Stramaski v. Texas A&M Engineering Experiment Station

UNITED STATES DISTRICT COURT August 20, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

EVA KRISTINE STRAMASKI, §

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Plaintiff. §

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VS. § CIVIL ACTION NO. 4:20-CV-00156

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TEXAS A&M ENGINEERING §

EXPERIMENT STATION, ET AL., §

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Defendants. §

MEMORANDUM AND RECOMMENDATION

Before me is Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint

for Lack of Subject Matter Jurisdiction and Failure to State a Claim (“Motion to

Dismiss”). See Dkt. 18. After considering the parties’ submissions and the relevant case

law, I recommend that the Motion to Dismiss be GRANTED in part and DENIED in

part.

BACKGROUND

The following factual summary is based on the allegations set forth in Plaintiff’s

First Amended Complaint and Jury Demand. Plaintiff Eva Kristine Stramaski

(“Stramaski”) worked for Texas A&M Engineering Experiment Station (“TEES”) as an

Academic Advisor within the Department of Industrial and Systems Engineering.

Defendant Dr. Mark Lawley (“Dr. Lawley”) is the Department Head of the Department

of Industrial and Systems Engineering.

Stramaski alleges that TEES personnel informed her on January 31, 2019, that she

would not be timely paid on February 1, 2019, but would have to wait until February 5 or

6, 2019 to receive her paycheck. Upset by these statements, Stramaski complained to

TEES personnel on several occasions that “she needed to be paid on time, as it was her

legal right.” Dkt. 14 at 4. On February 1, 2019, a TEES employee told Stramaski that

she would be paid on time, and Stramaski was paid by check later that day.

Although Stramaski timely received her paycheck, she alleges that her complaints

marked “the beginning of the end for” her employment at TEES. Id. She claims “she

started experiencing almost instant retaliation at the hands of her department head.” Id.

On February 13, 2019, Dr. Lawley issued Stramaski a “coaching letter,”

addressing purported deficiencies in Stramaski’s job performance. Id. Stramaski

maintains that the letter contained “false allegations” and Dr. Lawley was unable to

“provide supporting evidence” in a face-to-face meeting. Id. at 5. On March 7, 2019, Dr.

Lawley terminated Stramaski’s employment. Stramaski contends that Dr. Lawley

terminated her “in retaliation for requesting to be paid timely.” Id. More specifically,

Stramaski alleges:

As Department head of one of Texas’ finest universities, Dr. Lawley, and

or any reasonable official, would know that you cannot terminate

someone’s employment for asking to be paid timely.

….

By trumping up false and unproven reasons to terminate Plaintiff,

Defendant acted knowingly, willfully, and with reckless disregard for the

law. Plaintiff would not have been terminated but for her complaints

regarding Defendant’s failure to issue timely pay under the FLSA.

Id.

In this lawsuit, Stramaski brings a single claim against Dr. Lawley for

retaliation/wrongful termination under the Fair Labor Standards Act, 29 U.S.C. §

215(a)(3). Dr. Lawley has filed a Motion to Dismiss, arguing that Stramaski’s claim for

monetary and equitable relief should be dismissed under Rule 12(b)(1) “because: (1) this

suit is barred by Eleventh Amendment immunity because the State is the real party in

interest; (2) [Stramaski] lacks FLSA standing to seek injunctive relief; and (3)

[Stramaski] lacks standing for the declaratory relief she seeks.” Dkt. 18 at 1. Dr. Lawley

also contends that “dismissal is appropriate under Rule 12(b)(6) because [he] is entitled

to qualified immunity.” Id.

DISCUSSION

A. RULE 12(b)(1)

1. Legal Standard

A court must dismiss a suit for lack of subject matter jurisdiction under Rule

12(b)(1) where it lacks the statutory or constitutional power to adjudicate the case. See

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (“Motions filed under Rule

12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject

matter jurisdiction of the district court to hear a case.”). “On a Rule 12(b)(1) motion to

dismiss, the party asserting jurisdiction bears the burden of proving that jurisdiction

exists.” Cell Sci. Syst. Corp. v. La. Health Serv., 804 F. App’x. 260, 262 (5th Cir. 2020).

Subject matter jurisdiction fails if the plaintiff lacks Article III standing. See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541–42 (1986). Therefore, when a plaintiff

lacks standing to sue in federal court, it is appropriate to dismiss the action pursuant to

Rule 12(b)(1) for want of subject matter jurisdiction. See Cell Sci. Sys. Corp., 804 F.

App’x at 266. “When a party files multiple Rule 12 motions, [the district court] must

consider the Rule 12(b)(1) jurisdictional attack before considering the Rule 12(b)(6)

merits challenge.” Wilson v. Hous. Cmty. Coll., 955 F.3d 490, 494 (5th Cir. 2020).

2. Eleventh Amendment Immunity

The Eleventh Amendment provides that “[t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” U.S. CONST. amend. XI. The Supreme Court has consistently held

that the Eleventh Amendment bars lawsuits from being brought in federal courts against

an unconsenting state by her own citizens as well as by citizens of another state. See

Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). Likewise, “[a]n action against a state

official in his official capacity is an action against the State, and is barred by the Eleventh

Amendment, subject only to the limited exception permitted by Ex Parte Young, 209 U.S.

123” (1908).1 Bellow v. Bd. of Sup’rs of La. State Univ. & Agric. Mech. Coll., No.

CIV.A. 12-1529, 2014 WL 2203881, at *4 (E.D. La. May 27, 2014). See also Hafer v.

Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in their official capacity . . .

should be treated as suits against the State.”).

This case involves a lawsuit brought against a state official in his individual

capacity, not his official capacity. This distinction is critical. “As a general rule the

1 Under the Ex Parte Young doctrine, the Eleventh Amendment does not bar a suit for injunctive

relief against state officials in their official capacities alleged to be acting in violation of federal

law. See Ex Parte Young, 209 U.S. at 155–56.

Eleventh Amendment does not bar suits against [state] officers in their individual

capacities.” Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006). Nonetheless “a suit

nominally against state employees in their individual capacities that demonstrably has the

identical effect as a suit against the state” is barred by the Eleventh Amendment. Henley

v. Simpson, 527 F. App’x. 303, 306 (5th Cir. 2013) (quotation marks and citation

omitted). As the United States Supreme Court has explained: “The Eleventh Amendment

bars a suit against state officials [sued in their individual capacity] when the state is the

real, substantial party in interest.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 101 (1984) (internal quotation marks and citation omitted).

So how do we determine in this case if the State of Texas is the real, substantial

party in interest? Generally speaking, “when the action is in essence one for the recovery

of money from the state, the state is the real, substantial party in interest and is entitled to

invoke its sovereign immunity from suit [under the Eleventh Amendment] even though

individual officials are nominal defendants.” Henley, 527 F. App’x at 306 (quotation

marks and citation omitted). Still, the determination as to whether the state is the real,

substantial party in interest entails a fact-specific inquiry. See Modica, 465 F.3d at 183

(“The application of the Eleventh Amendment to suits against state officials in their

individual capacity depends on the circumstances.”) (quotation marks, citation, and

brackets omitted).

Relying on the Fifth Circuit’s decision in Henley, Dr. Lawley argues that

Stramaski’s claim against him “is jurisdictionally barred by Eleventh Amendment

immunity because the State of Texas is the true party in interest.” Dkt. 18 at 6.

Meanwhile, Stramaski directs my attention to the Modica case, claiming that the Fifth

Circuit’s holding that Eleventh Amendment immunity did not extend to a state official

sued in his individual capacity is more analogous to the present case. Let me briefly

summarize both cases.

In Modica, a former employee of the Texas Cosmetology Commission (“TCC”)

brought suit against the TCC Executive Director alleging wrongful termination in

retaliation for exercise of First Amendment rights and for taking leave under the Family

and Medical Leave Act (“FMLA”). See 465 F.3d at 178. On appeal, the public official

argued that the Eleventh Amendment barred the FMLA retaliation claim against him in

his individual capacity because the State of Texas was the real party in interest. See id. at

183. After noting the well-recognized rule that the Eleventh Amendment does not

ordinarily bar lawsuits against state officials in their individual capacities, the Fifth

Circuit considered the particular circumstances of the case. See id. Because the TCC

Executive Director could be held personally liable under the FMLA and forced to pay

monetary damages out of his own pocket, the Fifth Circuit concluded that the State of

Texas was not the real party in interest. See id. at 183–84. Thus, the Eleventh

Amendment posed no obstacle to the action proceeding against the TCC Executive

Director in his individual capacity. See id.

In Henley, former highway patrol K-9 officers sued two state officials—the former

Commissioner of the Mississippi State Department of Public Safety and the former

Director of the Mississippi Highway Patrol—in their individual and official capacities

under the FLSA to recover overtime wages incurred in caring for, and training, their

service canines while off duty. See 527 F. App’x at 304. The district court granted the

defendants’ motion to dismiss the plaintiffs’ claims against them in their official capacity,

barred by the Eleventh Amendment, but denied dismissal in their individual capacities.

See id. The Fifth Circuit reversed and dismissed the defendants in their individual

capacities because the state, as the real party in interest, was entitled to Eleventh

Amendment protection. See id. at 306–07. Suing defendants in their individual

capacities to cause the state to compensate the plaintiffs was, according to the Fifth

Circuit, an impermissible attempt to make an “end run” around Eleventh Amendment

immunity. See id. at 307.

Against this backdrop, I conclude that the instant action has much more in

common with Modica than it has to Henley. Here, like the plaintiff in Modica, Stramaski

brings a retaliation claim, alleging she was terminated for exercising her lawful rights.

The underlying premise of a retaliation claim against a state official is that the individual

state officer, not the governmental entity as whole, acted in contravention of the law by

retaliating against the employee. Although the federal statute at issue in Modica (the

FMLA) is technically different from the statutory scheme at issue in this case (the

FLSA), that is a distinction without a difference when it comes to a retaliation claim. The

Modica court explained that a state official may be sued in his individual capacity for

retaliation under the FMLA, reasoning that a state official is considered an FMLA

“employer” who is prohibited from retaliating against an employee for exercising

protected activity. See 465 F.3d at 184–87. Because “[t]he definition of ‘employer’

under the FMLA is very similar to the definition of ‘employer’ under the FLSA,” the

Fifth Circuit has instructed district courts to interpret the term “employer” the same under

both statutes. Id. at 186. Following this logic, if a public official may be held

individually liable as an “employer” in a retaliation claim brought under the FMLA, there

is every reason to believe that a state officer may also be held individually liable in a

retaliation claim brought under the FLSA.

Although Henley admittedly involves an FLSA claim, it is not a retaliation case,

which is an important distinction. The plaintiffs in Henley sought overtime pay,

challenging the state’s compensation policy rather than a wrong caused by an individual

actor. Because the supervisors being sued in Henley “had no control over the creation of

the policies, . . . suing them individually for unlawful policies was not logical and was a

thinly veiled attempt at an end-run around” the Eleventh Amendment. Bellow, 2014 WL

2203881, at *4. Henley is thus easily distinguishable from the present action. Unlike

Henley, Stramaski does not challenge an established governmental policy, but rather

attacks the actions of one individual, Dr. Lawley, for his alleged decision to terminate her

employment unlawfully. Thus, if Stramaski succeeds on her FLSA retaliation claim, Dr.

Lawley, not the state treasury, would ultimately be responsible for satisfying any

monetary judgment.2 Even Henley acknowledges that “the Eleventh Amendment does

not preclude monetary relief for past harms when the state official is sued in his

2 As a side note, the Fifth Circuit has held that “the existence of an indemnification statute

promising to pay judgments when an officer is sued in his individual capacity does not extend

the Eleventh Amendment’s protections around the officer.” Hudson v. City of New Orleans, 174

F.3d 677, 687 n.7 (5th Cir. 1999).

individual capacity and will be personally liable for the judgment.” Henley, 527 F.

App’x at 305. That is exactly the situation present here.

In sum, after carefully reviewing the relevant Fifth Circuit precedent and the

alleged facts as set forth in the First Amended Complaint, I conclude that Dr. Lawley, not

the State of Texas, is the real party in interest. As a result, the Eleventh Amendment does

not bar Stramaski’s lawsuit from proceeding against Dr. Lawley in his individual

capacity.

3. Injunctive Relief

As part of the First Amended Complaint, Stramaski asks this Court to enjoin Dr.

Lawley from retaliating further against her because of her protected conduct. Stramaski’s

claim for injunctive relief fails as a matter of law. As Stramaski’s counsel readily

admitted at the oral hearing on the Motion to Dismiss, “the right to bring an action for

injunctive relief under the [FLSA] rests exclusively with the United States Secretary of

Labor.” Powell v. Fla., 132 F.3d 677, 678 (11th Cir. 1998) (citing 29 U.S.C. §§ 211(a),

216(b)). See also Barrentine v. Ark.-Best Freight Sys., Inc., 750 F.2d 47, 51 (8th Cir.

1984) (“[O]nly the Secretary is vested with the authority to seek an injunction.”).

Because Stramaski does not possess the statutory authority to seek injunctive relief under

the FLSA, her injunctive relief claim must be dismissed.

4. Declaratory Relief

In addition to seeking monetary damages and injunctive relief in her First

Amended Complaint, Stramaski also asks the district court to declare that Dr. Lawley

illegally terminated her in retaliation for filing a complaint about her pay potentially

being delayed.

Article III of the United States Constitution limits the scope of federal judicial

power to the adjudication of “cases” or “controversies.” U.S. CONST. art. III, § 2. See

also Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976) (“No principle is more

fundamental to the judiciary’s proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual cases or controversies.”).

“In order to demonstrate that a case or controversy exists to meet the Article III standing

requirement when a plaintiff is seeking . . . declaratory relief, a plaintiff must allege facts

from which it appears there is a substantial likelihood that [s]he will suffer injury in the

future.” Bauer v. Tex., 341 F.3d 352, 358 (5th Cir. 2003). See also Stringer v. Whitley,

942 F.3d 715, 720 (5th Cir. 2019) (“Because injunctive and declaratory relief cannot

conceivably remedy any past wrong, plaintiffs seeking injunctive and declaratory relief

can satisfy the redressability requirement only by demonstrating a continuing injury or

threatened future injury.”) (internal quotation marks and citation omitted).

In the First Amended Complaint, there are no alleged facts from which it appears

there is a substantial likelihood that Stramaski will suffer continuing harm or a real and

immediate threat of repeated injury in the future. If anything, the lawsuit’s allegations

demonstrate that there is absolutely no threat of future injury. Stramaski’s employment

with TEES has been terminated. She no longer reports to Dr. Lawley. To the extent

improper conduct took place, those actions are done and over. Indeed, Stramaski admits

in the live pleading that “[r]einstatement is not feasible.” Dkt. 14 at 6. There are simply

no factual allegations “from which the continuation of the dispute may be reasonably

inferred.” Bauer, 341 F.3d at 358. Because any threat of continual retaliation is nothing

more than conjectural and hypothetical, dismissal of Stramaski’s declaratory relief claim

is appropriate.

B. RULE 12(b)(6)

1. Legal Standard

Under Federal Rule of Civil Procedure 12(b)(6), a defendant is entitled to

dismissal when the plaintiff fails to state a claim upon which relief may be granted. The

standard applied to a Rule 12(b)(6) motion is quite familiar: “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Although a complaint does not need “detailed factual allegations” to survive a Rule

12(b)(6) motion, a plaintiff must provide more than “labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.

at 555.

In considering a Rule 12(b)(6) motion, I must accept “all well-pleaded facts as

true, viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188

F.3d 322, 324 (5th Cir. 1999). When a “motion to dismiss raises the defense of qualified

immunity, the plaintiff ‘must plead specific facts that both allow the court to draw the

reasonable inference that the defendant is liable for the harm . . . alleged and that defeat a

qualified immunity defense with equal specificity.’” McLin v. Ard, 866 F.3d 682, 688

(5th Cir. 2017) (quoting Zapata v. Melson, 750 F.3d 481, 485 (5th Cir. 2014)).

Because a complaint must be liberally construed in favor of the plaintiff, a motion

to dismiss under Rule 12(b)(6) is generally viewed with disfavor and is rarely granted.

See Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009).

2. Qualified Immunity

Even if the Eleventh Amendment does not protect him from suit, Dr. Lawley

asserts that this case should be dismissed under Rule 12(b)(6) on qualified immunity

grounds. Under the judicially-created qualified immunity doctrine, “government officials

performing discretionary functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). By protecting “all but the plainly incompetent or those who knowingly

violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), the qualified immunity

doctrine “promotes the necessary, effective, and efficient performance of governmental

duties.” Bellow v. LeBlanc, 550 F. App’x 181, 183 (5th Cir. 2013).

“When a defendant invokes qualified immunity, the burden is on the plaintiff to

demonstrate the inapplicability of the defense.” Cantrell v. City of Murphy, 666 F.3d

911, 918 (5th Cir. 2012). In the context of a Rule 12(b)(6) motion to dismiss based on

qualified immunity, a plaintiff satisfies this burden when the live pleading alleges that:

(1) “the official’s conduct violated a constitutional or statutory right”; and (2) “the

official’s actions constituted objectively unreasonable conduct in light of clearly

established law at the time of the conduct.” Bellow, 550 F. App’x at 183 (internal

quotation marks, citation, and brackets omitted). Although I am required at this juncture

of the proceedings to scrutinize the actions of Dr. Lawley for objective unreasonableness

as alleged in the complaint, see McClendon v. City of Columbia, 305 F.3d 314, 323 (5th

Cir. 2002), the complaint must merely set forth “enough facts to state a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at 570. Importantly, the standard that

guides a district court to decide a qualified immunity defense at the Rule 12(b)(6) stage is

markedly different from the standard that applies at summary judgment. As noted by the

United States Supreme Court:

[T]he legally relevant factors bearing upon the [qualified immunity]

question will be different on summary judgment than on an earlier motion

to dismiss. At that earlier stage, it is the defendant’s conduct as alleged in

the complaint that is scrutinized for “objective legal reasonableness.” On

summary judgment, however, the plaintiff can no longer rest on the

pleadings, and the court looks to the evidence before it (in the light most

favorable to the plaintiff) when conducting the [qualified immunity]

inquiry.

Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (citation omitted).

Turning to the First Amended Complaint, it is my view that Stramaski’s

allegations, taken in the light most favorable to her, easily meet the two-prong qualified

immunity test. The thrust of Stramaski’s claim is that she was terminated for

complaining to management that she needed to be paid on a timely basis. This allegation

unquestionably satisfies the first qualified immunity prong: a violation of a statutory

right. The FLSA prohibits retaliation against an employee who files a complaint, initiates

proceedings, or assists in the initiation of proceedings under the FLSA. See 29 U.S.C. §

215(a)(3). “Although the FLSA does not explicitly require that wages be paid on time,

the courts have long interpreted the statute to include a prompt payment requirement.”

Rogers v. City of Troy, 148 F.3d 52, 55 (2d Cir. 1998). See also Biggs v. Wilson, 1 F.3d

1537, 1542 (9th Cir. 1993) (collecting cases). Importantly, the Fifth Circuit has

specifically held that there is an obligation to pay an employee timely. See Atl. Co. v.

Broughton, 146 F.2d 480, 482 (5th Cir. 1944) (“[I]f an employer on any regular payment

date fails to pay the full amount of the minimum wages and overtime compensation due

an employee, there immediately arises an obligation upon the employer to pay the

employee.”). Because at this early pleading stage I must accept all well-pleaded facts as

true, Stramaski has properly alleged in the operative pleading a violation of a statutory

right—an FLSA retaliation claim.

I next turn to the second prong of the qualified immunity analysis—whether an

official’s conduct violated a statutory or constitutional right clearly established at the time

of the violation. “To be clearly established for purposes of qualified immunity, the

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Brown v. Callahan, 623 F.3d 249,

253 (5th Cir. 2010). The central concept of qualified immunity’s second prong is one of

“fair warning.” See Hope v. Pelzer, 536 U.S. 730, 740–41 (2002). By alleging that Dr.

Lawley terminated her employment because she complained that she needed to receive

her paycheck on a timely basis, Stramaski has done enough to meet the second prong.

Given the extensive case law nationwide—including a specific pronouncement from the

Fifth Circuit—specifying that an employee has a right to be paid timely, Dr. Lawley was

given “fair warning” that firing Stramaski for asserting her FLSA protected rights would

violate her clearly established right to air grievances without retaliation. Accepting the

operative pleading’s allegations as true, as I must at this point in the case, Stramaski has

abrogated Dr. Lawley’s qualified immunity defense. I, therefore, recommend that Dr.

Lawley’s request to dismiss the case under Rule 12(b)(6) based on qualified immunity be

denied.

CONCLUSION

For the reasons stated above, I recommend that Dr. Lawley’s Motion to Dismiss

(Dkt. 18) be GRANTED as to Stramaski’s lack of standing to seek injunctive and

declaratory relief and DENIED as to the Eleventh Amendment and qualified immunity

defense.

The Clerk shall provide copies of this Memorandum and Recommendation to the

respective parties who have fourteen days from the receipt thereof to file written

objections pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13.

Failure to file written objections within the time period mentioned shall bar an aggrieved

party from attacking the factual findings and legal conclusions on appeal.

SIGNED in Houston, Texas, this 20th day of August 2020.

______________________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE