waiver, she still could have sought treatment for her injuries through the BCBS health insurance that she paid into through her employment with Tyson. By representing to [her] that she would lose all medical treatment by refusing to sign the Waiver, Tyson representatives made a material misrepresentation of fact to [her][.]

While Tyson’s representatives may have been unaware that [she] had health insurance coverage [through BCBS] and may not have explicitly known that their material misrepresentation was false, the claim that [she] would not receive any treatment for her injury was certainly made recklessly without knowledge of its truth. In the alternative, had Tyson’s representatives known that [she] did in fact have health insurance [through BCBS], then they would have known the falsity of their statement at the time it was relayed to [her]. While Plaintiff believes that by making the false assertion that she needed to sign the Waiver in order to receive treatment for her injury, Tyson’s intent was to procure [her] signature on the Waiver, the question of intent has been found to be “uniquely within the realm” of a jury as it “so depends on the credibility of the witnesses and the weight to be given to their testimony.” Jones v. Ray Ins. Agency, 59 S.W.3d 739, 753-54 (Tex. App.— Corpus Christi 2001, pet. [d]enied) (citing Benoit v. Wilson, 150 Tex. 273, 281 (1951)); therefore, this is certainly a genuine issue of material fact to be heard by a jury.

Id. at 12-13 (footnotes omitted). In addition, Mr. Vega contends that the Waiver was procured by fraud because “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver.” Id. at 5 (emphasis added). Plaintiff asserts that, “[w]hile she did receive treatment [through the WISP program], she did not receive proper and adequate medical treatment for her injury.” Id.

Plaintiff further asserts that she signed the Waiver in reliance on Tyson’s false statement, and, as a result of her reliance on the false statement and decision to sign the Waiver, she has been damaged as follows:

[She] has suffered in that she has not received the proper medical treatment promised to her by Tyson. To this day, she still continues to suffer from the injuries sustained in the Incident and has had to significantly alter her lifestyle to accommodate to the injuries. [She] has further suffered injury from signing the Waiver, as Tyson is now claiming that she has given up her right to seek legal redress for her injuries.

Id. at 13 (emphasis added).

Tyson responds that Ms. Vega’s fraudulent inducement argument, which was raised for the first time in response to its summary judgment motion, is without merit because there is no competent evidence to support it. Tyson argues that the competent summary judgment evidence, instead, establishes that: (1) she admitted to reading the entire Waiver before signing it; (2) she admitted to signing the Waiver; (3) she accepted and received the Comprehensive Benefits paid solely by Tyson under the WISP program in exchange for her signing the Waiver in the form of treatment for her job-related injuries; and (4) her reading and signing the Waiver occurred on June 14, 2017, approximately one month after the Incident. Tyson contends, as before, that Plaintiff has no evidence to support her assertion that her private health insurance through BCBS would have covered treatment for the job-related injuries she sustained to her hand. Tyson, therefore, argues that Plaintiff has not shown that any false statements in this regard were made to her. In addition, Tyson argues that Plaintiff cannot rely on her “sham affidavit” to show that it falsely informed her that her injuries would not be covered under the personal BCBS health insurance that she had before the Incident, as this directly conflicts with her deposition testimony that no one told her this. Def.’s Reply 6-8.

Regarding Plaintiff’s argument that she has not received the proper medical treatment promised to her by Tyson and has incurred damages because “she continues to suffer from the injuries sustained” to her hand despite the treatment she received, Tyson responds that its motion and evidence demonstrate that she received “[C]omprehensive [B]enefits under the WISP program” and that she, therefore, has “already been compensated for her injury.” Id. at 5.

A claim for common law fraud under Texas law requires: “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (citation and internal quotation marks omitted). “Fraudulent inducement is a distinct category of common-law fraud that shares the same elements but involves a promise of future performance made with no intention of performing at the time it was made.” Id. “[A]bsent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he [or she] signed, regardless of whether he [or she] read it or thought it had different terms.” In re McKinney, 167 S.W.3d 833, 835 (Tex. 2005).

The court agrees with Tyson that Plaintiff’s fraudulent inducement defense to the enforcement of the Waiver is flawed and fails for the same reason her lack of consideration defense fails. As with her lack of consideration argument, Ms. Vega premises her fraudulent inducement defense on the same unsubstantiated belief and assertion that she still could have sought and received treatment for her injuries through her BCBS health insurance if she had not signed the Waiver. Without evidence, however, that Ms. Vega’s BCBS health insurance would have covered and provided, at no additional cost, similar coverage for the work-related injuries she sustained as a result of the Incident, her contention that Tyson representatives told her something different is insufficient to show that Tyson or its representatives made a “material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth. Zorrilla, 469 S.W.3d at 153.

Further, Plaintiff’s evidence does not support her contention that the Waiver was procured by fraud or that she suffered damage as a result of promises regarding the level of treatment she would receive. As noted, Plaintiff contends in her response that “Tyson falsely represented to [her] that she would receive proper and adequate medical treatment for her injury if she signed the Waiver,” and “[w]hile she did receive treatment, she did not receive proper and adequate medical treatment for her injury.” Id. at 5 (emphasis added). Plaintiff, however, does not state in her affidavit that Tyson or its representatives represented to her that she would receive “proper and adequate” treatment for her injury. Instead, she merely states that it was “her understanding in signing the Waiver that Tyson [ ] would get me the proper treatment to ensure that my hand returned to normal.” Pl.’s App. 4 (Pl.’s Aff. ¶ 15) (emphasis added).

Plaintiff also states in her affidavit that, in signing the Waiver, she relied on unspecified “statements Tyson [ ] made to her about providing the medical treatment [she] needed; however, I do not feel that they carried out their end of the bargain, as my hand is still suffering ongoing injuries as a result of the [I]ncident.” Id. at 4 (Pl.’s Aff. ¶ 16). Again, though, there is no evidence that: Tyson ever promised to provide a particular level of treatment other than the Comprehensive Benefits provided under the WISP Program; that the treatment Plaintiff received was something other than the Comprehensive Benefits provided under the WISP Program; or that Tyson ever promised that Plaintiff’s hand would “return[ ] to normal” as a result of the treatment she would receive under the WISP program. Plaintiff also fails to point to any portion of the WISP program documentation or the Waiver she signed to show that she was promised a level of treatment or specific outcome as a result of the treatment. As a result, the foregoing statements in Plaintiff’s affidavit that are based on her unsubstantiated belief and vague, conclusory statements that she believed she would receive “proper treatment” and was told that she would be “provid[ed] the medical treatment [she] needed” are insufficient to defeat Defendants’ summary judgment motion. See Eason, 73 F.3d at 1325; Forsyth, 19 F.3d at 1533. Plaintiff’s contention that she was fraudulently induced to sign the Waiver is, therefore, insufficient to raise a genuine dispute of material fact regarding the validity or enforceability of the Waiver.

Having determined that Plaintiff’s fraudulent inducement defense fails for the reasons stated, the court need not address in detail Tyson’s alternate argument and contention regarding Plaintiff’s “sham affidavit.” The court agrees that the statement in Plaintiff’s affidavit, that Tyson or Tyson’s representative falsely informed her that her injuries would not be covered under her personal BCBS health insurance, directly conflicts with her deposition testimony that no one made such statement to her. See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (“It is well settled that this court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony.”) (footnote and citations omitted). “When an affidavit merely supplements rather than contradicts prior deposition testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” Id. at 486 (citation omitted). An affidavit, however, may be not used to contradict sworn deposition testimony. Id. Accordingly, the court declines to consider the contradictory statement made by Ms. Vega in her affidavit.

D. Voluntariness of Waiver

Ms. Vega acknowledges that she read the Waiver before signing it. She, nevertheless, contends that she was confused, did not fully understand some of the technical terms, and felt pressured by an unnamed nurse. Regarding these matters, Ms. Vega states in her affidavit that: (1) she did not fully understand some technical terms in the Waiver; (2) she was confused because she thought that the comprehensive benefits offered under the WISP program were the same as those that she already had under her personal BCBS health insurance; (3) she was in a lot of pain and felt pressured by a “male nurse” who told her “they” would discontinue treating her job-related injury if she did not sign the Waiver—she thought the nurse meant that she would no longer be able to get help for her injury through her BCBS health insurance; and (4) she “felt a little bit of pressure” because she was afraid of losing her job and was afraid she would not be able to afford medical care for her injury if she did not sign the Waiver. Pl.’s Resp. 12-13; Pl.’s App. 3-4 (Pl.’s Dep ¶¶ 8-14).

Tyson responds that, while Plaintiff has couched these assertions as “fraudulent inducement,” similar arguments regarding the enforceability of a waiver based on duress were rejected by the court in Walkup v. Tyson Foods, Inc., 7:13-CV-0150-O, 2014 WL 4798443 (N.D. Tex. Sept. 26, 2014). Tyson asserts that the plaintiff in Walkup similarly argued that: (1) he was told he would be denied medical care if he failed to sign the waiver; and (2) he was implicitly threatened with firing if he did not sign. Tyson contends that, like the plaintiff in Walkup, Ms. Vega “has presented no evidence that she signed the wavier under duress or any false pretense.” Def.’s Reply 6.

Ms. Vega does not expressly argue that the Waiver is not enforceable because she did not voluntarily sign the Waiver; nor does she argue that she signed the Waiver under duress. Instead, as noted by Defendant, all of the foregoing assertions in her response brief and the statements in her affidavit were made in support of her fraudulent inducement argument, which the court has already determined fails for the reasons explained. Because Ms. Vega did not brief what law would apply to a claim of duress or explain why the requirements for any such claim are satisfied here, the court determines that this issue is waived, and it need not address whether the evidence she relies on is sufficient to establish duress and raise a genuine dispute of material fact regarding the enforceability of the Waiver she signed. See Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (explaining that inadequately briefed issues are considered waived).

Likewise, she does not explain why her evidence that she was confused or did not understand certain technical terms in the Waiver is sufficient to raise a genuine dispute of material fact regarding the voluntariness of her waiver under § 406.033(f)(1). Any such argument is also waived. Id. Even assuming that she did not waive a voluntariness argument by not specifically responding to Defendant’s contention and evidence regarding the voluntariness of her signing the Waiver under the Texas Labor Code, the court determines that Ms. Vega’s evidence regarding her confusion and lack of understanding is insufficient to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

Section 406.033(f)(1) of the Texas Labor Code addresses the voluntariness of a waiver and, as noted, provides that a cause of action by an employee after the employee’s injury may not be waived unless “the employee voluntarily enters into the waiver with knowledge of the waiver’s effect.” “An employee who signs a waiver has presumptive knowledge of its contents and effect under Texas Labor Code § 406.033(f)(1).” Hernandez, 2012 WL 4757898, at *3 (citing Lopez v. The Garbage Man, Inc., No. 12-08-00384-CV, 2011 WL 1259523 at *8, 15, 18 (Tex. App.—Tyler Mar. 31, 2011, no pet.) (concluding that a person who signs a contract “is presumed as a matter of law to have read and understood the contract unless he [or she] was prevented from doing so by trick or artifice.”); see also In re McKinney, 167 S.W.3d at 835 (explaining that, absent fraud or deceit, a party is bound by the terms of the contract he or she signed, regardless of whether he or she “read it or thought it had different terms”).

Like this case, Lopez involved an employee waiver of liability. The Lopez court concluded that the presumption that an employee read and understood the waiver he or she signed applied in determining whether, under § 406.033(f)(1), an employee voluntarily entered into a waiver with knowledge of its effect. Id. at *18; see also Hernandez, 2012 WL 4757898, at *3 (same). The Lopez court also concluded that, as a result of this presumption, Lopez had actual knowledge of the release, and that this negated the common law fair notice requirements of conspicuousness and the express negligence rule.” Id. at *15.

Here, the undisputed evidence is that Ms. Vega was presented with and signed the Waiver on June 14, 2017; that the Waiver was explained to her and she was provided an opportunity to ask questions before she signed it; that, before signing the Waiver, she did not ask questions regarding the matters she now says caused her confusion or did not understand; that she executed the Waiver in Spanish, her native language; that the Waiver signed by her was also witnessed and signed by Tyson’s Human Resources Director; and that she continued to receive Comprehensive Benefits under the WISP program paid by Tyson as a result of the Waiver, including physical therapy and surgery, through at least January 2018, after she filed this lawsuit. Def.’s App. 3; Def.’s Reply App. Ex. H (Pl.’s Dep. 45-47, 66).

Further, the Waiver signed by Mr. Vega states:

WAVIER AND RELEASE: In exchange for eligibility for any Comprehensive Benefits under the [WISP] Program, I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW EXISTING OR ARISING IN THE FUTURE, THAT I MAY HAVE AGAINST THE COMPANY, TYSON FOODS, INC. AND THEIR PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND ALL OF THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES AND AGENTS THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO THE INJURIES (INCLUDING A SUBSEQUENT OR RESULTING DEATH) SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH THE COMPANY. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS THAT I AM RELEASING, WAIVING AND GIVING UP

ARE CLAIMS BASED ON NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS.

Def.’s App. 9-10 (Spanish version), 38-39 (English version). The Waiver also states that “I understand” that: Comprehensive Benefits provided under the Waiver are through Tyson’s WISP program, referred to in the Waiver as the “Program”; that to be entitled to Comprehensive Benefits under the WISP program, Plaintiff must waive her right to sue Tyson for “damages of any nature related to [her] on-the-job injury”; that she was electing to participate in the WISP program, knowing that her injuries and damages could be more severe than she was aware at that time she signed the Waiver; that Tyson is a non-subscriber to the Texas Workers’ Compensation Act; and that signing the Waiver “is NOT a condition of my employment with [Tyson].” Id.

Based on this evidence, the court concludes that Plaintiff’s evidence that she was pressured or confused regarding the difference between the WISP program and her personal health insurance through BCBS is insufficient to overcome the presumption in Lopez or establish that the Waiver she signed was procured by fraud or deceit. The conclusory statement in her affidavit that she did not understand certain unspecified technical terms is similarly insufficient to overcome the presumption in Lopez and In re McKinney that she read and understood the terms of the Waiver for purposes of defeating Defendants’ summary judgment motion based on its waiver defense. See Eason, 73 F.3d at 1325. As a result, Plaintiff has failed to raise a genuine dispute of material fact regarding the voluntariness of her Waiver.

IV. Conclusion

For the reasons explained, Tyson is entitled to judgment on its affirmative defense of waiver. Accordingly, the court grants Defendant Tyson Foods, Inc.’s Motion for Summary Judgment (Doc. 16) and dismisses with prejudice this action and all claims asserted by Mr. Vega. In accordance with Rule 58 of the Federal Rules of Civil Procedure, judgment will issue by separate document.

It is so ordered this 14th day of March, 2021.

Sam A. Lindsay

United States District Judge

DONALD WATKINS, Plaintiff,

v.

SALEM CARRIERS INCORPORATED, CHRISTI I. WHITAKER, SALEM SAFETY DEPARTMENT, CRUM & FORSTER INSURANCE BROKERS, TAMMIE ROSSITER MANAGER, and TONI WHITLOW, CRUM & FORSTER ADJUSTER, Defendants.

Civil Action No. 3:19-CV-2252-X-BH

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Filed 11/24/2020

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

*1 Referred to U.S. Magistrate Judge¹

Before the Court is Plaintiff’s Motion to ... Remand, filed July 6, 2020 (doc. 24). Based on the relevant filings and applicable law, the motion should be GRANTED.

I. BACKGROUND

On August 16, 2019, Donald Watkins (Plaintiff) sued Salem Carriers Incorporated, Cristi I. Whitaker, and Salem Safety Department (collectively Salem Defendants), and Crum & Forster, Tammie Rossiter, and Toni Whitlow (collectively Crum Defendants), in County Court at Law No. 4 in Dallas County, Texas, for discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA), and the Texas Workers’ Compensation Act, V.T.C.A., Labor Code § 401.001 et seq. (TWCA). (doc. 1-6 at 1-7.)² His state court petition alleges that the defendants “discriminated and retaliated against [him] for suffering a disability and exercising his Texas right to file for Worker’s Compensation claim by denying employment accommodation and terminating [his] employment in direct violation of the ADA and [TWCA].” (Id. at 6.) Plaintiff seeks “lost past light duty wages in the amount of $30,000,” “lost future wages for five years in the ammount [sic] of $179,400,” and “punitive damages in the amount of $100,000 from each Defendant.” (Id. at 6-7.)

On September 19, 2019, Crum Defendants removed the action, asserting federal question jurisdiction based on Plaintiff’s ADA claims and supplemental jurisdiction over his remaining claims. (See doc. 1 at 3.)³ Plaintiff moved to remand this action on October 11, 2019, asserting a lack subject matter jurisdiction because his ADA claim was under investigation by the EEOC and he had not exhausted his administrative remedies when the case was removed. (doc. 7 at 1-2.) He also alleged that he was never served the notice of removal. (Id. at 1.) On May 12, 2020, it was recommended that the motion to remand be denied because the requirements for removal had been satisfied and federal question jurisdiction existed at the time of removal, and the recommendation was accepted on June 22, 2020. (See docs. 20, 23.)

On July 6, 2020, Plaintiff moved for leave to amend his complaint to drop his ADA claim, and for remand of his remaining state law TWCA claim. (See doc. 24.) Defendants opposed the motion on grounds that he was only seeking to defeat federal jurisdiction. (See docs. 27, 28.) On September 28, 2020, Plaintiff and Crum Defendants filed a joint stipulation of dismissal of all of Plaintiffs claims against Crum Defendants with prejudice. (See doc. 31.) After a hearing on October 29, 2020, his motion for leave to amend the complaint to drop his ADA claim was granted, and the amended complaint was ordered filed. His motion for remand remains pending.

II. REMOVAL

*2 Any civil action brought in state court may be removed to federal court if the district court has original jurisdiction over that action. 28 U.S.C. § 1441(a). A district court’s original jurisdiction is of two types: federal question jurisdiction and diversity jurisdiction. 28 U.S.C. §§ 1331, 1332. Federal question jurisdiction exists in all civil actions arising under the Constitution, laws, or treaties of the United States. Id. § 1331. Diversity jurisdiction exists in all civil actions where the amount in controversy exceeds $75,000.00, exclusive of interest and costs, and there is diversity of citizenship. Id. § 1332(a).

To determine whether removal jurisdiction exists, the court must “consider the claims in the state court petition as they existed at the time of removal.” Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). Additionally, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Id. If there is “any doubt about the propriety of removal, [it] must be resolved in favor of remand.” Gasch v. Hartford Acc. & Indem. Co., In this case, Defendant asserted federal question jurisdiction as a basis for removal. Federal question jurisdiction exists only when a federal question is presented on the face of the plaintiff’s well-pleaded complaint. Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). A federal question is presented when “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008). To determine whether resolution of a substantial question of federal law is necessary, courts must determine whether “(1) resolving a federal issue is necessary to resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial [*4] responsibilities.” Id. at 338.

Despite the otherwise broad grant of supplemental jurisdiction to federal district courts, it is limited in cases arising under state worker’s compensation laws by 28 U.S.C. § 1445. It provides that “[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. Plaintiff’s “claim of retaliatory termination under § 451.001 [of the Texas Labor Code] is a claim arising under Texas worker’s compensation laws” for purposes of § 1445(c). 132 F.3d 1112, 1118 (5th Cir. 1998) (citing Jones v. Roadway Express, Inc., 931 F. 2d 1086, 1092 (5th Cir. 1991)). In Sherrod, the Fifth Circuit Court of Appeals “broadly interpret[ed] § 1445(c) in order to further Congressional intent toward maintaining state court jurisdiction over worker’s compensation cases filed in state court.” Id. (citing Jones, 931 F.2d at 1092). It therefore held that “§ 1445(c) prohibits removal of state worker’s compensation claims regardless of whether jurisdiction is based on diversity or federal question.” Id. at 1118-19. Accordingly, it found that the district court had erred by failing to sever and remand the plaintiff’s worker’s compensation retaliation claim under § 451.001, which had been removed because it was coupled with a federal age discrimination claim. See id.