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Brown v. Department of Veterans Affairs

United States District Court, N.D. Texas, Dallas Division

May 11, 2018

ROBERT LEE BROWN, Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, ET AL., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Although 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).

         The 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.

         The 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.

         Applicable Background

         Although 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.

         Legal Standards

         In 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).

         While, 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)).

         The 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.

         That 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 are none.”).

         A court 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.

         And “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 ... ...


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