IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

CHARLES EDWARD HALEY, JR.,

Plaintiff,

v.

CITY OF DAYTON,

Defendant.

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CIVIL ACTION NO. 1:23-CV-328-MACCLS

REPORT AND RECOMMENDATION ON 

DEFENDANT’S MOTION TO DISMISS (Doc. #7)

Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to 

United States Magistrate Judges, the district court referred this proceeding to the undersigned 

magistrate judge to conduct all pretrial proceedings, to enter findings of fact and recommend 

disposition on case-dispositive matters, and to determine non-dispositive matters. See 28 U.S.C. 

§ 636(b)(1); E.D. TEX. LOC. R. CV-72. Pending before the court is Defendant’s Motion to 

Dismiss. (Doc. #7.) After review, the undersigned recommends denying the motion.

I. Background

On September 1, 2023, Plaintiff, proceeding pro se and in forma pauperis, filed suit 

alleging his former employer, Defendant City of Dayton, discriminated and retaliated against him

in violation of Title VII. (Doc. #1.) Defendant filed the instant Motion to Dismiss on October 23, 

2023, but failed to properly serve Plaintiff. (Doc. #7.) Pursuant to a court order, Defendant 

ultimately served Plaintiff on November 14, 2023. (Docs. #9, #10.) Plaintiff timely responded. 

(Doc. #12.) To rule on Defendant’s Motion to Dismiss, however, the undersigned required 

additional information and, therefore, ordered Plaintiff to file an amended complaint. (Doc. #16.) 

Plaintiff complied and filed his operative, amended complaint on February 5, 2024. (Doc. #22.) 

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Defendant filed an answer to the amended complaint and a motion for judgment on the pleadings 

on February 20, 2024. (Docs. #24, #25.) The motion for judgment on the pleadings appeared to 

supersede Defendant’s Motion to Dismiss. The undersigned, however, struck the new motion as 

Defendant again failed to properly serve Plaintiff. (Doc. #28.) Accordingly, the instant Motion to 

Dismiss remains pending over Plaintiff’s amended complaint.

In his amended complaint, Plaintiff alleges Defendant violated Title VII in two ways. First, 

Plaintiff, who is African American and over forty-years-old, alleges Defendant discriminated 

against him on the basis of age and race when it terminated Plaintiff by claiming his position of a 

light equipment operator was eliminated. Plaintiff pleads that his position was not actually 

eliminated, but instead given to a younger, white man named Riley Alexander who had less 

experience. Second, Plaintiff alleges Defendant retaliated against him for a complaint he filed 

with the EEOC in February 2022. 

II. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 

the complaint must contain sufficient facts, which accepted as true, “state a claim to relief that is 

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). To be plausible, the complaint’s “[f]actual allegations must 

be enough to raise a right to relief above the speculative level.” Great Lakes Dredge & Dock Co. 

LLC v. Louisiana, 624 F.3d 201, 210 (5th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “A 

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 

at 678.

Rule 12(b)(6) must be read in tandem with Rule 8(a), which requires “a short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see 

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also Iqbal, 556 U.S. at 677-78; Twombly, 550 U.S. at 555. To decide whether the complaint states 

a valid claim for relief, the court accepts all well-pleaded facts as true and construes the complaint 

in the light most favorable to the plaintiff. Great Lakes Dredge, 624 F.3d at 210. However, the 

court does not accept as true “conclusory allegations, unwarranted factual inferences, or legal 

conclusions.” Id. (quoting Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir. 2007)). “While 

legal conclusions can provide the complaint’s framework, they must be supported by factual 

allegations.” Iqbal, 556 U.S. at 679. The inquiry focuses on the allegations in the pleadings and 

not on whether the plaintiff has sufficient evidence to succeed on the merits. Ackerson v. Bean 

Dredging, LLC, 589 F.3d 196, 209 (5th Cir. 2009).

Proceeding pro se, Plaintiffs’ pleadings are necessarily held to “less stringent standards 

than formal pleadings drafted by lawyers,” and are liberally construed by the court. See Haines v. 

Kerner, 404 U.S. 519, 520 (1972); Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 2002). 

III. Discussion and Analysis

In its Motion to Dismiss, Defendant argues that (1) Plaintiff failed to exhaust remedies 

before filing suit, and (2) Plaintiff does not state a failure to rehire claim. (Doc. #7.) The 

undersigned will address each argument in turn.

A. Plaintiff Exhausted Remedies Before Filing Suit

Before filing a Title VII suit, a plaintiff must exhaust his available administrative remedies 

by filing a timely complaint with the Equal Employment Opportunity Commission (EEOC). Hall 

v. Cont'l Airlines, Inc., 252 F. App'x 650, 653 (5th Cir. 2007). An EEOC complaint is timely if 

filed within three-hundred (300) days of the relevant incident of age or race discrimination. 42 

U.S.C.A. § 2000e-5 (West); see Mendoza v. City of Splendora, No. CV H-21-820, 2022 WL 

493597, at *1 (S.D. Tex. Jan. 18, 2022), R&R adopted, No. 4:21-CV-00820, 2022 WL 489469 

(S.D. Tex. Feb. 17, 2022). Here, Plaintiff alleges he was terminated on March 31, 2022, and filed 

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a complaint with the EEOC ninety-seven days later on July 6, 2022. (Doc. #22 at 2, 7.) According 

to the complaint, Plaintiff received the notice to sue from the EEOC on August 17, 2023. (Id. at 

2.) He then filed suit on September 1, 2023. (Doc. #1.) Defendant’s Motion to Dismiss should, 

therefore, be denied as to the argument that Plaintiff failed to exhaust remedies before filing suit.

B. Plaintiff Does Not Plead a Failure to Rehire Claim

Defendant interprets Plaintiff’s Title VII discrimination claim as a failure to rehire claim 

and argues Plaintiff fails to properly state this claim as he does not allege he applied for a new job 

with Defendant. A failure to rehire claim, however, is merely one type of discrimination claim. 

See Lucenio v. Houston Indep. Sch. Dist., No. 4:21-CV-00650, 2022 WL 658838, at *14 (S.D. 

Tex. Feb. 16, 2022), R&R adopted, No. 4:21-CV-00650, 2022 WL 658719 (S.D. Tex. Mar. 4, 

2022) (outlining a prima facie case for a failure to hire claim under Title VII); King v. Ellis Pottery, 

Inc., No. CV 15-2363, 2016 WL 5316640, at *3 (W.D. La. Sept. 21, 2016) (outlining a prima facia

case of discrimination generally under Title VII). 

Plaintiff pleads that he was discriminated against on account of his race and age. 

Specifically, Plaintiff, a black man in his forties, alleges he was terminated on March 31, 2022, 

when Defendant informed him his position of light equipment operator was being eliminated. 

Plaintiff claims the position was not actually eliminated but, instead, given to a younger, white 

man named Alexander Riley. Plaintiff does not claim to have applied for another job with 

Defendant, nor does he allege Defendant failed to rehire him. As Plaintiff does not raise a failure 

to rehire claim, Defendant’s argument that he fails to plead such a claim should be denied as moot. 

IV. Conclusion

Plaintiff exhausted administrative remedies before filing the suit. Additionally,

Defendant’s request to dismiss Plaintiff’s failure to rehire claim is moot because Plaintiff does not 

allege such a claim.

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V. Recommendation

For the foregoing reasons, the undersigned recommends DENYING Defendant’s Motion 

to Dismiss (doc. #7) in full.

VI. Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). To be specific, an objection must identify the specific finding 

or recommendation to which objection is made, state the basis for the objection, and specify the 

place in the magistrate judge’s report 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. Without leave of court, objections are limited to eight (8) pages. 

E.D. TEX. LOC. R. CV-72(c).

Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. Douglass v. United Services Auto. Ass’n,

79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds; 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

.

___________________________________

Christine L Stetson

UNITED STATES MAGISTRATE JUDGE SIGNED this the 30th day of April, 2024.

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