IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CLIFFORD BROWN, §

§

 Plaintiff, §

§

V. § CASE NUMBER: 7-03CV-205-R

§

DON PETERSON and NORTH CENTRAL §

TIRE SERVICE, INC., §

§

 Defendants. §

DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS

D. D’Lyn Davison

Texas Bar No. 05590800

Davison Rugeley & Spurgers, L.L.P.

900 Eighth Street, Suite 1102

P. O. Box 99

Wichita Falls, Texas 76307

Telephone: (940) 766-1388

Facsimile: (940) 766-5396

Attorneys for Defendants Don Peterson 

and North Central Tire Service, Inc.

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 1 of 17 PageID 225
-iTABLE OF CONTENTS

I. Introduction ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 6

II. Factual Background ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 7

III. Standard of Review ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9

Rule 12(b)(1) Dismissal for Lack of Subject Matter Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 9

Rule 12(b)(6) Dismissal for Failure to State a Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Argument ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 11

A. Brown Failed to Exhaust is Administrative Remedies under Title VII Prior to Filing

this Action Regarding His Retaliation Claim and Claims Against Don Peterson . . 12

B. Plaintiff’s Complaint Regarding Denial of Pay Raise and Termination Must Be

Dismissed Because This Court Lacks Subject Matter Jurisdiction Over Plaintiff’s

Action Because Plaintiff Failed To File His Action On These Claims In The Time

Allowed By Title VII ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 14

C. Plaintiff Has Failed To State A Cause Of Action For Which Relief May Be Granted

On His Harassment/Hostile Work Environment Claims . . . . . . . . . . . . . . . . . . . . . 15

V. Conclusion ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 17

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 2 of 17 PageID 226
-iiTABLE OF AUTHORITIES

Cases

Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir.1986) . . . . . . . . . . . . . . . . . . . 13

Alexander v. Gardner-Denver Company, 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 13

Bank One Texas v. United States, 157 F.3d 397, 403 (5th Cir.1998) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Barnes v. Levitt, 118 F.3d 404, 408 (5 Cir. 1997) ... ... ... ... ... ... ... ... ... ... ... ... .

th 12

Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1839, 140

L.Ed.2d 1090 (1998) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 13

Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996) . . . . . . . . . . . . . . . . . . . . . 10

Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.1992) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001) . . . . . . . . . . . . . . . 15, 16

Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994) ... ... ... ... ... ... ... ... ... ... ... ... 11

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) . . . . . . . . . . . . . . . . . . . . . 10

Dollis v. Rubin, 77 F.3d 777, 781 (5 Cir. 1980) ... ... ... ... ... ... ... ... ... ... ... ... ...

th 12

Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir.1989) ... ... ... ... ... ... ... ... ... ... ... ... . 11

Faragher, 524 U.S. at 786-87, and n. 1, 118 S.Ct. 2275 ... ... ... ... ... ... ... ... ... ... ... ... 16

Felton v. Polles, 315 F.3d 470, 485 (5th Cir.2002) ... ... ... ... ... ... ... ... ... ... ... ... . 16

Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003) ... ... ... ... ... ... ... ... ... ... ... 15

Griffin v. the City of Dallas, 26 F.3d 610, 613-13 (5 Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .

th 12

Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) . . . . . . . . . . . . . . . 16

Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 3 of 17 PageID 227
-iiiHome Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998)

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 10

Johnson v. Bergland, 614 F.2d 415, 417 (5 Cir. 1980) ... ... ... ... ... ... ... ... ... ... ... .

th 12

Lee v. Kroger Co., 901 F.Supp. 1218, 1224 (S.D.Tex.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Maddox v. Runyon, 139 F.3d 1017, 1021 (5th Cir.1998) ... ... ... ... ... ... ... ... ... ... ... 15

Nat'l Ass'n of Gov't Employees v. City Public Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th

Cir.1994) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 12

National Association of Government Employees v. City Public Service Board of San Antonio, Texas,

40 F.3d 698, 711 (5th Cir.1994) (citation omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 10, 122 S.Ct. 2061, 153 L.Ed.2d

106 (2002) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 16

Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 497-98 (5th Cir.1968) . . . . . . . . . . . . . . . . 13

Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir.1996) . . . . . . . . . . . . . . . . . . . . . . 11

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002) ... ... ... ... ... ... ... ... ... ... ... . . 16

Septimus v. University of Houston, 399 F.3d 601, 611 (5th Cir.2005) . . . . . . . . . . . . . . . . . . . . . . . 15

Taylor v. Books a Million, 296 F.3d 376, 379 (5 Cir. 2002) ... ... ... ... ... ... ... ... ... .

th 8, 15

Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir.1992) . . . . . . . . . . . . . . . . . 11

Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir.2000) . . . . . . . . . . . . . . . . 12

Tolbert v. United States of America, 916 F.2d 245 (5 Cir. 1990) ... ... ... ... ... ... ... ... . .

th 11

United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) . . . 13

Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000) ... ... ... ... ... ... ... ... ... ... ... . 16

Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999) ... ... ... ... ... ... ... ... ... ... ... . 16

Williamson v. Tucker, 645 F.2d 404, 413 (1981) ... ... ... ... ... ... ... ... ... ... ... ... ... . 10

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 4 of 17 PageID 228
-ivRules

Fed. R. Civ. P. 12(h)(3) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 9

Fed. R. Civ. P. 12 ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 6

Fed. R. Civ. P. 12(b)(6) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6, 10, 11

Fed. R. Civ. P. 12(b)(1) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 6, 9, 10

Statutes

29 C. F. R. §§ 1601.28(b)(1)(i) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 15

29 C.F.R. §§ 1601.28(a)(3) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 14

42 U.S.C. § 2000e ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 6, 11

42 U.S.C. § 2000e-5(e) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . . 12

42 U.S.C. § 2000e-5(e)(1) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12

42 U.S.C. § 2000e-5(f) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 6, 14

42 U.S.C. § 2000e-5(f)(1) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 12, 15

42 U.S.C. §§ 2000e-5(e) ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... . 13

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 5 of 17 PageID 229
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CLIFFORD BROWN §

 Plaintiff, §

§

V. § CASE NUMBER: 7-03CV-205-R

§

DON PETERSON and NORTH CENTRAL §

TIRE SERVICE, INC. §

 Defendants. §

DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE SERVICE, INC.’S

BRIEF IN SUPPORT OF MOTION TO DISMISS

Don Peterson and North Central Tire Service, Inc., (“Defendants”), respectfully file their Brief

in Support of Motion to Dismiss and move this Court pursuant to Rule 12, 12(b)(1) and (6) of the

Federal Rules of Civil Procedure for an order dismissing the racial discrimination and retaliation

complaints of Plaintiff Clifford Brown (“Brown”) with prejudice on the grounds that Plaintiff failed to

timely exhaust his administrative remedies, that he failed to file a complaint within the statutory period

required by 42 U.S.C. § 2000e-5(f), and that he failed to plead all of the essential elements of his prima

facie case of racial harassment/hostile work environment.

I. Introduction

Defendants move to dismiss Plaintiff’s Amended Complaint as this Court lacks subject matter

jurisdiction over Plaintiff’s discrimination and retaliation claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq in that Plaintiff failed to file an administrative action with the Equal

Employment Opportunity Commission (“EEOC”) alleging retaliation; failed to allege any discriminatory

conduct on the part of Don Peterson; and failed to commence his civil action against Defendants within

the ninety (90) day time period required under 42 U.S.C. § 2000e-5(f) with regard to his denial of pay

raise and termination claims.

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 6 of 17 PageID 230
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 2 of 12

Additionally, Defendants move to dismiss Plaintiff’s harassment/hostile work environment claim

because Plaintiff failed to allege the essential elements of his prima facie case.

II. FACTUAL BACKGROUND

On April 25, 2002, Brown filed a charge of discrimination with the Equal Employment

Opportunity Commission. Brown’s charge was given a “Charge Number” of 310A201863. (Exhibit

“A”). In the section entitled “cause of discrimination based on,” only the block “race” was checked.

On May 12, 2002, Brown amended his charge of discrimination. This charge retained the same “charge

number” but was designated as “Amended.” In the amended charge, “race” was the only cause of

discrimination identified. (Exhibit “B”).

Brown’s charge of discrimination alleged, inter alia, that he was terminated for asking for a raise

and that non-black employees received raises to bring their salaries up to the level of black employees;

that black employees were treated differently than non-black employees because they were terminated

without receiving three write-ups; and that he was accused of stealing tires. Brown also complained that

he was subjected to racial slurs by two co-workers at North Central Tire and that a hangman’s noose was

placed in the workplace by another co-worker. In summary, Brown charges that he was discriminated

against based on his race, black. (See Exhibits “A” and “B”).

Brown did not allege a claim for retaliation in his original Charge or Amended Charge. The only

individuals listed in the complaint and amended complaint were Rick Stone and Bobby (LNU). Neither

the original nor the amended charge of discrimination lists Don Peterson as a party against whom a

charge of racial discrimination is being made. Further, the charge of discrimination and the amended

charge does not contain Peterson’s name or any description of alleged discriminatory acts performed by

Peterson within such charges. Further, there was no right to sue letter issued to the Plaintiff against

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 7 of 17 PageID 231
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 3 of 12

Peterson, nor was suit filed within the time periods required by Title VII even if a charge was presumed

to exist against him. 

On September 9, 2002, the EEOC sent a Dismissal and Notice of Rights closing its file and

stating that it was unable to conclude that the information established violations of the statute. (Exhibit

“C”). On October 8, 2002, the EEOC, after Brown notified upper administrative personnel of the EEOC

of his disagreement with the dismissal, the EEOC rescinded Brown’s right to sue on the hostile work

environment issue. (Exhibit “D”).

On April 21, 2003, the EEOC gave Brown the right to sue on the discrimination charge related

to the raises and termination issues (all claims other than the hostile work environment). (Exhibit “E”).

The letter specifically states that Brown as the charging party, had ninety (90) days from the receipt of

the letter of determination to file against the Respondent(s) named in the charge in Federal District Court

on the issues related to the denial of a pay raise and termination of employment. The Letter of

Determination is presumed to have been received by Brown on April 24, 2003, three days after the

EEOC mailed the letter. See Taylor v. Books a Million, 296 F.3d 376, 379 (5 Cir. 2002). th

Pursuant to the Letter of Determination which served as Brown’s Notice of Dismissal and

Right to Sue on the discrimination denial of pay raise and termination issues, Brown was required to file

suit against Respondent(s) on or before July 24, 2003 on these claims. Brown did not meet this deadline.

On July 1, 2003, the EEOC issued its Notice of Right to Sue to Brown on the hostile work environment

claim. (Exhibit “F”). 

Brown filed his Original Complaint against Don Peterson and North Central Tire Service, Inc.

alleging racial discrimination and retaliation on October 2, 2003, well after the ninety days limitation

period set forth in Title VII. (See Plaintiff’s Original Complaint). On June 7, 2004, Plaintiff filed his

First Amended Complaint which included a cause of action brought by Brown’s daughter of assault

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 8 of 17 PageID 232
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 4 of 12

against Don Peterson. This claim was subsequently dismissed by the Court. (See Plaintiff’s First

Amended Complaint and subsequent Memorandum and Order entered by the Court on January 13,

2005).

Other than the assault charges against Don Peterson in the Amended Complaint, which were

later dismissed, Brown has alleged no facts supporting a Title VII claim against Don Peterson

individually. Specifically, Brown failed to allege any facts that Don Peterson took any racially

discriminatory or retaliatory action against Brown or participated in any way in creating a hostile work

environment.

As a result of Plaintiff’s failure to file an administrative charge on his claim of retaliation, and

his failure to file a Complaint within 90 days of his receipt of Notice of Dismissal and Right to Sue on

the denial of pay raise claims and termination claims, this Court lacks jurisdiction over these claims.

Plaintiff did not sufficiently plead that the alleged isolated incidents of racially harassing conduct

affected a term, condition or privilege of his employment. Thus, because he had failed to plead an

essential element of his prima facie racial discrimination case, this court should dismiss his

harassment/hostile working environment claim. 

III. STANDARD OF REVIEW

RULE 12(B)(1) DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION

Lack of subject matter jurisdiction may be raised at any time by any party, or by the court sua

sponte. Fed. R. Civ. P. 12(h)(3). Bank One Texas v. United States, 157 F.3d 397, 403 (5th Cir.1998).

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for challenges to the subject matter

jurisdiction of the district court to hear a case. Fed. R. Civ. P. 12(b)(1). Lack of subject matter

jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 9 of 17 PageID 233
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 5 of 12

undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74

F.3d 657, 659 (5th Cir.1996).

The court should consider the Rule 12(b)(1) jurisdictional issues before addressing any attack

on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977). This requirement prevents a

court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal

of a plaintiff's case because the court lacks subject matter jurisdiction is not a determination on the

merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper

jurisdiction. Id .

In examining subject matter jurisdiction under Rule 12(b)(1), the district court is empowered to

consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (1981).

Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears

certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff

to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).

RULE 12(B)(6) DISMISSAL FOR FAILURE TO STATE A CLAIM

Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the 

complaint because it fails to state a legally cognizable claim. Fed. R. Civ. P. 12(b)(6). The test for

determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme

Court as follows: "[A] complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also Grisham v.

United States, 103 F.3d 24, 25-26 (5th Cir.1997).

Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's

complaint be stated with enough clarity to enable a court or an opposing party to determine whether a

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 10 of 17 PageID 234
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 6 of 12

claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir.1989). Further, "the plaintiff's

complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained

therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir.1996).

This is consistent with the well-established policy that the plaintiff be given every opportunity to state

a claim. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977). In other words, a motion to dismiss

an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's

rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137

(5th Cir.1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim,

the district court must examine the complaint to determine whether the allegations provide relief on any

possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994).

IV. ARGUMENT

This Court lacks subject matter jurisdiction over Plaintiff’s retaliation claims, claims against Don

Peterson, and claims related to denial of pay raises and termination of employment. Under Title VII of

the Civil Rights Act of 1964, as Amended, 42 U.S.C. § 2000e et seq, prior to filing an action in federal

court, a Plaintiff must (1) exhaust the administrative remedies under Title VII, and (2) file his action

within the time permitted by Title VII. Tolbert v. United States of America, 916 F.2d 245 (5 Cir. 1990). th

Such actions on the part of a plaintiff are prerequisites to federal subject matter jurisdiction, and a

plaintiff’s failure to comply with either of these requirements wholly deprives a district court of

jurisdiction over a plaintiff’s case. Id. Here, Plaintiff has failed to fulfill these prerequisites as he has

neither exhausted his administrative remedies regarding his retaliation claims and claims against Don

Peterson, nor filed his action within the time permitted by Title VII regarding his denial of pay raise and

termination claims. Accordingly, Plaintiff has deprived the Court of jurisdiction over these claims and

his claims on these issues must be dismissed.

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 11 of 17 PageID 235
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 7 of 12

Additionally, Plaintiff has failed to state a cause of action for which relief may be granted on his

harassment/hostile work environment claim because he did not sufficiently plead that the alleged

isolated incidents of alleged racially harassing conduct affected a term, condition or privilege of his

employment. Thus, because he had failed to plead an essential element of his prima facie racial

discrimination case, this court should dismiss his harassment/hostile working environment claim.

A. BROWN FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER TITLE VII

PRIOR TO FILING THIS ACTION REGARDING HISRETALIATION CLAIM AND CLAIMS

AGAINST DON PETERSON

Under Title VII, 42 U.S.C. § 2000e-5(e), an aggrieved party must file a charge with the EEOC

within 300 days of the date that the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e5(e)(1); Griffin v. the City of Dallas, 26 F.3d 610, 613-13 (5 Cir. 1994). The complainant’s filing of th

this initial charge with the EEOC, and the complainant’s pursuant of all other administrative remedies,

is a jurisdictional requirement to a Title VII action. Barnes v. Levitt, 118 F.3d 404, 408 (5 Cir. 1997) th

(citing Dollis v. Rubin, 77 F.3d 777, 781 (5 Cir. 1980) and Johnson v. Bergland, 614 F.2d 415, 417 (5 th th

Cir. 1980).

A court has no jurisdiction to consider Title VII claims for which the plaintiff has not exhausted

administrative remedies. 42 U.S.C. § 2000e-5(f)(1); Nat'l Ass'n of Gov't Employees v. City Public Serv.

Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir.1994). The scope of a Title VII complaint is limited to the

scope of the charges made in the EEOC complaint and the investigation that might reasonably be

expected to grow out of that complaint. Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395

(5th Cir.2000).

Title VII affords a private right of action to individuals aggrieved by unlawful discrimination in

the workplace but, to preserve their statutory rights, employees must file a charge of discrimination with

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 12 of 17 PageID 236
 300 days in a deferral state. 1

DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 8 of 12

the EEOC "within one hundred and eighty days after the alleged unlawful employment practice 1

occurred." 42 U.S.C. §§ 2000e-5(e); see also Oatis v. Crown Zellerbach Corporation, 398 F.2d 496,

497-98 (5th Cir.1968). "Timely filing is a prerequisite to the maintenance of a Title VII action and the

failure to file within the statutory period will ordinarily operate as a bar to suit." Abrams v. Baylor

College of Medicine, 805 F.2d 528, 532 (5th Cir.1986) (citing Alexander v. Gardner-Denver Company,

415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and United Air Lines, Inc. v. Evans, 431 U.S.

553, 555 n. 4, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977)). A plaintiff's failure to exhaust administrative

remedies deprivesthe court of jurisdiction over Title VII claims. See Barnes v. Levitt, 118 F.3d 404, 408

(5th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1839, 140 L.Ed.2d 1090 (1998); National

Association of Government Employees v. City Public Service Board of San Antonio, Texas, 40 F.3d 698,

711 (5th Cir.1994) (citation omitted).

There is no charge of discrimination which lists Don Peterson as a party against whom a charge

of discrimination is being made. Further, neither the Charge of Discrimination nor the Amended Charge

of Discrimination contains Peterson’s name or any description of alleged discriminatory acts performed

by Peterson within such charge. Further, there was no right to sue letter issued to the Plaintiff against

Peterson, nor was suit filed within the time periods required by Title VII even if a charge was presumed

to exist against him. Additionally, Plaintiff failed to allege retaliation in either his original Charge or

Amended Charge of Discrimination. Because such allegations are not necessarily encompassed in his

discrimination claim or the investigation that could reasonably be expected to arise out of that claim,

the scope of Plaintiff's lawsuit cannot be expanded to include retaliation claims or claims of

discrimination against Don Peterson individually. See Id. at 395; Lee v. Kroger Co., 901 F.Supp. 1218,

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 13 of 17 PageID 237
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 9 of 12

1224 (S.D.Tex.1995) (precluding Plaintiff from maintaining additional charge of racial discrimination

when he only marked the "retaliation" box in his initial EEOC charge and only asserted facts to support

retaliation claim in that charge). Therefore, Plaintiff has failed to exhaust his administrative remedies

for those claims not raised in his EEOC charge. This Court must dismiss, for lack of subject matter

jurisdiction, Plaintiff's complaint of retaliation against both Defendants and all complaints against Don

Peterson.

B. PLAINTIFF’S COMPLAINT REGARDING DENIAL OF PAY RAISE AND TERMINATION

MUST BE DISMISSED BECAUSE THISCOURT LACKS SUBJECT MATTER JURISDICTION

OVER PLAINTIFF’S ACTION BECAUSE PLAINTIFF FAILED TO FILE HIS ACTION ON

THESE CLAIMS IN THE TIME ALLOWED BY TITLE VII

This court lacks subject matter jurisdiction over Plaintiff’s denial of pay raise and termination

claims due to Plaintiff’s failure to comply with the filing requirements of Title VII. 42 U.S.C. § 2000e5(f). Under 42 U.S.C. § 2000e-5(f), a complainant who has filed a charge with the EEOC must file his

civil claim within 90 days of receiving a Notice of Dismissal and Right to Sue from the EEOC. Here,

Plaintiff was issued a Notice of Dismissal and Right to Sue Letter Determination on his denial of pay

raise and termination claims on April 21, 2003. (Exhibit “E). Pursuant to the Letter of Determination

which served as Brown’s Notice of Dismissal and Right to Sue on the discrimination denial of pay raise

and termination issues, Brown was required to file suit against Respondent(s) on or before July 24, 2003

on these claims. Brown filed his Original Complaint against Don Peterson and North Central Tire

Service, Inc. alleging, inter alia, racial discrimination (denial of pay raises to blacks) and retaliation

(termination) on October 2, 2003, well after the ninety days limitation period set forth in Title VII. (See

Plaintiff’s Original Complaint).

A notice of right to sue terminates further EEOC processing of a charge. See 29 C.F.R. §§

1601.28(a)(3). Following the EEOC's determination of Title VII violations and its decision not to bring

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 14 of 17 PageID 238
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 10 of 12

a civil action upon disposition of a charge, the EEOC will issue this notice of right to sue on the charge

to "[t]he person claiming to be aggrieved." Id. §§ 1601.28(b)(1)(i).To maintain a cause of action under

Title VII, a plaintiff is then required, pursuant to 42 U.S.C. §§ 2000e-5(f)(1), to file his Title VII claim

within ninety days of receiving his right to sue letter from the EEOC. See id.; Berry v. CIGNA/RSICIGNA, 975 F.2d 1188, 1191 (5th Cir.1992). Claims filed more than ninety days after receiving the right

to sue letter are subject to dismissal. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.2002)

(citations omitted), cert. denied, 537 U.S. 1200, 123 S.Ct. 1287, 154 L.Ed.2d 1041 (2003); Maddox v.

Runyon, 139 F.3d 1017, 1021 (5th Cir.1998).

C. PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION FOR WHICH RELIEF MAY

BE GRANTED ON HIS HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIMS

Plaintiff has failed to state a cause of action for which relief may be granted on his

harassment/hostile work environment claim because he did not sufficiently plead that the alleged

isolated incidents of alleged racially harassing conduct affected a term, condition or privilege of his

employment. 

To prevail on a hostile work environment claim, a plaintiff must prove: (1) he belongs to a

protected group; (2) he was subjected to unwelcome harassment; (3) the harassment of which plaintiff

complained was based on race; (4) the harassment affected a term, condition, or privilege of

employment; and (5) the employer knew or should have known of the harassment and failed to take

remedial action. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001); Frank v.

Xerox Corp., 347 F.3d 130, 138 (5th Cir.2003); see also Septimus v. University of Houston, 399 F.3d

601, 611 (5th Cir.2005). He must subjectively perceive the harassment as sufficiently severe or

pervasive, and this subjective perception must be objectively reasonable. Frank, 347 F.3d at 138.

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 15 of 17 PageID 239
Hostile work environment claims based on racial harassment are reviewed under the same 2

standard as those based on sexual harassment. See National Railroad Passenger Corp. v. Morgan, 536

U.S. 101, 116 n. 10, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (and cases cited therein); Faragher, 524

U.S. at 786-87, and n. 1, 118 S.Ct. 2275. Thus, a plaintiff seeking to establish a Title VII violation based

on race discrimination creating a hostile work environment must prove that: "(1) she belongs to a

protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was

based on race; (4) the harassment affected a term, condition, or privilege of employment; [and] (5) the

employer knew or should have known of the harassment in question and failed to take prompt remedial

action." Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir.2002).

DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 11 of 12

"For harassment to affect a 'term, condition, or privilege of employment' it must be 'sufficiently

severe or pervasive so as to alter the conditions of employment and create an abusive working

environment." Celestine v. Petroleos de Venezuella SA, 266 F.3d at 353(quoting Watts v. Kroger Co.,

170 F.3d 505, 509 (5th Cir.1999)); see also Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126

L.Ed.2d 295 (1993) (sexual harassment case). "Actionable harassment must involve 'racially

discriminatory intimidation, ridicule[,] and insults." ' Felton v. Polles, 315 F.3d 470, 485 (5th Cir.2002)

(quoting Walker v. Thompson, 214 F.3d 615, 625 (5th Cir.2000)) (applying Title VII case law to a claim

brought under 42 U.S.C. §§ 1983); see also Harris, 510 U.S. at 21.

2

Plaintiff refers to the fact that someone placed a “hangman’s noose above the spreader machine

that Plaintiff took down and threw away. Plaintiff also complains that Rick Stone told him and a coworker to turn down their “jungle music” in the shop. Plaintiff does not allege that these acts were more

than mere isolated and non-recurring incidents. Moreover, Plaintiff does not allege that these alleged

acts were so pervasive that they prevented him from being able to perform his job or were so pervasive

as to affect a condition of his employment. To determine whether a hostile work environment existed,

a court must consider "the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with

an employee's work performance." Ramsey at 268 (5th Cir.2002) Id. (citations omitted). Brown failed

to plead any facts to establish that isolated conduct related to a comment to turn down the “jungle

music” or the brief presence of a rope in the shape of a hangman’s noose, was so severe or pervasive that

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 16 of 17 PageID 240
DEFENDANTS DON PETERSON AND NORTH CENTRAL TIRE

SERVICE, INC.’S BRIEF IN SUPPORT OF MOTION TO DISMISS Page 12 of 12

it affected a term, condition, or privilege of employment, or unreasonably interfered with his work

performance.

V. CONCLUSION

For all of the reasons discussed above, Defendants Don Peterson and North Central Tire Service,

Inc. respectfully request that the Court enter an Order dismissing Plaintiff’s Amended Complaint against

Defendants in its entirety with prejudice and award such other and further relief in law and equity as to

which the Defendants show themselves entitled.

Respectfully submitted, 

/s/ D. D’Lyn Davison 

D. D’Lyn Davison

Texas Bar No. 05590800

Davison Rugeley & Spurgers, L.L.P.

900 Eighth Street, Suite 1102

P. O. Box 99

Wichita Falls, Texas 76307

Telephone: (940) 766-1388

Facsimile: (940) 766-5396

Attorneys for Defendants Don Peterson 

and North Central Tire Service, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on this 13 day of January, 2006, a true and correct copy of Defendants’ th

Brief in Support of Motion to Dismiss was served on Plaintiff, Clifford Brown, 1904 Hines Blvd.,

Wichita Falls, Texas 76301, by placing same in the U.S. Mail, postage prepaid, certified, return receipt

requested. (Receipt No. 7005 0390 0001 2472 8617). 

/s/ D. D’Lyn Davison 

D. D’Lyn Davison 

Case 7:03-cv-00205-R Document 44 Filed 01/13/06 Page 17 of 17 PageID 241