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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-20793
Summary Calendar

HEATHER THOMAS; MARK THOMAS,
Plaintiffs-Appellants,
versus
CHOCTAW MANAGEMENT/SERVICES
ENTERPRISE; ROXANNE MAGALLAN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
--------------------
December 16, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Plaintiffs-Appellants Heather and Mark Thomas, husband and
wife, appeal from the district court's dismissal of their
employment discrimination action against Defendants-Appellees
Choctaw Management/Services Enterprise ("CM/SE"), which was their
employer at all relevant times, and Roxanne Magallan, who worked
there and was the Thomases' supervisor. We affirm.
CM/SE is an unincorporated business venture owned 100% by the
Choctaw Nation of Oklahoma, an Indian tribe that is recognized as
such by, and has a treaty with, the United States. After their
claims were rejected by the Equal Opportunity Employment Commission

("EEOC"), the Thomases sued CM/SE and Magallan, advancing claims
under Title VII and 42 U.S.C. § 1981, as well as under state law,
for alleged religion and "pregnancy" discrimination in employment.
The district court dismissed the action with prejudice after CM/SE
and Magallan filed a dismissal motion under Federal Rule of Civil
Procedure 12(b)(1) and (6), asserting that (1) CM/SE is an "Indian
Tribe" expressly exempted from being an "employer" under Title VII;
(2) the Thomases' claims, grounded in allegations of discrimination
based on religion and her pregnancy, are not cognizable under §
1981; and (3) as a supervisory employee of CM/SE, Magallan is not
an employer for purposes of Title VII. The Thomases timely
appealed, but on appeal they have prosecuted only those claims
grounded in alleged violations of Title VII, thereby abandoning all
other claims.1
Title VII states unequivocally that the term "employer" does
not include, inter alia, an Indian tribe.2 The Thomases have
artfully pled that CM/SE is a separate legal entity, a corporation
organized and owned by the Choctaw nation, but have failed to
substantiate that contention with any specific allegations. In
seeking dismissal, CM/SE and Magellan have shown, in contrast, that
CM/SE is not a corporation at all but is a sole proprietorship of
the Choctaw Nation. Under situations like this, we are constrained
1 See Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993).
2 42 U.S.C. § 2000(e)(b).
2

to parse a plaintiff's complaint; and when we do so here we find
that there is no question of fact (and no doubt) that CM/SE is not
a corporation at all and is, in fact, a direct proprietary
enterprise of the Choctaw Nation, from which it is legally
inseparable. As such, the Thomases' Title VII claims are wholly
without merit and thus legally frivolous.
As for their Title VII claims against Magallan, the Thomases'
pleadings make clear that at all relevant times Magallan was an
employee of CM/SE. The law is well-settled that Magallan's status
as an employee of the Thomases' employer prevents her from being an
"employer" for purposes of Title VII claims.
As this case presents an issue of first impression in our
circuit, we take this opportunity to adopt the position espoused by
the Eighth Circuit in Dille v. Council of Energy Resource Tribes3
and by the Ninth Circuit in Pink v. Modoc Indian Health Project4:
Title VII's express exemption of Indian tribes from employer status
eschews subject matter jurisdiction of the federal courts to hear
employment discrimination complaints such as those advanced by the
Thomases in this case when brought against unincorporated
commercial enterprises entirely owned and operated by recognized
Indian tribes. As the factors considered in those appellate cases
are present and applicable here, the district court's dismissal of
3 801 F.3d 373 (8th Cir. 1986).
4 157 F.3d 1185 (9th Cir. 1998).
3

the instant suit was wholly appropriate. In contrast, the cases
cited by the Thomases, addressing such matters as employers that
are separate, incorporated entities under the Indian Reorganization
Act,5 partially owned companies incorporated under state law,6 and
non-Indian companies employing non-Indians while operating on an
Indian reservation,7 are distinguishable and inapposite.8
For the foregoing reasons, as more extensively analyzed and
explained in its Memorandum Opinion and Order, the district court's
dismissal of the Thomases' action with prejudice is, in all
respects,
AFFIRMED.
5 25 U.S.C. § 477.
6 See, Myrick v. Devils Lake Sioux Mfg. Corp., 718 F. Supp.
753 (D.N.A. 1989).
7 See, Vance v. Boyd Mississippi, Inc., 923 F. Supp. 905
(S.D. Miss. 1996).
8 The same is true of Executive Order 11,246, from which
Indian tribes are not exempt but which does not afford a private
right of action to employees such as the Thomases.
4