IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ANTONIO C. JONES, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-798-A

§

THE CITY OF HURST, §

§

Defendant. §

Memorandum Opinion

and

ORDER

Defendant, The City of Hurst, Texas, has moved to dismiss

the amended complaint filed on March 15, 2006, by pro se

plaintiff, Antonio C. Jones. Having considered the motion,

plaintiff's response, and the applicable authorities, the court

concludes that the motion should be granted for the reasons set

forth below.

I.

Plaintiff's Amended Complaint

Plaintiff's amended complaint seeks relief under (a) Title

VII of The Civil Rights Act, 42 U.S.C. § 2000e, et seq., for

alleged discrimination on the basis of plaintiff's race and

retaliation for engaging in protected activity, (b) 42 U.S.C. §

1983 for the denial of his civil rights, and (c) 42 U.S.C. § 1985

for conspiracy to deny plaintiff's civil rights. At issue in

the amended complaint is a decision by defendant to demote

plaintiff, a veteran of defendant's police force. Specifically,

plaintiff claims that "[defendant] took away Plaintiff's right to

be a Police Officer" after he failed a physical examination

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 1 of 8 PageID 138
2

despite the fact that "exceptions were granted to White

Officers." Am. Compl. at 3. After electing to seek review on

defendant's civil service review board, plaintiff was apparently

reassigned from the detective division to the patrol division of

defendant's police force. Plaintiff claims that this

reassignment was not because he failed a physical examination,

but because he sought a "civil remedy," id. at 4, and he

"exercised his First Amendment right to seek promotion, speak out

against discrimination, retaliation, abuses and inefficiencies of

the City." Am. Compl. at 15-16. Therefore, plaintiff's claims

can best be characterized as being (1) disparate treatment based

on race, and (2) retaliation for engaging in protected activity. 

Appearing on pages four through fifteen of the amended

complaint is what plaintiff alleges to be defendant's policy

causing his injury. These alleged policies include portions taken

from Chapter 143 of the Texas Local Government Code, which

contains provisions of the Texas Civil Service Code, and portions

of unidentified municipal regulations adopted by defendant. 

While the amended complaint makes no effort at explaining the

pertinence of these statutes and regulations, it appears that

plaintiff is attempting to highlight defendant's policies he

believes were applicable to his reassignment to the patrol

division. The complaint alleges that two of defendant's

employees, a Chief Wallace and Assistant Chief Winstanley, were

defendant's policymakers with regard to the actions plaintiff

complains of.

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 2 of 8 PageID 139
3

The only allegation relating to the § 1985 conspiracy claim

states that "[defendant] also conspired to, and did, violate

[plaintiff's] Fourteenth Amendment right to due process." Am.

Compl. at 16. There is no further development of the facts

surrounding the alleged conspiracy.

II.

Grounds of the Motion

Defendant maintains that all of plaintiff's claims should be

dismissed for failure to state a claim upon which relief can be

granted. Specifically, defendants urge that (a) all of

plaintiff's claims are time-barred, (b) all claims under §§ 1983

and 1985 fail as a matter of law because plaintiff does not

provide a specific factual description of key matters, (c)

plaintiff cannot pursue claims under both Title VII and §§ 1983

and 1985; and (d) plaintiff's Title VII claims fail because the

conclusory allegations contained in the amended complaint are

insufficient to state a claim for disparate treatment. 

III.

Standards Applicable to a Motion to Dismiss 

for Failure to State a Claim

The standards for deciding a motion to dismiss for failure

to state a claim are well settled. The court's task is to

determine "not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the

claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A

complaint "should not be dismissed for failure to state a claim

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 3 of 8 PageID 140
4

unless it appears beyond doubt that the plaintiff can prove no

set of facts that would entitle him to relief." Conley v.

Gibson, 355 U.S. 41, 45-46 (1957). The court construes the

allegations of the complaint favorably to the pleader. Scheuer,

416 U.S. at 236. However, the court does not accept conclusory

allegations or unwarranted deductions of fact as true. Tuchman

v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994);

Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 4 of 8 PageID 141
5

IV.

Claims Under §§ 1983 and 1985 are Precluded

An allegation of discriminatory treatment cannot form the

basis of both a Title VII claim and claims under §§ 1983 and 1985

unless the employer's conduct violates both Title VII and a

separate statute or constitutional right. Jackson v. City of

Atlanta, 73 F.3d 60, 63 (5th Cir. 1996; see also Horaist v.

Doctor's Hosp. Of Opelousas, 255 F.3d 261 (5th Cir. 2001). In

other words, "the same facts that support a Title VII claim

cannot also support a separate § 1983 claim." Sloan v. Sharp,

157 F.3d 980, 983 (5th Cir. 1998). When ruling on defendant's

first motion to dismiss on March 2, 2006, the court did not

dismiss plaintiff's §§ 1983 and 1985 claims because the court

reckoned plaintiff might plead a basis for asserting those claims

separate from Title VII in his amended complaint. See Johnson v.

Harris County Flood Countrol District, 869 F.2d 1565, 1576 (5th

Cir. 1989). Once again, plaintiff has failed to so.

Title VII provides the exclusive remedy for the

discriminatory treatment alleged in plaintiff's amended

complaint, disparate treatment and retaliation. See 42 U.S.C. §§

2000e-2(k) and 2000e-3. And, more importantly, none of the facts

alleged in the amended complaint implicate a constitutional or

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 5 of 8 PageID 142
1 In particular, the court must reject plaintiff's one-sentence

conclusory attempt to allege on page 16 of the amended complaint that

defendant conspired to, and did, violate his right to due process. 

That allegation is not support by a showing of (1) how the procedures

used were constitutionally inadequate, or (2) how defendant's actions

were in any way arbitrary and capricious. See Zinermon v.Burch, 494

U.S. 113, 125-26 (1990). 

6

statutory right not covered by Title VII.1 Accordingly, the

claims under §§ 1983 and 1985 should be dismissed.

V.

Pleading Requirements Pertinent to Title VII Claims

To state a Title VII claim for disparate treatment, a

plaintiff must allege facts showing he (1) is a member of a

protected class, (2) was qualified for the position, (3) suffered

an adverse employment action, and (4) was treated less favorably

than a similarly situated employee of another race. Okoye v.

Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512 (5th

Cir. 2001). That last element requires plaintiff to allege facts

showing "that the employer gave preferential treatment to another

employee under nearly identical circumstances." Id. at 514. 

Next, to state a claim of retaliation under Title VII, a

plaintiff must allege facts showing that (1) he engaged in

activity protected by Title VII, (2) his employer took an adverse

employment action against him, and (3) a causal connection exists

between the protected activity and the adverse employment action. 

Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th

Cir. 1999).

VI.

Law Applied to the Facts Alleged in Title VII Claims

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 6 of 8 PageID 143
7

 Plaintiff fails in his attempt to plead a cause of action

under Title VII. As to the disparate treatment claim, plaintiff

does not allege any facts showing that other employees in his

same situation were treated differently. His allegation that

exceptions were granted to white police officers is simply too

vague and conclusory to withstand defendant's motion. 

Additionally, the court must dismiss plaintiff's Title VII

retaliation claim because he has failed to sufficiently allege

that he engaged any protected activity. The theory behind that

claim, essentially that defendant demoted him after he spoke out

during his administrative hearing against the supposed

inefficiencies, wastes, and abuses perpetrated by defendant, is

so insufficiently alleged that it cannot implicate any activity

protected by Title VII. 

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 7 of 8 PageID 144
8

VII.

Motion for Leave to Amend Denied

In his response, plaintiff again seeks leave file another

amended complaint. As the court has already allowed plaintiff to

file one amended pleading in the face of a motion to dismiss for

failure to state a claim, leave is denied. Based on the scant

improvement plaintiff's amended complaint was over his original

complaint, the court easily concludes that further amendment

would only be for the purposes of delay or some other dilatory

motive.

VIII.

O R D E R

For the reasons stated herein,

The court ORDERS that all of plaintiff's claims and causes

of action asserted against defendant be, and are hereby,

dismissed.

SIGNED April 13, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

 Case 4:05-cv-00798-A Document 28-2 Filed 04/13/06 Page 8 of 8 PageID 145