IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MAISHA SYKES, §

 §

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00794-O-BP

 § 

AMERICAN AIRLINES, §

 §

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 American Airlines (“American”) on October 31, 2022 (ECF No. 29); Response to the

Motion filed by Plaintiff Maisha Sykes (“Sykes”) on December 9, 2022 (ECF No. 37); and 

American’s Reply to the Motion, filed on December 12, 2022 (ECF No. 38). 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

Sykes, an African American woman, was employed as a flight attendant for American until 

her termination on November 11, 2019. ECF No. 3 at 7. Sykes alleges that on June 29, 2019, while 

flying back to Dallas, flight attendant Rhonda Curtwright (“Curtwright”), a Caucasian woman,

said to her, “I don’t know why American hires you people,” and “I don’t understand you people.”

Id. at 8. Sykes reported the comments to her supervisor and union representative on the same day. 

Id. at 7-8; ECF No. 8 at 53-54. At some time between mid-August and early-September 2019, 

Sykes met with her supervisor, union representative, and Flight Service Manager Victor Rendon

(“Rendon”) to discuss the discriminatory statements further. Id. at 8. At that time, Rendon 

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informed Sykes that another flight attendant had reported that she was “dangerous” and “angry.”

Id. Rendon revoked Sykes’s employee badge pending further investigation and, on November 11,

2019, American terminated Sykes’s employment. Id. 

On October 21, 2020, Sykes filed a Charge of Discrimination with the Fort Worth Human 

Relations Commission and with the Equal Employment Opportunity Commission (“EEOC”). ECF 

No. 8 at 81-83. Sykes alleged that American discriminated against her because of her race and 

retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the 

Texas Commission on Human Rights Act (“TCHRA”). ECF No. 3 at 7. After receiving her rightto-sue letter from the EEOC, Sykes filed this case in the Dallas Division of the Court on May 17, 

2022. Id. at 2; ECF No. 1. Her case was then transferred to the Fort Worth Division on September 

6, 2022. ECF Nos. 18. American moved to dismiss Sykes’s case, and its Motion is now ripe for 

review. 

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 

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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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).

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).

III. ANALYSIS

A. Sykes’s Title VII claim is time-barred. 

Before a plaintiff can sue in federal court for violations of Title VII, she must first file a 

timely charge with the EEOC, or with a state or local agency with authority to grant or seek relief 

from the alleged unlawful employment practice. Dao v. Auchan Hypermarket, 96 F.3d 787, 788 

(5th Cir. 1996). A plaintiff must file a complaint with the EEOC within 180 days of the alleged 

incident of discrimination or risk dismissal of her claims. Chappell v. Emco Mach. Works Co., 601 

F.2d 1295, 1304 (5th Cir. 1979) (holding that because plaintiff did not file a complaint with the 

EEOC within 180 days, her suit was time barred under 42 U.S.C. s 2000e-5(e) and was properly 

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dismissed for want of jurisdiction). However, if the discriminatory practice occurred in a state with

a fair employment agency that grants relief, Title VII permits the complainant to file her charge 

with the state or local agency. Fort Bend Cnty., Texas v. Davis, 139 S. Ct. 1843, 1846 (2019). The 

complainant then has 300 days following the challenged practice, or 30 days after receiving notice 

that state or local proceedings have ended, whichever is earlier, to file a charge with the EEOC.

Id. 

Proper administrative exhaustion is not a technicality or procedural “gotcha,” but rather an 

integral due process protection that affords defendants fair notice of potential claims. McClain, 

519 F.3d at 272. A plaintiff must exhaust her available remedies “before seeking judicial relief” 

Id. at 273. A plaintiff’s pro se status does not alter the analysis or otherwise turn this requirement 

into a suggestion. Cruce, 703 F.2d at 863; Taylor, 296 F.3d at 378-79; see Taylor v. U.S. Treasury 

Dep’t, 127 F.3d 470, 478 (5th Cir. 1997).

American terminated Sykes on November 11, 2019, which is the last date of any possible 

discriminatory conduct against Sykes by American. ECF No. 3 at 8. Because the alleged incident 

occurred in Texas, which has a state fair employment agency that grants relief to remedy 

employment discrimination, Sykes had until September 6, 2020, to file a complaint with the 

EEOC. See Mennor v. Fort Hood Nat. Bank, 829 F.2d 553, 554-55 (5th Cir. 1987) (holding that 

the Texas Commission on Human Rights [now the Texas Workforce Commission] is a state 

agency with authority to grant relief for unlawful employment practices). Sykes, however, did not 

file a proper Charge of Discrimination with the EEOC until October 21, 2020, 345 days after any 

alleged discriminatory act could have occurred. ECF No. 8 at 81. Therefore, Sykes’s Title VII 

claim is time-barred absent any tolling exceptions. 

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Equitable tolling is to be applied “sparingly.” Granger v. Aaron's, Inc., 636 F.3d 708, 712 

(5th Cir. 2011) (citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). The 

plaintiff has the burden to provide justification for the tolling. Id. The Fifth Circuit has described 

three bases for equitable tolling. Id. A plaintiff may show the pendency of a suit between the same 

parties in the wrong forum, the plaintiff's unawareness of the facts giving rise to the claim because 

of the defendant's intentional concealment of them, or the EEOC's misleading the plaintiff about 

the nature of her rights. Id. This list, however, is not exhaustive and leaves the door open for a 

court to recognize other exceptions. Id. Additionally, the Court is “more forgiving when a claimant 

or her attorney has exercised due diligence in pursuing her right.” Id. 

Sykes filed a Notice of EEOC Inquiry, Notice of Filing Charge of Discrimination 

Documents, and Notice of Proof of Timeliness on December 30, 2022. ECF Nos. 44-46. Given 

Sykes’s pro se status, the Court considers these filings as part of her response to the Motion. The 

documents show that Sykes initially tried to file a charge with the EEOC in a timely manner. Sykes 

first filed a Charge of Discrimination on July 14, 2020, with the EEOC’s Dallas office, which 

transferred her claim because Sykes worked at a building that was within the Fort Worth city limits 

and told her attorney to refile in Fort Worth. ECF No. 46 at 5, 6. Despite the warning, Sykes once 

again re-filed her Charge of Discrimination with the Dallas EEOC office on August 26, 2020. Id.

at 5, 6, 13. The Dallas EEOC office again communicated with Sykes’s attorney on August 27, 

2020, to notify her that it had already transferred Sykes’s case to the Fort Worth EEOC office and 

directing her to re-file Sykes’s charge in Fort Worth. Id. at 5, 6.

The EEOC office closest to where the discrimination occurred investigates an employee’s 

charge of discrimination. How to File a Charge of Employment Discrimination, U.S. Equal 

Employment Opportunity Commission, https://www.eeoc.gov/how-file-charge-employment-disCase 4:22-cv-00794-O Document 49 Filed 02/14/23 Page 5 of 11 PageID 336
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crimination (last visited February 7, 2023). However, despite being told multiple times through 

her attorney that she needed to re-file her Charge of Discrimination with the Fort Worth office, 

Sykes waited until October 21, 2020, to re-file her case in Fort Worth, almost two months after the 

Dallas EEOC officer told her to bring her claim there. These facts do not show an extraordinary 

reason to support equitable tolling or that events outside of her control caused Sykes to not file her 

discrimination charge in a timely fashion. Absent such a showing, equitable tolling is not 

warranted. Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 256-57 (2016); Teemac 

v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002). 

The undersigned is aware of only one federal case in which the court tolled the statute of 

limitations after the plaintiff filed a complaint in the wrong government office. See Butler v.

Schapiro, 839 F. Supp. 2d 252, 256 (D.D.C. 2012). In Butler, the plaintiff filed his complaint with 

the wrong government office. Id. However, upon discovery of the mistake, he promptly refiled the 

complaint with the correct office the next day. Id. The court found that the statute of limitations 

was equitably tolled because the plaintiff acted swiftly to correctly file the complaint as soon as 

he discovered the error. Id. 

Unlike the short period of time in Butler, Sykes waited two months after the EEOC notified 

her of the error to refile her charge. Thus, while Sykes initially began to diligently pursue her 

rights, the lag in time between when the office notified her of her filing error and when she filed a 

proper charge demonstrates that she did not exercise due diligence in preserving her legal rights.

The Court finds no other exceptions that would justify tolling the filing requirement, and therefore

Sykes’s Title VII claim is time-barred. 

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

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

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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). Sykes’s claims against American are time-barred, and any further 

amendments would be futile. Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 566 (5th Cir. 

2003). Thus, because Sykes cannot successfully bring a claim even if given the opportunity to 

amend her complaint, the Court should dismiss her Title VII claim with prejudice.

B. Sykes’s TCHRA claim is time-barred.

To state a claim under the TCHRA, a plaintiff must file a charge of discrimination with the 

EEOC or the TCHR within 180 days after the alleged unlawful employment action. Pegram v. 

Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004). Similar to Title VII, the TCHRA limitations 

period is “mandatory and jurisdictional” under Texas law. Id.; see also Specialty Retailers, Inc. v. 

DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996). Therefore, Sykes had until May 9, 2020, to file 

a TCHRA claim. Sykes, however, did not file any Charge of Discrimination with the Fort Worth 

Human Relations Commission until October 21, 2020, 165 days after the deadline for filing a claim 

under TCHRA deadline. ECF No. 8 at 81. Sykes has provided no reason or explanation while the 

Court should toll this deadline. Therefore, Sykes’s TCHRA claim is time-barred and should be 

dismissed with prejudice as she cannot cure this defect. 

C. Sykes did not state a Title VII discrimination claim. 

Even if Sykes had filed her claims timely, she has not pleaded her discrimination claim 

with sufficient specificity. Although the plaintiff does not have to offer evidence to establish a 

prima facie case of discrimination at this stage, she must plead sufficient facts on all of the ultimate 

elements of a disparate treatment claim to make her case plausible. Chhim v. Univ. of Texas at 

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Austin, 836 F.3d 467, 470 (5th Cir. 2016); Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013). 

In evaluating the plausibility of a claim, the Court uses the McDonnell Douglas framework. 

Chimm, 836 F.3d at 470; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under 

McDonnell Douglas, the plaintiff must show that she is a member of a protected group, was 

qualified for the position at issue, was discharged or suffered some adverse employment action by 

the employer, and was replaced by someone outside her protected group or was treated less 

favorably than other similarly situated employees outside the protected group. McCoy v. City of 

Shreveport, 492 F.3d 551, 556 (5th Cir. 2007). 

American does not dispute that Sykes is a member of a protected group since she is an 

African American woman or that it terminated her employment. Sykes alleges that she was 

qualified for the position at issue, stating that she worked ten years in aviation and received over 

fifty “Above and Beyond” certificates for customer service. ECF No. 8 at 18. American fired 

Sykes, which was an adverse employment action. However, Sykes has not pleaded facts to show 

that someone outside her protected group replaced her or that she was treated less favorably than 

other similarly situated employees outside the protected groups. Her only attempt to show unequal

treatment is her allegation that Curtwright faced no negative consequences as a result of her racist 

comments. ECF No. 3 at 9; ECF No. 12 at 21. Standing alone, this allegation is not enough to 

show disparate treatment.

Moreover, Sykes did not plead that American had any discriminatory intent or racial 

animus when firing her. While she repeatedly argued that Curtwright discriminatorily referred to 

her as “you people.” (ECF No. 3 at 8), Sykes did not plead any facts to show that American fired 

her due to the same sort of discriminatory animus. Simply stating in conclusory fashion that “the 

Company has consistently sided with Anglo-Caucasian perpetrators of racially discriminatory 

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actions against Sykes” without pleading any supporting facts does not establish American’s

discriminatory intent. ECF No. 3 at 9. Thus, Sykes’s assertions that American fired her because of 

her race are conclusory and speculative and do not state a plausible employment discrimination 

claim. 

D. Sykes has not sufficiently pleaded a claim for Title VII retaliation. 

At the Motion to Dismiss stage, a plaintiff must plead sufficient facts on all of the ultimate 

elements of a Title VII retaliation claim to make her cause plausible. Jenkins v. La. Workforce 

Comm'n, 713 F. App'x 242, 244, 245 (5th Cir. 2017). Under Title VII, retaliation occurs when a 

plaintiff participated in an activity protected by Title VII, her employer took an adverse 

employment action against her, and a causal connection exists between the protected activity and 

the adverse employment action. McCoy, 492 F.3d at 556-57.

Sykes alleges that American fired her for reporting the discrimination that she faced. ECF 

No. 3 at 9. Thus, the Court assumes, given Sykes’s pro se status, that the protected activity she 

alleges is reporting Curtwright’s “you people” comments to her union representative. Id. at 8. 

However, engaging in a protected activity means opposing a practice that Title VII makes 

unlawful. Scott v. U.S. Bank Nat'l Ass'n, 16 F.4th 1204, 1209 (5th Cir. 2021). Complaining about 

something that is not an unlawful employment practice is not sufficient. Sanders v. City of Fort 

Worth, No. 4:16-CV-1153-A, 2017 WL 1102709, at *3 (N.D. Tex. 2017). 

A co-employee’s “you people” comment is not inherently discriminatory without 

additional facts to show American’s racial bias. Stone v. Par. of E. Baton Rouge, 329 F. App'x 

542, 546 (5th Cir. 2009). Sykes, however, has not pleaded any facts surrounding the incident to 

suggest that American had a racial bias against her. Her initial complaint merely stated that 

Curtwright referred to Sykes as “you people.” ECF No. 3 at 8. In her response to the Court’s 

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Questionnaire, Sykes offered additional evidence that she met with Tim McMahon, one of the 

American employees who eventually decided to fire her, who stated that he did not see anything 

wrong with Curtwright’s “you people” comment. ECF No. 12 at 21. Sykes then asserted that 

McMahon stopped another American employee from disagreeing with him on this issue. Id. 

However, these facts are not enough to link American’s termination of her employment to any 

action regarding those comments. Therefore, despite her termination from employment, Sykes has 

not pleaded facts to show that she engaged in a protected activity, to link a protected activity to 

her termination, and to state a Title VII retaliation claim with sufficient specificity. 

IV. CONCLUSION

Sykes neither filed a timely Charge of Discrimination with the EEOC or Texas Workforce 

Commission nor pleaded a sufficient Title VII discrimination or retaliation claim. Thus, after 

considering the pleadings and applicable legal authorities, and noting that any amendment of 

Sykes’s pleadings would be futile, the undersigned RECOMMENDS that United States District 

Judge Reed O’Connor GRANT American Airlines’ Motion to Dismiss (ECF No. 29) 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 fourteen days after being served 

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). To be specific, an objection must 

identify the particular 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 

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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 court, except 

upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th 

Cir. 1996) (en banc).

SIGNED on February 14, 2023. 

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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