* Pursuant to 5th Cir. R. 47.5, the Court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED December 11, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
No. 05-21031 Summary Calendar

LEE CHURCH, Pl aint iff- Appellant,

versus KARE DISTRIBUTION, INC., Defendant-Appellee.
Appeal from the United States District Court fo r the Southern District of Texas 4:05-CV-2800
Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * Lee Church filed suit against Kare Distribution, Inc. (“Kare” ) for race and national origin discriminat io n pursuant to the Texas Com missio n on Human Rights Act. Kare removed the case to the Southern District of Texas, Houston Divisio n. Kare then filed a motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), fo r failure to state a claim. On October 20, 2005, the district court2

granted Kare’s mo tion to dismiss and entered final judgment. The issue on appeal is whether the district court erred in granting Kare’s motion to dismiss for failure to state a claim. We affirm t he district court’s judgment. Factual Background From June 23, 2004, to November 3, 2004, Kare employed Church as a sales representative. Church, a Caucasian male, worked wit h a group of ten sales representatives, including eight Hispanics and one African-American. Church, another representative, and the sales managers, spo ke no Spanish. In August 2004, Kare executives instructed the sales manager to hire only bilingual, English-Spanish speaking sales representative. Kare also adverti sed job openings in the Houston Chronicle fo r English-Spanish speaking sales representative. During the same period, Kare assigned Church, another representative, and the sales manager to attend com pany-sponsored Spanish language classes. On November 3, 2004, Kare term inat ed Church under the direction of Kare’s corporate of fice. Based on these facts, Church filed suit against Kare. His complaint stated claims of national origin and race discriminat io n and int entional inflict io n of emo tional distress. Church asserts that both claims o f discriminat io n resulted from his inability to speak Spanish. Standard of Review The court reviews de novo a Rule 12(b)(6) order of dismissal. Scanlin v. Texas A& M Univ. , 343 F.3d 533, 536 (5th Cir. 2003). A court di smisses a complaint when “it appears beyond doubt th at the plaint iff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson , 355 U.S. 41, 45-46 (1957). A plaintiff must assert more than general legal conclusions to avoid dismissal. J efferson v. Lead Industries Assoc., Inc. , 106 F.3d 1245, 1250 (5th3

Cir. 1997). “The complaint must contain either direct allegations on every material point necessary to sustain a recovery .... or contain allegations from which an inference fairly may be drawn that evidence on these mat erial point s will be introduced at trial.” Campbell v. City of San Antonio , 43 F.3d 973, 975 (5th Cir. 1995). The court may consider the pleadings on file and mat ters of public record. C

ollins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000); Davis v. Bayless , 70 F.3d 367, 372 n.3 (5th Cir. 1995). Where a co mplaint asserts merely conclusory allegations, these conclusory allegations and unwarranted deductions of fact are not admit ted as true. Guidry v. Bank of LaPlace , 954 F.2d 278, 281 (5th Cir. 1992). Discussion In thi s case, Church failed to state a claim for either race or national origin discrimination. Section 21.051 of the Texas Labor Code states in pertinent part that: An employer com

mit s an unlawful employment practice if because of r ace, col or, disabilit y, religion, national origin, or age the employer: (1) fails or refuses to hire an individual, discharges an individual, or discriminat es in any other manner against an individual in connection wit h com pensation or the terms, conditions, or privileges of employment; or (2) l imit s, segregates, or classifies an employee or applicant for employment in a manner th at would deprive or tend to deprive an individual o f any employment opportunity or adversely affect in any other manner the status of an employee. The statute does not protect against an employer’s preference to only retain employees wit h bilingual language skills. But Church’s primary complaint against his former employer, and the predominate theme in this appeal, regard Kare’s decision to replace non-Spanish speaking employees wit h bilingual English-Spanish speaking sales representative. In reviewing claims under section 21.051, the court may consider Ti tle VII provi sio ns and
cases int erpreting the federal statute. City of Austin v. Gifford , 824 S.W.2d 7 35, 7394

(Tex.App.-Austin 1992, no writ). In Garcia v. Gloor, the court examined a com pany pol icy th at limit ed it s employees to speaking English on the work sit e. 618 F.2d at 266. The Fifth Circuit held t hat “[n]either the statute [Ti tle VII] nor com

mo n understanding equates national origin with the language th at one chooses to speak. Language may be used as a covert basis for national origin discriminat io n, but the English-only rule was not applied to Garcia [the plaint iff] by Gloor eit her to this end or wit h this result.” I d. at 268. This court further warned that “national origin must not be confused wit h ethnic or sociocul tural trai ts or an unrelated status, such as cit izenship or alienage, or poverty , or wit h activit ies not connected wit h national origin, such as labo r agitation.” Id. at 269. Similar t o Gloor, Kare sought to employ bilingual sales representatives based on a business need

-- the com

pany’s custom

er base was com

posed of mo stl

y Spanish-speaking households. I d. at 267 (noting th at the employer of fered valid business reasons to justify the English-only rule); see also Vasquez v. Mc

Allen Bag & Supply Co. , 660 F.2d 686, 688 (5th Cir. 1981) (same). In this case, Church fails to of

fer any evidence th at Kare im plemented i

ts bilingual language requirement as a pretext fo r unlawful discriminat io n. To the contrary , Kare provided company sponsored Spanish
courses. And under the new policy, everyone, no matter what their race, ethnicity, or national origin, needed to know Spanish to fulfill the jo b requirements; and native Spanish speakers needed to know English to fulfill the jo b requirements. Conclusion For the above stated reason, we affirm the district court’s j udgment to dismiss Church’s allegations of race and national origin discrimination for failure to state a claim.