United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
pro se action, in which a federal employee brings
claims of discrimination against his employer, has been
referred to the undersigned United States magistrate judge
for pretrial management under 28 U.S.C. § 636(b) and a
standing order of reference from Senior United States
District Judge A. Joe Fish.
Plaintiff Robert L. Brown has named some 20 individual
defendants, including the then-Secretary of the Department of
Veterans Affairs (the “VA”), see Dkt.
No. 3, to the extent that this is an employment
discrimination action under Title VII, the VA Secretary, as
the “head of the department, ” is the proper
defendant, 42 U.S.C. § 2000e-16(c).
Secretary moves under Federal Rule of Civil Procedure
12(b)(6) to dismiss Brown's complaint. See Dkt.
Nos. 17 & 18. Brown filed a response to the motion [Dkt.
No. 22] and a pleading that he represents to be an amended
complaint [Dkt. No. 20]. The Secretary filed a reply brief.
See Dkt. No. 23. And Brown then filed a Motion for
No-Evidence Summary Judgment on Defendant's Affirmative
Defenses. See Dkt. No. 26.
undersigned enters these findings of fact, conclusions of
law, and recommendation that the Court should grant the
motion to dismiss, deny the motion for summary judgment, and
- because Brown has already filed an amended complaint -
dismiss this action with prejudice.
Brown is proceeding pro se, the Court found that he
did not qualify to proceed in forma pauperis. He
then paid the statutory filing fee and served his complaint.
In that complaint, filed on May 2, 2017, Brown, a supervisory
pharmacy technician for the VA, alleges that his suspension
by the VA, for 7 calendar days in 2015, for his failing to
respond to supervisory requests - to report to work on a day
that he was either on approved annual leave or on a regular
day off - was discriminatory. See Dkt. No. 3. He
specifically alleges a cause of action under Title VII and a
separate cause of action under the Civil Service Reform Act
(“CSRA”). See Id. And, as explained
below, Brown also filed an Amended Complaint, in which he
adds a claim under 42 U.S.C. § 1983. See Dkt.
No. 21. Through that filing and his response to the motion to
dismiss, see Dkt. No. 22, Brown seeks to clarify or
recharacterize any employment-discrimination claims as claims
for racial discrimination.
deciding a Rule 12(b)(6) motion, the Court must “accept
all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” In re Katrina
Canal Breaches Litig., 495 F.3d 191, 205-06
(5th Cir. 2007). To state a claim upon which relief may be
granted, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face, ”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007), and must plead those facts with enough specificity
“to raise a right to relief above the speculative
level.” Id. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. “A claim for relief is
implausible on its face when ‘the well-pleaded facts do
not permit the court to infer more than the mere possibility
of misconduct.'” Harold H. Huggins Realty, Inc.
v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting
Iqbal, 556 U.S. at 679).
under Federal Rule of Civil Procedure 8(a)(2), a complaint
need not contain detailed factual allegations, a plaintiff
must allege more than labels and conclusions, and, while a
court must accept all of a plaintiff's allegations as
true, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555). A threadbare or formulaic recitation of the
elements of a cause of action, supported by mere conclusory
statements, will not suffice. See id. But, “to
survive a motion to dismiss” under Twombly and
Iqbal, a plaintiff need only “plead facts
sufficient to show” that the claims asserted have
“substantive plausibility” by stating
“simply, concisely, and directly events” that
Plaintiff contends entitle him or her to relief. Johnson
v. City of Shelby, Miss., 574 U.S. ___, 135
S.Ct. 346, 347 (2014) (per curiam) (citing Fed.R.Civ.P.
8(a)(2)-(3), (d)(1), (e)).
Supreme Court of the United States “has made clear that
a Rule 12(b)(6) motion turns on the sufficiency of the
‘factual allegations' in the complaint,
” Smith v. Bank of Am., N.A., 615 Fed.Appx.
830, 833 (5th Cir. 2015) (per curiam) (quoting
Johnson, 135 S.Ct. at 347; emphasis added by
Smith), and the Federal Rules of Civil Procedure
“do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted, ” Johnson, 135 S.Ct. at 346.
rationale has even more force in this case, as the Court
“must construe the pleadings of pro se
litigants liberally, ” Andrade v. Gonzales,
459 F.3d 538, 543 (5th Cir. 2006), “to prevent the loss
of rights due to inartful expression, ” Marshall v.
Eadison, 704CV123HL, 2005 WL 3132352, at *2 (M.D. Ga.
Nov. 22, 2005) (citing Hughes v. Rowe, 449 U.S. 5, 9
(1980)); see United States v. Ayika, 554 Fed.Appx.
302, 308 (5th Cir. 2014) (per curiam) (a court has a
“duty to construe pro se [filings] liberally
so that a litigant will not suffer simply because he did not
attend law school or find a suitable attorney”);
but see Smith v. CVS Caremark Corp., No.
3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23,
2013) (“[L]iberal construction does not require that
the Court or a defendant create causes of action where there
cannot look beyond the pleadings in deciding a Rule 12(b)(6)
motion. See Spivey v. Robertson, 197 F.3d 772, 774
(5th Cir. 1999). While pleadings in this context include
attachments to the complaint, see Katrina, 495 F.3d
at 205 (5th Cir. 2007), documents “attache[d] to a
motion to dismiss are considered to be part of the pleadings,
if they are referred to in the plaintiff's complaint and
are central to her claim.” Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.
2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993)).
“[D]ocuments are central when they are necessary to
establish an element of one of the plaintiff's claims.
Thus, when a plaintiff's claim is based on the terms of a
contract, the documents constituting the contract are central
to the plaintiff's claim.” Kaye v. Lone Star
Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. Tex. 2011).
But a court “may not incorporate [ ] into the complaint
... a document referenced in the plaintiff's complaint
[that] is merely evidence of an element of the
plaintiff's claim.” Id.
“it is clearly proper in deciding a 12(b)(6) motion to
take judicial notice of matters of public record, ”
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th
Cir. 2007); accord Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2008). In addition,
“[t]here is nothing improper about the district court
considering the content of briefing that supports or opposes
a motion under Rule 12(b)(6) when deciding such a motion,
” where, although “[w]hen matters outside the
pleadings are presented to the court in connection with a
motion under Rule 12(b)(6), the motion must be treated as a
Rule 56 motion for summary judgment and appropriate notice
given to the parties, ” the United States Court of
Appeals for the Fifth Circuit has held “that briefs and
oral arguments in connection with the motion ... ...