Brown v. City of Anna

Case: 23-40214 Document: 00516983948 Page: 1 Date Filed: 11/29/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

November 29, 2023

No. 23-40214 Lyle W. Cayce

Summary Calendar Clerk

____________

Lonzell Brown,

Plaintiff—Appellant,

versus

City of Anna City Hall; Lee Lewis Construction,

Incorporated; Paramount Trade Solutions; Don Burton

& Associates, Incorporated,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:22-CV-571

______________________________

Before Wiener, Stewart, and Douglas, Circuit Judges.

Per Curiam: *

Pro se Plaintiff–Appellant Lonzell Brown alleges that Defendants–

Appellants City of Anna City Hall, Lee Lewis Construction, Inc., Don Burton

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*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-40214

and Associates, 1 and Paramount Trade Solutions discriminated against him

on the basis of race in violation of Title VII of the Civil Rights Act of 1984. 2

Brown accuses Defendants–Appellants of underpaying people of color and

failing to post federal employment policies. The City of Anna, Lee Lewis

Construction, and Don Burton and Associates moved to dismiss Brown’s

complaint, and Paramount Trade Solutions moved for summary judgment.

Each raised the same defense: Brown cannot bring a Title VII claim against it

because it was not his employer. The district court, relying on a magistrate

judge’s report and recommendations, granted Defendants–Appellants’

motions. Brown appeals.

Motions to Dismiss

We review de novo a district court’s decision to grant a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). Lampton v. Diaz, 639

F.3d 223, 225 (5th Cir. 2011) (citation omitted). “[A]ccepting all well-

pleaded facts as true and viewing those facts in the light most favorable to the

plaintiffs,” a complaint survives a motion to dismiss only if it “pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Meador v. Apple, Inc., 911

F.3d 260, 264 (5th Cir. 2018) (first quoting Dorsey v. Portfolio Equities, Inc.,

540 F.3d 333, 338 (5th Cir. 2008), then quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). We construe pro se complaints liberally, but “regardless of

whether the plaintiff is proceeding pro se or is represented by counsel,

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1

Variously referred to in briefing and exhibits as “Don Burdon and Associates”

and “Don Burden and Associates.”

2

Brown also references the Davis Bacon Act of 1931, but his complaint’s only cause

of action is under Title VII. And the Davis Bacon Act, in the context referenced by Brown,

does not confer a private right of action on employees. See Univs. Rsch. Ass’n, Inc. v. Coutu,

450 U.S. 754, 770 (1981).

2

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conclusory allegations or legal conclusions masquerading as factual

conclusions will not suffice.” Prescott v. UTMB Galveston Tex., 73 F.4th 315,

318 (5th Cir. 2023) (quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378

(5th Cir. 2002)).

“[T]he purpose of Title VII is to protect employees from their

employers’ unlawful actions.” Thompson v. N. Am. Stainless, LP, 562 U.S.

170, 178 (2011). As such, only those “in employment relationships with the

defendant” may bring such claims. Simmons v. UBS Fin. Servs., Inc., 972 F.3d

664, 669 (5th Cir. 2020); see also Body by Cook, Inc. v. State Far Mut. Auto.

Ins., 869 F.3d 381, 391 (5th Cir. 2017) (“To maintain a claim under Title VII,

the plaintiff must demonstrate an ‘employment relationship’ between the

plaintiff and the defendant.”). An employer is one who has the right to

control an employee’s conduct, including the right to hire, fire, supervise,

and pay the employee. Muhammad v. Dall. County Cmty. Supervision & Corr.

Dep’t, 479 F.3d 377, 380 (5th Cir. 2007).

Brown’s complaint fails to plausibly allege an employment

relationship with the City of Anna, Lee Lewis Construction, or Don Burton

and Associates. On his application to proceed in forma pauperis in the district

court, Brown indicated that his employer was Paramount Trade Solutions.

He also pleads “collectively,” referencing Defendants–Appellants together

as a group, rather than alleging facts plausibly suggesting that each individual

entity was his employer as the statute defines it. See Dixon v. Primary Health

Servs. Ctr., Civ. No. 10-1490, 2011 WL 1326841, at *2 (W.D. La. Mar. 3,

2011) (footnote omitted) (“Although plaintiff alleges that she was

‘employed’ by ‘defendants,’ she has not set forth facts to demonstrate that

defendants, Tonore and PHSC Board of Directors, satisfied Title VII’s

statutory definition of ‘employer.’”), report and recommendation adopted,

2011 WL 1298643 (W.D. La. Apr. 5, 2011). Brown points to pay stubs which

suggest that he worked for Paramount on a project for customer “Don

3

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Burden and Associates” on “Anna City Hall.” However, merely working on

a project for these entities does not establish a plausible employment

relationship with them, such that they had the right to control his conduct,

which is the “most important component” of an employment relationship.

Muhammad, 479 F.3d at 380. 3

Title VII claims may be brought against employers only, and Brown’s

complaint fails to allege that he was in an employment relationship with

Defendants–Appellants. The district court correctly granted Defendants–

Appellants’ motions to dismiss. 4

Motion for Summary Judgment

Brown also appeals the district court’s order granting Paramount’s

motion for summary judgment. We also review a district court’s grant of

summary judgment de novo. United States ex rel. Schweizer v. Canon, Inc., 9

F.4th 269, 273 (5th Cir. 2021). Summary judgment is proper when the record

shows that “there is no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Unlike the other Defendants–Appellants, Paramount does not dispute

that Brown did work for it at some point. However, it asserts that he did not

do so during the time period relevant to his complaint. The district court

granted Paramount’s motion for summary judgment on that basis.

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3

Brown does not allege that Defendants–Appellants were in a “joint employer”

relationship. See N. Am. Soccer League v. NLRB, 613 F.2d 1379, 1382 (5th Cir. 1980).

4

These Defendants–Appellants also assert that Brown’s complaint (1) failed to

state a claim, as it did not make out a prima facie case of discrimination, or (2) to properly

allege that Brown had satisfied his exhaustion responsibilities. Because we affirm the

district court’s dismissal on the basis of Brown’s failure to allege an employment

relationship, we do not reach these matters.

4

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Brown attached to his complaint the Charge of Discrimination forms

that he submitted to the Equal Employment Opportunity Commission

(“EEOC”). Each Charge contains the same “particulars”: “PERSONAL

HARM: a. Starting in or around January 2021, until my resignation in or

around July 2021, I was paid approximately $24 dollars per hour while

similarly situated non-Black individuals in the same position, performing the

same job duties, were paid approximately $26 - $28 dollars per hour.” The

relevant time period for his complaint, then, is from January through July

2021. However, the undisputed evidence before the district court established

that Brown did not begin working for Paramount until September 2021.

Therefore, from January 2021 to July 2021, Paramount had no “right to

control” Brown’s conduct. See Muhammad, 479 F.3d at 380. Brown and

Paramount were not in an employment relationship during the relevant time

period, and Paramount cannot be held liable under Title VII for events that

occurred during that period.

To the extent that Brown alleges that Paramount discriminated

against him at a later date, he has not exhausted that claim. As Paramount

observes, a Title VII lawsuit is limited to the scope of the EEOC charge and

any resulting investigation. Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th

Cir. 1993) (citation omitted) (“[A] rule of reason . . . permits the scope of a

Title VII suit to extend as far as, but no further than, the scope of the EEOC

investigation which could reasonably grow out of the administrative

charge.”). We agree with the district court that, when a plaintiff identifies a

distinct time period in an EEOC charge, he or she cannot bring a Title VII

claim based on events that occurred totally outside that period. See Ganheart

v. Brown, 740 Fed. App’x. 386, 390 (5th Cir. 2018) (pro se plaintiff precluded

from bringing claims that occurred after the dates identified in the charge).

To be more specific, a plaintiff cannot rely on the initial EEOC charge as

evidence of exhausting claims based on later events. Brown is not barred from

5

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initiating a Title VII suit against Paramount for discrimination beginning in

September 2021, but he may not rely on this EEOC Charge to do so, as it does

not encompass the scope of that alleged discrimination. 5

The district court’s grant of summary judgment was also proper. All

rulings and judgments of that court are AFFIRMED. 6

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5

Neither would this Charge be “reasonably expected” to trigger an EEOC

investigation into race discrimination by Paramount beginning in September 2021, as it

focuses on a time period when Brown had not even begun working there. See Pacheco v.

Mineta, 448 F.3d 783, 789–90 (5th Cir. 2006).

6

In his briefing, Brown also complains that the district court erred by not “joining”

all defendants, such that he had to “unfairly reply to five defendants.” This is a

misinterpretation of Federal Rule of Civil Procedure 19. Additionally, Brown did not raise

the issue of joinder in his notice of appeal. See Ingraham v. United States, 808 F.2d 1075,

1080 (5th Cir. 1987).

6