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

                                                                            FILED
                                                                          October 3, 2007

                                     No. 07-10472                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


JENNY NEWTON

                                                  Plaintiff-Appellant
v.

SECURITAS SECURITY SERVICES, USA, INC.

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1634


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Jenny Newton filed suit against her former employer, Securitas Security
Services, alleging that they terminated her employment in retaliation for
complaining of sexual harassment in violation of 42 U.S.C. § 2000e. The district
court dismissed Newton’s claim for failing to exhaust administrative remedies.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-10472

                                       I
      Newton was a Business Development Manager at Securitas in Dallas. In
November 2003, Newton alleges that her immediate supervisor, John Williams,
sexually harassed her. On January 6, 2004, Newton reported the harassment
to the Senior Branch Manager. Securitas investigated Newton’s claim, which led
to the termination of Williams’s employment. Then, in summer 2004, Securitas
placed Newton on probation for poor sales performance. Newton received
written notice from Securitas on November 1, 2004, stating that her employment
would be terminated effective November 15, 2004, because her sales
performance had not improved.
      Newton filed a precharge questionnaire with the EEOC on September 6,
2005, and then filed a charge on February 27, 2006. The EEOC notified Newton
on June 13, 2006, that her charge was untimely and, therefore, the EEOC was
dismissing it. Newton filed her present Title VII claim on September 6, 2006,
alleging she was fired in retaliation for reporting William’s sexual harassment.
      On Securitas’s summary judgment motion, the district court dismissed
Newton’s claim, holding that the 300 day limitations period began to run on the
date she received the notice of termination – November 1 – and not on the date
that her employment actually ended – November 15. Thus, the limitations
period in which Newton had to file a charge with the EEOC expired on August
28, 2005 – and Newton filed nothing with the EEOC until September 6. Because
Newton failed to timely file with the EEOC, the district court dismissed her Title
VII claim for failure to exhaust administrative remedies.
      The court held in the alternative that even if the limitations period ran
from November 15, Newton’s claim was still untimely as the precharge
questionnaire filed on September 6 was insufficient to meet 42 U.S.C. § 2000e’s
charge requirement. Newton did not file her actual charge with the EEOC until
February 27, 2006, which was more than 300 days after November 15.


                                        2
                                         No. 07-10472

                                                II
       “This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the trial court. Summary judgment is proper
if the evidence shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. The Court
views all evidence in the light most favorable to the non-moving party and draws
all reasonable inferences in that party’s favor.”1
       Section 2000e-5(e)(1) “is a charge filing provision that ‘specifies with
precision’ the prerequisites that a plaintiff must satisfy before filing suit.”2 The
section requires that the plaintiff “must file a charge within the statute time
period.”3 “In a state that, like Texas, provides a state or local administrative
mechanism to address complaints of employment discrimination, a title VII
plaintiff must file a charge of discrimination with the EEOC within 300 days
after learning of the conduct alleged.”4
       Newton contends that the district court erred in treating her claim as a
“traditional” retaliation claim and that her claim is better analogized to a
“hostile work environment claim” and subject to the “continuing violation”
doctrine. As evidence of a “continuing violation,” Newton submitted an affidavit
alleging that her two final pay checks were incorrect; that she was not paid her
final commissions for the period ending thirty days from the date of her
termination as provided in her employment agreement; that others similarly


       1
           Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313-14 (5th Cir. 2007) (citations omitted).
       2
        National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander
v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)).
       3
           Id.
       4
         Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998); see also Morgan, 536 U.S. at
109 (explaining that in states with “an entity with the authority to grant or seek relief with
respect to the alleged unlawful practice, an employee who initially files a grievance with that
agency must file the charge with the EEOC within 300 days of the employment practice”).

                                                 3
                                         No. 07-10472

situated were taken off probation; and that an internal memorandum dated 5
May 2005 showed that Securitas was still trying to “justify” her termination.
       Newton’s arguments do not persuade.                   Her complaint only alleges
termination as the discriminatory conduct.                   As the Supreme Court has
explained, termination is a “discrete act,” and “discrete discriminatory acts are
not actionable if time barred, even when they are related to acts alleged in
timely filed charges.”5 “A discrete retaliatory or discriminatory act ‘occurred’ on
the day that it ‘happened.’”6 Here, that day was when Newton received written
notice of her termination:7 “The operative date from which the . . . filing period
begins to run is ‘the date of note of termination, rather than the final date of
employment.’”8
       As we have previously explained, the Court’s decision in Morgan makes
clear that the continuing violations doctrine does not apply to discrete acts.9 As
the Court explained,
       The Court of Appeals applied the continuing violations doctrine to
       what it termed “serial violations,” holding that so long as one act
       falls within the charge filing period, discriminatory and retaliatory
       acts that are plausibly or sufficiently related to that act may also be
       considered for the purposes of liability. With respect to this holding,
       therefore, we reverse.
              Discrete acts such as termination, failure to promote, denial
       of transfer, or refusal to hire are easy to identify. Each incident of


       5
           Morgan, 536 U.S. at 113.
       6
           Id. at 110.
       7
         See Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (“In sum, the only
alleged discrimination occurred–and the filing limitations periods therefore commenced–at the
time the tenure decision was made and communicated to Ricks.”).
       8
           Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
       9
         Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004) (“In Nat.'l R.R. Passenger
Corp. v. Morgan, the Court held that discrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely filed charges.”).

                                                 4
                                      No. 07-10472

      discrimination and each retaliatory adverse employment decision
      constitutes a separate actionable “unlawful employment practice.”
      Morgan can only file a charge to cover discrete acts that “occurred”
      within the appropriate time period. 10

Newton’s complaint did not raise a hostile workplace claim, and therefore we do
not consider how, under Morgan, a “continuing violation” would there apply.
      As the district court properly concluded Newton’s filings with the EEOC
were untimely,11 we AFFIRM.




      10
           Morgan, 536 U.S. at 114.
      11
           We do not reach the issue of whether filing the precharge questionnaire was
sufficient.

                                           5
