1

Madix contends that Burton has not stated a claim for relief regarding his race and age discrimination

claims, because he failed to exhaust his administrative remedies. The court, however, views this contention

as a failure to satisfy a precondition to filing suit, not a failure to state a claim. The court acknowledges that

there is inconsistent authority regarding the effect of failure to exhaust administrative remedies. See Taylor

Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALLEN J. BURTON, §

 §

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1081-L

§

MADIX STORE FIXTURES, §

 §

Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Allen J. Burton (“Burton” or “Plaintiff”) filed a pro se employment discrimination

complaint against Defendant Madix Store Fixtures (“Madix”) on May 26, 2005. Burton brings this

action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., (“Title VII”),

the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (“ADEA”), and the Fourteenth

Amendment to the United States Constitution. Burton, an African-American male over the age of

40, contends that Madix discriminated against him by not promoting him to a supervisor’s position.

Burton contends that the position was given to “an individual from another department and of a

different racial background.” Complaint at 1. Burton also complains regarding two demotions he

received from his supervisor. Id. 

On November 7, 2005, Madix filed Defendant’s Motion to Dismiss Under Rule 12(b)(6).

Madix contends that Burton’s complaint should be dismissed because: (1) Burton failed to exhaust

his administrative remedies regarding his race and age discrimination claims;1

 (2) Burton failed to

 

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v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cri. 2002); National Ass’n of Gov’t Employees v. City Pub.

Serv. Bd. of San Antonio, Tex., 40 F.3d 698 (5th Cir. 1994). The court thus understands why Madix would

present this contention as a failure to state a claim under Rule12(b)(6). The court’s analysis of this issue,

however, is the same in this case, regardless of how the contention is presented. 

Memorandum Opinion and Order - Page 2

state sufficient facts to support his age discrimination claim; and (3) Burton failed to set forth facts

in support his equal protection claim under the Fourteenth Amendment, as he failed to allege that

Madix acted under color of state law, or is a “person” as that definition applies to the Fourteenth

Amendment.

Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this

action was referred to the United States magistrate judge on November 14, 2005, for proposed

findings and recommendation. On December 29, 2005, the Findings, Conclusions and Recommendation of the United States Magistrate Judge (“Report”) were filed. Plaintiff filed his Objection to

the [R]ecommendation of the United States Magistrate Judge (“Objections”) on January 11, 2006.

The magistrate judge made the following findings: (1) Burton failed to exhaust

administrative remedies regarding his race discrimination claims under Title VII, as there is no

allegations in the EEOC charge of race discrimination; (2) Burton failed to exhaust administrative

remedies regarding his failure to promote claim, as there is no allegations in the EEOC charge

regarding his failure to promote claim; (3) Burton exhausted his administrative remedies as to his

demotion claims under the ADEA; (4) Burton sufficiently alleged a claim of age discrimination

under the ADEA; and (5) Burton failed to allege facts to support his equal protection claim under

the Fourteenth Amendment, as he “does not allege any facts to show a ‘close nexus’ between

Defendant’s alleged conduct and the State of Texas.” Report at 6-9. The magistrate judge

recommended that Madix’s motion to dismiss be granted in part and denied in part. Specifically,

the magistrate judge recommended that:

 

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2

The magistrate judge points out that Burton cannot bring a cause of action directly under the United

States Constitution. The proper statutory vehicle for his equal protection claim under the Fourteenth

Amendment, therefore, is 42 U.S.C. § 1983. See Hearth, Inc. v. Dep’t of Pub. Welfare, 617 F.2d 381, 382-83.

Memorandum Opinion and Order - Page 3

Defendant’s Motion to Dismiss be denied as to Plaintiff’s claims that

he was demoted in violation of the ADEA. It is further recommended

that Defendant’s Motion to Dismiss be granted regarding: (1)

Plaintiff’s race discrimination claims under Title VII, (2) Plaintiff’s

failure to promote claim under the ADEA, and (3) Plaintiff’s § 1983

claims.2

Report at 10.

Burton objects to the magistrate judge’s findings asserting that: (1) He called the EEOC on

at least two occasions informing them that he was discriminated against based on race; and (2) his

documents support that he was making a race discrimination claim. Objections at 1. Burton

suggests the possibility that the documents were “doctored,” and contends that “racial

discrimination was the core of his complaint and he would not have omitted placing an xX [sic] in

the box labeled race.” Id. at 2.

Having reviewed the pleadings, file and record in this case, the findings and conclusions of

the magistrate judge, and having considered Plaintiff’s objections thereto, the court determines that

the findings and conclusions are correct. They are therefore accepted as those of the court.

Plaintiff’s objections are overruled. Accordingly, Defendant’s Motion to Dismiss Under Rule

12(b)(6) is granted as to Plaintiff’s race discrimination claims under Title VII, Plaintiff’s failure to

promote claim under the ADEA, and Plaintiff’s equal protection claim under the Fourteenth

Amendment to United States Constitution. These claims are dismissed without prejudice pursuant

to Fed. R. Civ. P. 12(b)(6) for Plaintiff’s failure to state a claim upon which relief can be granted.

 

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Memorandum Opinion and Order - Page 4

Defendant’s Motion to Dismiss Under Rule 12(b)(6) is denied as to Plaintiff’s demotion claims

under the ADEA.

It is so ordered this 1st day of February, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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