United States District Court, N.D. Texas, Fort Worth Division
GEORGE T. HAWKINS, Plaintiff,
TARRANT COUNTY COLLEGE DISTRICT, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Complaint for Employment
Discrimination filed July 27, 2018. (ECF No. 1). After
considering the pleadings and applicable law, the undersigned
RECOMMENDS that United States District Judge
Reed O'Connor DISMISS without prejudice
Plaintiff's Complaint (ECF No. 1) pursuant to Federal
Rule of Civil Procedure 41(b) for failure to prosecute and
failure to comply with the Court's orders.
has sued Defendant for violations under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17; the Age Discrimination in Employment Act of 1967,
29 U.S.C. §§ 621 to 634; and the Americans with
Disabilities Act of 1990, 42 U.S.C. §§ 12112 to
12117. Plaintiff alleges Defendant hired him in February 2001
to implement a technical computer certification program. (ECF
No. 1 at 5). Despite his excellent work record, Plaintiff
alleges he was notified on April 11, 2017 of a formal
complaint filed against him. (Id.). Plaintiff claims
the complaint was extremely vague ad contained no specific
complaints against him. (Id.). After Plaintiff
returned from a prescheduled, two-week vacation, he claims
Defendant arbitrarily placed him in Family Medical Leave Act
(“FMLA”) status even though he had no qualifying
disability or illness and no qualifying family event had
occurred. (Id.). Even though Plaintiff made himself
available to work since returning from vacation, Defendant
terminated his employment on or about July 5, 2017.
(Id.). Plaintiff contends that Defendant abused the
FMLA to discriminate, harass, retaliate, and create an
unsustainable hostile work environment for unknown reasons
against him. (Id.) In the alternative, Plaintiff
claims Defendant perceived he had a disability and failed to
make accommodations. (Id.).
filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) on or about April 30, 2017.
(Id. at 6). The EEOC conducted its review but could
not conclude a violation had occurred. (Id. at 8).
On April 30, 2018, the EEOC mailed Plaintiff a Notice of Suit
Rights form, which informed Plaintiff of his right to file
suit within ninety days of receipt of the notice. Plaintiff
filed the instant suit on July 27, 2018. (Id.).
the filing of the suit, however, Plaintiff has failed to
prosecute his case. First, after Defendant answered, the
Court entered an order requiring the parties to participate
in a Federal Rule of Civil Procedure 26 scheduling conference
no later than January 11, 2019 and to file a joint status
report on or before January 25, 2019. (ECF No. 9). Defendant
timely filed the joint status report, but indicated in the
report that Plaintiff did not respond to Defendant's
multiple requests concerning the Court's scheduling
order. (ECF No. 10). On January 17, 2019, the Court entered
the Scheduling Order in this case, setting a deadline for
initial disclosures of February 15, 2019. (ECF No. 11).
Defendant filed its Motion to Compel Initial Disclosures and
for Sanctions and Memorandum in Support Thereof on February
26, 2019 after Plaintiff failed to serve his initial
disclosures and did not respond to Defendant's attempt to
resolve the matter without assistance from the Court. (ECF
No. 12). The Court set a hearing on the Motion for March 5,
2019 in which counsel for Defendant participated. (ECF No.
13). Plaintiff did not attend the hearing, although the Clerk
mailed the necessary access code to him and counsel for
Defendant left a message on the telephone for Plaintiff as
shown in the hearing record.
Court granted in part Defendant's Motion and compelled
Plaintiff to serve on Defendant his initial disclosures on or
before March 19, 2019. (ECF No. 15). Defendant notified the
Court that Plaintiff failed to comply with the Court's
discovery order on March 22, 2019. (ECF No. 16). The Court
sua sponte extended Plaintiff's deadline to
serve his initial disclosure on Defendant until April 15,
2019. (ECF No. 17). The Court warned Plaintiff that failure
to comply with the Court's Order may result in a
recommendation that Plaintiff's case be dismissed without
prejudice for failure to prosecute pursuant to Federal Rule
of Civil Procedure 41(b). Plaintiff did not serve his initial
failure to prosecute his case warrants dismissal. Dismissing
Plaintiff's case without prejudice, however, will likely
operate as a dismissal with prejudice because any future suit
for the alleged employment discrimination claims will be
outside of the ninety-day limitations period from receipt of
the Notice of Suit Rights form. Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992)
(Title VII); Hartnett v. Chase Bank of Texas Nat.
Ass'n, 59 F.Supp.2d 605, 611 (N.D. Tex. 1999)
(ADEA). Further, depending on when Plaintiff's Title II
ADA claim accrued, it may also be time-barred even if he
files a motion to reopen the case. Frame v. City of
Arlington, 657 F.3d 215, 237 (5th Cir. 2011) (applying
Texas's two-year limitations period for personal injury
to Title II); see also Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a) (West 2017). However, a dismissal
that has the effect of being with prejudice is appropriate in
this case because of Plaintiff's clear record of delay
and refusal to comply with court orders. See Benson,
Civ. A. No. 3:08CV1506-D, 2008 WL 5378179, at *3 (Fitzwater,
J.) (adopting the findings, conclusions, and recommendation
of the magistrate judge, who found “a clear record of
delay and contumacious conduct” and recommended
dismissal where plaintiff twice failed to respond to court
orders and filed no pleadings after his complaint). On the
facts of the present case, Judge O'Connor should dismiss
Plaintiff's complaint without prejudice due to his
failure to prosecute the case.
is cautioned that although the recommended dismissal is
without prejudice, the effect of dismissing this action for
failure to prosecute and to obey the Court's orders may
subject any subsequent complaint he files regarding the
claims in the instant action to a statute of limitations
defense. Because Plaintiff's claims will likely be
time-barred, the undersigned recommends that Judge
O'Connor DISMISS Plaintiff's
Complaint (ECF No. 1) without prejudice to
his right to reopen the case provided that Plaintiff files a
motion to reopen along with a brief in support on or before
thirty days from the date of Judge O'Connor's order
dismissing the case.
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's findings, conclusions, and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...