“You have been sued.” Upon reading these first few words of a state court citation, most Texas employers—indeed, most employers—make it their first order of business to remove the case to federal court if at all possible. Defense attorneys cite various advantages to be gained from removal, among them the thoroughness with which federal judges tend to examine the issues raised by the parties and the increased likelihood of decisive action by the federal bench on motions filed by the parties, particularly motions that would dispose of the case without the need for trial. The plaintiff is the “master of his pleadings,” however, and experienced plaintiffs’ counsel frame their pleadings so that removal to federal court is made difficult, if not impossible.
A recent decision by the federal Fifth Circuit Court of Appeals nonetheless illustrates the opportunity an employer may have for removal when plaintiffs’ counsel is less than diligent. In Davoodi v. Austin Independent School District, 755 F.3d 307 (June 16, 2014), a former employee sued his employer in Texas state court, claiming national origin discrimination, retaliation, and intentional infliction of emotional distress. Davoodi’s state court petition did not identify the statutory basis for his discrimination or retaliation claims.
Davoodi did, however, attach to his petition the “Charge of Discrimination” he had filed with both the U.S. Equal Employment Opportunity Commission (EEOC) and Texas Workforce Commission, and he stated that the Charge was “fully incorporated herein.” He also discussed the Charge in the “Facts” section of his petition and raised the Charge again when setting forth his claim for retaliation. In the Charge, Davoodi specifically alleged that he “ha[d] been and continue[d] to be discriminated against, in violation of Title VII of the 1964 Civil Rights Act, as amended, [and] the Texas Commission on Human Rights Act, as amended, because of [his] national origin.” While Davoodi stated that his discrimination claim was made pursuant to “state law,” he failed to make a similar statement concerning his retaliation claim and never disavowed any federal claims.
In response, the defendant school district removed the case to federal court on the basis that it raised a “federal question” under 28 U.S.C. § 1331. The federal court ultimately dismissed all of the plaintiff’s claims, and the plaintiff appealed, arguing that the district court lacked subject matter jurisdiction over the case because the petition did not present a “federal question.” Simply attaching the EEOC charge and incorporating it into the “Facts” portion of his petition, he argued, did not state a federal cause of action.
The Fifth Circuit disagreed. By framing his pleading in this manner, said the court, the plaintiff had “fully incorporated” the charge into the case. As support for its holding, the court cited Rule 10(c) of the Federal Rules of Civil Procedure, which states in part that “[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”
It would be an overstatement of the Fifth Circuit’s ruling to say that a state court discrimination lawsuit is removable to federal court whenever the plaintiff attaches a copy of his EEOC charge to the petition. A removal is likely to succeed, however, when the plaintiff expressly adopts the language of the EEOC charge by reference made in his or her pleadings, particularly when the legal basis for the discrimination or retaliation claim is otherwise left ambiguous. The appeals court seems to be saying that a plaintiff’s express adoption of an EEOC charge stating that the employer discriminated or retaliated against him or her in violation of federal law may be enough—at least in some circumstances—to confer federal court jurisdiction over the entire case.
The lesson here is that when considering removal, employers and their counsel owe it to themselves to scrutinize a plaintiff-employee’s pleadings more carefully than ever.