Opinion
Civil Action No. SA-04-CA-1130RF.
August 10, 2005
ORDER GRANTING DEFENDANT'S PARTIAL MOTION TO DISMISS
BEFORE THE COURT is Defendant's 12(b)(6) Motion to Dismiss (Docket No. 14) filed on June 9, 2005. Defendants cite numerous deficiencies in the Plaintiff's Original Complaint and ask that the suit be dismissed. Plaintiff, who brings this case pro se, recently moved for leave to file supplemental pleadings to his first amended complaint (Docket No. 15). Plaintiff responded to Defendant's Partial Motion to Dismiss (Docket No. 16), and Defendant replied to Plaintiff's response (Docket No. 21). The Court finds that the grounds for relief are not sufficiently set forth in Plaintiff's Complaint. After careful consideration, the Court orders that Defendant's Partial Motion to Dismiss be granted.
FACTS PROCEDURAL BACKGROUND
This case involves a dispute between Plaintiff Timothy L. Carter and his employer Defendant RMH Teleservices. Plaintiff alleges discrimination for having been placed on an "unlawful Development Plan," having received "unlawful counseling threatening termination," and having not received a promotion. Plaintiff alleges that the discrimination he endured occurred as a consequence of his race, and he files this lawsuit pursuant to Section 603(a) of Title VII, 42 U.S.C. On December 13, 2004 pro se Plaintiff filed suit against Defendant alleging violations of Title VII, The Age Discrimination in Employment Act ("ADEA"), The Americans with Disabilities Act ("ADA"), and The Employee Retirement Income Security Act ("ERISA"). Plaintiff initiated a Title VII action alleging that Defendant had discriminated against him because he is African-American. Plaintiff additionally alleged violations of ERISA, stating that Defendant had denied him participation in the company's 401K retirement program.
Docket No. 16, at 3.
Id. at 4.
Complaint, ¶ 7.
Id.
On May 19, 2005, Defendant's counsel sent Plaintiff a letter setting out legal reasons as to why Plaintiff should dismiss his racial discrimination and ERISA claims against Defendant. The letter explained that Defendant's counsel would file a Motion to Dismiss and seek attorney's fees if Plaintiff failed to cooperate by voluntarily dismissing the race and ERISA claims. Plaintiff did not respond to the letter and filed a Motion for Leave to File a Supplemental Pleading to the First Amended Complaint on June 20, 2005. The Court granted Plaintiff's Motion for Leave to File a First Amended Complaint on June 21, 2005. Plaintiff's Amended complaint re-alleges the Title VII, ADEA, ADA, and ERISA claims articulated in the original complaint filed on December 13, 2004. Plaintiff's Amended Complaint includes new constitutional claims brought pursuant to the U.S. Constitution and the Texas Constitution. Defendant's 12(b)(6) Partial Motion to Dismiss asks that Plaintiff's ERISA claim, Title VII race discrimination claim, and independent federal and state constitutional claims be dismissed.
Exhibit 1.
Id.
Docket No. 15.
Docket No. 14.
STANDARD OF REVIEW
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint must be liberally construed in favor of the plaintiff, and all the facts pleaded in the complaint must be taken as true. Dismissal on this basis is a disfavored means of disposing of a case, and district courts should avoid such dismissals "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." "The question therefore is whether, in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief."DISCUSSION
I. ERISA ClaimPlaintiff alleges that Defendant violated his rights under Employee Retirement Income Security Act ("ERISA") when Defendant received a letter stating that "effective July 1, 2002 all Telephone Service Representatives will no longer be eligible to participate" in the 401K plan. Section 510 of ERISA provides:
Exhibit 3.
"It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan."
At trial, an employee alleging an ERISA violation against his employer bears the burden of proving the existence of the defendant's specific discriminatory intent as an essential element of his ERISA discrimination claim. Secondly, an employee alleging an ERISA discrimination claim against his employer must prove his employer's specific intent to interfere with his pension rights.
McGann v. HH Music Co., 946 F.2d 401, 404 (5th Cir. 1991) (citing Kimbro v. Atl. Richfield Co., 889 F.2d 869, 881 (9th Cir. 1989)).
Clark v. Resistoflex Co., 854 F.2d 762, 770 (5th Cir. 1988).
In McGann, an employer informed its employees that changes would be made in their medical coverage, and one employee among a group of employees to which the change applied claimed that the defendant employer had discriminated against him in retaliation for exercising his rights under the medical plan for the purpose of interfering with his attainment of rights to which he was entitled under the plan. The Court found the plaintiff had failed to show the Defendant's motivation in reducing coverage was specifically directed at him. The Court found nothing in the record to show that the defendant's motivation was simply the desire to avoid the expense of paying for AIDS treatment, not only for the plaintiff but for any other present or future plan beneficiary who might suffer from AIDS. However, the plaintiff contended that the defendant's reduction in AIDS benefits alone supported an inference of the defendant's specific intent to retaliate against him or interfere with his future exercise of rights under the medical plan. The Court in McGann was not persuaded by the plaintiff's argument and held that the defendant's AIDS coverage limit was not discriminatory because it applied to "any and all employees." Additionally, the plaintiff in McGann contended that Section 510 of ERISA was intended to prohibit any discrimination in the alteration of an employee benefits plan that results in an identifiable employee or group of employees being treated differently than other employees. In McGann, the Fifth Circuit adopts the position of the First Circuit, holding that an employer's partial termination of group benefits "cannot constitute discrimination per se." The Fifth Circuit reaffirms the First Circuit's holding that "a termination that cuts along independently established lines" and "has a readily apparent business justification demonstrates no invidious intent."
McGann, 946 F.2d at 404.
Id.
Id.
Id. at 405.
Id. at 406.
Id.
Id. (citing Aronson v. Servus Rubber, 730 F.2d 12, 16 (1st Cir. 1984)).
McGann, 946 F.2d at 406.(citing Aronson, 730 F.2d at 16)).
Additionally, in dictum the Supreme Court has stated, "ERISA does not mandate that employers provide any particular benefits, and does not proscribe discrimination in the provision of employee benefits." With respect to an employer changing its benefits plan, the Fifth Circuit has said that interpreting "discrimination" broadly to include Defendant's conduct would conflict with Congress' intent that employers are at liberty to "create, modify and terminate" the terms and conditions of employee benefit plans without governmental interference. Under Section 510 of ERISA, asserted discrimination is only illegal if it is motivated by an employer's desire to retaliate against an employee or to deprive an employee of an existing right to which he may become entitled.
Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983).
McGann, 946 F.2d at 407.
Id. at 408.
In this matter Plaintiff alleges that Defendant violated ERISA by denying him participation in its retirement 401K program. In the instant case, Plaintiff bears the burden of demonstrating that the asserted discrimination by Defendant was motivated by Defendant's desire to retaliate against Plaintiff or to deprive Plaintiff of an existing right to which he is entitled. Exhibit 3 demonstrates that Defendant terminated 401K contributions not just for Plaintiff but for all of its Telephone Service Representatives. Like in McGann, where the employer terminated AIDS coverage for all employees, rather than for just one employee, Defendant in the instant case has terminated 401K contributions for an entire group of employees. Secondly, Defendant has not stripped Plaintiff of a right to which he is entitled, as Plaintiff still is entitled to receive benefits which have already accrued to him. Plaintiff has provided no evidence to demonstrate the Defendant has specifically retaliated against him by terminating his 401K contributions; nor has Plaintiff provided any evidence to demonstrate Defendant has interfered with his right to receive pension benefits. Without any evidence of retaliation towards Plaintiff or an effort by Defendant to interfere with Plaintiff's entitlement to retirement benefits, Defendant's decision to modify its 401K contribution program with respect to the benefits which have not yet accrued for a group of workers does not constitute discrimination.
Complaint, ¶ 7.
Exhibit 3.
Id.
II. Title VII Constitutional Claim for Racial Discrimination
On June 9, 2005, Defendant moved to dismiss Plaintiff's Title VII constitutional race discrimination claim, arguing that Plaintiff's Title VII claim fails because Plaintiff did not assert racial discrimination in his Equal Employment Opportunity Commission ("EEOC") Charge of Discrimination. As a consequence of Plaintiff's failure to assert racial discrimination in his EEOC charge, Defendant maintains Plaintiff has not satisfied a condition precedent for including a racial discrimination claim within a greater Title VII claim, which already includes a disability discrimination claim under the ADA and an age discrimination employment claim under the ADEA. Defendant argues that Plaintiff has failed to state a claim upon which relief may be granted and consequently submits that dismissal under Rule 12(b)(6) is appropriate. Plaintiff responded to Defendant's Motion to Dismiss arguing that 1) his race discrimination claim is "reasonably related" to the other claims he asserted in the EEOC charge, so as to be also included in the charge, and 2) courts have liberally construed the claims asserted in EEOC charges for Title VII actions.
As Defendant argues, filing a charge of discrimination with the EEOC is a condition precedent to the bringing of a civil action under Title VII. A suit that flows from an EEOC complaint is limited by charges of discrimination "like or related to" allegations in the EEOC complaint. In Stith, the Fifth Circuit stated that because the EEOC claimant had failed to include a disparate impact discrimination claim in her EEOC complaint, she had failed to exhaust her administrative remedy barring her from recovering on a disparate impact discrimination claim in the Title VII action. Similarly, in Teffera where a claimant checked "retaliation" on a pre-charge EEOC form but did not check "retaliation" on the formal EEOC charge, the Fifth Circuit upheld the district court's dismissal of the claimant's Title VII retaliation claim because it had not been exhausted with the EEOC. In yet another decision, the Fifth Circuit dismissed a Title VII sex discrimination claim in part because the claimant had not raised the claim earlier with the EEOC. The scope of inquiry in a Title VII action court hearing "is limited to the `scope' of the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. The EEOC charge must raise a discrimination claim with specificity.
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 456 (5th Cir. 1970).
Stith v. Perot Sys. Corp., 122 Fed. Appx. 115, 118 (5th Cir. 2005).
Id.
Teffera v. N. Tex. Tollway Auth., 121 Fed. Appx. 18, 21 (5th Cir. 2004).
Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990).
Id. (citing Sanchez, 431 F.2d at 466)).
See Teffera, 121 Fed. Appx. at 21.
Plaintiff failed to include allegations of race discrimination in his administrative charge. The Fifth Circuit has held repeatedly that if a plaintiff fails to include allegations of race discrimination in his EEOC charge, he cannot recover under Title VII on a race discrimination claim. Plaintiff relies on holdings from outside the Fifth Circuit to support his argument that EEOC complaints written by laypersons are to be construed liberally. The United States Supreme Court has held that time limits for filing a claim to be included in the Title VII action can be waived for laypersons. However, the United States Supreme Court has not held that courts should liberally construe the content of an EEOC charge, so that an issue not raised in the EEOC charge can be brought in a Title VII claim. Likewise, the Fifth Circuit has held consistently that filing a charge with the EEOC for a race discrimination claim is a condition precedent to bringing a Title VII action such as a race discrimination claim. According to applicable law, Plaintiff cannot exhaust his administrative remedies with respect to race discrimination by simply checking the "retaliation" box on the EEOC charge. The Court finds that Plaintiff's claim of racial discrimination should be dismissed.
Zipes v. Transworld Airlines, Inc., 455 U.S.385, 398 (1982).
See id.
III. U.S. Constitution and Texas Constitution Claims
Plaintiff brings constitutional claims independent of the Title VII constitutional claim, as he alleges that his federal and state constitutional rights have been violated as a consequence of not receiving pension benefits. A major principal of constitutional law is that the action prohibited by the Constitution is only such action which may "fairly be said to be that of the state." Where state action has not been required for a litigant to succeed on a constitutional claim for racial discrimination, the United States Supreme Court has held that the State must have "significantly involved itself with invidious discriminations." Similarly, state action is required before a litigant can maintain a lawsuit for the deprivation of a right under the Texas Constitution. The Texas Supreme Court has ruled that "state action is required before a litigant can maintain a claim for deprivation of a right secured by the free speech, equal rights, and due course of law guarantees of the Texas Bill of Rights."
City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196 (2003) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).
The Republican Party of Tex. v. Dietz, 940 S.W.2d 86,89 (Tex. 1997) (quoting Reitman v. Mulkey, 387 U.S. 369, 380 (1967)).
The Republican Party of Tex., 940 S.W.2d at 91.
Plaintiff has provided no evidence to demonstrate that the Defendant corporation is a state actor or an actor acting on behalf of the State. Devoid of such evidence, Plaintiff's state and federal constitutional claims fail because both the United States Constitution and the Texas Constitution only prohibit racial discrimination as initiated by the State or actor of the State.
Conclusion
Accordingly, it is ORDERED that Defendant's Partial Motion to Dismiss (Docket No. 14) be GRANTED.FINAL ORDER OF JUDGMENT
On this day, the Court entered an Order granting Defendant's Partial Motion To Dismiss (Docket No. 14). The Court now enters its Final Judgment pursuant to FED. R. CIV. P. 12(b)(6).It is therefore ORDERED that Defendant's Partial Motion To Dismiss (Docket No. 14) is hereby GRANTED.
It is further ORDERED that Plaintiff's claims against Defendant are DISMISSED WITH PREJUDICE.
It is further ORDERED that each party BEAR its own costs.