Chhim v. University of Houston Clear Lake

129 F. Supp. 3d 507, 2015 U.S. Dist. LEXIS 119485, 2015 WL 5252673

• Court: District Court, S.D. Texas
• Decided: September 9, 2015
• Docket: Civil Case No. H-15-1272
• Status: Published

Opinion

MEMORANDUM AND ORDER

NANCY F. ATLAS, Senior District Judge.

This employment discrimination case is before the Court on Defendant University of Houston-Clear Lake’s (“Defendant” or the “University”) Motion to Dismiss (“Motion”) [Doc. # 11], to which Plaintiff Joseph Chhim (“Plaintiff’ or “Chhim”), proceeding pro se and in forma pauperis, filed a Response [Doc. # 14].¹ Defendant did not timely file a reply or request for additional time to do so. The Motion is ripe for review. After considering the parties’ briefing, all matters of record, and the applicable legal authorities, the Court grants Defendant’s Motion and dismisses Plaintiffs claims without prejudice to Plaintiff filing an amended complaint by September 28, 2015, and limited to certain claims as explained herein.

1. BACKGROUND

Plaintiff Chhim, a United States. citizen of Cambodian descent and approximately 70 years old, alleges that he was hired by Defendant the University as a custodian on December 11, 2013. “Plaintiff Original Complaint” (“Complaint”) [Dóc. # 1], at 2-3, ¶¶ 3, 8. By letter dated April 11, 2014, the University terminated Chhim’s employment dué to “unsatisfactory probationary period.” ' Exh. C to Complaint (“Termination Letter”) [Doc. # 1], at ECF page 18.² Chhim alleges that he began to receive negative performance reviews after complaining to his supervisor, Osman Elsayed (“Elsayed”), about his co-workers harassing him and making discriminatory comments regarding his race, national origin, and age. E.g., Complaint, at 6, ¶ 13. Chhim further asserts that the University terminated his employment after discovering that Chhim had been previously employed by the University of Houston and upon learning that Chhim previously sued the University of Houston for employment discrimination. E.g., id., at 3-4, ¶¶ 10-11.³

Chhim timely filed a charge of discrimination with the EEOC and received a notice of his right to sue. Exh. A to Complaint (“EEOC Charge”) [Doe. #1], at ECF pages 12-13; Exh. A to Complaint (“EEOC Dismissal & Notice of Rights”) [Doc. # 1], at ECF, page 11., Within ninety days of receiving the; notice, Chhim filed this federal lawsuit on May 6, 2015, suing the University for discrimination, retaliation, and hostile work environment under the Age Discrimination and Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). Chhim seeks prospective injunctive relief, money damages, court costs, and attorneys’ fees. Complaint, at 8.

On July 20, 2015, the University filed the instant motion seeking dismissal of Chhim’s claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.⁴ This motion has been fully briefed and is ripe for review.

II. ANALYSIS & APPLICABLE LEGAL STANDARDS

A. ADEA Claims

The Uniyersity argues Chhim’s ADEA claims are barred by the Eleventh Amendment and moves to dismiss these claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. “ ‘A case is .properly dismissed for lack of subject matter jurisdiction when the court lacks the státutory or constitutional power to adjudicate the case.’” Smith v. Reg’l Transit Auth., 756 F.3d 340, 347 (5th Cir.2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir.2005)). When there is a challenge to the court’s subject matter jurisdiction, the party asserting jurisdiction bears the burden of establishing jurisdiction exists. Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir.2014); Gilbert v. Donahoe, 751 F.3d 303, 307 (5th Cir.2014).

As an agent of the state of Texas, the University is entitled to Eleventh Amendment immunity absent waiver or abrogation. See Johnson v. Prairie View A & M Univ., 587 Fed.Appx. 213, 214 (5th Cir.2014) (per curiam) (and cases cited therein); Lowery v. Univ. of Hous.-Clear Lake, 82 F.Supp.2d 689, 693 (S.D.Tex.2000). It is well established that “Congress did not abrogate the states’ sovereign immunity with respect to the ADEA,” McGarry v. Univ. of Miss. Med. Ctr., 355 Fed.Appx. 853, 856 (5th Cir.2009) (per curiam) (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)), and there is no evidence that the University waived immunity in this case. Indeed, Chhim doés not' dispute' that the University is generally immune from his ADEA claims.

Chhim contends only that his claim for prospective injunctive relief should not be dismissed because he has sued his supervisor in his official capacity. While an official capacity claim against a state official for prospective injunctive relief is not necessarily barred by the Eleventh Amendment, see Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), Chhim only has named the University as Defendant and has not asserted any official capacity claims against an individual in this case. As the only Defendant named in this case is the University, an arm of the State of Texas, “the jurisdictional bar imposed by the Eleventh Amendment applies ‘regardless of the nature of the relief sought,’ ” McGarry, 355 Fed.Appx. at 856 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Accordingly, all of Chhim’s ADEA claims are barred by the Eleventh Amendment and are dismissed under Federal Rule of Civil Procedure 12(b)(1).

B. Title VII Claims

1. Applicable Legal Standard

The University moves to dismiss Plaintiffs Title VII claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor and is rarely granted. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir.2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.2009)). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Harrington, 563 F.3d at 147. The complaint must, however, contain sufficient factual allegations, as opposed to legal conclusions, to state a claim for relief that is “plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Patrick v. Wal-Mart, Inc., 681 F.3d 614, 617 (5th Cir.2012). When there are well-pleaded factual allegations, a court should presume they are true, even if doubtful, and then’ determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Regardless of how well-pleaded the factual allegations may be, they must demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997). Pleadings filed by pro se litigants are entitled to a liberal construction that includes all reasonable inferences which can be drawn from them. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Pena v. U.S., 122 F.3d 3, 4 (5th Cir.1997) (citing Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 & n. 16 (5th Cir.1996)).

2. Discrimination Claim

Chhim first alleges under Title VII that the University discriminated against him on the basis of his-race and national origin.⁵ Because he apparently relies on circumstantial evidence of discrimination, Chhim’s discrimination claim must proceed under the burden shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Chhim bears the initial burden of establishing a prima facie case of discrimination by showing that “(1) he is a member of a protected class, (2) he was qualified for -the position at issue, (3) he was the subject of an adverse employment action, and (4) he was treated less favorably because of his membership in that protected class than were other similarly situated employees who were not members of the protected class, under nearly identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir.2009).

Chhim has not alleged facts that establish the elements of' a prima facie discrimination claim. More specifically, Chhim has not alleged that he was qualified for his custodian position with the University. He also has not alleged facts showing that similarly situated individuals outside of his protected class were treated more favorably under nearly identical circumstances. His assertion that the'University “singled, [him] out” "and “enforced policies against him that it did not enforce against employees, outside of his class” is conclusory and unsupported by factual allegations in the Complaint. Similarly, his speculation that “[i]t would be interesting to know whether the other employee(s) who worked that week [were] also written up/reprimanded for failing to pick up in the Academic Advising and Testing Center [and written up] for not picking up the trash during his/her/their shift” fails to identify any similarly situated individuals outside his protected class, much less sufficiently allege that those individuals were treated more favorably under nearly identical circumstances. Chhim also has not alleged that after he was terminated he was replaced by someone outside of his protected class. See Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir.2011). Chhim’s allegations, accordingly, are insufficient to state a prima facie claim for discrimination under Title VII, and thus this claim is dismissed under Federal Rule of Civil Procedure 12(b)(6).

3. Retaliation

Chhim appears to advance two legal theories under his Title VII retaliation claim. First, he alleges that the Uni-versify retaliated against him when the University terminated his employment after learning that he had previously had sued the University of Houston for employment discrimination. “[A]n employee may not base a Title VII claim on an action that was not previously asserted in a formal charge of discrimination to the EEOC, or that could not ‘reasonably be expected to grow out of the charge of discrimination.’” Filer v. Donley, 690 F.3d 643, 647 (5th Cir.2012) (quoting Pacheco v. Mineta, 448 F.3d 783, 795 (5th Cir.2006)). Chhim timely filed a charge of discrimination with the EEOC within 300 days of his termination on April 11, 2014.⁶ He did not, however, include in this charge any allegations related to his prior Title VII lawsuit and that theory does not reasonably grow out of the allegations in his EEOC charge.⁷ Chhim’s retaliation claim based on a theory that the University terminated him because he previously filed a Title VII lawsuit against the University of Houston is therefore dismissed for failure to exhaust administrative remedies.⁸

Chhim also alleges that the University terminated his employment “in retaliation for complaining about discrimination and harassment by his supervisor and coworkers.” Complaint, at 7. More specifically, Chhim alleges only that he “became a target after he started complaining about the discriminatory conduct of his supervisor and-female coworkers.” Id. To state a prima facie claim of retaliation against the University,' Chhim bears the burden of showing that “(1) []he participated in an activity protected under the statute; (2) [his] employer took an adverse employment action against [him]; and (3) a causal connection exists between the protected activity and the adverse action.” Feist v. La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir.2013). Chhim’s vague assertions fail to allege facts supporting any causal connection between his engaging in “protected activity” and his suffering an “adverse employment action.” Therefore, Chhim’s retaliation claim based on his theory that the University retaliated against him somehow because he made complaints about his coworkers and/or a supervisor is dismissed for failure to state a claim.

4. Hostile Work Environment

Chhim sues the University under Title VII for a hostile work environment. “[A] hostile work environment claim requires (1) membership in a protected group; (2) harassment (3) based on a factor rendered impermissible by Title VII; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment yet failed to address it promptly.”. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5th Cir.2012). “Harassment affects a ‘term, condition, or privilege of employment’ if- it is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” Hernandez, 670 F.3d at 654 (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002)). “To be actionable, the work environment must.be ‘both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ ” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). The proper Title VII analysis “will filter out complaints attacking the ordinary tribulations of the workplace, such as the-sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (internal quotation marks and citation omitted).

Chhim vaguely alleges that his “Latino female” coworkers “continued making racist statements after four to five time complaining to [his supervisor].” Complaint, at 5. He .further alleges his “supervisor,” Elsayed, “participated in the harassment with Latino female employees by laughing at the jokes activities,” “did not take Plaintiffs complaints seriously and did not document the complaints, or relay them to the Human Resources Department as required by law,” and “began writing him up for minor infractions” after Chhim complained about his coworkers “discriminatory conduct.” Id. Chhim does not. allege any further, details regarding the severity or pervasiveness of the alleged “harassment.” Nor does he clarify how the putative harassment affected a term, condition,. or privilege of employment. Instead,-Chhim summarily recites the elements of a hostile work environment claim and asserts that “he received, false denigrating and insulting verbal assignment and physical conduct toward him” and- that he suffered “harassment [that] was sufficiently severe, persistente,] and pervasive and affected a term or condition of his employment.” Id. Chhim’s vague factual and conclusory allegations are insufficient to state a valid Title VII claim for hostile work environment.'

C. Leave to Amend

Chhim requests leave to amend his Complaint. Response, at 21. When-a plaintiffs complaint- fails to state a, claim, the court should generally give the plaintiff at least one- chance to amend under Federal Rule of Civil Procedure 15(a) before dismissing the action with prejudice. See Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002). “The court may deny leave to amend, however, if the defects are incurable or the plaintiffs have already alleged them best case.” Pierce v. Hearne Indep. Sch. Dist., 600 Fed.Appx. 194, 200 (5th Cir.2015) (per curiam) (citing Great Plains Tr. Co., 313 F.3d at 329; Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998)). Leave to amend is unwarranted regarding Plaintiffs ADEA claims against the University, which are barred by the Eleventh Amendment, and Plaintiffs retaliation claim to the extent that he failed'to administratively exhaust this claim. The Court otherwise grants ‘Plaintiff Chhim leave to file an amended complaint by September 28, 2015, if Plaintiff can' do so in compliance with the requirements of Federal Rule of Civil Procedure 11(b).⁹ An amended complaint filéd by Plaintiff must separately allege each claim and include the factual basis for each claim. Failure to timely file an amended complaint will be taken as a representation that Plaintiff no longer intends to pursue this case and will result in the Court dismissing this case with prejudice.

III. CONCLUSION AND ORDER

Based on the foregoing, the Court concludes that all of Plaintiffs claims are subject to dismissal under either Federal Rules of Civil Procedure 12(b)(1) or Rule 12(b)(6). Because Plaintiffs ADEA claims against the University are barred by the Eleventh Amendment, the Court denies Plaintiff leave to amend these claims. The Court also denies Plaintiff leave to amend his. retaliation claim to the extent that Plaintiff failed to administratively exhaust this claim. . For Plaintiffs remaining claims, Plaintiff may file an amended complaint by September 28, 2015, if Plaintiff can do so in ‘keeping with Federal Rule of Civil Procedure 11(b). Accordingly, it is hereby

ORDERED that Defendant’s Motion to Dismiss [Doc. # 11] is GRANTED. It is further

ORDERED that Plaintiffs Motion to Correct [Doc. # 15] is GRANTED in part to the- extent that the Court considers Plaintiffs arguments regarding' Defendant’s Motion to Dismiss and DENIED in part without prejudice insofar as Plaintiff seeks in this manner to add parties or claims to Plaintiffs’ Complaint because a “motion to correct” is not a' recognizéd method to add new parties. It is further

ORDERED that Plaintiffs-claims are DISMISSED without prejudice to Plaintiff filing an amended complaint by September 28, 2015, if Plaintiff can'do- so in accordance with Federal Rule- of Civil Procedure 11(b)'.- Failure to' timely file an amended complaint Ml be taken as a representation that Plaintiff no longer intends to pursue this case and will result in the Court dismissing this case with prejudice. Finally, it is .

ORDERED that the initial pretrial conference in this case is rescheduled for October 19, 2015, at 1:80 p.m. The parties’ joint pretrial and scheduling order is due October 13, 2015.

1 . The Court denied Plaintiffs motion for appointment of counsel, see Order dated May 29, 2015 [Doc. # 5], and subsequently denied as well his motion for reconsideration of this ruling, see Order dated July 21, 2015 [Doc. # 12], Plaintiff also filed a "Motion to Correct Plaintiffs Response to Defendant’s Motion to Dismiss Plaintiffs Original Complaint” ("Motion to Correct”) [Doc. # 15] seeking to clarify several statements made in his Response. Plaintiff’s Motion to Correct further discusses potential claims against individuals who.are not otherwise referenced in his Original Complaint ("Complaint”) [Doc. # 1]. Plaintiff’s Motion to Correct is granted in part to the extent that the Court considers Plaintiff’s arguments regarding Defendant’s Motion and denied in part without prejudice to the extent that the Motion to Correct is a request to add parties or claims to Plaintiff’s Complaint.

2 . Chhim’s attachments to his Complaint are considered "part of the complaint ‘for all purposes.’” United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 375 (5th Cir.2004) (quoting Fed. R. Civ. P. 10(c)).

3 . It appears that Chhim’s prior lawsuit against the University of Houston was dismissed under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Chhim v. Univ. of Hous., Civ. Action No. H-13-2483, 2013 WL 6491287, at *2 (S.D.Tex. Dec. 10, 2013) (Rosenthal, J.), appeal dismissed, 582 Fed.Appx. 406 (5th Cir.2014) (per curiam), cert. denied, — U.S. -, 135 S.Ct. 1419, 191 L.Ed.2d 383 (2015), reh’g denied, - U.S. -, 135 S.Ct. 1756, 191 L.Ed.2d 717 (2015). Over the past three decades, Chhim has filed many employment discrimination lawsuits in the Southern District of Texas. E.g., Chhim v. Spring Branch Indep. Sch. Dist., Civ. Action No. H-09-3032, 2009 WL 5170214 (S.D.Tex. Dec. 18, 2009) (Atlas, J.) (dismissing claims under Rule 12(b)(6)), aff'd, 396 Fed.Appx. 73 (5th Cir.2010) (per curiam); Chhim v. Aldine Indep. Sch. Dist., Civ. Action No. H-13-2623 (S.D.Tex. Jan. 30, 2014) (Gilmore, J.) [Doc. #31] (granting the defendant’s motion to dismiss under Rule 12(b)(6)), aff'd, 583 Fed.Appx. 303 (5th Cir.2014) (per curiam); Chhim v. Huntleigh USA Corp., Civ. Action No. H-13-3261, 2014 WL 801023 (S.D.Tex. Feb. 28, 2014) (Hoyt, J.) (dismissing claims under Federal Rule of Civil Procedure 12(b)(5) for failure to sufficiently serve the defendant); Chhim v. City of Houston, Civ. Action No. H-11-1560, 2012 WL 6020296 (S.D.Tex. Dec. 3, 2012) (Miller, J.) (awarding defendant summary judgment); Chhim v. City of Houston, Civ. Action No. H-08-2359 (S.D.Tex. Sept. 20, 2011) (Harmon, J.) [Doc. # 55] (dismissing claims after a bench trial based on findings of fact and conclusions); Chhim v. City of Houston, 168 F.3d 486, 1999 WL 25063, at *1 (5th Cir. Jan. 11, 1999) (per curiam) (unpublished) (affirming dismissal of Chhim’s employment discrimination claims); Chhim v. City of Houston, Civ. Action No. H-95-4970 (S.D.Tex. Sept. 17, 1997) (Johnson, M.J.) (granting defendant’s motion for directed verdict after the conclusion of Chhim’s case in chief at a jury trial), aff'd, 168 F.3d 486, 1999 WL 25063, at *1 (5th Cir. Jan. 11; 1999) (per curiam); Chhim v. City of Houston, Civ. Action No. H-95-CV-4969 (S.D.Tex. Feb. 5, 1996) (Atlas, J.) [Doc. # 5] (dismissing claims without prejudice per the minutes-of the scheduling conference); Chhim v. City of Houston, Civ. Action No. H-93-1634 (S.D.Tex. Oct. 24, 1994) (Rosenthal J.) (Doc. # 56) (conditionally dismissing case after being informed of an amicable settlement between’the parties). Chhim currently has at least two other unrelated cases pending in this District. See Chhim v. City of Houston, Civ. Action No. H-152287 (S.D.Tex.) (Hittner, J.) (removed from Texas state court on August 10, 2015); Chhim v. Univ. of Tex. Austin, Civ. Action No. H-15-1865 (S.D.Tex.) (Gilmore, J.) (removed from Texas state court on June 30, 2015).

4 . Chhim mistakenly asserts that the Court . lacks jurisdiction in this case because the University, initially did not file .an answer or . otherwise respond to the Complaint within twenty-one days of June 1, 2015, when. Chhim contends the University was properly served. On June 30, 2015, the University filed a motion requesting that the Court extend the deadline to file an answer or otherwise respond to the Complaint and asserting that it was not properly served on June 1, 2015. The University agreed to waive any perceived defects in the service of process, and thus service is uncontested in this case. The Court exercised its discretion to extend the University's deadline to answer or otherwise respond to the Complaint. See Fed. R. Civ. P. 6(b) (stating the Court has authority to extend deadlines upon a motion made after the time to act has expired if the party failed to act because of excusable neglect); Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 161 n. 8 (5th Cir.2006) (“Relevant factors to the excusable neglect inquiry include:' the danger of prejudice to the [non-movant], the length of the delay and its potential impact on the judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” (citations and internal quotation marks omitted) (alteration in original)).

5 . Chhim also alleges that his -supervisor expressed concern about Chhim’s age and discriminated against Chhim on the basis of his age. An age discrimination claim is properly brought under the ADEA, not Title VII. See 42 U.S.C. § 2000e-2; Fields v. Tex. Cent. Educ. Agency, 754 F.Supp. 530, 533 (E.D.Tex.1989) (“[A]ge discrimination is outside the scope of Title VII of the Civil Rights Act of 1964.”), aff’d, 906 F.2d 1017 (5th Cir.1990) (per curiam).

6 . Title VII requires an employee to file a charge of discrimination with the EEOC within 300 days “after the alleged unlawful employment practices occurred.” 42 U.S.C. § 2000e-5(e); E.E.O.C. v. WC & M Enters., Inc., 496 F.3d 393, 398 (5th Cir.2007).

7 . Chhim’s EEOC charge only claims that he was harassed by coworkers, that his supervisor failed to adequately respond to his complaints, that his supervisor expressed concerns about his age, and that he was terminated under the guise of unsatisfactory work during his probation period. See EEOC Charge.

8 . There is some ambiguity in the Fifth Circuit regarding whether dismissal of a Title VII claim for failure to exhaust administrative remedies should be under Rule 12(b)(1) or Rule 12(b)(6). See Mazurkiewicz v. Clayton Homes, Inc., 971 F.Supp.2d 682, 689 (S.D.Tex.2013) (Costa, J.) (“[W]hile it remains unclear in the Fifth Circuit whether failure to exhaust administrative remedies deprives a court of subject-matter jurisdiction, ... filing an EEOC charge and receiving a right-to-sue letter are unquestionably conditions precedent for suit in federal court. Accordingly, cases filed in the Fifth Circuit are subject to Rule 12 dismissal if the plaintiff has not completed the EEOC process,” (internal citations and quotation marks omitted)); see also Crosby v. Philip Holdings, LLC, Civ. Action No. H-12-1748, 2012 WL 5456360, at *2 n. 5 (S.D.Tex. Nov, 7, 2012) (Werlein, J.) ("It is unclear whether exhaustion of administrative remedies falls under 12(b)(1) or 12(b)(6).”). Whether Chhim’s retaliation claim is properly dismissed under Rule 12(b)(1) instead of Rule 12(b)(6) is not dispositive of any issues presented.

9 . Rule 11(b) states that by presenting a pleading to the Court a party "certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” the claims are (1) "not being presented for any improper purpose, such as, to harass .cause unnecessary delay, or needlessly increase the cost of litigation”; (2) “warranted by existing law”; and (3) "the factual contention's have evidentiary support.” Fed. R. Civ. P. 11(b).