United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 2, 2006
Charles R. Fulbruge III
Clerk
No. 06-50098
Summary Calendar
TIMOTHY L CARTER
Plaintiff - Appellant
v.
RMH TELESERVICES, INC
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CV-1130
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Timothy Carter appeals the district
court’s orders granting defendant-appellee RMH Teleservices,
Inc.’s motion for partial dismissal and motion for summary
judgment. For the reasons stated, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves a dispute between plaintiff-appellant
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1
Timothy L. Carter and his former employer RMH Teleservices, Inc.
(“RMH”). Carter worked as a customer service representative for
RMH for thirty-two months, when he was suspended for being
unprofessional to a customer. Three days later, Carter resigned
voluntarily.
Before Carter resigned, his supervisors had given him a
final warning for poor performance, unprofessional conduct, and
chronic absenteeism and had informed him that he could not take
further calls until he attended mandatory professionalism
training. Carter resigned rather than attend the training.
Carter’s disciplinary history includes at least nine write-ups
during his employment at RMH.
More than a month before he resigned, Carter filed a charge
of discrimination against RMH with the Texas Commission on Human
Rights and the Equal Employment Opportunity Commission (“EEOC”).
Carter later amended his charge of discrimination to include an
allegation that RMH retaliated against him because of his charge.
The EEOC closed its file on Carter’s charge because it was
“unable to conclude that the information obtained establishes
violations of the statutes.” Carter then filed suit against RMH
for alleged violations of Title VII, 42 U.S.C. § 2000e, et seq.,
the Employment Retirement Income Security Act (“ERISA”), 9 U.S.C.
§ 1140; the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12, et seq.; and the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621, et seq. Carter later amended his
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complaint to allege state and federal constitutional claims.
The district court granted RMH’s motion to dismiss Carter’s
Title VII race claim, ERISA claim, and constitutional claims.
The ADA and ADEA claims remained. RMH later moved for summary
judgment on Carter’s remaining claims. The district court
granted RMH’s motion for summary judgment and entered final
judgment dismissing Carter’s suit and denying all pending
motions. Carter now appeals both the partial dismissal and the
grant of summary judgment.
II. Rule 12(b)(6) DISMISSAL
A. Standard of Review
This court reviews de novo the grant of a motion to dismiss
under Rule 12(b)(6). Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (citing Gregson
v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir. 2003)). We
“accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999) (per curiam) (citing Doe v. Hillsboro
Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). “[T]he
court should not dismiss the claim unless the plaintiff would not
be entitled to relief under any set of facts or any possible
theory that [it] could prove consistent with the allegations in
the complaint.” Id. (citing Vander Zee v. Reno, 73 F.3d 1365,
1368 (5th Cir. 1996)). “Dismissal is proper if the complaint
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lacks an allegation regarding a required element necessary to
obtain relief . . . .” Rios v. City of Del Rio, 444 F.3d 417,
421 (5th Cir. 2006) (omission in original) (quoting Campbell v.
City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995)).
B. Analysis
Carter contends that the district court’s dismissal of his
ERISA claim was improper because he needed more time for
discovery.1 Discovery would not have benefitted Carter because
the review of a motion to dismiss for failure to state a claim is
limited to the complaint and does not look at the evidence.2 See
Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). Therefore, we
review Carter’s complaint to determine whether it states a claim
for discrimination under § 510 of ERISA.
If we “accept all well-pleaded facts as true, viewing them
in the light most favorable to the plaintiff,” Jones, 188 F.3d at
324, Carter’s complaint only states that RMH had to modify its
401(k) plan in order to preserve its tax-qualified status and
1
RMH argues that Carter’s appeal of the order granting RMH’s partial motion to dismiss
is time-barred because Carter did not file a notice of appeal within thirty days of the order. That
is not the case. Because an interlocutory appeal was not available here, the final judgment rule
required Carter to wait to file the notice of appeal until the court entered a final judgment
disposing of all claims in the case. See 28 U.S.C. § 1291. Carter timely filed a notice of appeal,
within thirty days of the final judgment in this case. See FED. R. APP. 4(a)
2
Although district court’s order used Rule 56 language with regard to the ERISA claim,
the district court misdescribed its action, that is to review the motion under Rule 12(b)(6).
Because no party had as yet filed matters related to the ERISA claim outside the pleadings, this
order cannot be treated as a Rule 56 summary judgment. See FED. R. CIV. P. 12(b).
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that as a result all telephone service representatives cannot
participate in the plan. Carter’s complaint does not state a
cognizable claim under ERISA because he does not allege that RMH
specifically retaliated against him by terminating his 401(k)
contributions or that RMH interfered with his right to receive
pension benefits. See 29 U.S.C. § 1140.
Carter contends that the district court’s dismissal of his
Title VII race claim was improper because he was not required to
exhaust all administrative remedies before filing suit. We agree
with the dismissal for the reasons stated by the district court.
Carter failed to raise his race discrimination claim in the EEOC
charge with the specificity required to exhaust administrative
remedies and satisfy that condition precedent to a civil action
under Title VII. See Sanchez v. Standard Brands, Inc., 431 F.2d
455, 460 (5th Cir. 1970); Teffera v. N. Texas Tollway Auth., 121
F. App’x. 18, 21 (5th Cir. 2004) (per curiam) (unpublished).
Carter also contends that because EEOC employees misled him
about his rights, under National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002), his Title VII claims should be
tolled rather than dismissed. However, that case held that the
time period for filing a charge is subject to equitable
doctrines, which is not the issue here. See id.
III. Grant of Summary Judgment
A. Standard of Review
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Summary judgment is reviewed de novo, under the same
standards used by the district court to determine whether summary
judgment is appropriate in the first instance. Riverwood Intern
Corp. v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir.
2005). Summary judgment is proper when, viewing the evidence in
the light most favorable to the nonmovant, “there is no genuine
issue of any material fact” and the moving party is “entitled to
judgment as a matter of law.” Brooks, Tarlton, Gilbert, Douglas
& Kressler v. United States, 832 F.2d 1358, 1364 (5th Cir. 1987);
FED. R. CIV. P. 56(c).
Once the moving party establishes that there is no genuine
issue, the burden shifts to the nonmoving party to produce
evidence of the existence of a genuine issue for trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 321 (1986). The nonmoving party
cannot satisfy his summary judgment burden with conclusory
statements, speculation, and unsubstantiated assertions.
Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc).
B. Analysis
Carter first contends that the district court’s grant of
summary judgment against him was improper because the complaint
complied with FED. R. CIV. P. 8(a). Carter incorrectly posits
that compliance with Rule 8 precludes summary judgment under Rule
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56(c).3 Rule 8(a) standards do not apply to Rule 56 motions for
summary judgment. See Sw. Bell Tel. Co., No. 03-5079, 2004 WL
790299, at *2 (10th Cir. 2004). The purpose of Rule 8(a) is to
focus litigation on the merits of a claim. See Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002). “This simplified notice
pleading standard relies on liberal discovery rules and summary
judgment motions to define disputed facts and issues to dispose
of unmeritorious claims.” Id. at 512. Rule 56, on the other
hand, focuses on the evidence, not the adequacy of the pleading.
FED. R. CIV. P. 56. Thus, even though Carter complied with the
formal pleading requirements, summary judgment was nevertheless
proper because Carter did not produce evidence of a genuine issue
of material fact.
Carter next asserts that summary judgment was improper
because the district court “abused its discretion by failing to
address [his] retaliation claims.”4 To the contrary, the
district court’s order granting RMH’s motion for summary judgment
analyzes the record evidence and concludes that Carter’s
affidavit was not “sufficient evidence to raise a genuine issue
3
Carter also contends that the district court should only have applied Rule 8(a) and not
Rule 56 because summary judgment was impossible as no depositions, answers to interrogatories,
or admissions were on file. Rule 56 has not been interpreted as requiring parties to engage in
each type of discovery prior to summary judgment. See Washington v. Allstate Ins. Co., 901
F.2d 1281, 1285 (5th Cir. 1990) (“Rule 56 does not require that any discovery take place before
summary judgment can be granted.”).
4
Carter incorrectly concludes that an abuse of discretion is the standard of review for
summary judgment.
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of material fact” to overcome RMH’s legitimate, nondiscriminatory
reasons for its employment decisions. After a de novo review of
the record, we hold that the district court properly granted
summary judgment for RMH because Carter could not rebut RMH’s
legitimate, nondiscriminatory reasons for its employment actions.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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