ORDER – PAGE 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PAUL FORTE, JR., et al., §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1417-N

§

THE DALLAS COUNTY COMMUNITY §

COLLEGE DISTRICT AND DR. JESUS §

“JESS” CARREON, §

§

Defendant. §

ORDER

Before the Court is Defendants The Dallas County Community College District

(“DCCCD”) and Dr. Jesus “Jess” Carreon’s (“Carreon”) Motion to Dismiss and Alternative

Rule 7 Motion to Compel Reply [21 & 23]. For reasons discussed below, the Court denies

DCCCD’s motion and grants in part and denies in part Carreon’s motion. 

I. BACKGROUND

On July 16, 2005, Plaintiffs Paul Forte, Jr., and James M. Hawkins, Jr. filed a pro se

complaint against Defendants on behalf of themselves and all other similarly situated African

American employees of DCCCD. Plaintiffs contend they were discriminated against because

of their race and that Defendants thwarted Plaintiffs’ attempt to file a grievance pursuant to

DCCCD’s internal grievance protocol. 

With regard to the alleged discrimination, Plaintiffs argue that DCCCD engages in

discriminatory employment practices by implementing disparate employment terms and

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1

According to Plaintiffs, such terms and conditions include the practice of funneling

African American administrative and support staff employees into deadend jobs with limited

opportunity for advancement, retaliatory action, and certain actions that have an adverse

impact on African Americans.

2

Plaintiffs do not specify the conduct they allege constitutes bad faith.

ORDER – PAGE 2

conditions1

 and failing to draft written promotion policies or procedures for administrators

and professional support staff and written and published affirmative action plans. At bottom,

Plaintiffs allege they, and similarly situated African Americans, were denied fair and equal

opportunity to be considered or promoted, or to otherwise compete on equal footing with

DCCCD employees who are not members of the Class, through an existing systematic pattern

and practice of discrimination. 

On or about September 9, 2003, Plaintiffs filed an internal class action grievance for

alleged institutional employment discrimination, which Defendants allegedly attempted to

thwart. In response to Plaintiffs’ grievance, Carreon selected Terri Swain to conduct an

investigation into the alleged discrimination. On February 27, 2004, Carreon informed

Plaintiffs that, upon reviewing Ms. Swain’s findings, he concluded that no discrimination

occurred. Plaintiffs requested and were denied summary findings by Carreon. Plaintiffs then

attempted to proffer a settlement demand, and Carreon refused. Finally, Plaintiffs claim they

attempted to appeal Carreon’s decision, but, because of Defendants’ bad faith, could not.2

On March 30, 2004, Plaintiffs filed charges of discrimination with the Dallas District Office

of the United States Equal Employment Opportunity Commission (“EEOC”) and on April

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3

Carreon also contends that Plaintiffs failed to meet the standard of Federal Rule of

Civil Procedure 7(a). The Court addresses this argument below. 

ORDER – PAGE 3

19, 2005, received a “Notice of Right to Sue.” Plaintiffs subsequently filed this action on

July 16, 2005. 

Defendants now seek dismissal of Plaintiffs’ claims pursuant to Federal Rules of Civil

Procedure 8(a) and 12(b)(6). Both DCCCD and Carreon contend that Plaintiffs cite to

numerous constitutional provisions, statutes, Executive Orders, and policies that Defendants

have allegedly violated, but offer no factual support for their allegations of discrimination.

Defendants thus contend that Plaintiffs failed to meet the pleading standard of Rule 8(a).3

DCCCD’s motion to dismiss focuses primarily on Plaintiffs’ class claims and section

1983 claims. First, DCCCD seeks dismissal of the class claims on the grounds that the relief

Plaintiffs seek – namely, compensatory and punitive damages – takes the claims beyond the

confines of Rule 23(b) class action remedies. See FED. R. CIV. P. 23(b). Next, DCCCD

seeks dismissal of Plaintiffs’ 42 U.S.C § 1983 (“section 1983”) on the grounds that Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (“Title VII”) preempts such

claims. 

Carreon’s motion focuses on claims brought against him in his official capacity as

well as Plaintiffs’ Title VI, 42 U.S.C. § 2000d, et seq. (“Title VI”), Title VII, and section

1983 claims. First, Carreon contends that claims against him in his official capacity should

be dismissed, because such claims are equivalent to claims against DCCCD. Because

DCCCD is not claiming Eleventh Amendment immunity from suit, Carreon contends these

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ORDER – PAGE 4

claims are redundant. Relatedly, Carreon contends that Plaintiffs’ Title VII claim should be

dismissed because it cannot be brought against him in his individual capacity. Finally,

Carreon contends Plaintiffs’ Title VI claim and section 1983 claim are preempted by Title

VII and therefore must be dismissed. Alternatively, Carreon moves for an order requiring

Plaintiffs to replead operative facts of their section 1983 claim, overcoming the defense of

qualified immunity. For reasons explained below, the Court denies DCCCD’s motion and

grants in part and denies in part Carreon’s motion.

II. LEGAL STANDARDS

A motion to dismiss for failure to state a claim under Rule 12(b)(6) “is viewed with

disfavor and is rarely granted.” Lowery v. Texas A&M Univ. Sys., 117 F.3d 242, 247 (5th

Cir. 1997). Courts may dismiss a complaint for failure to state a claim only if it is clear that

the plaintiff can prove no set of facts consistent with the allegations of the complaint that

would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a

Rule 12(b)(6) motion, the Court must liberally construe the complaint in favor of the plaintiff

and accept as true all well-pleaded facts. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.

1999). 

The standard for dismissal incorporates and must be viewed in light of the simplified

pleading standards embodied in the Federal Rules of Civil Procedure. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 514 (2002). According to Rule 8(a)(2), a complaint must set

forth only “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Such a statement is adequate so long as it “give[s] the defendant fair notice of what

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ORDER – PAGE 5

the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512

(quoting Conley, 355 U.S. at 47). Therefore, “[p]ursuant to Rule 8(a), a complaint will be

deemed inadequate only if it fails to (1) provide notice of the circumstances which give rise

to the claim, or (2) set forth sufficient information to outline the elements of the claim or

permit inferences to be drawn that these elements exist.” Beanal v. Freeport-McMoran, Inc.,

197 F.3d 161, 164 (5th Cir. 1999). However, “[w]hen a public official pleads the affirmative

defense of qualified immunity in his answer,” Rule 7 permits “the district court, on the

official’s motion or on its own, to require the plaintiff to reply to that defense in detail.”

Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc).

III. THE COURT DENIES DCCCD’S MOTION TO DISMISS

A. Motion to Dismiss Class Claims is Premature

DCCCD argues that the Court must dismiss Plaintiffs’ class claims because injunctive

or declaratory relief does not predominate. In Allison v. Citgo Petroleum Corp., 151 F.3d

402, 411 (5th Cir. 1998), the Fifth Circuit recognized that “[Rule 23(b)(2)] is clear that

claims seeking injunctive relief are appropriate for (b)(2) class certification,” but is “silent

as to whether monetary remedies may be sought in conjunction with” such relief. Id.

However, the Advisory Committee notes on Rule 23 imply that monetary relief is permissible

under (b)(2) as long as such relief does not predominate. FED. R. CIV. P. 23 (advisory

committee notes) (class certification under (b)(2) “does not extend to cases in which the

appropriate final relief relates exclusively or predominantly to money damages.”). “[L]ike

nearly every other circuit, [the Fifth Circuit] adopted the position taken by the advisory

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ORDER – PAGE 6

committee that monetary relief may be obtained in a (b)(2) class action so long as the

predominant relief sought is injunctive or declaratory.” Id. 

Also like nearly every circuit, the Fifth Circuit maintains that a determination of class

maintainability “usually should be predicated on more information than the complaint itself

affords.” 7AA CHARLES ALAN WRIGHT,ARTHUR R.MILLER &MARY KAY KANE,FEDERAL

PRACTICE &CIVIL PROCEDURE § 1785.3 (3d ed. 2005); Huff v. N.D. Cass Co., 485 F.2d 710,

713 (5th Cir. 1973) (“[m]aintainability [of a class action] may be determined on the basis of

pleadings, but the determination usually should be predicated on more information than the

complaint itself affords.”) (internal citations and quotations omitted). The Fifth Circuit

explained, a “court may, and often does, permit discovery relating to the issues involved in

maintainability, and a preliminary evidentiary hearing may be appropriate or essential as a

part of the vital management role which the trial judge must exercise in class actions to

assure that they are both meaningful and manageable.” Huff, 485 F.2d at 713. Here, parties

are still in the early stages of pleading and have yet to conduct meaningful discovery.

Therefore, DCCCD’s motion to dismiss is premature. Accordingly, the Court denies

DCCCD’s motion to dismiss Plaintiffs’ class claims.

B. Plaintiffs Must Replead Their Section 1983 Claims

Next, DCCCD argues that Plaintiffs’ section 1983 claims alleging race discrimination

in the employment context are preempted by Title VII’s comprehensive remedial scheme.

Specifically, DCCCD contends that Plaintiffs fail to plead facts that would support a section

1983 claim in the absence of Title VII.

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ORDER – PAGE 7

Through Title VII, Congress made unlawful certain employment practices that

discriminate against individuals based on race, color, religion, sex, or national origin, and

provided a comprehensive remedial scheme to enforce its strictures. 42 U.S.C. § 2000e-2.

Such “unlawful employment practices” include, among others, “fail[ing] or refus[ing] to hire

or . . . discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual

with respect to his compensation, terms, conditions, or privileges of employment.” Id. at §

2000e-2(a)(1). Congress also provided an extensive remedial scheme for its enforcement.

42 U.S.C. § 2000e-5. Under this remedial scheme, plaintiffs, among other things, must first

file a claim with an administrative agency within a limited amount of time before filing a

claim in the district court.

Unlike Title VII, “[section] 1983 merely provides a mechanism for enforcing

individual rights ‘secured’ elsewhere, i.e., rights independently ‘secured by the Constitution

and laws’ of the United States.” Gonzaga University v. Doe, 536 U.S. 273, 285 (2002)

(quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617 (1979)). In

other words, “one cannot go into court and claim a ‘violation of § 1983’ – for § 1983 by itself

does not protect anyone against anything.” Chapman, 441 U.S. at 617. Instead, a plaintiff

must demonstrate that a statute or constitutional provision manifests an intent to both create

a right and provide a private remedy for a violation of that right before invoking section

1983. Id. at 283-85. In some situations, however, a statute’s remedial scheme is

“sufficiently comprehensive . . . to demonstrate congressional intent to preclude remedy of

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ORDER – PAGE 8

suits under § 1983.” Lakoski v. James, 66 F.3d 751, 754 (5th Cir. 1995) (citations and

quotations omitted). 

In Irby v. Sullivan, 737 F.2d 1418, 1428 (5th Cir. 1984), the Fifth Circuit examined

Title VII’s comprehensive remedial scheme and held that rights created by Title VII “may

not be asserted within the remedial framework of section 1983.” The Court explained that

to allow otherwise would enable a plaintiff to circumvent the “detailed and specific

provisions of Title VII.” Id. at 1429. For example, section 1983 authorizes compensatory

and punitive damages, which may not be available under Title VII, and allows the plaintiff

to demand a jury, which, again, is not allowed under Title VII. Id. Most importantly, “if a

violation of Title VII could be asserted through . . . section[] . . . 1983, ‘the complainant

could completely bypass the administrative process, which plays such a crucial role in the

scheme established by Congress in Title VII.’” Id. (quoting Great American Federal Savings

& Loan Association v. Novotny, 442 U.S. 366, 376 (1979)). Therefore, section 1983 claims

to redress rights created by Title VII are preempted by the comprehensive remedial scheme

provided in that statute.

On the other hand, when an employee alleges employer conduct that violates Title VII

as well as rights secured by either the Constitution or federal statute existing at the time Title

VII was enacted, a plaintiff may seek remedies provided by section 1983. Lakoski, 66 F.3d

at 756 (Congress “did not intend Title VII to preempt § 1983 suits based upon rights such

individuals have already been granted . . . .”) (internal quotations omitted); Day v. Wayne

County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984) (“Where an employee

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ORDER – PAGE 9

establishes employer conduct that violates Title VII and rights derived from another source

– the Constitution or federal statute – which existed at the time of the enactment of Title VII,

the claim based on the other source is independent of the Title VII claim, and the plaintiff

may seek the remedies provided by § 1983 in addition to those created by Title VII.”). When

Congress extended Title VII’s strictures to state and local employees, it intended to

supplement existing rights and remedies aimed at redressing employment discrimination and

“therefore . . . [did] not affect existing rights . . . granted by previous legislation.” H.R. Rep.

No. 92-238. Thus, a plaintiff’s section 1983 claim seeking to redress a right created prior to

Title VII’s enactment is not preempted. See Trigg v. Fort Wayne Community Schools, 766

F.2d 299, 302 (7th Cir.1985) (“[T]he Fourteenth Amendment and Title VII have granted

public sector employees independent rights to be free of employment discrimination. A

plaintiff may sue her state government employer for violations of the Fourteenth Amendment

through § 1983 and escape Title VII's comprehensive remedial scheme, even if the same facts

would suggest a violation of Title VII.”).

Here, Plaintiffs’ complaint is too vague to determine whether their section 1983 claim

seeks to redress rights created by Title VII or whether it seeks to vindicate employment rights

existing prior to Title VII’s enactment. On pages two through three and sixteen through

seventeen of their complaint, Plaintiffs state that Defendants have deprived Plaintiffs and the

Class of rights secured by a laundry list of constitutional and statutory provisions, including

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4

Specifically, Plaintiffs claim Defendants

have deprived Plaintiffs and the Class of rights secured by the Fifth and

Fourteenth Amendments to the United States Constitution; the Civil Rights

Act of 1866 and Section 2 of the Thirteenth Amendment to the United States

Constitution; the Civil Rights Act of 1871; Title VI of the Civil Rights Act of

1964, 42 U.S.C. § 2000d; Title VII . . .; Executive Order 11246, as Amended;

the Civil Rights Act of 1991; the Uniform Guidelines on Employee Selection

Procedures, September 11, 1978; 42 U.S.C. § 1981-1983; [etc.] 

Compl. at 2-3 & 16-17.

5

Plaintiffs pleads these claims as counts one through four in their complaint and plead

no other counts.

ORDER – PAGE 10

the Fifth, Thirteenth, and Fourteenth Amendments to the United States Constitution.4

 Yet,

when setting forth the factual allegations, Plaintiffs failed to identify the rights violated or

distinguish their Title VII claims from the others. Moreover, Plaintiffs maintain in their

response to Defendants’ motions that they “allege claims for (1) Intentional Discrimination

Based on Race/Color in Violation of Title VII, (2) Discrimination Against the Named

Plaintiffs and the Class in Violation of Section 1981, (3) Disparate Impact in Violation of

Title VII, and (4) Retaliation against both the DCCCD and . . . Carreon.”5

 Pl. Response Brief

to Carreon at 2; Pl. Response Brief to DCCCD at 2. Plaintiffs make no mention of a section

1983 claim seeking to redress a right created prior to Title VII’s enactment. Therefore, it is

not clear, for example, whether Plaintiffs seek to redress a violation of rights granted by the

Thirteenth and Fourteenth Amendments – clearly enacted before Title VII – or whether

Plaintiffs’ claims reside exclusively within the confines of Title VII. Nonetheless, because

of the lenient pleading standard and mention of the constitutional provisions in Plaintiffs’

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6

In response to this motion, Plaintiffs argue that claims for prospective injunctive

relief transform a state official acting in an official capacity into a “person” for purposes of

section 1983. In other words, Plaintiffs contend an Ex parte Young, 209 U.S. 123 (1908)

claim survives in this situation. While correct that, under Ex parte Young, a claim for

prospective injunctive relief to end a continuing violation of federal law transforms a state

official acting in an official capacity into a “person” for purposes of section 1983, Plaintiffs

fail to recognize that Ex parte Young is a narrow exception to the doctrine of sovereign

immunity meant to be invoked to enjoin unlawful activity of the state, which cannot be sued

directly in its own name. When, as here, a plaintiff can sue a governmental entity directly,

Ex parte Young’s legal fiction is unnecessary. Therefore, this argument fails to save

ORDER – PAGE 11

complaint, the Court denies DCCCD’s motion to dismiss. However, because Plaintiffs’

complaint is unclear, the Court orders Plaintiffs to replead their section 1983 claims, setting

forth the rights they seek to vindicate and the factual allegations supporting their claims.

Plaintiffs’ are directed to submit their amended complaint to the Court and all parties within

fifteen (15) days of this Order.

IV. CARREON’S MOTION TO DISMISS

A. The Court Dismisses Claims Brought Against 

Carreon in his Official Capacity

Supreme Court precedent makes clear that a suit against a government official in his

or her official capacity is “only another way of pleading an action against an entity of which

[the official] is an agent.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55

(1978). If the government entity receives notice of the suit and an opportunity to respond,

an “official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “It is not a suit against the official

personally . . . .” Id. Therefore, when a governmental entity can be sued directly for

damages and injunctive or declaratory relief, official-capacity suits are unnecessary.6

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Plaintiffs’ claims against Carreon in his official capacity.

ORDER – PAGE 12

Graham, 473 U.S. at 167 n. 14 (“[t]here is no longer a need to bring official-capacity actions

against local government officials, for under Monell, supra, local government units can be

sued directly for damages and injunctive or declaratory relief.”). Because, here, Plaintiffs

can sue DCCCD directly, and because DCCCD received notice of the suit and an opportunity

to respond, claims against Carreon in his official capacity are unnecessarily duplicative.

Accordingly, the Court dismisses Plaintiffs’ claims against Carreon in his official capacity.

B. Plaintiffs Can Maintain Neither a Title VII 

Claim Nor a Title VI Claim Against Carreon

The Court also dismisses Plaintiffs’ Title VII claims against Carreon because a

plaintiff cannot maintain a suit against an official in his individual capacity. As discussed

above, “a plaintiff is not entitled to maintain a Title VII action against both an employer and

its agent in an official capacity.” Smith v. Amedisys Inc., 298 F.3d 434, 449 (5th Cir. 2002).

Although Title VII defines “employer” to include “any agent,” 42 U.S.C. § 2000e(b), the

Fifth Circuit has held that “a party may not maintain a suit against both an employer and its

agent [in an official capacity] under Title VII.” Indest v. Freeman Decorating, Inc., 164 F.3d

258, 262 (5th Cir. 1999). Furthermore, the Fifth Circuit does not “interpret the statute as

imposing individual liability for such a claim.” Id. Accordingly, the Court dismisses

Plaintiffs’ Title VII claims against Carreon.

Additionally, the Court dismisses Plaintiffs’ Title VI claim against Carreon because

individuals may not be held liable for discrimination under Title VI. Shotz v. City of

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ORDER – PAGE 13

Planation, 344 F.3d 1161, 1169 (11th Cir. 2003) (citing cases). Title VI states, “No person

in the United States shall, on the ground of race, color, or national origin, be excluded from

participation, be denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. The Supreme Court,

interpreting related statutory language nearly identical to Title VI, explained that “Congress

limited the scope [of the statutory provision] to those who actually ‘receive’ federal financial

assistance.” United States Dep’t of Transp. V. Paralyzed Veterans of Am., 477 U.S. 597, 605

(1986) (discussing section 504 of the Rehabilitation Act, 29 U.S.C. § 794). Similarly, “the

majority of courts that have considered the issue [in the Title IX context] have ruled that Title

IX does not permit suits against individuals.” Goins v. Hitchcock I.S.D., 191 F. Supp. 2d

860, 869 (S.D.Tex. 2002) (citing cases). Significantly, Title IX “was modeled after Title VI

. . ., which is parallel to Title IX except that it prohibits race discrimination, not sex

discrimination, and applies in all programs receiving federal funds, not only in education

programs.” Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 286 (1998).

Therefore, “[b]y extension, the text of Title VI also precludes liability against those who do

not receive federal funding, including individuals.” Shotz, 344 F.3d at 1170. Accordingly,

the Court dismisses Plaintiffs’ Title VI claim against Carreon in his individual capacity.

C. Plaintiffs Must Replead Section 1983 Claims

Much like DCCCD, Carreon argues that Plaintiffs’ section 1983 claim is preempted

by Title VII. While not entirely clear in his motion, Carreon, like DCCCD, presumably

contends that Plaintiffs’ section 1983 claim fails because it seeks to redress rights created by

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7

In other words, Plaintiffs must set forth (1) the constitutional right at issue, (2) the

operative facts alleging that Carreon violated the constitutional right, and (3) the factual basis

for the contention that Carreon reasonably should have known that an action violated a

clearly established constitutional right. Wicks v. Mississippi State Employment Servs., 41

F.3d 991, 995 (5th Cir.1995). 

ORDER – PAGE 14

Title VII and is thus preempted. For reasons discussed above, the Court denies Carreon’s

motion to dismiss, and orders Plaintiffs to replead their section 1983 claims, setting forth the

rights they seek to vindicate and the factual allegations supporting their claims. Again,

Plaintiffs’ are directed to submit their amended complaint to the Court within fifteen (15)

days of this Order. 

Additionally, the Court grants Carreon’s motion to compel a pleading that address his

assertion of qualified immunity. When a public official defendant in a section 1983 action

pleads the affirmative defense of qualified immunity, “the court may, in its discretion, insist

that a plaintiff file a reply tailored to an answer pleading the defense of qualified immunity.

Vindicating the immunity doctrine will ordinarily require such a reply, and a district court's

discretion not to do so is narrow indeed when greater detail might assist.” Schultea, 47 F.3d

at 1433-34. Because Plaintiffs’ response to Carreon’s motion to dismiss falls short of

“heightened pleading,” the Court directs Plaintiffs to reply to Carreon’s defense of qualified

immunity with “sufficient precision and factual specificity to raise a genuine issue as to the

illegality of defendant’s conduct at the time of the alleged acts.”7 Id. at 1434. 

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ORDER – PAGE 15

Signed March 6, 2007.

_________________________________

David C. Godbey

United States District Judge

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