                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                        In The United States Court Of Appeals                            August 22, 2006
                                For The Fifth Circuit
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                          No. 05-21067
                                        Summary Calendar


HENDERSON R. PRYOR,

               Plaintiff – Appellant,

v.

ALAN M. WOLFE; JOSEPH W. JOHNSON; EVA S. HARKLESS; JOE D. WARD;
JOANN E. HICKERSON; TIFFANY WILLIAMS; METHA VASQUEZ; and M.D.
ANDERSON CANCER CENTER,

               Defendants – Appellees.
                                     ———————
                      Appeal from the United States District Court
                            for the Southern District of Texas
                                    No. 05-CV-00717
                                     ———————

Before KING, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

       Henderson R. Pryor, appearing pro se, appeals the district court’s orders dismissing

his Title VII1 race discrimination and retaliation claims against his employer, M.D.

Anderson, and his alleged supervisors, Alan Wolfe, Joseph Johnson, Eva Harkless, Joe

Ward, Joann Hickerson, Tiffany Williams, and Metha Vasquez. We AFFIRM IN PART and


       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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
        42 U.S.C. § 2000e-2000e17.
REVERSE AND REMAND IN PART.

       Pryor sued the defendants following a dispute about whether sick leave he took in

February 2004 should be classified as leave under the Family and Medical Leave Act

(FMLA). Pryor alleges he was charged with FMLA leave against his wishes and that his

compensation for the period he was absent from work was reduced. He claims that his

absence was classified as FMLA leave because of his race and that classification of his

absence as FMLA leave violated M.D. Anderson’s FMLA policy. Pryor does not allege that

he had any paid leave benefits or that he was denied those benefits. He claims, however, that

the defendants withheld his pay check for hours he worked in December 2004 after he filed

a race discrimination complaint with the Equal Employment Opportunity Commission

(EEOC).

       The individual defendants filed a motion to dismiss Pryor’s claims pursuant to FED.

R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted, arguing that

they cannot be held liable in their individual or official capacities under Title VII even if they

are all supervisors as Pryor alleges in his complaint. M.D. Anderson also asked the court to

dismiss Pryor’s claims under Rule 12(b)(6) because his pleadings do not demonstrate that

he suffered an actionable “adverse employment action.” The district court granted the

motions to dismiss and dismissed Pryor’s claims without prejudice. Pryor was not afforded

an opportunity to replead.




                                                2
       A decision to dismiss a case under Rule 12(b)(6) is reviewed de novo.2 A complaint

cannot be dismissed for failure to state a claim “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief.”3

In determining whether to dismiss a complaint under Rule 12(b)(6), the allegations in the

complaint and its attachments must be liberally construed in the plaintiff’s favor and all

alleged facts must be taken as true.4 In this case, we must also consider that Pryor is

appearing pro se and hold his pleadings “to less stringent standards than formal pleadings

drafted by lawyers.”5 We may also consider documents attached to a motion to dismiss if

those documents are referred to in the plaintiff’s complaint and are central to the plaintiff’s

claims.6

       Pryor generally complains that the district court improperly considered materials

beyond the pleadings in dismissing his claims and found facts that are not supported by the

record. If materials outside the pleadings are considered, the motion to dismiss must be

treated as a motion for summary judgment under FED. R. CIV. P. 56(c), which requires notice

and an opportunity to respond with evidence.7 The district court did not treat the motions

       2
        Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
       3
         Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (internal quotation marks and
citations omitted).
       4
        Id.; C.C. Port, Ltd. v. Davis-Penn Mortgage Co., 61 F.3d 288, 289 (5th Cir.1995).
       5
        Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002).
       6
        Causey, 394 F.3d at 288.
       7
        FED. R. CIV. P. 12(b); Scanlon v. Tex. A&M Univ., 343 F.3d 533, 539 (5th Cir. 2003).

                                               3
to dismiss as motions for summary judgment; therefore, we confine our review to the

allegations in the pleadings.

       To prevail on his discrimination claim, Pryor must show that he suffered an “adverse

employment action” because of his race or because he engaged in an activity protected by

Title VII.8 In this Circuit, only “ultimate employment decisions” such as “hiring, granting

leave, discharging, promoting, and compensation” are actionable “adverse employment

actions” under Title VII.9 In holding that Pryor’s “complaint and other pleadings fail to

establish that [M.D. Anderson] committed any act that may be classified as an adverse

employment action,” the district court discussed only the allegations in the complaint

concerning Pryor’s absence from work in February 2004. The court said that neither failure

to pay an employee who was absent from work nor classification of an absence as FMLA

leave constitutes an “ultimate employment decision.”              Because we agree that those

allegations do not state a claim under Title VII, we AFFIRM dismissal of Pryor’s race

discrimination claim against M.D. Anderson.

       However, the Supreme Court recently held in Burlington Northern & Santa Fe Railway

Co. v. White that Title VII’s anti-retaliation provision is not limited to “ultimate employment

decisions.”10 Rather, a plaintiff states a retaliation claim under Title VII by “show[ing] that



       8
        See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. 2003); Urbano
v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
       9
        Willis v. Coca Cola Enters. Inc., 445 F.3d 413, 420 (5th Cir. 2006).
       10
            126 S. Ct. 2405, 2414 (2006) (internal quotation marks omitted and alteration added).

                                                  4
a reasonable employee would have found the challenged action materially adverse, which

in this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.”11 The district court did not consider Pryor’s

retaliation claim under this new standard, but because we conclude that the allegations in

Pryor’s complaint meet this standard as well as the more stringent “ultimate employment

decision” standard, we REVERSE the district court’s dismissal order as to Pryor’s retaliation

claim and REMAND that claim for further proceedings.

       Pryor alleges in his complaint that M.D. Anderson did not pay him for work

performed from December 21, 2004 to December 31, 2004. According to Pryor’s complaint,

other employees were paid for that same pay period on January 5, 2005 but he was “denied

and deprived of his paycheck.” Pryor contends that M.D. Anderson wrongfully withheld his

paycheck because Pryor filed a race discrimination complaint with the EEOC on December

29, 2004. Pryor does not specifically allege that M.D. Anderson had notice of the EEOC

filing but that is a reasonable inference from the allegations in the complaint. Pryor’s

complaint thus alleges that he was deprived of earned compensation in retaliation for filing

an EEOC complaint, which if true would constitute an adverse employment action.12

Moreover, deprivation of earned compensation would almost certainly “‘dissuade[] a



       11
            Id. at 2415.
       12
         Cf. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 193-94 (5th Cir. 2001) (holding that
denial of a $57-per-month merit pay increase constituted an “ultimate employment decision” for
purposes of the plaintiff’s Title VII retaliation claim).

                                               5
reasonable worker from making or supporting a charge of discrimination.’”13 Therefore,

Pryor’s complaint states a claim under the Burlington Northern standard. Although there is

evidence in the record that Pryor’s paycheck was merely delayed, not withheld entirely, this

evidence is not included in the documents constituting the “pleadings,” and we have no

choice but to conclude that Pryor has stated a retaliation claim under Title VII against M.D.

Anderson.

       We AFFIRM the district court’s order dismissing Pryor’s claims against the individual

defendants because “[i]ndividuals are not liable under Title VII in either their individual or

official capacities.”14

       Pryor also complains that the district court abused its discretion in denying his

amended motion to vacate the judgment. This argument is moot as to Pryor’s retaliation

claim against M.D. Anderson, and we find no abuse of discretion regarding the remaining

claims.15

AFFIRMED IN PART; REVERSED AND REMANDED IN PART




       13
            Burlington N., 126 S. Ct. at 2415 (alteration added).
       14
       Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003); see also Thomas v.
Choctaw Mgmt./Servs. Enter., 313 F.3d 910, 911 (5th Cir. 2002).
       15
          See Pease v.Pakhoed Corp., 980 F.2d 995, 998 (5th Cir. 1993) (stating that motions for
relief from judgment are reviewed for abuse of discretion).

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