T e x a s D e p a r t m e n t o f C r i m i n a l J u s t i c e

Brad Livingston Executive Director

CITATION: Muhammad v. Dallas County Community Supervision and Corrections Department, No. 05-10580 (5th Cir. Feb. 14, 2007)

PARTIES: Muhammad / Plaintiff / AppellantDCCSCD / Defendant / Appellee

PRIOR PROCEEDINGS:

TRIAL: Ibn Zakariya Muhammad brought a Title VII employment race discrimination and retaliation claim against the Dallas County Community Supervision and Corrections Department in U.S. District Court for the Northern District of Texas.

RESULT: The trial court dismissed Muhammad’s claims deciding, as a matter of law, Texas Community Supervision and Corrections Departments are not a probation officer’s Title VII employer.

PRESENT PROCEEDINGS: Muhammad appealed to the United States Court of Appeals for the 5th Circuit.

DISPOSITION: The 5th Circuit reversed the District Court’s dismissal and remanded the case back to the District Court for further findings of fact.

FACTS: Muhammad has been a probation officer for Dallas County for 14 years when he filed a pro se suit against Dallas County under Title VII, 42 U.S.C. §

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1981, and § 1988. The plaintiff alleged he was retaliated and discriminated against based on his race by 1) being assigned unbearable workloads, 2) forcing him to complete the work of non-black probation officers, and 3) reprimanding him when he was unable to complete the work. After Muhammand’s original filing, he obtained counsel to represent him. Upon learning that Dallas County was not his employer, he amended his complaint to name Dallas County Community Supervision and Corrections Department (DCCSCD) as the defendant. Muhammad expanded his claim to specifically include that the DCCSCD denied him a promotion and merit and step increases because he exercised his equal employment rights. According to FED. R. CIV. P. 12(b)(1) and (6), the DCCSCD filed a motion to dismiss stating in part that 1) the district court lacked jurisdiction over Muhammad’s claims because they were barred by Eleventh Amendment sovereign immunity and 2) Muhammad failed to state a Title VII claim because DCCSCD was, as a matter of law, not his employer for Title VII purposes. DCCSCD claims that probation officers in Texas are employed by the district judges of the judicial district of their county, not by the Community and Supervision and Corrections Departments. In response to the defendant’s motion, the plaintiff amended his complaint for the third time to include Dallas County District Judges as defendants.

Soon after Muhammad filed his third amended motion, and while it was still pending, the district court dismissed his previously filed motions concluding they were barred by sovereign immunity. Then the district court denied the plaintiff’s third motion to amend his complaint stating he did not file an Equal Employment Opportunity Commission charge against the Dallas County District Judges. The court, on its own volition, reconsidered whether DCCSCD was Muhammad’s Title VII employer and ruled it was not dismissing his complaint in its entirety.

ISSUE: Whether community supervision and corrections departments in the State of Texas can be defined, as a matter of law, to be Title VII employers for probation officers?

HOLDING: A community supervision and corrections department can be defined as a Title VII employer for probation officers by showing them to be either 1) “persons engaged in an industry affecting commerce who has fifteen or more employees” or 2) by showing them to be an agent of county district judges who themselves are persons engaged in an industry affecting commerce who have fifteen or more employees.

REASONING: Deciding whether one is an employer under Title VII law is a two-step process. Deal v. State Farm County Mut. Ins. Co., 5 F.3d 117, 118 n.2 (5th Cir. 1993). The first step is to determine whether a [CSCD] falls within Title

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VII’s statutory definition of an “employer”. Id. Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees…, and any agent of such a person…” 42 U.S.C. § 2000 (e)(b) (2000). If a [CSCD] meets this definition, then the court must analyze whether an employment relationship exists between the plaintiff and the defendant. Deal, at p. 118 n.2.

To determine whether a Title VII employment relationship exists “we apply a ‘hybrid economic realities/common law control test.’” Id. at p. 118-19. The most important element of this test is having the right to control the employee’s conduct. Id. at p. 119. When examining the control component we have focused on whether the alleged employer has the right to hire, fire, supervise, and set the work schedule of the employee. Id. State law is relevant to the extent it describes the [employees] position including his duties and the way he is hired, supervised, and fired. Calderon v. Martin County, 639 F. 2d 271, 273 (5th Cir. Unit B 1981) and Clark v. Tarrant County, 798 F. 2d 736, 747 (5th Cir. 1986).

The economic realities element of the test [hinges] on whether the alleged employer paid the employee’s salary, withheld taxes, provided benefits, and set the terms and conditions of employment. Deal, at p. 119.

[In reviewing the district court’s decision] it relied in part on Clark. In Clark, female employees sued the Tarrant County Adult Probation Department and Tarrant County under Title VII and 42 U.S.C. § 1983 claiming they had been discriminated against because of their sex. Deal, at p. 738. The county filed a motion to dismiss based on FED. R. CIV. P. 12 (b)(6) stating it was not the plaintiff’s Title VII employer because Texas statutory law gives control and supervision of the Adult Probation Department to the state judiciary. Deal, at p. 739. The district court ruled in favor of the county granting summary judgment holding that because the county did not hire, fire, promote, or supervise Adult Probation Employees, it was not a Title VII employer to the probation officers. Id. at p. 746. [When Clark appealed to the Fifth Circuit] it was noted that under Texas law, “the authority to appoint and set salaries for probation officers is the prerogative of the state judges…” Id. at p. 747. The testimony of state judges also confirmed this to be true. Because of testimonial evidence and Texas case law it was clear that Tarrant County had no authority to set salaries or promote probation officers. [As a result, the plaintiffs in Clark could not successfully state a Title VII claim]. Id. at p. 747-48.

In Muhammad’s case, the trial court abstained from using the “hybrid economic realities/common law control test” or referring to Texas state law because it concluded that federal law decided whether DCCSCD was Muhammad’s Title VII employer. However, [federal law] does not assert the proposition that a community supervision and corrections department is, as a matter of law, not a

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probation officer’s Title VII employer. [Instead] Clark (federal law) candidly holds that a county is not a probation officer’s Title VII employer when the evidence before the court and Texas case law clearly demonstrates that the county has no authority to set salaries or to decide promotion of adult probation officers…Id. If the officers in Clark had 1) shown that Tarrant County met the Title VII definition of an employer and 2) satisfied the hybrid economic realities/common law control test, Tarrant County would have been their Title VII employer and could have been held liable.

[In ruling against Muhammad] the district court also cited Hardin County Community Supervision and Corrections Department v. Sullivan, 106 S.W. 3d 186, 190 (Tex. App. ---Austin 2003, pet. dism'd). In this Texas Court of Appeals case, the district judges, not the CSCD, were held to be the employer of adult probation officers for purposes of the Texas Commission on Human Rights Act (TCHRA). Id. at p. 190.

In Calderon v. Martin County, 639 F.2d 271 (5th Cir. Unit B 1981), another state-court holding with similar implications, [came to this court]. In this case, a deputy sheriff in Florida brought a Title VII suit against his county, the sheriff’s department, and the sheriff claiming he was fired because if his national origin. The defendants filed a motion to dismiss based on FED. R. CIV. P. 12(b)(6) claiming the sheriff was not an employee under Title VII. The district court relied on a Florida State Supreme Court case and ruled that the sheriff was not a Title VII employee by dismissing the case. [However, on appeal] the Fifth Circuit reversed the district courts opinion because a plaintiff’s status as an employee under Title VII is a matter of federal law and not state law. Id. at p. 272-73. Rather than looking only at state law, a plaintiff’s status as an employee under Title VII…is to be [calculated] through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand. Id.

The “hybrid economic realities/common law control test” is…a fact-specific inquiry. [Title VII’s definition of employee is not restrictive and therefore the existence of such status for a certain individual must turn on the facts of each case] McClure v. Salvation Army, 460 F.2d 553, 557 (5th Cir. 1972). It is therefore typically applied in a summary judgment context in which a court is permitted to go beyond the pleadings and examine the state law and the evidence relevant to the employment relationship. Clark.

However, in Muhammand’s complaint the district court did not examine the relationship between the state district judges and the DCCSCD or the authority given to the DCCSCD under Texas law. Prior to [irrelevant] amendments that

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took effect in 2005…section 76.002 of the Texas Government Code provides that the district judges…in each judicial district shall: 1) establish a community supervision and corrections department; and 2) employ district personnel as necessary to conduct pre-sentence investigations, supervise and rehabilitate defendants placed on community supervision, enforce the conditions of community supervision, and staff community corrections facilities. TEX. GOV’T CODE § 76.002(a)(1), (a)(2) (West 2003) (amended 2005). [§ 76.002] further provides that district judges…shall appoint a department director who…shall employ a sufficient number of officers and other employees to perform the professional and clerical work of the department. Id. § 76.004(a)(b). As previously [stated], Title VII defines an “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees…, and any agent of such a person…” 42 U.S.C. § 2000e(b). [However] Title VII does not define agent. Nevertheless, the Fifth Circuit has ruled that the “agent” must be an agent with respect to employment practices. Deal, at p. 119. [An] agent would be limited to supervisory or managerial employees to whom employment decisions have been delegated. Cf. Barrow v. New Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994).

Ultimately, Muhammad can establish the community supervision and corrections department he works for is a Title VII employer by proving one of two things:

1) Either the CSCD is a person engaged in an industry affecting commerce who has fifteen or more employees or 2) by showing a CSCD to be an “agent” of the Dallas County District Judges who are themselves “persons engaged in an industry affecting commerce who have fifteen or more employees.”

The decision of the Northern District Court is reversed in favor of Muhammad. The case is remanded back to the trial court for further factual proceedings to determine if the DCCSCD is in fact Muhammad’s Title VII employer.

The Title VII employer status of Community Supervision and Corrections Departments in the State of Texas can only be determined after consideration of the statutory language of the Act, its legislative history, current federal case law, and the meticulous circumstances of each particular case.

Bert McManus

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