     Case: 16-20032      Document: 00514443613         Page: 1     Date Filed: 04/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-20032                                FILED
                                  Summary Calendar                          April 24, 2018
                                                                           Lyle W. Cayce
ROBIN PRINCE-RIVERS,
                                                                                Clerk


              Plaintiff - Appellant

v.

FEDERAL EXPRESS GROUND; RANDSTAD TEMPORARY AGENCY,

              Defendants - Appellees




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:14-CV-3439


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff Robin Prince-Rivers sued defendants Federal Express Ground
(“FedEx”)     and     Randstad      Temporary       Agency       (“Randstad”),         alleging
employment discrimination. The district court granted the defendants’
separate motions to dismiss. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-20032
                                       I.
      From November 2011 until November 2013, when she took leave, Prince-
Rivers worked as a temporary driver for FedEx through Randstad. Prior to
taking leave, she filed two separate Charges of Discrimination with the Texas
Workforce Commission and Equal Employment Opportunity Commission
(“EEOC”). First, on September 30, 2013, she alleged retaliation and race
discrimination against FedEx. She explained that she was receiving more work
and less pay than her Hispanic co-worker, and that, when she complained
about it, her hours “were reduced significantly.” Then, on October 3, 2014,
Prince-Rivers filed charges against both Randstad and FedEx, claiming both
race and sex discrimination. She alleged that she was “paid . . . $12.63 per hour
while [her] male, non-African American coworkers were paid $13 per hour and
above.”
      The EEOC issued responsive Dismissal and Notice of Rights forms on
August 29, 2014, and October 15, 2014, respectively. For both charges, the
EEOC explained it was “unable to conclude that the information [it] obtained
establishe[d] violations of the statutes.” The Dismissal and Notice forms also
explained that Prince-Rivers could sue the defendants within 90 days of receipt
of the notice.
      Prince-Rivers filed her initial complaint on December 1, 2014. Her
second and third amended complaints—filed January 6 and 7, 2015,
respectively—specified that her claims were being brought under Title VII of
the Civil Rights Act of 1964 and detailed the discriminatory treatment she
allegedly received. Notably, the complaints alleged that she received notice
from the EEOC for her FedEx claim on August 29, 2014.
      FedEx filed a motion to dismiss, arguing Prince-Rivers failed to sue
within 90 days of the EEOC Notice. FedEx’s argument relied on the date of
notice she provided in her amended complaint. It counted over 90 days from
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this date to her initial filing. Randstad filed a separate motion to dismiss,
arguing Prince-Rivers failed to file her charge with the EEOC within 300 days
of the last violation. Randstad relied on her October 2014 EEOC charge, which
stated the company had discriminated against her from December 1, 2011,
through November 8, 2013. It counted 329 days from the end of this time period
to the date Prince-Rivers filed her charge with the EEOC.
      On December 10, 2015, the district court granted both motions. Rivers
timely appealed pro se.
                                       II.
      We review grants of motions to dismiss de novo. Taylor v. Books a
Million, Inc. 296 F.3d 376, 378 (5th Cir. 2002). The standard is well
established: We must determine whether the plaintiff “fail[ed] to allege any set
of facts in support of [her] claim which would entitle [her] to relief.” Id. This
includes determining whether she is unable to thwart affirmative defenses
such as the failure to abide by the applicable statute of limitations. Alexander
v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017). The court must
“accept[] as true the well-pled factual allegations in the complaint, and
construe[] them in the light most favorable to the plaintiff.” Taylor, 296 F.3d
at 378.
            A. Dismissal of FedEx
      A Title VII lawsuit must be brought within 90 days of receiving a right-
to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f); Berry v. CIGNA/RSI-
CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). It is uncontested that, according
to the date provided in Prince-Rivers’s third amended complaint, she failed to
meet this deadline.
      Prince-Rivers argues, however, that this complaint was superseded by
subsequent, amended complaints that omitted such a date. And since “[a]n
amended complaint supersedes the original complaint and renders it of no
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                                    No. 16-20032
legal effect” unless specifically qualified, King v. Dogan, 31 F.3d 344, 346 (5th
Cir. 1994), there is no basis for determining whether her claim was time-barred
from the complaint.
      But this argument was not raised below, so it is waived. See Stearman
v. C.I.R., 436 F.3d 533, 537 (5th Cir. 2006). Even if we were to consider it,
Prince-Rivers cannot simply file documents and declare them to be amended
complaints. She was permitted to amend her pleadings “only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). There is
no indication in the record that either the defendants or the court gave such
permission. To the contrary, Randstad moved to strike her attempt to establish
a fourth amended complaint, which was apparently never resolved. In
addition, Rule 15(c), which Prince-Rivers cites in support of her argument,
pertains only to the relation back of properly amended pleadings, cf. Sanders-
Burns v. City of Plano, 594 F.3d 366, 372–73 (5th Cir. 2010), so her reliance on
this rule is inapt.
      Accordingly, the district court was correct in granting FedEx’s motion to
dismiss. 1
             B. Dismissal of Randstad
      Title VII claimants are required to file their Charges of Discrimination
with the EEOC within 180 days of the violation, or within 300 days if the
complaint is first filed with a state or local agency. 42 U.S.C. § 2000e-5(e)(1);
Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 549
(5th Cir. 2009). The parties do not dispute that the 300-day deadline applies
here. The charges “fix[] the scope of the charging party’s subsequent right to
institute a civil suit. The suit filed may encompass only the discrimination



      1  Because we so rule, we need not address Prince-Rivers’s remaining arguments that
her claims against FedEx would survive the summary judgment standard.
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stated in the charge itself or developed in the course of a reasonable [EEOC]
investigation of that charge.” Nat’l Ass’n of Gov’t Emps., 40 F.3d at 711–12
(quoting King v. Seaboard Coastline R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976))
(internal quotation marks omitted).
       Prince-Rivers’s Charge of Discrimination against Randstad offered a
discrete time period during which she suffered harm. 2 It stated, “From
December 2011 through November 8, 2013, Randstad Staffing paid me $12.63
per hour while my male, non-African American coworkers were paid $13 per
hour and above.” She listed the same date range in a section that requested
the “Date(s) Discrimination Took Place” and did not identify the conduct as a
“continuing action” when prompted. Despite this, she did not file her charge
until October 3, 2014—that is, 329 days later.
       On    appeal,    Prince-Rivers      attempts     to   thwart    this   exhaustion
requirement through two arguments—the continuing violation doctrine and
equitable tolling—that were not raised below and are thus waived. See
Stearman, 436 F.3d at 537. Accordingly, the district court’s dismissal of
Randstad was appropriate.
       But even if we were to consider these claims on their merits, they are
unavailing. Under the continuing violation doctrine, a plaintiff need not
“establish[] that all of the complained-of conduct occurred within the
actionable period if the plaintiff can show a series of related acts, one or more
of which falls within the limitations period.” Messer v. Meno, 130 F.3d 130,
134–35 (5th Cir. 1997). Among the requirements for its invocation is that the



       2  The charge was referenced in the third amended complaint (which—as noted
above—is the applicable complaint), was attached to Randstad’s motion to dismiss, and is
essential to the legal argument at issue. We may therefore consider it. See Brand Coupon
Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). Furthermore, to
the extent Prince-Rivers’s argument against Randstad also relies on the assertion that the
third amended complaint was superseded, it is rejected for the same reasons proffered above.
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misconduct “must be continuing; intervening action by the employer, among
other things, will sever the acts that preceded it from those subsequent to it.”
Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731,
738 (5th Cir. 2017).
      Prince-Rivers alleges that the misconduct—unequal pay—continued in
January 2014, when she received her last payments. This argument cannot be
reconciled with the terms of the charge itself, which was filed nine months later
yet neglects any mention of the January 2014 payments or a continuing action.
Moreover, the January 2014 pay stubs reflect a payment rate of $14 per hour.
Accordingly, by the terms of her charge, she was being paid more than some of
her “male, non-African American coworkers” at that time. We therefore
conclude that the January 2014 payments are unconnected to the prior,
complained of payments. Prince-Rivers is not protected by the continuing
violation doctrine.
      Prince-Rivers also argues that she is entitled to equitable tolling because
she submitted an EEOC intake questionnaire on August 9, 2013, and thus
exhibited due diligence in seeking to bring her claim. The document was not in
the district court’s record, nor was it referenced in her EEOC charge. Indeed,
the questionnaire’s account of the discrimination she suffered does not mention
unequal pay; rather, it is focused on an allegation that she received a
disproportionate workload. Moreover, the questionnaire was submitted
months before the alleged harm of unequal pay ended. Accordingly, the
questionnaire cannot redeem Prince-Rivers’s failure to submit the charge with
the EEOC until over 300 days had elapsed since the last alleged instance of
unequal pay occurred.
      In short, the district court was also correct in granting Randstad’s
motion to dismiss.
      AFFIRMED.
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