Opinion
Civil Action 4:24-cv-00245-O-BP
11-21-2024
BRANDON WALKER, Plaintiff, v. TARRANT COUNTY SHERIFF'S OFFICE, et al., Defendants.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Hal R. Ray, Jr. UNITED STATES MAGISTRATE JUDGE
Before the Court are the Motion for Partial Dismissal and Brief filed by Tarrant County (“the County”) on behalf of Tarrant County and the Tarrant County Sherriff's Office (“TCSO”) (ECF No. 39) and the Motions to Dismiss Plaintiff's Second Amended Complaint and Briefs in Support filed by Michael Ford, Keitha Hallenbeck, Floyd Heckman, Charles Eckert, Milton Kuser, Timothy Canas, Steven Sparks, Bill Waybourn (ECF No. 40) and Mike Simonds (ECF No. 54) (collectively “the Individual Defendants”). Plaintiff Brandon Walker (“Walker”) filed a response to each of the Motions (see ECF Nos. 44, 45, 57), and the Defendants filed replies (see ECF Nos. 48, 49).
After considering the pleadings and applicable legal authorities, the undersigned RECOMMENDS that United States District Judge Reed O'Connor GRANT the County's Motion for Partial Dismissal (ECF No. 39) and DISMISS Walker's claims against it under 42 U.S.C. § 1983, the Texas Commission on Human Rights Act (“TCHRA”), and the Texas Whistleblower Act (“TWA”). The undersigned RECOMMENDS that Judge O'Connor GRANT the Individual Defendants' Motions to Dismiss (ECF No. 40, 54), and DISMISS Walker's claims against them under Title VII, 42 U.S.C. § 1983, TCHRA, and TWA. Judge O'Connor should dismiss the Motions without leave to amend. If Judge O'Connor accepts these recommendations, the only claim remaining is against the County for violating Walker's rights under Title VII of the Civil Rights Act of 1964.
I. BACKGROUND
The TCSO formerly employed Walker as a deputy sheriff. ECF No. 37 at 6. During his tenure, Walker alleges that he “was denied worked overtime, was subjected to being called racial names[] in the presence of command staff. worked in a hostile working environment, was denied training for advancement opportunities; was treated differently than other coworkers due to race and was retaliated upon.” Id. at 6-7. TCSO transferred him from the Narcotics Division to the Patrol Division, which Walker characterizes as a transfer “of lesser desire.” Id at 6. Walker filed his first Charge of Discrimination (“Charge”) with the Equal Employment Opportunity Commission (“EEOC”) “in or around August 15, 2018,” claiming that TCSO retaliated against him for complaining about his treatment in the Narcotics Division from 2015 to 2017. Id at 6-7.
Later, TCSO suspended Walker without pay for three days pending the results of an Internal Affairs Division investigation in which Walker was allegedly detained to resolve his harassment complaints. Id. at 16-17. In response, Walker filed a second Charge of Discrimination “on or about December 22, 2020.. [for] continuous retaliation....” Id. at 20-21. On July 27, 2021, TCSO terminated Walker's employment. See id. at 23, 39 at 2.
Walker asserts that “[o]n December 18, 2023, the DOJ issued [him .] Right to Sue letters.” ECF No. 37 at 26. Walker claims that the TCSO and the Individual Defendants discriminated against him due to his race and retaliated against him by transferring, suspending, and terminating him due to his filing Charges of Discrimination. Id. at 6-7, 27-29. He further claims that the TCSO and Individual Defendants violated his Constitutional rights throughout the course of his employment. Id. The Defendants deny discriminating and retaliating against Walker and violating his constitutional rights. ECF No. 39 at 2; 40 at 2.
II. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of complaints that fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief, a complaint must include sufficient factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, courts must “take all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff ... and ask whether the pleadings contain ‘enough facts to state a claim to relief that is plausible on its face.'” Yumilicious Franchise, LLC v. Barrie, 819 F.3d 170, 174 (5th Cir. 2016) (citing Twombly, 550 U.S. at 547). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In ruling on a motion to dismiss, a court may consider documents outside the complaint when they are: (1) attached to the motion to dismiss; (2) referenced in the complaint; and (3) central to the plaintiff's claims. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). A statute of limitations may support dismissal under Rule 12(b)(6) when it is evident from the plaintiff's pleadings that the action is barred, and the pleadings fail to raise some basis for tolling or avoidance of the bar. Jones v. ALCOA, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
B. Pro se parties
The Court subjects a pro se party's pleadings to less rigid analysis than those of a party represented by counsel. “[A] pro se complaint, ‘however inartfully pleaded,' must be held to ‘less stringent standards than formal pleadings drafted by lawyers.'” Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, “even a liberally-construed pro se ... complaint must set forth facts giving rise to a claim on which relief may be granted.” Levitt v. Univ. of Tex. at El Paso, 847 F.2d 221, 224 (5th Cir. 1988) (citing Bounds v. Smith, 430 U.S. 817, 825-26 (1977)). Thus, a court inquires “whether within the universe of theoretically provable facts there exists a set which can support a cause of action under [the] complaint, indulgently read.” Covington v. Cole, 528 F.2d 1365, 1370 (5th Cir. 1976). However, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to state a claim for relief.” Masika Brown Ray v. Anthony Boone, No. 24-40169, 2024 WL 4372692, *1 (5th Cir. 2024) (citing Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th Cir. 2017)).
C. Dismissal With or Without Leave to Amend
There exists a “well-established policy that the plaintiff be given every opportunity to state a claim.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). It is federal policy to decide cases on the merits rather than technicalities, and thus when possible, the Fifth Circuit requires district courts to dismiss cases without prejudice under Rule 12. Great Plains Tr. Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); Hines v. Wainwright, 539 F.2d 433, 434 (5th Cir. 1976) (vacating and remanding a Rule 12(c) dismissal with instructions to the district court to dismiss without, instead of with, prejudice). As a result, courts generally allow plaintiffs at least one opportunity to amend following a Rule 12 dismissal on the pleadings. Great Plains Tr. Co., 313 F.3d at 329; see In re Online Travel Co. (OTC) Hotel Booking Antitrust Litig., 997 F.Supp.2d 526, 548-49 (N.D. Tex. 2014) (Boyle, J.) (dismissing for failure to state a claim without prejudice, as dismissing with prejudice would be “too harsh a sanction”).
Nonetheless, courts may appropriately dismiss an action with prejudice if the court finds that the plaintiff has alleged his best case. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir. 1999). Likewise, a court may dismiss an action without granting leave to amend where the court invited the plaintiff to respond to the motion to dismiss, but the plaintiff failed to do so. Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995). If the court “outline[s] in [its] opinion the deficiencies” of plaintiff's pleading and “plaintiff nevertheless cannot . . . amend to satisfy [the relevant pleading standard,] the court can then dismiss the complaint with the assurance that plaintiff has been shown all the deference he is due.” Sims v. Tester, No. 3:00-cv-0863-D, 2001 WL 627600, at *2-3 (N.D. Tex. Feb. 13, 2001). Moreover, courts may dismiss an action and deny amendment if the defendant is entitled to absolute immunity since the “plaintiff will never have a claim against the defendant based on the particular facts alleged.” Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).
Section 1983 does not provide any substantive rights, but instead “provides a method for vindicating already conferred rights.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015). “Section 1983 provides a claim against anyone who under color of any statute, ordinance, regulation, custom, or usage, of any State violates another's constitutional rights.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013). “To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.'” James v. Tex. Collin Cty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)).
E. Qualified Immunity
“Qualified immunity shields government officials performing discretionary functions from liability unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known.” Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). “[T]he immunity issue must be resolved at the earliest possible stage of the litigation since it entails an entitlement to immunity from suit and not merely a defense to liability.” Id. (citing Hunter v. Bryant, 502 U.S. 224, 226 (1991)). Qualified immunity can be decided at the motion to dismiss stage as it is the earliest possible stage in litigation. Carswell v. Camp, 37 F.4th 1062, 1068 (5th Cir. 2022)
To overcome the defense of qualified immunity, a plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citations omitted). “[A] good-faith assertion of qualified immunity alters the usual summary judgment burden of proof, shifting it to the plaintiff to show that the defense is not available.” Ratliff v. Aransas Cnty., 948 F.3d 281, 287 (5th Cir. 2020).
F. Municipal Liability
“A municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondent superior theory.” Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). Municipalities may be held liable under § 1983 where a custom, policy, or practice is the moving force behind a constitutional violation. Hampton Co. Nat'l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 2008). Establishing “[m]unicipal liability under Section 1983 requires proof of three elements: a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force' is the policy or custom.” Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 412 (5th Cir. 2015) (quoting Monell, 436 U.S. at 694).
III. ANALYSIS
A. Walker cannot state a Title VII claim against the Individual Defendants.
Walker broadly alleges impropriety by the Individual Defendants in his Supplemented Second Amended Complaint (“SAC”), but he does not assert specific, legally cognizable claims against them. See, e.g., ECF No. 37 at 17-18, (“Lt. Ford sent several deputies to Plaintiff's residence to further harass and intimidate [him] ....”); 8 (“Lt. Heckman and Lt. Hallenbeck violated [his] 1st Amendment right.”); 21 (“Chief Eckert falsified [his] performance appraisal.changed the rating and wording of [his appraisal evaluation].”); 9 (“Lt. Kuser violat[ed] [his] 1st, 4th, 5th, 6th, and 14th Constitutional Amendment Rights.”); 22 (Chief Deputy Tim Canas suspended [him] on December 14, 2018.); 14 (Steven Sparks ‘agree[d] to injure threaten, or intimidate a person.... The Defendant(s) intentionally violated [his] clearly established, Fourth, Fifth, Sixth, and Fourteenth Amendment Rights due to [Sparks'] orders.”).
Liberally construed, the SAC alleges that Defendants retaliated against Walker in violation of Title VII. See ECF No. 37 at 27. Walker does not have to prove his case for retaliation under Title VII to survive Defendants' Motions to Dismiss. Twombly, 550 U.S. at 555; Cicalese v. Univ. of Texas Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) (quoting Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 470 (5th Cir. 2016)). But because Title VII applies only to “employers,” he must allege facts showing that the Defendants were his employer to state a claim for relief. See Harvey v. Blake, 913 F.2d 226, 227 (5th Cir. 1990); 42 U.S.C. § 2000(e)(2)(a) (Title VII).
“Determining whether a defendant is an ‘employer' . . . involves a two-step process.” Deal v. State Farm Cnty. Mut. Ins. Co. of Tex., 5 F.3d 117, 118 (5th Cir. 1993). “[F]irst, the defendant must fall within the statutory definition.” Id. at 118. If the defendant does, the Court must then ask if there is “an employment relationship between the plaintiff and the defendant.” Id. The parties do not dispute that Walker is an African American and thus is a member of a protected class.
However, Walker does not allege that he was in an employer-employee relationship with the Individual Defendants in their individual capacity. Title VII includes certain agents within its definition of “employer.” See 42 U.S.C. § 2000(e)(b) (Title VII). However, the definition applies to persons in direct supervisory roles with the capacity to hire and fire. Id. In the SAC, Walker sues the Individual Defendants in their individual capacity, and these persons do not meet the statutory definition of an “employer.”
Additionally, Walker fails to allege enough facts to state a claim against the Individual Defendants. Walker cannot sue them for discrimination for actions that they took in their individual capacity. See Harvey, 913 F.2d at 227. Nor can he sue them for discrimination for actions that they took in their official capacity because he cannot bring the same suit against the County and its employees. See Appleberry v. Fort Worth Indep. Sch. Dist., No. 4:12-cv-00235-A, 2012 WL 5076039, *4 (N.D. Tex. Oct. 17, 2012). Otherwise, plaintiffs could recover twice for the same claims by suing their boss and their employing organization-a form of double-dipping that the law does not allow. Id.
Where defendants cannot be liable for a claim as a matter of law, dismissal under Rule 12(b)(6) is proper. Jones v. Bock, 549 U.S. 199, 215 (2007). Because the Individual Defendants cannot be liable under Title VII as a matter of law, any amendment of those claims would be futile. See Taubenfeld v. Hotels.com, 385 F.Supp. 587, 592 (N.D. Tex. 2004) (holding amendment is futile when a claim is “not actionable as a matter of law”). Thus, Judge O'Connor should dismiss Walker's Title VII claims against the Individual Defendants without leave to amend.
B. Walker cannot recover under § 1983.
1. The claims are time barred.
There is no federal statute of limitations for § 1983 actions. Piotrowski v. City of Hous., 51 F.3d 512, 514 n.5 (5th Cir. 1995); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir.), cert. denied, 501 U.S. 1235 (1991). Consequently, courts borrow the forum state's general personal injury limitations period in such cases. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Texas, the applicable limitations period is two years. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (citing Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1986)). Federal law determines when a § 1983 cause of action accrues. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). A § 1983 claim accrues when the aggrieved party knows, or has reason to know of, the injury or damages which form the basis of the action. Piotrowski, 51 F.3d at 516. A plaintiff's awareness includes two elements: (1) the existence of the injury; and (2) causation, the connection between the injury and the defendant's actions. See Stewart v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir.), cert. denied, 506 U.S. 820 (1992).
The statute of limitations bars Walker's § 1983 claims that Defendants violated his rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments. Walker claims that the Defendants violated his constitutional rights throughout his employment at the TCSO. See ECF Nos. 37 at 27-28. However, the County terminated Walker's employment on July 27, 2021 (see id. at ECF No. 37), which is the last date on which any of the Defendants could have violated Walker's constitutional rights. Moreover, Walker knew the identity of all of the named Defendants throughout his employment because the County was his employer, and the Individual Defendants were his supervisors or persons involved in investigating his complaints. Therefore, the statute of limitations on Walker's § 1983 claims accrued on July 27, 2021. Walker had until July 27, 2023 to file his claims, but he did not file this case until March 15, 2024. Consequently, the Court should dismiss Walker's § 1983 as time barred.
Walker argues in his response that the Court should equitably toll his claims because a “significant conflict of interest or failure to investigate [] should toll the statute of limitations, allowing Plaintiff's claims to proceed.” ECF No. 57 at 4. Walker cites Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 492 (5th Cir. 2001), in support of his claim.
“Because the Texas statute of limitations is borrowed in § 1983 cases, Texas' equitable tolling principles also control.” See Board of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 485 (1980). Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998). “The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable.” United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998)). Equitable tolling applies only in “rare and exceptional circumstances,” mainly “where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” Davis, 158 F.3d at 930 (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir.1996)). Further, “equity is not intended for those who sleep on their rights.” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.1999).
Walker urges a conflict of interest as grounds for equitable tolling, but no authority supports this argument. The Bazan case he cited provides no support, and the Court has found no authority that a conflict of interest should toll the statute of limitations. Walker fails to demonstrate how “creating a biased and incomplete record,” “warrant[s] tolling of the statute of limitations.” ECF No. 57 at 4. He simply states this argument as a conclusion and offers no facts to show how Defendants misled him or he was prevented in any way from asserting his claims within the statute of limitations. Consequently, he has not carried his burden to show that equitable tolling is appropriate here. Because no authority exists to toll the statute of limitations for a conflict of interest or failure to investigate, and because “tolling is essentially a judge-made practice,” the Court should not toll the statute of limitations on Walker's § 1983 claims and instead should dismiss them. Vaught v. Showa Denko K.K., 107 F.3d 1137, 1146 (5th Cir. 1997).
2. Qualified immunity bars Walker's § 1983 claims against the Individual Defendants.
Even if Walker had brought his § 1983 claims timely, qualified immunity bars his claims against the Individual Defendants in their individual capacities. Walker asserts that the Individual Defendants violated his First Amendment rights by taking adverse employment actions against him for complaining to the EEOC and U.S. Department of Justice. See ECF No. 45 at 9. However, he has no rights under the First Amendment regarding making a claim for employment discrimination. See Cutrer v. McMillan, 308 Fed.Appx. 819, 822 (5th Cir. 2009) (stating the “EEOC [] charge is not speech on a matter of public concern,” and consequently fails to establish a prima facie First Amendment claim). As a result, Walker has not stated a violation of his First Amendment rights.
Additionally, Walker alleges that he was detained during a meeting with his supervisors in violation of his Fourth Amendment rights. See ECF No. 37 at 15, 27. However, Walker has offered no authority showing that the Fourth Amendment provides him any rights in connection with a meeting with his supervisors. Nor has he offered “a case where [a person] acting under similar circumstances, was held to have violated the Fourth Amendment.” Surratt v. McClarin, 851 F.3d 389, 392 (5th Cir. 2017) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). In his response, Walker cites a litany of Supreme Court cases for the proposition that he was unlawfully seized in violation of the Fourth Amendment. See ECF No. 45 at 10. However, Walker offered no facts to show that he was arrested or seized during meetings with his supervisors. The cases he cited do not hold that the Fourth Amendment protects persons such as Walker from meeting with his supervisors to discuss his job performance. Therefore, Walker has not overcome the Individual Defendants' qualified immunity from his Fourth Amendment claims.
Walker also asserts violations of his Fifth Amendment rights because his supervisors never gave him a Miranda warning. See ECF No. 37 at 15, 28. However, failure to read a Miranda warning does not constitute a violation of the Fifth Amendment. Vega v. Tekoh, 597 U.S. 134, 152 (2022) (stating that “[b]ecuase a violation of Miranda is not itself a violation of the Fifth Amendment, . we see no justification for expanding Miranda to confer a right to sue under § 1983.”). Thus, Walker has not pleaded facts showing a violation of his Fifth Amendment rights.
Likewise, Walker has not stated a violation of his rights under the Sixth Amendment. In connection with meetings with his supervisors, Walker claims that he was “unlawfully detained, advised he was not free to leave and he did not have any rights against self-incrimination and did not have any right to counsel in regard to a criminal matter.” ECF No. 37 at 28. Walker's claims are unavailing. The right to counsel under the Sixth Amendment “is triggered ‘at or after the time that judicial proceedings have been initiated..'” Fellers v. United States, 540 U.S. 519, 523 (2004). Moreover, “[t]he Sixth Amendment right to counsel is inapplicable in civil cases.” F.T.C. v. Assail, Inc., 410 F.3d 256, 267 (5th Cir. 2005). Walker does not allege that he is a defendant in a criminal proceeding. Thus, he has not stated facts to show a Sixth Amendment violation.
Walker claims in conclusory fashion that he was “deprived due process and equal protection” (ECF No. 37 at 28), but he has not pleaded facts to support a violation under the Fourteenth Amendment. To state a claim for a due process violation, the “plaintiff must allege ‘(1) the deprivation of a protected property or liberty interest, and (2) that the deprivation occurred without due process of law.'” Adams v. City of Harahan, 95 F.4th 908, 913 (5th Cir. 2024) (quoting Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441 (5th Cir. 1991)). Walker claims he was “deprived.of his ability to be heard.” ECF No. 45 at 13. However, the SAC amply shows that that he participated in numerous hearings concerning employment actions against him. He describes his appeal to the Civil Service Commission (id. at 14-15), his investigation and appeal of his suspension (id. at 17), his appeal of his termination (id. 23-24), and his F-5 appeal of dishonorable discharge (id. at 24-25). As a result, Walker has not pleaded facts to show that Defendants deprived him of his ability to be heard and thus violated his right to due process.
Likewise, Walker claims the Individual Defendants violated his Equal Protection rights based on his race. ECF No. 37 at 28. “To state a claim of racial discrimination under the Equal Protection Clause and section 1983, the plaintiff ‘must allege and prove that [he] received treatment different from that received by similarly situated individuals and that the unequal treatment stemmed from a discriminatory intent.'” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 227 (5th Cir. 2012) (quoting Priester v. Lowndes Cnty., 354 F.3d 414 (5th Cir. 2004)). “A complaint is insufficient if it offers only labels and conclusions, or a formulaic recitation of the elements of a cause of action.” Bowlby, 681 F.3d at 227.
Walker claims “[t]he [I]ndividual [D]efendants are all of Caucasian ethnicity and Plaintiff is of African-American ethnicity. The Defendants have been given special privileges and immunities to accountability. Unlike the Defendants, who [were] given special privileges, Plaintiff was not provided the simplest of lawful protection.” ECF No. 37 at 28. This conclusory allegation is insufficient to state a claim. Walker alleges no discriminatory intent as required under Bowlby. Because his allegation contains mere labels and conclusions, Walker did not state a claim for relief. The Court should dismiss his § 1983 claims asserting an equal protection violation.
3. Walker has not pleaded facts to show the County's liability.
The Court notes at the outset that any claims against Tarrant County Sheriff Bill Waybourn in his official capacity and the TCSO are against the County. See Jefferson Cmty. Health Care Centers, Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th Cir. 2017) (stating that “.an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity...”); see also Appleberry No. 4:12-cv-00235-A, 2012 WL at *4 (a plaintiff cannot bring redundant suits).
Before a plaintiff can sue a governmental entity under the theory of municipal liability for a policy or practice, there must be an actual violation of a plaintiff's constitutional rights underlying the claim. Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995) (holding that a plaintiff must first identify a life, liberty, or property interest protected by the Fourteenth Amendment and then identify a state action that resulted in a deprivation of that interest). Without a constitutional violation, any alleged custom or policy is irrelevant. See City of Los Angeles. v. Heller, 475 U.S. 796, 799 (1986). Walker has not alleged facts to show a violation of his constitutional rights. Further, even if there had been a violation, the County may be liable under § 1983 only for conduct directly attributable to it through official action or grant of approval. Id. A plaintiff must show that the action was taken pursuant to an official policy causing constitutional harm. Bradyn S. v. Waxahachie Indep. Sch. Dist., 407 F.Supp.3d 612, 617 n.2 (N.D. Tex. 2019).
Walker has not made such a showing. The SAC and his Response to the County's Motion for Partial Dismissal recount his career at the TCSO in vast detail, but he has not pleaded that there was a policymaker or a policy, custom, or procedure that was the “moving force” in a violation of his constitutional rights. See Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). He states the conclusion that “[the] County had a policy or custom of allowing and perpetuating discrimination and retaliation against employees...” ECF No. 44 at 10. He then describes his experiences to prove the existence of a policy. However, to show something other than a vague and conclusory claim, “a plaintiff must do more than describe the incident that gave rise to his injury.” Pena v. City of Rio Grande City, 879 F.3d 613, 622 (5th Cir. 2018). Walker has not stated a viable Monell claim against the County because he only alleged incidents that gave rise to his claims and not facts showing a policymaker or policy that violated his constitutional rights.
C. Walker's claims under the THCRA are time-barred.
Walker alleges violations of “The Texas Employment Discrimination Act, as amended, Tex. Lab. Code §§ 21.001 et seq. as Defendant has engaged in retaliatory acts with respect to the terms and conditions of Plaintiff's employment.” ECF No. 37 at 29. Other courts have construed violations of the Texas Employment Discrimination Act as violations of the Texas Commission on Human Rights Act. See Jackson v. Host Int'l, Inc., 426 Fed.Appx. 215, 217 (5th Cir. 2011) (stating that claims brought under TEX. LAB. CODE § 21.001 et seq. are violations of the Texas Commission on Human Rights Act). Regardless of the nomenclature, a plaintiff must file a civil suit for violation of the act no “later than the second anniversary of the date the complaint relating to the action is filed.” Tex. Labor Code Ann. § 21.256 (West 2024); see also United Indep. Sch. Dist. v. Mayers, 665 S.W.3d 775, 782 (Tex. App.-San Antonio 2023, no pet.). Walker filed his most recent complaint with the EEOC on August 18, 2021. ECF No. 37 at 23. To be timely, he should have filed a claim under the TCHRA before August 18, 2023. Instead, he filed this case on March 15, 2024. ECF No. 1. As a result, his TCHRA claims are time-barred and must be dismissed.
Additionally, the Court should dismiss Walker's TCHRA claims against the Individual Defendants because the act does not impose liability on individuals. “[U]nder the express terms of the [TCHRA], employers may be liable for an unlawful employment practice. The Act does not create a cause of action against supervisors or individual employees.” City of Austin v. Gifford, 824 S.W.2d 735, 742 (Tex. App.-Austin 1992, no writ) (emphasis in original). Because the act creates no cause of action against individual employees, the Court should dismiss Walker's claims against the Individual Defendants under the TCHRA.
D. Walker's claims under the TWA are time-barred.
Walker alleges violations of Tex. Gov't Code § 554.002 that provides protections for whistleblowers. ECF No. 37 at 29-30. Under the TWA, “a public employee who seeks relief under this chapter must sue not later than the 90th day after the date on which the alleged violation of this chapter: (1) occurred; or (2) was discovered by the employee through reasonable diligence.” Tex. Gov't Code Ann. § 554.005 (West 2024). See City of Madisonville v. Sims, 620 S.W.3d 375, 379 (Tex. 2020) (stating that “an employee with a Whistleblower Act claim ‘must sue' within ninety days to obtain relief.”). Walker alleges that he was terminated due to his report on July 27, 2021. ECF No. 37 at 23. Therefore, to file a timely TWA claim, he should have filed suit on or before October 25, 2021. Walker did not file this complaint until March 15, 2024. See ECF No. 1 As a result, his TWA claims are time-barred unless he could not have discovered the violation by that time through the exercise of reasonable diligence. Walker has asserted no facts to show that he was not aware by October 25, 2021 of the violations of law on which he blew the whistle on or before July 27, 2021. Thus, his TWA claims are barred.
Moreover, the Court should dismiss Walker's claims against the Individual Defendants because the TWA does not impose liability on individuals. Walker admits this in his response to the Individual Defendant's Motions to Dismiss. See ECF No. 45 at 16. Additionally, the act provides that “[a] public Employee. may sue the employing state or local governmental entity...” Tex. Gov't Code Ann. § 554.035 (West 2024). As a result, the act does not create a cause of action against supervisors or individual employees. Because there is no cause of action against individuals, the Court should dismiss Walker's claims under the TWA against the Individual Defendants.
In his response to the Individual Defendant's Motions to Dismiss, Walker also claims that ongoing retaliation makes his claim timely. ECF No. 45 at 16. Walker cannot raise this point since he did not raise it in his pleadings. Cutrera v. Board of Sup'rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005). Even if he had properly brought this defense forward in his pleadings, the continuing violation doctrine would not apply. That doctrine “allows courts to consider conduct that would ordinarily be time barred as long as the untimely incidents represent an ongoing unlawful employment practice.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002). However, the continuing violation doctrine does not apply to claims based on discrete actions. See Gen. Land Off. v. United States Dep't of the Interior, 947 F.3d 309, 319 (5th Cir. 2020). “Only incidents that took place within the timely filing period are actionable.” Morgan, 536 U.S. at 114. Termination is a discrete act, and a plaintiff must file a complaint to cover discrete acts that occurred within the appropriate period. Id. In his SAC, Walker alleges that he was terminated on July 27, 2021 in violation of the TWA. ECF No. 37 at 23. This was a discrete act that triggered the 90-day limitations period. Walker did not file this suit until March 15, 2024, well beyond the deadline. See ECF No. 1. Thus, the Court should dismiss Walker's TWA claims.
E. The Court should dismiss Walker's claims without leave to amend.
The decision to allow amendment of the pleadings is within the sound discretion of the district court. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994). In determining whether to allow an amendment of the pleadings, the Court considers the following: undue delay in the proceedings, undue prejudice to the opposing parties, timeliness of the amendment, and futility of the amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962); Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1163 (5th Cir.1982). However, “[a]t some point, a court must decide that a plaintiff has had fair opportunity to make his case; if, after that time, a cause of action has not been established, the court should finally dismiss the suit.” Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986); Schiller, 342 F.3d at 563.
Walker has pleaded his best case after filing a Complaint (ECF No. 1), an Amended Complaint (ECF No. 11), SAC (ECF No. 26), and Supplemented SAC (ECF No. 37). Qualified immunity and the statutes of limitations bar his claims for the most part. Further amendment or revision of the pleadings will not change that fact Walker cannot support a showing of violations of his constitutional rights. The undersigned concludes that allowing Walker another opportunity to amend his lengthy pleadings would be an inefficient use of the Court's resources, would cause unnecessary delay, and would be futile.
IV. CONCLUSION
The undersigned RECOMMENDS that Judge O'Connor: (1) GRANT Tarrant County's Motion for Partial Dismiss (ECF No. 39) and DISMISS Walker's claims against it under 42 U.S.C. § 1983, the TCHRA, and the TWA; and (2) GRANT the Individual Defendant's Motions to Dismiss (ECF No. 40, 54) and DISMISS Walker's claims against them under Title VII, 42 U.S.C. § 1983, the TCHRA, and the TWA. If Judge O'Connor accepts these recommendations, the only claim remaining in the case would be against the County for violations of Title VII.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). 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 findings, conclusions, 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. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).