Marquita Buchanan v. CCA/Tallahatchie Cty Corrtl , 704 F. App'x 307 ( 2017 )

Case: 17-60178 Document: 00514082201 Page: 1 Date Filed: 07/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-60178
Fifth Circuit
FILED
Summary Calendar July 20, 2017
Lyle W. Cayce
MARQUITA BUCHANAN, Clerk
Plaintiff - Appellant
v.
CCA/TALLAHATCHIE COUNTY CORRECTIONAL FACILITY,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:16-CV-200
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Marquita Buchanan appeals the district court’s
dismissal of her complaint against Defendant–Appellee CCA/Tallahatchie
County Correctional Facility (the Facility) 1 for failure to state a claim. On
December 21, 2015, the Facility fired Buchanan. Nine months later, in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1According to the Facility, its actual legal name is CoreCivic of Tennessee, LLC,
formerly known as CCA of Tennessee.
Case: 17-60178 Document: 00514082201 Page: 2 Date Filed: 07/20/2017
No. 17-60178
September 2016, Buchanan filed a charge of discrimination against the
Facility with the Equal Employment Opportunity Commission (the EEOC).
That same month, the EEOC closed its file on Buchanan’s charge, concluding
the charge was filed outside the 180-day limitations period, and Buchanan
sued the Facility for employment discrimination under Title VII. Buchanan’s
complaint asserted that the Facility discriminated against her on the basis of
her race and gender and, as factual support, alleged in its entirety as follows:
[A supervisor at the Facility] recommended my termination on
December 21, 2015 stating that on 1/26/2015, 07/22/2015, and
09/03/2015 I failed to comply with the attendance program policy
7-2014.
Buchanan’s complaint was accompanied by a letter explaining, in pertinent
part, that she had untimely filed her EEOC charge because she had been
waiting for the Facility’s grievance process to conclude.
The Facility moved to dismiss Buchanan’s complaint under Federal Rule
of Civil Procedure 12(b)(6) because (1) her EEOC charge was untimely and,
thus, her claim was time barred and (2) she failed to allege facts to support a
plausible claim for relief. The motion was referred to a magistrate judge, who
recommended granting the motion. Buchanan objected to the
recommendation, asserting, in pertinent part, that she alleged sufficient facts
to support a claim that the Facility violated her First Amendment rights by
“harass[ing]” her after she discussed the Facility’s attendance policy with its
president, violated “Labor Board Laws” by reprimanding her “for the same
[attendance] violations within thirty days,” and violated another unspecified
“Federal Law” by contacting her via mail. In support of her objection,
Buchanan attached the notices she received from the Facility for violations of
its attendance policy and the emails and grievances she filed in response to
those notices. The district court adopted the magistrate judge’s
recommendation in full, noting that (1) Buchanan did not “raise any grounds
2
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No. 17-60178
for equitable tolling that could extend the time for filing” her EEOC charge,
(2) Buchanan’s complaint was “wholly devoid of facts that could support a
claim under Title VII for discrimination based on race or gender,” and
(3) Buchanan “failed to raise any grounds sufficient to warrant re-pleading in
this case,” despite being put on notice by the magistrate judge’s report that she
must do so to avoid dismissal. Buchanan timely appealed.
We review the dismissal of a complaint de novo, Lowrey v. Tex. A & M
Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997), but the application of equitable
tolling for abuse of discretion, Granger v. Aaron’s Inc., 636 F.3d 708, 712 (5th
Cir. 2011). In reviewing pro se pleadings, this court grants them liberal
construction, but even for pro se litigants, such as Buchanan, “conclusory
allegations . . . will not suffice to prevent a motion to dismiss.” Taylor v. Books
A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting S. Christian
Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786
(5th Cir. 2001)). Similarly, pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
Buchanan argues that the district court erred by not equitably tolling
her Title VII claim because the Facility used its grievance process “to stall”
her. The mere pendency of her grievance, however, is an insufficient basis to
find the district court abused its discretion in declining to apply equitable
tolling. See West v. Miss. Dep’t of Public Safety, 37 F. App’x 712, 712 (5th Cir.
2002) (per curiam) (“[T]he pendency of a grievance, or some other method of
collateral review of an employment decision, does not toll the running of the
limitations period.”); Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th
Cir. 1991) (“[T]he internal union grievance procedure is not a basis [for
equitable tolling] because the pendency of a grievance does not suspend the
180–day limitation for filing a charge.”). But even assuming arguendo that
equitable tolling applied and Buchanan’s Title VII claim was not time barred,
3
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Buchanan’s conclusory factual assertions are insufficient to plausibly allege
that she was terminated on the basis of her race or gender. See Richards v.
JRK Prop. Holdings, 405 F. App’x 829, 831 (5th Cir. 2010) (per curiam). Thus,
her complaint was properly dismissed.
Buchanan further argues, consistent with her objection, that the Facility
violated “the United States Labor laws” and her First Amendment rights.
However, we need not consider these arguments because they were raised for
the first time in Buchanan’s objections to the magistrate judge’s report and
recommendation, and the district court did not abuse its discretion in implicitly
denying Buchanan leave to amend to assert such claims. 2 See Omran v. Prator,
674 F. App’x 353, 355 (5th Cir. 2016) (per curiam).
Buchanan finally argues, for the first time, that the Facility violated her
Fourteenth Amendment rights and requests $100 million in punitive damages.
Buchanan, however, forfeited these arguments by raising them for the first
time on appeal. See Yohey, 985 F.2d at 224–25.
The judgment of the district court is AFFIRMED.
2 Indeed, Buchanan’s brief is devoid of any logical argument or citation to authority
supporting her claim that the “United States Labor laws” or her First Amendment rights
were violated. Accordingly, in any event, the issue was waived on appeal by inadequate
briefing. See Yohey, 985 F.2d at 224–25.
4