     Case: 10-10422 Document: 00511401779 Page: 1 Date Filed: 03/04/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                   FILED
                                                                               March 4, 2011

                                          No. 10-10422                         Lyle W. Cayce
                                                                                    Clerk

DINA T. AMANDURON,

                                                      Plaintiff-Appellant
v.

AMERICAN AIRLINES

                                                      Defendant-Appellee




                      Appeal from the United States District Court
                           for the Northern District of Texas
                                 USDC No. 4:10-00051


Before JONES, Chief Judge, BENAVIDES, Circuit Judge, and AYCOCK,
District Judge.*
PER CURIAM:**
       Plaintiff-Appellant, Dina T. Amanduron, proceeding pro se, brought suit
against her employer, Defendant-Appellee American Airlines, Inc., alleging race
and disability discrimination and retaliation. Finding that the district court
committed reversible error in failing to provide the pro se plaintiff an
opportunity to amend her complaint, we VACATE and REMAND.

       *
            District Judge for the Northern District of Mississippi, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10422 Document: 00511401779 Page: 2 Date Filed: 03/04/2011



                                  No. 10-10422

      I.    PROCEDURAL HISTORY
      Dina T. Amanduron, proceeding pro se, filed suit against her employer
American Airlines, alleging race and disability discrimination and retaliation.
Using a form complaint, Amanduron hand wrote the following: “The company
retaliated on me because I have an EEO complaint. I charged the American
Airlines of discrimination because of my race, national origin and retaliation. I
have been harassed at work [and] company supervisors are protecting the
employees who are harassing me.” “The company retaliated [against] me by
regarding me as mentally disable[d] restricting me from coming to work.” “In
both cases I am suing American Airlines for a total of $25 Million.”
      Prior to filing suit, Amanduron had filed a charge of discrimination against
American Airlines with the Texas Workforce Commission.            That charge of
discrimination, along with the dismissal and “notice of rights” form issued by the
Equal Employment Opportunity Commission (EEOC), were attached to the
instant complaint.1 Amanduron alleged race and disability discrimination and
retaliation. Amanduron alleged that: “On or about the late May, 2009, I was
subjected to harassment and disciplined for wearing a blue hat with the letters
TX. I complained of the discriminatory treatment and requested an
investigation.” “On or about June 5, 2009, I was suspended for 30 days with pay.
On or about July 16, 2009, Thomas Ford, Customer Service Manager, informed
me to return to work with restrictions. On or about July 17, 2009, Cindy Murr,
American Airlines Medical Nurse, directed me to seek psychiatric treatment. On
or about July 17, 2009, I was telephoned by Merry Janes, Senior Investigator,
HR Work Environment, [who] discharged me and suggested I apply for
disability.” Amanduron further alleged that: “Brian Saylor and Angela Davis,


      1
       Amanduron filed a second EEOC charge against American on December
14, 2009, simply adding “disability” as a basis for discrimination against her by
American. That addition was the only difference between the two charges.

                                        2
    Case: 10-10422 Document: 00511401779 Page: 3 Date Filed: 03/04/2011



                                  No. 10-10422

American Airlines Supervisor[s,] stated I violated the Uniform Code.” “Thomas
Ford, Customer Service Manager, DFW Ramp Service, stated I was suspended
effective immediately pending further investigation.        Merry Janes, Senior
Investigator, HR Work Environment stated I was discharged due to my
restrictions, unless I seek psychiatrist treatment and work with American
Airlines so I can get my release.” Amanduron also alleged as follows: “I believe
I have been discriminated against because of my race, Filipino and national
origin, Asian, in violation of Title VII of the Civil Rights Act of 1964, as
amended. I also believe I was retaliated because I filed an internal EEO
complaint for opposing unlawful employment practices in violation of Section
704(a) in violation of Title VII of the Civil Rights Act of 1964.”
      On February 16, 2010, American Airlines filed a motion to dismiss for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Amanduron opposed the motion to dismiss. On April 19, the district
court granted the motion to dismiss all Amanduron’s claims against American
Airlines, ruling that the “complaint amounts to nothing more than the type of
unwarranted deductions, conclusory allegations, and legal conclusions couched
as factual allegations that the court need not accept as true.” R. at 82 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). Amanduron filed a timely notice
of appeal.
      II.    ANALYSIS
             A.    Standard of Review
      This Court reviews de novo a district court’s dismissal pursuant to Rule
12(b)(6), “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th Cir.
2007). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (citation omitted). “To survive a motion to dismiss, a

                                         3
     Case: 10-10422 Document: 00511401779 Page: 4 Date Filed: 03/04/2011



                                     No. 10-10422

complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (citation omitted). In the instant
case, Amanduron was proceeding pro se when she filed her complaint. Although
pro se complaints are held to less stringent standards than those crafted by
attorneys, “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citation and internal quotation
marks omitted).
              B.     Amanduron’s Complaint
      Amanduron contends that the district court erred in failing to liberally
construe the allegations in her pro se complaint in her favor.2 Amanduron asks
this Court to reverse the district court’s dismissal and reinstate her case for
further consideration.
      “Generally a district court errs in dismissing a pro se complaint for failure
to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity
to amend.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998); accord Jones
v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999). Here, the record shows that the
district court did not provide Amanduron an opportunity to amend her pro se
complaint prior to the district court’s dismissal of it. Thus, the district court
erred in failing to provide an opportunity for Amanduron to attempt to
successfully state a claim in an amended complaint.               “Such error may be
ameliorated, however, if the plaintiff has alleged his best case, or if the dismissal
was without prejudice.” Bazrowx, 136 F.3d at 1054 (footnotes omitted). Here,
however, the dismissal of the complaint was with prejudice, and thus the harm
was not rectified.




      2
          It should be noted that Amanduron is represented by counsel on this appeal.

                                            4
     Case: 10-10422 Document: 00511401779 Page: 5 Date Filed: 03/04/2011



                                       No. 10-10422

       Additionally, although the definition of a plaintiff’s “best case” has been
deemed “elusive,” we conclude that Amanduron’s brief demonstrates that she did
not allege her best case in her complaint. Dark v. Potter, 293 F. App’x. 254, 257
(5th Cir. 2008). The district court ruled that Amanduron’s “allegation that
defendant retaliated against her by regarding her as mentally disabled . . . fails
to state a viable claim, as [she] has alleged nothing that could conceivably be
considered protected activity as would sustain a claim of retaliation.” R. at 81.
In her brief, Amanduron states that the record demonstrates that she did engage
in a protected activity in May of 2009, “when she complained that she had been
disciplined in a discriminatory manner based upon her race and or national
origin and requested that an investigation of her complaint be conducted.” 3
“[A]n informal complaint may constitute protected activity for purposes of
retaliation claims.” Casna v. City of Loves Park, 574 F.3d 420, 427 (5th Cir.
2009); cf. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir. 2008)
(adopting the majority rule that “allows an informal, internal complaint to
constitute protected activity” in the context of a Fair Labor Standards Act case).
As such, the allegations in Amanduron’s brief indicate that she had engaged in
a protected activity, which is required to state a claim for retaliation under Title
VII. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). Thus, the allegations in
Amanduron’s complaint with respect to the claim of retaliation did not set forth
her best case.
       With respect to Amanduron’s claim of race discrimination, the district
court concluded that her allegations with respect to being disciplined for wearing
a hat failed to state a claim. In her appellate brief, however, Amanduron’s


       3
           As noted by Amanduron, “Title VII provides that ‘[i]t shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by this title, or because
he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding under this title.” Brief at 14 n.9 (quoting 42 U.S.C. § 2000e-3(a)).

                                              5
    Case: 10-10422 Document: 00511401779 Page: 6 Date Filed: 03/04/2011



                                  No. 10-10422

counsel contends that when the complaint is viewed along with the EEOC
charge, the allegations are sufficient to show that Amanduron was being
disciplined for wearing the hat “when employees of a different race and/or
national origin were not disciplined.” This allegation in her brief shows that she
was treated less favorably than similarly situated employees outside the
protected class. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507,
512-13 (5th Cir.2001). Again, we are persuaded that Amanduron’s allegations
in her brief make a better case for her claim for race discrimination than her
complaint.
      With respect to her claim of disability discrimination, the district court did
not specifically analyze it as an independent claim of discrimination. In any
event, in her appellate brief, Amanduron alleges that her employer “directed
[her] to seek psychiatric treatment and [she] was discharged with the suggestion
that she apply for disability.    These allegations show that [her employer]
regarded Amanduron as mentally disabled . . . .” We agree that the allegations
in her brief indicate that her employer regarded her as disabled, which provides
support for her claim that her employer discriminated against her based on a
perceived disability. Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).
Once again, we conclude that Amanduron’s brief demonstrates that the
allegations in her complaint did not present her best case. Accordingly, we are
persuaded that the error in failing to allow Amanduron an opportunity to amend
was not harmless.
      In conclusion, we VACATE and REMAND the order dismissing the
complaint to allow Amanduron, who is now represented by counsel, an
opportunity to amend her complaint.




                                         6
