Opinion
No. 3:01-CV-2493-G
April 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
Findings : On November 27, 2001, plaintiff filed this civil action under 42 U.S.C. § 1983. On December 7, 2001, the Court granted plaintiff leave to proceed in forma pauperis. No process has been issued in this case. On March 7, 2002, the Court sent a Magistrate Judge's Questionnaire to plaintiff. It therein directed plaintiff to answer the questions contained in that document and return the answers by March 27, 2002. It warned plaintiff, furthermore, that "[f]ailure to file answers to the Questions may result in the dismissal of the action." To date, plaintiff has filed nothing else in this case subsequent to the Magistrate Judge's Questionnaire.
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co ., 370 U.S. 626, 629-31 (1962); Martinez v. Johnson , 104 F.3d 769, 772 (5th Cir. 1997) (habeas action); Jackson v. Richardson , No. 3-97-CV-2317-BD(R), 1998 WL 765151, at *1 (N.D. Tex. Oct. 23, 1998) (§ 1983 prisoner action). Plaintiff has failed to comply with the Magistrate Judge's Questionnaire and the order of the Court that he file his answers by March 27, 2002. Accordingly, the Court should dismiss his complaint.
RECOMMENDATION
For the foregoing reasons, it is recommended that plaintiff's complaint be dismissed without prejudice for failure to comply with an order of the Court pursuant to Fed.R.Civ.P. 41(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc ).
BROWN v. AFFILIATED COMPUTER SERVICES, INC., (N.D.Tex. 2002)
NANCY BROWN, Plaintiff; v. AFFILIATED COMPUTER SERVICES, INC., Defendant. Civil Action No. 3:01-CV-0135-P United States District Court, N.D. Texas, Dallas Division April 12, 2002
MEMORANDUM OPINION AND ORDER
Now before this Court are:
1. Defendant's Amended Rule 12(b)(6) Motion to Dismiss filed on September 24, 2001;
2. Plaintiffs Response to Defendant's Rule 12(b)(6) Motion to Dismiss filed on October 23, 2001; and
3. Defendant's Reply in Support of its Amended Rule 12(b)(6) Motion to Dismiss filed on November 6, 2001.
After reviewing the motion, the parties' briefing, the attachments, and the relevant law, the Court hereby DENIES Defendant's Motion to Dismiss for Failure to State a Claim for Which Relief Can be Granted.
BACKGROUND
On November 30, 2000, Plaintiff Nancy A. Brown ("Brown") filed a Charge of Discrimination with the Texas Commission on Human Rights ("TCHR") and the Equal Employment Opportunity Commission ("EEOC") for discrimination based on national origin and disabilities. Pl.'s Orig. Resp., Exh. 11. Plaintiffs discrimination statement read: "I believe that I have been discriminated against because of my national origin, Hispanic in violation of Title VII of the Civil Rights Act of 1964, as amended. I believe I was also discriminated against because of my disability in violation of the Americans With Disabilities Act." On January 19, 2001, Brown filed a second Charge of Discrimination with the TCHR and EEOC, complaining of retaliation and claiming she was constructively discharged on December 4, 2000. Pl's Orig. Resp., Exh. 12.
On January 19, 2001, Brown, at the time procecding pro se, filed this civil action. Pl.'s Orig. Comp. On January 30, 2001, Brown filed what she styled "Supplement to Complaint," which included 28 handwritten pages which purported to detail the facts and circumstances surrounding her experience at Defendant Affiliated Computer Systems ("ACS"). Essentially, Brown's allegations stated that while employed by ACS, she was (1) harassed by management, (2) cursed at by a co-worker, and (3) was not allowed to attend meetings because she is Hispanic and!or disabled. On May 14, 2001, Defendant ACS filed its original Rule 12(b)(6) Motion to Dismiss, seeking dismissal of all of Brown's claims on the grounds that no relief could be granted because she had suffered no adverse employment action. Def.'s Mot. to Dismiss at 1, 4. Plaintiff— who by then had retained counsel — filed her original Response to the Motion to Dismiss on June 13, 2001. In her response, Plaintiff re-urged her charges of discrimination previously stated and added that she was constructively discharged in December of 2000. Pl.'s Orig. Resp. at 2. Her response also included a "Psychological Evaluation" signed by Gregg D'Angelo, Ph.D., which purported to provide ACS with medical evidence that Plaintiff qualified for reasonable accommodations under
On August 30, 2001, the Court denied Defendant's motion to dismiss and granted Brown leave to replead her claims for, inter alia, discrimination and harassment in violation of Title VII and for alleged violations of the ADA. Order dated 8/30/01. The Court further ruled that because Brown's initial Title VII and ADA claims were properly before it, this Court also had ancillary jurisdiction over Brown's retaliation claims without the need of having her exhaust her administrative remedies. Id. The Court, however, specifically noted that since it was granting Brown leave to replead, it did not need to reach whether Brown, in her initial Complaint filed pro se, stated a claim for violations of Title VII or the ADA. Id.
On September 30, 2001, Plaintiff filed her First Amended Original Complaint essentially adopting and incorporating by reference the allegations previously noted in her pro se Complaint and in her Response to Defendant's motion to dismiss. Defendant subsequently filed its Amended Rule 12(b)(6) Motion to Dismiss on September 24, 2001. In its amended motion, Defendant ACS argued that: (1) Brown had failed to allege that ACS took an actionable employment action against her (other than constructive discharge) as required to allege a prima facie case of Title VII discrimination, (2) Brown had failed to allege a prima facie case for disability discrimination because she did not allege an adverse employment action was taken against because of her alleged disability, and (3) Brown had failed to allege a prima facie case for unlawful retaliation. Def.'s Amend. Mot. to Dismiss at 3-8. In her Response to Defendant's Amended Rule 12(b)(6) Motion to Dismiss, Brown argued that her constructive discharge claim, if proven, qualified as an adverse employment action for Title VII and ADA purposes (including her retaliation claim against Defendant). Pl.'s Resp. at 2. In its Reply Brief; ACS noted that Plaintiff; having admitted that the only adverse employment action she alleged was for constructive discharge, now entitled it to have the issues narrowed in this matter by an Order confirming that the only cause of action remaining before the Court is that for constructive discharge in violation of Title VII and/or the ADA. Def.'s Reply at 1-2.
DISCUSSION
I. Standard for Dismissal Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint when defendant shows that plaintiff has failed to state a claim for which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss for failure to state a claim is viewed with disfavor and should rarely be granted. See Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). A claim should not be dismissed unless it "appears beyond doubt that the plaintiff can prove no sets of facts in which support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court must render its decision taking the complaint in the light most favorable to the plaintiff and taking its allegations as true. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
The Supreme Court's recent decision in Swierkiewicz v. Sorema, 122 S.Ct. 992 (2002), directly bears on the case at hand. In Swierkiewicz, the plaintiff alleged that he had been terminated on account of his national origin in violation of Title VII, and on account of his age in violation of the ADEA. Id. at 996. His complaints detailed events leading up to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. Id. at 999. The Supreme Court, in reviewing the lower courts' decisions to dismiss the case on 12(b)(6) grounds, found that the plaintiffs allegations gave the defendant fair notice of the nature of the claims and the grounds upon which the claims rested. Id. Justice Thomas explained, "Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases." Id.
II. ADA Claim
To establish a case of discrimination under the ADA, Brown must show that she "is a qualified individual with a disability, and that negative employment action occurred because of the disability." Holtzclaw v. DSC Communications Corp., 254 F.3d 255, 258 (5th Cir. 2001) (quoting Sherrod. v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998)). An individual has a disability if she has "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or is regarded as having such an impairment" 42 U.S.C. § 1201(2)(A)-(C). Brown's pleadings here include a "Psychological Evaluation" signed by Gregg D'Angelo, Ph.D., that lists Brown's physical and mental impairments to include adjustment disorder, depressed mood, personality disorder, antisocial features, lumbar disk injury, and migraine headaches. Pl.'s Orig. Resp., Exh. 17 at 6. Further, Brown claims she was constructively discharged from ACS. Pl's Resp. at 2. Therefore, Plaintiffs pleadings give ACS fair notice of her claims and the grounds upon which the claims rest. See Swierkiewicz, 122 S.Ct. at 999.
III. Title VII National Origin Harassment Claim
To establish a case of national origin discrimination under Title VII, Plaintiff must demonstrate that: (1) that she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) non-members of the protected class received more favorable treatment because of their status. Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 395 (5th Cir. 1995). Defendant moves to dismiss this claim under Rule 12(b)(6) because it argues Brown cannot satisfy the third element of the claim: the adverse employment action. Def.'s Amend. Mot. to Dismiss at 4. Plaintiff counters that she suffered a constructive discharge, which she contends qualifies as an adverse employment action. Pl.'s Resp. at 2. Defendant responds that this argument entitles Defendant to narrow the question at issue here to whether Plaintiff suffered constructive discharge. Def.'s Reply in Supp. of Mot. to Dismiss at 2.
To establish constructive discharge, the Plaintiff must show that "a reasonable person in [her] shoes would have felt compelled to resign." Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998). Consideration of whether the Plaintiff was constructively discharged is to be viewed in the totality of the circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Plaintiff argues that she was (1) harassed by management, (2) cursed at by a co-worker, and (3) was not allowed to attend meetings because she is Hispanic and/or disabled. Pl.'s Orig. Comp. These claims — taken together — give Defendant fair notice of the basis on which Plaintiffs argument rests. See Swierkiewicz, 122 S.Ct. at 999. Accordingly, the Court finds Plaintiffs pleadings sufficient on her Title VII claim, and denies Defendant's motion to narrow the question to only whether Plaintiff suffered a constructive discharge.
CONCLUSION
For the reasons stated above, the Court finds that the Plaintiff has pleaded a claim for which relief can be granted, sufficient to offer Defendant fair notice of the claims and the grounds upon which these claims rest. Accordingly, the Court hereby DENIES Defendant's Motion to Dismiss for Failure to State a Claim for Which Relief Can be Granted.