IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

VICTORIA VAXTER, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00365-O-BP

 §

UPS, § 

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Before the Court are the Rule 12(b)(6) Motion to Dismiss and Brief in Support filed by 

Defendant United States Postal Service (“UPS”) September 14, 2022 (ECF No. 14); Defendant 

Victoria Vaxter’s responses to UPS’s Motion (ECF Nos. 18, 19) filed on September 23, 2022; and 

UPS’s Reply to the Motion, filed on October 7, 2022 (ECF No. 21). After considering the pleadings 

and applicable legal authorities, the undersigned RECOMMENDS that United States District 

Judge Reed O’Connor GRANT the Motion and DISMISS this case with prejudice.

I. BACKGROUND

Vaxter was an employee at UPS from June 2018 to January 2019, where she worked as a 

“package car driver.” ECF No. 10 at 6. During that time, Vaxter alleges that she was paid less than 

other drivers, and that she even went a month without getting paid. ECF No. 8 at 10. She also 

alleges that she hurt her foot on the job, and though she told her supervisor and was wearing a boot

because of the injury, her supervisor denied her accommodations. Id. Finally, Vaxter alleges that 

her manager made derogatory comments about her while she was employed. ECF No. 10 at 7. As 

a result, Vaxter alleges violations of Title VII of the Civil Rights Act of 1964 (“Title VII’), the 

Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act 

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(“GINA”), the Age Discrimination in Employment Act (“ADEA”), and the Equal Pay Act 

(“EPA”). ECF No. 8 at 3, 4. 

Vaxter has attempted to bring these claims against UPS several times prior to filing this 

lawsuit. She filed a workers’ compensation retaliation lawsuit against UPS in state court on 

January 4, 2021, but nonsuited the case on August 17, 2021, without explanation. ECF No. 14 at 

2; ECF No. 14-1 at 3, 10. On June 11, 2021, while the state court action was pending, she filed 

suit in this Court. ECF No. 10 at 15; ECF No. 14 at 2; ECF No. 14-1 at 13; Civil Action No. 4:21-

cv-00738-Y. Senior United States District Judge Terry R. Means ordered Vaxter multiple times 

to file an amended complaint that stated her allegations with greater specificity and in accordance 

with the local rules (ECF No. 14-1 at 16-17, 19), but when Vaxter responded with a complaint that 

did not comply with the rules (id. at 21-22), Judge Means sua sponte dismissed the case without 

prejudice for failing to comply with the Court’s orders. Id. at 24-25, 27. 

On November 3, 2021, Vaxter filed another complaint in this Court against UPS 

demanding $2.5 million for violations of Title VII and the ADA. ECF No. 10 at 15; ECF No. 14 

at 2; ECF No. 14-1 at 29; Civil Action No. 4:21-cv-01214-Y. Judge Means was the presiding judge 

in that case as well. When Vaxter had not provided proof of service within 90 days of filing suit, 

Judge Means ordered her to do so. ECF No. 14-1 at 35, 37. Vaxter did not provide proper proof of 

service, and Judge Means again sua sponte dismissed her suit “for failure to prosecute her claims 

and to comply with the Court’s orders” under Federal Rule of Civil Procedure 41(b). Id. at 39-40, 

42. Vaxter filed this suit five weeks later. ECF No. 1.

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II. LEGAL AUTHORITIES 

A. 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of complaints that fail to state 

a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To state a viable claim for relief, 

a complaint must include sufficient factual allegations “to raise a right to relief above the 

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 

12(b)(6) motion, courts must “take all well-pleaded facts as true, viewing them in the light most 

favorable to the plaintiff ... and ask whether the pleadings contain ‘enough facts to state a claim to 

relief that is plausible on its face.’” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th 

Cir. 2016) (citing Twombly, 550 U.S. at 547). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

B. Pro Se Parties

The Court subjects a pro se party's pleadings to less rigid analysis than those of a party 

represented by counsel. “[A] pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less 

stringent standards than formal pleadings drafted by lawyers.’” Estelle v. Gamble, 429 U.S. 97, 

106 (1976). However, “even a liberally-construed pro se ... complaint must set forth facts giving 

rise to a claim on which relief may be granted.” Levitt v. Univ. of Texas at El Paso, 847 F.2d 221, 

224 (5th Cir. 1988) (citing Bounds v. Smith, 430 U.S. 817, 825–26 (1977)). Thus, a court inquires 

“whether within the universe of theoretically provable facts there exists a set which can support a 

cause of action under [the] complaint, indulgently read.” Covington v. Cole, 528 F.2d 1365, 1370 

(5th Cir. 1976).

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III. ANALYSIS

A. The applicable statutes of limitation bar Vaxter’s claims.

A statute of limitations may support dismissal under Rule 12(b)(6) when it is evident from 

the plaintiff's pleadings that the action is barred, and the pleadings fail to raise some basis for 

tolling or avoidance of the bar. Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003). Liberally 

construed, Vaxter’s Amended Complaint (ECF No. 8) and Response to the Court’s Questionnaire 

(ECF No. 10) unquestionably show that Vaxter’s claims are time-barred. Further, Vaxter does not 

allege any facts to support tolling of the statutes of limitation or other relief from the bar. 

i. Vaxter’s EPA claim is untimely.

Violations of the EPA are subject to a two-year statute of limitations, with a three-year 

limitations period for “willful violations.” 29 U.S.C. § 255(a). Even assuming that Vaxter could 

establish a “willful violation” under the EPA, the statute of limitations still bars her claim. Vaxter’s

last day of employment with UPS was in January 2019, but she did not file this case until April 

29, 2022. ECF Nos. 10 at 6, 1. She did not raise the EPA claim until her amended complaint, which 

she filed May 9, 2022. ECF No. 8 at 4. See e.g., Jones v. Fed. Exp. Corp., 145 F.3d 359 (5th Cir. 

1998) (no relation back where original complaint contained no factual allegations related to laterraised claim). Therefore, because she asserted her EPA claim over three years after her 

employment with UPS ended, the statute of limitations bars that claim. 

ii. Vaxter’s other claims are time-barred because she did not file suit 

within ninety days of receiving a right to sue letter from the EEOC.

Vaxter had ninety days after receiving her right to sue letter from the Equal Employment 

Opportunity Commission (“EEOC”) to file suit against UPS for violation of Title VII, the ADA, 

GINA, and the ADEA. See 42 U.S.C. § 2000e-5(f)(1) (ninety-day deadline for Title VII claims); 

42 U.S.C. § 12117(a) (ninety-day deadline for ADA); 42 U.S.C. § 2000ff-6(a)(1) (incorporating 

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the Title VII administrative scheme and deadlines to GINA claims); and 29 U.S.C. § 626(e) 

(ninety-day deadline for ADEA claims). Vaxter received her right to sue letter from the EEOC on 

June 7, 2021. ECF No. 8 at 10. She did not file suit on these claims until April 29, 2022, over 10 

months after she received the right to sue letter and over three years after she left UPS’s employ. 

Therefore, the statutes of limitation bar her claims brought under Title VII, the ADA, GINA, and 

the ADEA. 

iii. Vaxter has not pleaded facts to support tolling of the statutes of limitation.

Vaxter alleges that this suit is still timely because she previously filed these claims with 

this Court within the appropriate statute of limitations. ECF No. 10 at 15. Judge Means dismissed 

Vaxter’s two previous suits without prejudice. ECF No. 14-1 at 27, 42. “A court’s order dismissing 

a suit without prejudice leaves the plaintiff in the same position as if the first suit had never been 

filed.” Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995). Consequently, the dismissal of 

a timely filed complaint does not toll the ninety-day limitations period for a subsequent suit. See 

Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (holding that “[i]f a Title VII

complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely

filing of the complaint does not toll the ninety-day limitations period”); see also Price v. Digital 

Equipment Corp., 846 F.2d 1026, 1027 (5th Cir.1988) (holding a second Title VII lawsuit timebarred following first lawsuit being dismissed for failure to prosecute). The fact that Vaxter filed 

previous lawsuits in this Court within the statutes of limitation does not toll limitations for this 

suit. 

Likewise, Vaxter’s claims are not subject to the equitable tolling exception. The doctrine 

of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations 

would be inequitable. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). Equitable 

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tolling applies principally where the plaintiff is actively misled by the defendant about the cause 

of action or is prevented in some extraordinary way from asserting her rights. Rashidi v. American 

President Lines, 96 F.3d 124, 128 (5th Cir.1996). Vaxter has not alleged any facts to show that 

UPS actively misled her about the causes of action in her case or prevented her in some way from 

asserting her rights. Therefore, Vaxter’s claims are not tolled under the equitable tolling exception. 

B. Vaxter did not exhaust her pre-suit administrative remedies for her Title VII, 

GINA, and ADEA claims. 

To satisfy the administrative exhaustion requirement, a claim generally must arise out of 

the plaintiff's EEOC charge of discrimination. Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337 (5th 

Cir. 2021). That requirement relates to a key purpose of an employment discrimination charge, 

which is to give the employer notice of the existence and general substance of the discrimination 

allegations. See Manning v. Chevron Chem. Co., 332 F.3d 874, 878 (5th Cir. 2003). In her EEOC 

charge, Vaxter alleged only disability discrimination and retaliation in violation of the ADA. ECF 

No. 14-1 at 44. She did not raise any other claims in the charge, nor any facts that would put UPS 

on notice of other claims. Id. Thus, since Vaxter’s EEOC charge contains no facts or allegations 

regarding the Title VII, GINA, or ADEA violations, Judge O’Connor should dismiss those claims 

as unexhausted. 

C. The Court should dismiss Vaxter’s claims with prejudice.

Because courts prefer to decide cases on their merits rather than technicalities, Rule 12 

dismissals such as the one recommended here ordinarily are without prejudice. See Great Plains 

Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002). However, 

dismissal with prejudice is appropriate when a plaintiff could not successfully bring her claim even 

if given the opportunity to amend it and fix its facial deficiencies. Stem v. Gomez, 813 F.3d 205, 

215–16 (5th Cir. 2016). Vaxter’s claims against UPS in this case all are time-barred. Vaxter has 

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amended her complaint, but further amendment would be futile since the relevant statutes of 

limitation bar her claims. Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 566 (5th Cir. 2003). 

Because she cannot successfully bring a claim even if given the opportunity file another amended 

complaint, the Court should dismiss her claims with prejudice. Id. However, if Judge O’Connor 

dismissed Vaxter’s claims against UPS under Title VII, GINA, or the ADEA solely because she 

did not exhaust her administrative remedies, those claims should be dismissed without prejudice. 

Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996); Cruce v. Brazosport Indep. Sch. 

Dist., 703 F.2d 862, 863-64 (5th Cir. 1983).

IV. CONCLUSION

Because the applicable statutes of limitation bar Vaxter’s claims, Vaxter has not pleaded 

facts to support tolling of those statutes, and further amendment of her amended complaint would 

be futile, the undersigned RECOMMENDS that United States District Judge Reed O’Connor 

GRANT UPS’s Motion to Dismiss (ECF No. 14) and DISMISS this case with prejudice. 

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within 14 days after being served with 

a copy. See 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1). In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, 

and recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

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court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996) (en banc).

SIGNED on December 22, 2022.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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