United States District Court, E.D. Texas, Texarkana Division
WHITNEY A. HENDERSON
MARK T. ESPER, SECRETARY OF THE ARMY, ET AL.
AMENDED ORDER ADOPTING REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
above-entitled and numbered civil action was heretofore
referred to United States Magistrate Judge Caroline M. Craven
pursuant to 28 U.S.C. § 636. On June 19, 2019, the
Magistrate Judge issued a Report and Recommendation,
recommending Defendants' Motion to Dismiss (Docket No.
10) be granted and Plaintiff's above-entitled and
numbered cause of action be dismissed with prejudice. On July
23, 2019, the Court entered an Order Adopting the June 19
Report and Recommendation, erroneously stating no objections
had been filed to the Report and Recommendation
(“R&R”). Docket No. 28.
A. Henderson, proceeding pro se, filed objections to the
R&R on July 15, 2019. Docket No. 29. Even though the
objections were untimely filed,  the Court has conducted a de
novo review and finds the objections are without merit.
employment discrimination case, Plaintiff alleges the failure
to extend his temporary appointment on June 25, 2016
constitutes a discriminatory act in violation of Title VII.
Docket No. 1 ¶ 5. According to Plaintiff, the underlying
basis of his termination was due to an Official Written
Reprimand in his eOPF. Id. ¶ 9. According to
Defendants' motion to dismiss, taking Plaintiff's own
allegation that June 25, 2016 is the alleged discriminatory
event, Plaintiff did not make contact with an EEO Counselor
until January 25, 2017, well over six months past the alleged
discriminatory act. Thus, as Defendants argue, Plaintiff
failed to timely contact an EEO counselor within 45 days of
the last act of alleged discrimination.
their motion to dismiss, Defendants explain that Plaintiff
visited the Civilian Personnel Advisory Center
(“CPAC”) at Red River Army Depot on November 1
and December 7, 2016, and met with the CPAC Director. R&R
at 12 (citing Docket No. 10 at 3).  According to Defendants, it
was during one of these visits that the CPAC Director
“incorrectly communicated to Plaintiff that the failure
to extend his temporary appointment was due to an Official
Written Reprimand that remained in his eOPF.”
Id. Plaintiff alleges that the December 8, 2016
visit to the CPAC was the first time he learned that the
underlying basis of the failure to extend his temporary
appointment was allegedly due to an Official Written
Reprimand, which inappropriately remained in his eOPF.
18-page R&R, the Magistrate Judge first recommended
Plaintiff's claims against Billy Pettie be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure
12(b)(6) because Billy Pettie is not a proper party to this
case. R&R at 9. The Magistrate Judge then considered
whether Plaintiff's Title VII claim against the Secretary
of the Army should also be dismissed. The Magistrate Judge
noted that the only discriminatory act Plaintiff alleges is
his effective termination; thus, the limitations period began
to run on the date Plaintiff learned of his termination- June
25, 2016. R&R at 15.
to the Magistrate Judge, Plaintiff did not make contact with
an EEO Counselor until January 25, 2017, over six months past
the alleged discriminatory act. Because Plaintiff failed to
timely contact an EEO counselor within 45 days of the last
act of discrimination about which he complains, his charge is
barred “absent a defense of waiver, estoppel, or
equitable tolling.” Id. (quoting Reveles
v. Napolitano, 595 Fed.Appx. 321, 325 (5th Cir. 2014)).
Magistrate Judge further noted that the plaintiff in
Reveles did not brief the defenses of equitable
tolling and estoppel, and the Fifth Circuit held any such
arguments had been waived. Id. (citing Morris v.
Livingston, 739 F.3d 740, 752 (5th Cir. 2014)
(“Although we liberally construe the briefs of pro
se appellants, we also require that arguments must be
briefed to be preserved.”)). As noted by the Magistrate
Judge, the Fifth Circuit in Reveles also stated that
the docketing and acting on a complaint or request for
reconsideration does not alone constitute a waiver of the
timeliness objection. R&R at 15 (citing Reveles,
595 Fed.Appx. at 325; Rowe v. Sullivan, 967 F.2d
186, 191 (5th Cir. 1992) (“Rowe contends that even if
his complaint was untimely, the EEOC waived the thirty day
limit by docketing and acting on his request for
reconsideration. We have held, however, that such agency
action does not, in and of itself, constitute a waiver. In
order to waive a timeliness objection, the agency must make a
specific finding that the claimant's submission was
timely.”) (citations omitted).
the plaintiff in Reveles, Plaintiff has not briefed
the defenses of equitable tolling and estoppel. R&R at 16
(citing Morris, 739 F.3d at 752). Moreover,
Plaintiff has not alleged facts that could give rise to
equitable tolling, waiver, or estoppel. Id. Nor did
Plaintiff argue, in his response to the motion to dismiss,
that equitable tolling, waiver, or estoppel apply to his
situation. Id. (citing Hossain v. McHugh,
No. EP-15-CV-00083-KC, 2015 WL 7162022, at *8 (W.D. Tex. Nov.
13, 2015) (holding the plaintiff's unawareness of the
facts supporting her claim did not entitle her to equitable
tolling because the plaintiff had not alleged the defendants
intentionally concealed the facts from her)). Accordingly,
the Magistrate Judge found no reason to apply equitable
tolling in this case. Id.
Magistrate Judge concluded that Plaintiff had not met his
burden to demonstrate that he timely contacted an EEO
counselor within 45 days of his termination. Id.
According to the Magistrate Judge, Plaintiff's claims
against the Secretary of the Army are time-barred and
equitable tolling is not applicable; therefore, amendment is
futile. Id. at 17. The Magistrate Judge recommended
Plaintiff's Title VII claims be dismissed for failure to
state a claim on which relief may be granted.
untimely objections, Plaintiff does not identify the specific
finding or recommendation to which he objects, state the
basis for the objection or specify the place in the R&R
where the disputed determination is found. Instead, Plaintiff
states that the letters from the Red River Army Depot
regarding the layoff were contradictory. Docket No. 29 at 2.
As in his motion, he points to the meetings in October and