# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 11377

**Niljka Y. Wright,**
Plaintiff

— Appellant **,**

versus
**Arlington Independent School District,**
Defendant

— Appellee

**.**

Appeal from the United States District Court for the Norther n District of Texas USDC No. 4:19

- CV

- 278

Before **Dennis, Higginson,** and **Willett,** Circuit Judges

**. Per Curiam**  **:** * Nilj ka Wright filed this employment

- discrimination case against her former employer, Arlington Independent School District ( **AISD** ) , bringing claims under the Age Discrimination in Employment Act ( **ADEA** ), the Americans with Disabilities Act ( **ADA** ), Title **VII** , Title **VI** , the Family and Medical Leave Act ( **FMLA** ), the Fair Labor Standards Act ( **FLSA** ), and 42

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent excep t under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 4, 2020 Lyle W. Cayce Clerk Case: 19-11377 Document: 00515626865 Page: 1 Date Filed: 11/04/2020No. 19

- 11377

2 U.S.C. § 1983. The district court dismissed Wright’s suit with prejudice for failure to state a claim, and we affirm

. **I** Wright worked as an **AISD** employee for several years , most recently

serv ing as a Title **I** l iaison. **AISD** terminated her employment contract in the second half of 2018. Wright alleges that **AISD** personnel “ repeatedly and systematically mistreated ” her at work , took no action to prevent or stop the alleged misconduct , and retaliated against her for reporting the alleged misconduct. Wright alleges several instances of discriminatory conduct by **AISD** personnel , including : unwanted and inappropriate touching by her **AISD** supervisor ; instances of physical and verbal assault (such as being screamed

at and cursed at) ; uni lateral change s to her work schedule ; invasion of her privacy; subjection to surveillance while at work; harassing emails; inaccurate, negative performance evaluations; misstatements of her work hours; underpayment; treatment different from that shown to employees of other ethnicities; and interference with her Title **I** liaison work responsibilities

. On September 28, 2016, Wright filed a charge of discrimination with the Texas Workforce Commission ( **TWC** ) Civil Rights Division , alleging that **AISD** violated Title **VII** , the **ADEA** , and the **ADA** . On March 6, 2017, the Equal Employment Opportunity Commission ( **E E**  **O C**  **)** adopted **TWC** ’s findings and issued a “Dismissal and Notice of Rights,” or right

- to

- sue letter, which stated: “You may file a lawsuit ag a inst the respondent [] under federal law based on this charge in federal or state court. Your lawsuit must be filed WIT HIN 90 DAYS of your receipt of this notice ; or your right to sue based on this charge will be lost

. ” Wright did not file suit against **AISD** within th is
90

- day period. Case: 19-11377 Document: 00515626865 Page: 2 Date Filed: 11/04/2020No. 19

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3 Instead, on February 1, 2018, Wright filed a second charge with **TWC** , alleging that **AISD** retaliated against her in violation of Title **VII** . On August 6, 2018, the **EEOC** adopted **TWC** ’s findings and issued a second “Dismissal and Notice of Rights,” or right

- to

- s ue letter, which also explicitly stated that Wright had 90 days to file a lawsuit against **AISD**

**.** On October 29, 2018 , Wright attempted to intervene as a plaintiff in an existing lawsuit against **AISD** , Garza v. Arlington Indep endent Sch ool Dist rict , No. 4:18

- CV

- 00829. On March 1, 2019, the district court in Garza dismissed her from th at case
. On April 2, 2019 , Wright filed this case against **AISD**

. She later amended her complaint , alleging violations of the **AD E**  **A** , **ADA** , **FLSA** , Title **VI** , Title **VII** , and 42 U.S.C. § 1983.
**AISD** moved to dismiss Wright’s complaint under Rule 12(b)(6) for failure to state a claim

. **Fed. R. Civ. P.** 12(b)(6). The district court granted **AISD** ’s motion and dismissed Wright’s case with prejudice , finding her **ADEA** , **ADA** , and Title **VII** claims were time

- barred and her Title **VI** , § 1983, **FMLA** , and **FLSA** claims failed to state a plausible claim for relief

. Wright appeal ed, and, for the reasons discussed below, we affirm

. **II**
We review a d istrict court’s Rule 12(b)(6) dismissal de novo. Cicalese v. Univ. of Tex. Med. Branch , 924 F.3d 762, 765 (5th Cir. 201 9) (citation omitted) . To survive a motion to dismiss, the plaintiff must plead facts that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “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.” Id. (citation omitted). We accept all well

- pleaded facts in the comp laint as true and view them in the Case: 19-11377 Document: 00515626865 Page: 3 Date Filed: 11/04/2020No. 19

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4 light most favorable to the plaintiff. Walker v. Beaumont Indep. Sch. Dist. , 938 F.3d 724, 735 (5th Cir. 2019). But a plaintiff’s “conclusory allegations or legal conclusions masquerading as factual conclusions will not s uffice to prevent a motion to dismiss.” Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P. , 894 F.3d 665, 669 (5th Cir. 2018) (citation omitted)

. **III** On appeal, Wright raises three arguments: (1) her **ADA** , **ADEA** , and Title **VII** claims are not time

- barred; (2) she sufficiently pleaded independent claims under the **ADA** and **ADEA ;**  and (3 ) she sufficiently pleaded her claims under Title **VII** , Title **VI** , **FMLA** , **FLSA** , and § 1983. We address each argument in turn.

**A** First, we address whether Wright’s **ADA** , **ADEA** , and Title **VII** claims were timely. Under the **ADA** , **ADEA** , and Title **VII** , a plaintiff has
90 days to file suit in federal court after she receives the **EEOC** ’s r ight

- to

sue letter

. See 42 U.S.C. § 12117(a) ( **ADA** ); 29 U.S.C. § 626(e) ( **ADEA** ) ; 42 U.S.C. § 2000e

- 5(f)(1) (Title **VII** )

. If the parties dispute the date of receipt , if th e date is unknown , or if the plaintiff fails to allege the date of receipt, we presume that the plaintiff receiv ed the **EEOC** ’s letter , at most, seven days after it was mailed

. Taylor v. Books A Million, Inc. , 296 F.3d 376, 3 80 (5th Cir. 2002). But, even with th is generous presumption, w e strictly construe a plaintiff’s requirement to file suit within 90 day s after re ceiving the **EEOC** ’s letter. Id. at 379

. Here, the **EEOC** mailed its first right

- to

- sue letter on March 6, 2017 , and its second on August 6, 2018

. Because the record does not indicate when Wright received the two letters, we presume that she received them seven days later . So the 90

- day window to sue **AISD** began March 13, 2017 for the first letter and August 13, 2018 for the second. Case: 19-11377 Document: 00515626865 Page: 4 Date Filed: 11/04/2020No. 19

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5 W right did not file suit within 90 days after receiving he r first letter: M ore than two years passed between t he presumed date of receipt ( March 13, 201 7 ) and the date she brought suit ( April 2, 2019 )

. Nor did Wright file in time for the second l etter: M ore than 90 days passed between the presumed date of receipt (August 13, 2018) and the date she brought suit (April 2, 2019). B ecause Wright did not file her claims within 90 days after receiving either **EEOC** letter , the claims are time

- barred, and the district court properly dismissed them

. Wright argues that her **ADA** and **ADEA** claims a re not time

- barred because she sought relief under these claims independent of the relief sought under her Title **VII** claim , so these claims were not subject to Title **VII** ’s requirement that a suit be filed within 90 day s
. This argument contradicts the clear text of the **ADA** and **ADEA** , both of which incorporate Title **VII** ’s explicit requirement that the recipient of a right

- to

- sue letter must file suit within 90 days. See 42 U.S.C. § 2000e

- 5(f)(1) (Title **VII** ); 42 U.S.C. § 12117(a) ( **ADA** ); 29 U.S.C. § 626(e) ( **ADEA** ). Wright further argues th at a court must resolve factual questions to enforce the time limitations for filing suits under the **ADA** and **ADEA** , and the district court improperly based its ruling on the pleadings, rather than an evidentiary review at summary judgment

. However, this argument fails because a district court may grant a motion to dismiss “ where it is evident from the pleadings that the action is time

- barred, and the p leadings fail to raise some basis for tolling. ” Tay lor v. Bailey Tool Mfg. Co. , 744 F.3d 944, 946 (5th Cir. 2014). Wright contends her Title **VII** claim is not time

- barred because her unsuccessful attempt to intervene in the Garza lawsuit against **AISD** should toll the 90

- day period to file. Wright does not c ite any precedent to support the claim that an unsuccessful attempt to intervene in a pending lawsuit Case: 19-11377 Document: 00515626865 Page: 5 Date Filed: 11/04/2020No. 19

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6 should toll the 90

- day period

. And e ven if we accepted this tolling argument, Wright did not timely file her suit. After the district court dismissed Wrig ht from the Garza suit, Wright had only a few days to file suit against **AISD** to fall within the 90

- day window . But she waited 31 days after being dismissed from Garza to file the present case , well beyond the tolled 90 day s after she received her right

- to

- sue letter

. Because Wright did not file her Title **VII** , **ADA** , and **ADEA** claims within the statutorily required 90

- day period, the district court properly dismissed those claims as time

- barred. Wright also argues that she sufficiently pleaded ind ependent claims under the **ADA** and **ADEA** . However, because those claims are time

barred, we need not address this argument.

**B** Wright next maintains she sufficiently pleaded her Title **VI** , § 1983, **FMLA** , and **FLSA** claims . We address each claim in turn.

**1** First, Wright argues that she sufficiently pleaded a claim under Title **VI**

. Title **VI** provides that no person shall, “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimin ation under any program or activity” covered by Title **VI** . 42 U.S.C. § 2000d. Title **VI** “prohibits only intentional discrimination.” Alexander v. Sandoval , 532 U.S. 275, 28 0 (2001)

. To survive a motion to dismiss, Wright’s complaint must plead facts to plau sibly show that **AISD** intentional ly discriminat ed against her

. See Canutillo Indep. Sch. Dist. v . Leija , 101 F.3d 393, 397 (5th Cir. 1996). Wright’s complaint does not allege sufficient facts to support a finding of intentional discrimination by **AISD**

. Wright’s complaint alleges she is of South American heritage and Hispanic ethnicity, but she never alleges facts Case: 19-11377 Document: 00515626865 Page: 6 Date Filed: 11/04/2020No. 19

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7 showing that she was treated differently because of her heritage or ethnicity

. Because Wright ’s complaint fails to allege facts showing disc riminatory intent , she fails to sufficiently plead a valid Title **VI** claim

. **2** Second, Wright brings § 1983 claim s , alleging that **AISD** violated her First and Fourteenth Amendment rights

. To sufficiently plead a § 1983 claim for employment retaliation related to speech in violation of the First Amendment , a plaintiff must show: “(1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his inte rest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Anderson v. Valdez , 845 F.3d 580, 590 (5th Cir. 2016) (quoting Nixon v. City of Houston , 5 11 F.3d 494, 497 (5th Cir. 2007)). To sufficiently p lead a Fourteenth Amendment due

- process claim under § 1983, a plaintiff must (1) “ identify a protected life, liberty, or property interest ” and (2) “ prove that governmental action ” deprived her of that interest. Greene v. Greenwood Pub. Sch. Dist. , 890 F.3d 240, 242 (5th Cir. 2018) (citation omitted). And for both First and Fourteenth Amendment claims under § 1983, the plaintiff’s “complaint must state specific facts, not simply leg al and constitutional conclusions.” Fee v. Herndon , 900 F.2d 804, 807 (5th Cir. 1990) (citations omitted). Wright argues her complaint includes sufficient factual allegations to “create the reasonable impression” that **AISD** violated her First Amendment righ ts. 1 In her complaint, Wright alleges “she made [ **AISD**

1 In her complaint, Wright alleges that **AISD** denied her “right to expression and peaceable assembly,” but, on appeal, she does not raise any arguments about the alleged denial of her right to peaceable assembly. Case: 19-11377 Document: 00515626865 Page: 7 Date Filed: 11/04/2020No. 19

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8 personnel] aware of mistreatment” that she was experiencing and **AISD** retaliated against her “for having brought the misconduct to people’s attention.” But her complaint d oes not provide any fact s about the speech that allegedly precipitated **AISD** ’s retaliation ; instead, her § 1983 claim relies on a legal conclusion that her First Amendment right was violated. E ven if she had identified specific facts , Wright has failed to make a facially plausible showing that she spoke on a matter of public concern

. I nstead, her allegations relate to internal workplace grievances that affect Wright “in a purely personal manner” and are thus not constitutionally protected

. Gibson v. Kilpatrick , 838 F.3d 476, 484

– 85 (5th Cir. 2016) (citations omitted)

. See also Connick v. Myers , 461 U.S. 138, 154 (1983). Accordingly, she has failed to sufficiently plead a § 1983 claim based on a First Amendment violation

. Wright also argues her complaint includes sufficient facts to show that her procedural due process rights under the Fourteenth Amendment were violated when **AISD** failed to provide her with a hearing

. 2 In her complaint, Wright alleges that on October 26, 2017, she went to have a grievance hearing, but the hearing o fficer

— the **AISD** supervisor she alleges inappropriately touched and harassed her

— “denied [her] anything approaching a fair hearing and summarily dismissed her many grievances.” She also alleges that she “repeatedly presented her complaints to **AISD** and under went many admi nistrative procedures,” and that “ **AISD** consistently and intentionally failed and refused to provide her fair hearings.” A ccepting these allegations as true, Wright has failed to allege facts identifying a protected interest and showing that the government took that interest away.

2 In her complaint, Wright alleges that **AISD** denied her “equal protection, procedural d ue process, and substantive due process.” But on appeal, Wright does not raise any arguments about the alleged equal protection and substantive due process violations. Case: 19-11377 Document: 00515626865 Page: 8 Date Filed: 11/04/2020No. 19

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9 Wright thus fails t o make a facially plausible showing that **AISD** violated her procedural due process rights.

**3** Third, Wright brings a **FMLA** claim

. **FMLA** provides elig ible employees with the right to take reasonable leave based on certain medical circumstances , 29 U.S.C. § 2612(a) , and prohibits employers from interfering with that right , 29 U.S.C. § 2615(a). To be eligible for leave under the **FMLA** , an employee must hav e been employed for at least 12 months by the employer and for at least 1,250 hours of service with the employer during the previous 12

- month period. 29 U.S.C. § 2611(2)(A). In her complaint, Wright alleges that she requested medical leave twice

— in 2014 af ter she broke her arm and in 2017 after she dislocated her shoulder

— and that **AISD** denied her requests, claiming she had not worked enough hours to be eligible for **FMLA** leave

. Nowhere in Wright’s complaint does she allege facts to show that she worked the requisite number of hours to be eligible for **FMLA** leave

. On appeal, Wright refers to the “work

- hour reports” detailed in her complaint as proof that she was eligible for **FMLA** leave. But this reference points merely to another allegation tha t **AISD** denied her request to submit reports of the hours she worked in order to correct her wages. A ccepting this allegation as true, it shows at most that **AISD** did not have accurate records of her hours. Because that allegation does not show Wright was el igible for **FMLA** leave, she fails to make a plausible facial showing that **AISD** interfered with her **FMLA** right and thus fails to state a valid **FMLA** claim against **AISD**

. **4** Finally , Wright brings a **FLSA** claim

. The **FLSA** provides a cause of action f or employees to recover unpaid minimum wages and overtime compensation. 29 U.S.C. § 216(b). Wright alleges that **AISD** did not pay her Case: 19-11377 Document: 00515626865 Page: 9 Date Filed: 11/04/2020No. 19

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10 the correct wages in 2016, 2017, and 2018 and that **AISD** rejected her repeated attempts to submit accurate records of the ho urs she worked

. A ccepting these allegations as true, Wright fails to allege facts supporting a plausible inference that she worked a particular number of hours for which she was not paid or was underpaid . Accordingly, Wright fails to state a **FLSA** claim.

**IV** For all these reasons, we **AFFIRM** the district court’s dismissal. Case: 19-11377 Document: 00515626865 Page: 10 Date Filed: 11/04/2020