United States District Court, N.D. Texas, Fort Worth Division
CARLA F. DUNLAP, Plaintiff,
CITY OF FORT WORTH, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
O'CONNOR UNITED STATES DISTRICT JUDGE.
25, 2019, the United States Magistrate Judge issued Findings,
Conclusions, and a Recommendation (the “FCR”) in
this case. FCR, ECF No. 80. The FCR recommended that the
Court grant Defendant the City of Fort Worth's (the
“City”) Amended Motion for Summary Judgment (ECF
No. 64), filed March 13, 2019, and deny as moot the
City's Motion to Dismiss Plaintiff's Amended
Complaint and Brief in Support (ECF No. 62), filed March 13,
2019. FCR 1, ECF No. 80. Plaintiff Carla Dunlap
(“Dunlap”) filed Objections to the Findings,
Conclusions, and Recommendations of the United States
Magistrate Judge on August 8, 2019. Pl.'s Objections, ECF
Court has conducted a de novo review of the FCR. For the
following reasons, Dunlap's Objections are
OVERRULED, and the Court
ADOPTS the reasoning in the Magistrate
Judge's FCR. Accordingly, the Court
GRANTS the City's Amended Motion for
Summary Judgment and DENIES as moot the
City's Motion to Dismiss. I. BACKGROUND
being fired from her position with the Fort Worth Police
Department, see Def.'s App. 221, ECF No. 66,
Carla Dunlap sued the City, see generally Notice of
Removal, ECF No. 1. In her Amended Complaint, Dunlap provided
details to support her assertion that “[t]he City of
Fort Worth committed the following violations concerning the
Plaintiff: (1) wrongful termination of her employment; (2)
racial discrimination against her; (3) retaliation; (4) pay
and promotional discrimination; (5) harassment and bullying
in the workplace; (6) defamation of her character; (7) firing
her for being late one time in 25 years and not calling; (8)
failure to provide reasonable accommodations for her under
the Americans With Disabilities Act for two injuries acquired
on the job; (9) accusation against her of impeding the
identities of arrestees; and (10) firing her for missing a
non-mandatory training class that she signed up for on her
time off.” Pl.'s Am. Compl. 4, ECF No. 53 (cleaned
up). Liberally construed, Dunlap's Amended Complaint
asserted claims against the City for discrimination on the
bases of race, disability, and age; various torts; and
violations of Chapter 37 of the Texas Penal Code. See
Id. at. 23-26.
the close of discovery, the City moved for summary judgment,
asserting several reasons why Dunlap's claims under
§ 1983, Title VII, the ADA, the ADEA, state tort law,
and state criminal law all fail as a matter of law. See
generally Def.'s Br. Supp. Mot. Summ. J., ECF No.
65. The Magistrate Judge agreed with the City's
arguments, and he issued a thorough analysis and
recommendation that the Court grant the City's Amended
Motion for Summary Judgment. FCR, ECF No. 80. Dunlap objected
to each of the Magistrate Judge's conclusions. Pl.'s
Objections, ECF No. 82. The FCR and Dunlap's Objections
are ripe for the Court's review.
Motion for Summary Judgment
Court may grant summary judgment where the pleadings and
evidence show “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is
not “a disfavored procedural shortcut, ” but
rather an “integral part of the Federal Rules as a
whole, which are designed to secure the just, speedy and
inexpensive determination of every action.” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986).
substantive law will identify which facts are
material.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A genuine dispute as to any
material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. The movant must inform the court
of the basis of its motion and demonstrate from the record
that no genuine dispute as to any material fact exists.
See Celotex, 477 U.S. at 323. “The party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which that evidence supports his or her claim.”
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998).
reviewing the evidence on a motion for summary judgment,
courts must resolve all reasonable doubts and draw all
reasonable inferences in the light most favorable to the
non-movant. See Walker v. Sears, Roebuck & Co.,
853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a
credibility determination in light of conflicting evidence or
competing inferences. Anderson, 477 U.S. at 255. If
there appears to be some support for disputed allegations,
such that “reasonable minds could differ as to the
import of the evidence, ” the court must deny the
motion. Id. at 250.
Pro Se Standard
courts have a “traditional disposition of leniency
toward pro se litigants.” Spotville v. Cain,
149 F.3d 374, 377 (5th Cir. 1998) (per curiam). “[A]
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (emphasis omitted) (internal citation
omitted). “Of course, this is not to say that pro se
plaintiffs don't have to submit competent evidence to
avoid summary judgment, because they do.” Davis v.
Fernandez, 798 F.3d 290, 293 (5th Cir. 2015).
“Additionally, courts have continuously held that
ignorance of the law and inadvertent noncompliance, including
missed deadlines and defective pleadings, are inexcusable
even when the plaintiff is proceeding pro se.”
Edwards v. Biotronics Kidney Ctr., No. 1:09-CV-348,
2010 WL 27214, at *2 (E.D. Tex. Jan. 5, 2010) (emphasis
omitted) (citing McNeil v. United States, 508 U.S.
106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.”); Teemac v. Henderson, 298
F.3d 452, 458 (5th Cir. 2002)).
ANALYSIS OF OBJECTIONS
Plaintiff's Objections do not clearly address each issue
she takes with the Magistrate Judge's analysis, it
appears she intends to object to each conclusion in the FCR.
See generally Pl.'s Objections, ECF No. 82.
Accordingly, the Court addresses each conclusion in the order
in which they appear in the FCR. Additionally, Plaintiff
raises criminal claims not addressed in the FCR. See
Id. at 16 (addressing claims under 18 U.S.C.
§§ 241, 242). Whereas the Court would typically
disregard these claims as not preserved, it proceeds as if
these claims were those Dunlap “inartfully
pleaded” in her Amended Complaint. Erickson,
551 U.S. at 94 (internal citation omitted). Thus, though
these claims do not change the Court's full agreement
with the FCR, the Court addresses them as well.
29 U.S.C. § 1983 Claims
appears to raise three claims based on alleged constitutional
violations occurring at her termination-appeal hearing: (1) a
freedom of speech violation based on the City preventing her
from asking questions during the hearing; (2) a procedural
due process violation also based on the City preventing her
from asking questions during the hearing; and (3) a
procedural due process violation based on the City preventing
her from calling a specific witness. See Pl.'s
Am. Compl. 3, 9, ECF No. 53. Although Dunlap did not
specifically plead these claims under § 1983, “the
[Magistrate Judge] liberally construe[d] her claims for
alleged violation of due process and infringement of her
rights under the First Amendment as premised upon violations
of 42 U.S.C. § 1983.” FCR 4, ECF No. 80. The City
argued and the Magistrate Judge concluded that Dunlap's
§ 1983 claims fail because (1) they are untimely and (2)
the City is not liable for the conduct of its employees.
See Def.'s Br. Supp. Mot. Summ. J. 4-9, ECF No.
65; FCR 5-6, ECF No. 80. Dunlap objects that her
“claims under section 1983 do not fail as a Matter of
Law because she did not file a claim under this
statu[te].” Pl.'s Objections 12, ECF No. 82.
Instead, she says she filed claims under 42 U.S.C. §
1981, which “will not fail as a Matter of Law because
they were not time-barred.” Id. She also
objects that the City does “not enjoy immunity under
this section.” Id. at 16.
determining whether these claims are barred by the statute of
limitations or governmental immunity, the Court first
addresses Dunlap's distinguishing between § 1981 and
§ 1983. See Id. at 12. Though she treats them
as separate claims, they function here as one and the same.
The Supreme Court has held that § 1981 does not provide
a cause of action against local government entities separate
from that provided in § 1983. Oden v. Oktibbeha
County, 246 F.3d 458, 462 (5th Cir. 2001) (citing
Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 731
(1989)). Accordingly, “plaintiffs must assert a cause
of action against state actors under § 1983 to remedy
violations of civil rights under § 1981.”
Id. at 463. Thus, if Dunlap meant to raise claims
under § 1981, the Magistrate Judge was correct to
analyze them under § 1983.
Statute of Limitations
civil rights actions brought under 42 U.S.C. § 1981,
which lacks an express statute of limitations, are governed
by the most closely analogous limitations period provided
under state law.” Jones v. Alcoa, Inc., 339
F.3d 359, 364 (5th Cir. 2003). When a § 1981 claim
“is brought in Texas, the two-year statute of
limitations for personal injury actions in Texas
controls.” Id. “The limitations period
for [§] 1981 and [§] 1983 employment discrimination
cases commences when the plaintiff knows or reasonably should
know that the discriminatory act has occurred, the same point
from which the Title VII 180-day limitations period
runs.” McWilliams v. Escambia Cty. Sch. Bd.,
658 F.2d 326, 330 (5th Cir. 1981).
three alleged civil-rights violations occurred on January 21,
2016, the day of Dunlap's termination-appeal hearing.
Thus, the limitation period began running on January 21,
2016, giving Dunlap until January 21, 2018-two years after
the hearing-to file her suit. See Def.'s App.
288, ECF No. 66 (admitting the date of the January 21, 2016
hearing). Because Dunlap did not file her petition in state
court until February 23, 2018, her due process and freedom of
speech claims are statutorily barred. Pl.'s Original
Pet., ECF No. 1. Thus, Dunlap's objection regarding the
timeliness of her constitutional claims is