* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10472

Summary Calendar

JENNY NEWTON

Plaintiff-Appellant

v.

SECURITAS SECURITY SERVICES, USA, INC.

Defendant-Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:06-CV-1634

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

Jenny Newton filed suit against her former employer, Securitas Security

Services, alleging that they terminated her employment in retaliation for

complaining of sexual harassment in violation of 42 U.S.C. § 2000e. The district

court dismissed Newton’s claim for failing to exhaust administrative remedies.

We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

October 3, 2007

Charles R. Fulbruge III

Clerk
No. 07-10472

2

I 

Newton was a Business Development Manager at Securitas in Dallas. In

November 2003, Newton alleges that her immediate supervisor, John Williams,

sexually harassed her. On January 6, 2004, Newton reported the harassment

to the Senior Branch Manager. Securitas investigated Newton’s claim, which led

to the termination of Williams’s employment. Then, in summer 2004, Securitas

placed Newton on probation for poor sales performance. Newton received

written notice from Securitas on November 1, 2004, stating that her employment

would be terminated effective November 15, 2004, because her sales

performance had not improved.

Newton filed a precharge questionnaire with the EEOC on September 6,

2005, and then filed a charge on February 27, 2006. The EEOC notified Newton

on June 13, 2006, that her charge was untimely and, therefore, the EEOC was

dismissing it. Newton filed her present Title VII claim on September 6, 2006,

alleging she was fired in retaliation for reporting William’s sexual harassment.

On Securitas’s summary judgment motion, the district court dismissed

Newton’s claim, holding that the 300 day limitations period began to run on the

date she received the notice of termination – November 1 – and not on the date

that her employment actually ended – November 15. Thus, the limitations

period in which Newton had to file a charge with the EEOC expired on August

28, 2005 – and Newton filed nothing with the EEOC until September 6. Because

Newton failed to timely file with the EEOC,the district court dismissed her Title

VII claim for failure to exhaust administrative remedies. 

The court held in the alternative that even if the limitations period ran

from November 15, Newton’s claim was still untimely as the precharge

questionnaire filed on September 6 was insufficient to meet 42 U.S.C. § 2000e’s

charge requirement. Newton did not file her actual charge with the EEOC until

February 27, 2006, which was more than 300 days after November 15. 
No. 07-10472

1 Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313-14 (5th Cir. 2007) (citations omitted).

2 National R.R. Passenger Corp. v.Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander

v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)).

3

Id.

4 Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); see also Morgan, 536 U.S. at

109 (explaining that in states with “an entity with the authority to grant or seek relief with

respect to the alleged unlawful practice, an employee who initially files a grievance with that

agency must file the charge with the EEOC within 300 days of the employment practice”).

3

II 

“This court reviews a district court’s grant of summary judgment de novo,

applying the same standards as the trial court. Summary judgment is proper

if the evidence shows that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. The Court

views all evidence in the light mostfavorable to the non-moving party and draws

all reasonable inferences in that party’s favor.”1

Section 2000e-5(e)(1) “is a charge filing provision that ‘specifies with

precision’ the prerequisites that a plaintiff must satisfy before filing suit.”2 The

section requires that the plaintiff “must file a charge within the statute time

period.”3“In a state that, like Texas, provides a state or local administrative

mechanism to address complaints of employment discrimination, a title VII

plaintiff must file a charge of discrimination with the EEOC within 300 days

after learning of the conduct alleged.”4

Newton contends that the district court erred in treating her claim as a

“traditional” retaliation claim and that her claim is better analogized to a

“hostile work environment claim” and subject to the “continuing violation”

doctrine. As evidence of a “continuing violation,” Newton submitted an affidavit

alleging that her two final pay checks were incorrect; that she was not paid her

final commissions for the period ending thirty days from the date of her

termination as provided in her employment agreement; that others similarly
No. 07-10472

5 Morgan, 536 U.S. at 113.

6

Id. at 110.

7 See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (“In sum, the only

allegeddiscriminationoccurred–andthe filing limitations periods therefore commenced–atthe

time the tenure decision was made and communicated to Ricks.”).

8 Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).

9 Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004) (“In Nat.'l R.R. Passenger

Corp. v. Morgan, the Court held that discrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in timely filed charges.”).

4

situated were taken off probation; and that an internal memorandum dated 5

May 2005 showed that Securitas was still trying to “justify” her termination. 

Newton’s arguments do not persuade. Her complaint only alleges

termination as the discriminatory conduct. As the Supreme Court has

explained, termination is a “discrete act,” and “discrete discriminatory acts are

not actionable if time barred, even when they are related to acts alleged in

timely filed charges.”5“A discrete retaliatory or discriminatory act ‘occurred’ on

the day that it ‘happened.’”6 Here, that day was when Newton received written

notice of her termination:7“The operative date from which the . . . filing period

begins to run is ‘the date of note of termination, rather than the final date of

employment.’”8

As we have previously explained, the Court’s decision in Morgan makes

clear that the continuing violations doctrine does not apply to discrete acts.9 As

the Court explained, 

The Court of Appeals applied the continuing violations doctrine to

what it termed “serial violations,” holding that so long as one act

falls within the charge filing period, discriminatory and retaliatory

acts that are plausibly or sufficiently related to that act may also be

considered for the purposes of liability. With respect to this holding,

therefore, we reverse. 

Discrete acts such as termination, failure to promote, denial

of transfer, or refusal to hire are easy to identify. Each incident of
No. 07-10472

10 Morgan, 536 U.S. at 114.

11 We do not reach the issue of whether filing the precharge questionnaire was

sufficient.

5

discrimination and each retaliatory adverse employment decision

constitutes a separate actionable “unlawful employment practice.”

Morgan can only file a charge to cover discrete acts that “occurred”

within the appropriate time period. 10

Newton’s complaint did not raise a hostile workplace claim, and therefore we do

not consider how, under Morgan, a “continuing violation” would there apply.

As the district court properly concluded Newton’s filings with the EEOC

were untimely,11 we AFFIRM.