Opposition Brief — Manuel v. Sanderson Farms, Inc.

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No. 03-1702 =f otrw

IN THE

Supreme Court of the United States

OLIVER MANUEL,

Petitioner,

SANDERSON FARMS INC. (PROCESSING DIVISION),

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

JEFFREY C. LONDA

Counsel of Record

STEPHEN E. Hart

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

500 Dallas Street

Suite 3000

Houston, TX 77002-4709

(713) 655-0855

Attorneys for Respondent

188453 g

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTION PRESENTED

Whether every lawsuit that asserts a claim for alleged

employment discrimination solely under a state employment

discrimination statute states a claim under an analogous

federal employment discrimination statute, simply because

the plaintiff could have (but did not) allege a violation of the

federal statute, and despite the fact that the plaintiff’s

pleading specifically and unequivocally states that plaintiff

is only asserting a claim for alleged violation of the state

employment discrimination statute?

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 239.6

Respondent Sanderson Farms Inc. (Processing Division)

is wholly owned by Sanderson Farms, Inc.

— ~-

——

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TABLE OF CONTENTS

ee eer

Corporate Disclosure Statement Pursuant to Supreme

BemreeeRt OF THE Case 2... cece eceens

Reasons for Denying the Petition ...............

I. Petitioner’s Pleadings Do Not State A Claim

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II. Acceptance Of Petitioner’s Contentions

Would Eviscerate The Well Pleaded

Complaint Rule And Make Virtually Every

Lawsuit Removable To Federal Court.

rT oo a ad ous a 6

TABLE OF CITEDAUTHORITIES

Cases:

Broce v. ARCO Pipe Line Co., 28 Fed. Appx. 653

SE ae EE Ss ondides veceeueveenaeners

Carpenter v. Wichita Falls Independent School

District, 44 F.3d 362 (Sth Cir. 1995) ..........

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ...

Easton v. Crossland Mortgage Corp., 114 F.3d 979

ME cs BP rey wire ner tere hint

Knestrick v. IBM Corp., 945 F. Supp. 1080 (E.D.

Se WE 6a hc dn chester

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Cw iGt7, 36 L. Ed. 666 (1973) ..........

Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478

ht | ey ee ree re

Pointer v. Crown Cork & Seal Co., Inc., 791 F. Supp.

SOO Gee. FO. BI i occ oe Noy sceecsans een

Pope v. MCI Telecommunications Corp., 937 F.2d

258 (Sth Cir. 1991), cert. denied, 504 U.S. 916

Pree rer ere rer rere erry err rer

Page

Cited Authorities

Rains y. Criterion Sys., Inc., 80 F.3d 339 (9th Cir.

1996) ...... 0.50030 eee

Simonton vy. Runyon, 232 F.3d 33 (2d Cir. 2000) ..

~ Specialty Retailers, Inc. v. DeMaranville, 933 S.W.2d

490 (Tex. 19906) 2.6.0. decenseeae eee eee

Swierkiewicz v. Sorema, 534 U.S. 506 (2002) .....

Willy v. Coastal Corp., 855 F.2d 1160 (Sth Cir. 1988)

Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138

(4th Cis. 9996) «00s oavetecsn teres seneeree

Statutes:

Tex. Las. Cope Ann. 6 21.001 2. <dsinveutvanes

Tex. Lap. Cope Ann. § 21.2028) .. 6.0. scctvess

Tex. Las. Come Ant. 6 24.208 os cvcdess sti

Tex. Lap. Cope An. © 21.299 5 ccc ccuscacvavas

Tex. Lap. Cope AMM. 3 ZU.2060 soo asc scsdeessss

USE. OT oso eee

STATEMENT OF THE CASE

Petitioner filed “Plaintiff’s Original Petition and Jury

Demand” on November 22, 2002, in the County Court of

Law No. 2 of Brazos County, Texas. (Petitioner’s Appendix

at A-24). On December 18, 2002, Petitioner’s lawsuit was

timely removed to the United States District Court for the

Southern District of Texas, Houston Division, on grounds of

diversity jurisdiction. On January 23, 2003, Petitioner filed

“Plaintiff’s First Amended Complaint and Jury Demand.”

(Petitioner’s Appendix at A-15). In his lawsuit, Petitioner

asserted claims for alleged racial discrimination solely under

the Texas Commission on Human Rights Act (“TCHRA”),

Tex. Las. Cope ANN. § 21.051. (Petitioner’s Appendix at A-

15 through A-30). Petitioner did not assert any claims under

Title VII of the Civil Rights Act of 1964, as amended (“Title

VII”). To the contrary, Petitioner’s Original Petition and Jury

Demand, which was filed in state court, stated that Petitioner

was suing for alleged violations of the TCHRA, and it did

not mention Title VII or the Equal Employment Opportunity

Commission (“EEOC”) (Petitioner’s Appendix at A-27).

Further, in Petitioner’s First Amended Complaint and Jury

Demand, which was filed in federal court, Petitioner

expressly stated: “In his Original Petition ... Plaintiff

alleged only state causes of action under the Texas

Commission on Human Rights Act (“TCHRA”) for race

discrimination and hostile work environment.” (Petitioner’s

Appendix at A-16) (emphasis added). In the amended

complaint, Petitioner also stated: “Manuel does not concede

that this Court has jurisdiction over this lawsuit.”

(Petitioner’s Appendix at A-16) (emphasis added).

Pursuant to an order issued by the District Court,

Respondent Sanderson Farms Inc. (Processing Division)

(“Sanderson Farms”) filed its Motion for Summary Judgment

on March 21, 2003. In its motion, Sanderson Farms argued

that Petitioner’s claims were time-barred under Texas law

and that they failed on the merits. The District Court granted

Sanderson Farms’ motion. (Petitioner’s Appendix at A-1

through A-4). On appeal, the Fifth Circuit affirmed the

judgment of the District Court, ruling that Petitioner’s claims

were time-barred under Texas law because Petitioner had

failed to file his Charge of Discrimination with the TCHR

within 180 days of the allegedly discriminatory acts.

(Petitioner’s Appendix at A-5 through A-12).' Petitioner does

not challenge the Fifth Circuit’s ruling that his TCHRA claims

were time-barred under Texas law.

1. Aperson alleging employment discrimination under the TCHRA

must file a complaint with the TCHR within 180 days after the alleged

discriminatory act occurred. See Tex. Las. Cope Ann. § 21.202(a)

(“A complaint under this subchapter must be filed not later than the

180th day after the date the alleged unlawful employment practice

occurred.”); Specialty Retailers, Inc. v. DeMaranville, 933 S.W.2d 490,

492 (Tex. 1996). The 180 day time limit for filing a complaint with the

TCHR is mandatory and jurisdictional. See Specialty Retailers, Inc.,

933 S.W.2d at 492. Therefore, employment discrimination claims brought

under the TCHRA are time-barred when a complaint is filed with the

TCHR after the 180 day deadline. Pope v. MCI Telecommunications

Corp., 937 F.2d 258, 263-64 (Sth Cir. 1991), cert. denied, 504 U.S. 916

(1992).

REASONS FOR DENYING THE PETITION

I. Petitioner’s Pleadings Do Not State A Claim Under Title

Vil.

In his Petition, Petitioner does not challenge the Fifth

Circuit’s ruling that his TCHRA claims were time-barred under

Texas law. Instead, Petitioner asserts that the Fifth Circuit erred

by “ignoring” his “Title VII” claims and by affirming the District

Court’s judgment solely on grounds that he had failed to comply

with time limitations for filing a charge of discrimination under

the TCHRA. In this regard, Petitioner contends his “well-pleaded

complaint” stated a claim under Title VII merely because it

alleged facts that could have supported a Title VII claim, even

though Petitioner’s operative pleading: (1) specifically stated

that Petitioner “only” alleged claims under the TCHRA; (2) did

not mention Title VII; and (3) stated that Petitioner did not

concede that the District Court had jurisdiction.” (Petitioner’s

Appendix at A-16, A-27).

Petitioner’s assertion is not correct. “The presence or

absence of federal-question jurisdiction is governed by the ‘well-

pleaded complaint rule,’ which provides that federal jurisdiction

exists only when a federal question is presented on the face of

the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987) (emphasis added). A plaintiff

is the “master of the claim” and “‘he or she may avoid federal

[question] jurisdiction by exclusive reliance on state law.” Jd.

2. If Petitioner had been pursuing federal Title VII claims as

well as state law TCHRA claims, there would be no basis for his

refusal to concede that the District Court had jurisdiction because

it is self-evident that federal courts have jurisdiction over lawsuits

that assert violations of federal statutes. See 28 U.S.C. § 1331

(“The district courts shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the United States.”).

Accord Carpenter v. Wichita Falls Independent School

District, 44 F.3d 362, 366 (Sth Cir. 1995) (“[a] plaintiff with

a choice between federal- and state-law claims may elect to

proceed in state court on the exclusive basis of state law.”).

Moreover, “[j]urisdiction may not be sustained on a theory

that the plaintiff has not advanced.” Merrell Dow

Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809 n.6

(1986). Thus, the mere fact that Petitioner’s First Amended

Complaint and Jury demand alleges facts that could have

supported a Title VII claim is not sufficient to stated a claim

under Title VII. See Rains v. Criterion Sys., Inc., 80 F.3d

339, 344 (9th Cir. 1996) (“That the same facts could have

been the basis for a Title VII claim does not make Rains’

wrongful termination claim into a federal cause of action.

Rains chose to bring a state claim rather than a Title VII

claim, and was entitled to do so.”); accord Easton v.

Crossiand Mortgage Corp., 114 F.3d 979, 982 (9th Cir. 1997)

(holding that a complaint which alleged state law claims and

sought state law remedies did not state a claim arising under

Title VII, even though the complaint included incidental

references to Title VII); Broce v. ARCO Pipe Line Co., 28

Fed. Appx. 653, 654-55 (9th Cir. 2002) (holding that a claim

alleging veteran status discrimination under state law did not

state a claim under federal law); Willy v. Coastal Corp., 855

F.2d 1160, 1170 (Sth Cir. 1988) (holding that a state law

wrongful discharge claim which could have supported a claim

for alleged violation of federal whistleblower statutes did

not arise under federal law).’

3. See also Knestrick v. IBM Corp., 945 F. Supp. 1080, 1081-

82 (E.D. Mich. 1996) (holding that a lawsuit filed in state court for

(Cont’d)

In support of his meritless argument, Petitioner cites

several cases for the proposition that a party need not name

the correct legal theory to state a claim for alleged violation

of federal law. The cases cited by Petitioner are inapposite.

None of those cases hold that a state law action, filed in state

court, which only asserts state law claims, states a claim for

alleged violation of a federal statute merely because it is based

on alleged facts that could support a claim for alleged

violation of a federal statute. Indeed, Simonton v. Runyon,

22.) F.3d 33 (2d Cir. 2000), which Petitioner cites in support

of his contention that a party need not name the correct legal

theory, actually contradicts Petitioner’s position. in Simonton,

the plaintiff filed an action under Title VII, alleging that he

was subjected to discrimination and harassment based on his

sexual orientation. Jd. at 34. Inasmuch as Title VII does not

provide a cause of action for discrimination based on sexual

orientation,’ the district court dismissed the action for failure

to state a claim. On appeal, the plaintiff argued that his lawsuit

stated a claim under Title VII because it could be construed

as acclaim for sex discrimination. The Fourth Circuit rejected

the plaintiff’s argument. Although it noted the general rule

that a party need not assert the correct legal theory, the court

observed that the plaintiff’s complaint unequivocally and

(Cont'd)

alleged violation of Michigan’s employment discrimination statute

did not state a claim for alleged violation of Title VII); Pointer v.

Crown Cork & Seal-Co., Inc., 791 F. Supp. 164, 166-67 (S.D. Tex.

1992) (holding that a lawsuit filed in state court for alleged violation

of the TCHRA did not state a claim for alleged violation of Title VII,

despite the fact that plaintiff had previously filed a lawsuit in federal

court for alleged violation of Title VII based on the same alleged

facts).

4. See, e.g., Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138,

143 (4th Cir. 1996).

specifically alleged only sexual orientation discrimination.

See id. at 37 (“there is no basis to infer from the complaint

that the harassment Simonton suffered was because of his

sex and not, as he urges throughout his complaint, because

of his sexual orientation.”) (emphasis added). Therefore, the

appellate court affirmed the trial court’s dismissal of the

plaintiff’s lawsuit. /d. at 38. Likewise, as explained above,

Petitioner specifically alleged that his claims only arose under

the TCHRA. (Petitioner’s Appendix at A-16). Consequently,

there is simply no basis for Petitioner’s assertion that his

lawsuit arises under Title VII.

The cases cited by Petitioner are also inapplicable

because Petitioner did not name an “incorrect” legal theory

in his complaint. Rather, the TCHRA is a correct legal theory

because it prohibits employment discrimination and provides

remedies to aggrieved individuals. See TEx. Las. CopDE

ANN. §§ 21.051, 21.258, 21.2585, and 21.259. The fact that

Petitioner’s TCHRA claim was barred by limitations does

not make it an “incorrect” legal theory. The Fifth Circuit

implicitly recognized that fact in Pope, when it held that a

plaintiff's TCHRA claim was barred by limitations even

though an identical claim would have been timely had it been

brought under Title VII. See Pope, 937 F.2d at 264.

Petitioner also erroneously asserts that the Fifth Circuit’s

decision contradicts Swierkiewicz v. Sorema, 534 U.S. 506

(2002), by requiring a “heightened” standard of pleading for

federal employment discrimination claims. According to

Petitioner, the Fifth Circuit required this “heightened”

standard of pleading by implicitly requiring that his

complaint identify Title VII in order to state a claim under

Title VII. Petitioner’s argument is ludicrous. Swierkiewicz

is completely inapplicable to this case. In Swierkiewicz,

the issue was “whether a coniplaint in an employment

discrimination lawsuit must contain specific facts

establishing a prima facie case of discrimination under the

framework set forth by this Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 668 |

(1973).” Swierkiewicz, 334 U.S. at 508. This Court held that

an employment discrimination plaintiff need not allege

specific facts supporting a prima facie case under the

McDonnell Douglas framework in order to state claims under

Title VII or the Age Discrimination in Employment Act

(“ADEA”). Id. Swierkiewicz provides absolutely no support

for Petitioner’s assertion that a complaint states a claim under

Title VII where it: (1) does not mention Title VII; and it

(2) expressly states that it is only asserting claims under a

state employment discrimination statute, as Petitioner’s First

Amended Complaint and Jury Demand stated in this case.

Indeed, the plaintiff in Swierkiewicz specifically alleged that

his lawsuit was being brought under Title V!! and the ADEA.

Id. at 509, 514. Accordingly, Petitioner’s assertion that the

Fifth Circuit’s decision in this case contradicts Swierkiewicz

has absolutely no merit.

Il. Acceptance Of Petitioner’s Contentions Would

Eviscerate The Well Pleaded Complaint Rule And Make

Virtually Every Lawsuit Removable To Federal Court.

In his Petition, Petitioner correctly notes that many states

have adopted employment discrimination laws that mirror

their federal counterparts. Petitioner also correctly notes that,

as a result of the similarity in state and federal employment

discrimination statutes, the same factual allegations may

often support claims under both state law and federal statutes

such as Title VII. What Petitioner apparently fails to

understand is that acceptance of his argument would result

‘ 8

in the complete destruction of the well pleaded complaint

rule and it would make every employment discrimination

lawsuit removable to federal court. Likewise, even outside

the context of employment discrimination, every state court

lawsuit would be removable to federal court where federal

law and state law provided for similar causes of action.

Plaintiff has provided absolutely no justification for such a

revolutionary revision of this Court’s precedents regarding

federal question jurisdiction.

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,