     Case: 17-10649      Document: 00514213120         Page: 1    Date Filed: 10/27/2017




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

                                    No. 17-10649                                FILED
                                  Summary Calendar                        October 27, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
DETRA BARRETT,

                                                 Plaintiff - Appellant
v.

AMERICAN AIRLINES, INCORPORATED,

                                                 Defendant - Appellee




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:17-CV-130


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Detra Barrett asserted claims against Defendant–
Appellee American Airlines, Inc., for employment discrimination and
retaliation in violation of Title VII. American Airlines, Inc., filed a motion to
dismiss, which the district court granted. Because Barrett asserted these
claims in her Amended Petition—rather than her Original Petition—in state




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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court, her claims are untimely. Accordingly, we AFFIRM the district court’s
judgment.
                                       I.
      American Airlines, Inc. (“American”), employed Detra Barrett in Fort
Worth, Texas, from approximately March 1983 to August 2012. In April 2011,
Barrett filed a charge of discrimination on the basis of color, sex, and
retaliation with the Equal Employment Opportunity Commission (“EEOC”)
and the Texas Workforce Commission, Civil Rights Division (“TWC”). She then
amended the charge in June 2011. In October 2012, she filed an additional
charge based on age discrimination and retaliation with the EEOC and TWC.
On July 7, 2015, the EEOC issued its notice of right to sue, and on August 12,
2015, the TWC issued its notice of right to file a civil action. Subsequently, on
September 29, 2015, Barrett filed suit in the Texas district court of Tarrant
County. In her Original Petition, she alleged that American unlawfully
discriminated and retaliated against her because of her sex and age. The
petition did not specifically request relief under Title VII, but it did ask the
court to “adjudge and decree that [American had] violated Texas Labor Code
Ann. 21.051.”
      In December 2016, American filed a motion for summary judgment,
arguing that the statute of limitations barred the claims in her petition under
Texas Labor Code § 21.256. On January 12, 2017, Barrett filed an Amended
Petition, which specified that she was seeking relief under Title VII. On the
same day, she responded to American’s summary judgment motion. Although
Barrett conceded that her state law claims were time-barred, she contended
that the motion should be denied because she had asserted an action under
Title VII in her Original Petition and had since amended her petition to clarify
that she was pursuing Title VII relief. A week later, American withdrew its
summary judgment motion. Then, in February 2017, American removed this
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                                       No. 17-10649
case to federal court based on federal question jurisdiction. Pursuant to an
order for repleading from the district court, Barrett submitted an Amended
Complaint that was very similar to the Amended Petition and requested relief
under Title VII.
      In April 2017, American filed a motion to dismiss Barrett’s Amended
Complaint. It argued that Barrett had asserted her Title VII claims for the first
time in her Amended Petition, which was filed more than 90 days after Barrett
received the EEOC’s notice of right to sue, and Barrett’s claims were therefore
untimely. American also contended that the Title VII claims could not relate
back to the date of her Original Petition because the state law claims in that
petition were untimely. The district court granted American’s motion to
dismiss, concluding that the Title VII claims were time-barred. Barrett timely
appealed.
                                              II.
      “We review de novo a district court’s grant of a motion to dismiss.” Taylor
v. Bailey Tool & Mfg. Co., 744 F.3d 944, 946 (5th Cir. 2014) (citing Equal Access
for El Paso, Inc. v. Hawkins, 562 F.3d 724, 726 (5th Cir. 2009)). “A motion to
dismiss may be granted on a statute of limitations defense where it is evident
from the pleadings that the action is time-barred, and the pleadings fail to
raise some basis for tolling.” Id. (citing Jones v. Alcoa, Inc., 339 F.3d 359, 366
(5th Cir. 2003)). With respect to Title VII claims, claimants have 90 days to file
a civil action after receiving a notice of right to sue. 42 U.S.C. § 2000e-5(f)(1).
      This case turns on whether Barrett first asserted her Title VII claims in
her Original Petition or Amended Petition. 1 The EEOC mailed its notice of
right to sue to Barrett on July 7, 2015. Although the parties do not dispute that
Barrett received the EEOC’s notice, the record does not contain the exact date


      1   Because Barrett does not raise a tolling argument, we do not address tolling.
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of receipt. “[W]here the date of receipt is not known, courts should apply a
presumption that the plaintiff received the notice in three days.” Jenkins v.
City of San Antonio Fire Dep’t, 784 F.3d 263, 267 (5th Cir. 2015) (footnote
omitted). Thus, we assume that Barrett received notice on July 10, 2015. If she
asserted her Title VII claims in her Original Petition that was filed on
September 29, 2015, then she was well within the 90-day filing window.
However, if she asserted her Title VII claims in her Amended Petition that was
filed on January 12, 2017, then she was well outside the 90-day filing window.
      Further, if her Title VII claims were first asserted in her Amended
Petition, they could not relate back to the date of her Original Petition. State
law governs whether an amended pleading filed in state court relates back to
the date of an earlier pleading. See Taylor, 744 F.3d at 947. As Barrett filed
the Amended Petition in Texas state court, Texas procedural law governs.
Under Texas law, an amended pleading cannot relate back to an earlier
pleading if that earlier pleading is “subject to a plea of limitation when the
pleading is filed.” Tex. Civ. Prac. & Rem. Code § 16.068. If Barrett’s Title VII
claims were indeed first stated in her Amended Petition, then only state law
claims could have been asserted in her Original Petition. As Barrett has
conceded that her state law claims were barred by the statute of limitations in
Texas Labor Code § 21.256, her Original Petition would be subject to a plea of
limitation when it was filed. Accordingly, the Title VII claims in her Amended
Petition could not relate back to the date of the Original Petition and would
therefore be untimely.
      Barrett argues that she asserted Title VII claims in her Original
Petition. Because her Original Petition was filed in Texas district court, we
apply Texas law in construing the pleading. See Zamora v. GC Servs., L.P., 647
F. App’x 330, 333 (5th Cir. 2016) (per curiam) (unpublished) (applying Texas
law to construe a petition filed in Texas state court); see also Taylor, 744 F.3d
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at 947 (“[W]e have applied state rules to determine the implications of events
that occurred while a case was pending in state court prior to removal.”); Braud
v. Transp. Serv. Co. of Ill., 445 F.3d 801, 803 (5th Cir. 2006) (“[W]hen an action
is commenced in state court is determined based on the state’s own rules of
procedure.”); Tompkins v. Cyr, 202 F.3d 770, 787 (5th Cir. 2000) (“The federal
rules do not apply to filings in state court, even if the case is later removed to
federal court. If the state pleading rules did not apply, then nothing would
govern the original pleadings in these cases . . . .” (citation omitted)).
      Rule 47(a) of the Texas Rules of Civil Procedure states that a pleading
should contain “a short statement of the cause of action sufficient to give fair
notice of the claim involved.” Under Texas law, courts should construe a
petition “liberally in favor of the pleader.” Boyles v. Kerr, 855 S.W.2d 593, 601
(Tex. 1993) (citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)). They
should “uphold the petition as to a cause of action that may be reasonably
inferred from what is specifically stated, even if an element of the cause of
action is not specifically alleged.” Id. (first citing Roark, 633 S.W.2d at 809;
then citing Gulf, Colo. & Santa Fe Ry. v. Bliss, 368 S.W.2d 594, 599
(Tex. 1963)). However, when a petition lists a specific cause of action, courts
usually do not infer another cause of action. See id. (refusing to find that the
plaintiff pleaded a cause of action for grossly negligent infliction of emotional
distress when her “petition contained specific causes of action on which she
was seeking to recover” and did not give fair notice to the defendant that she
“would also seek to recover under a separate cause of action”).
      In this case, Barrett’s Title VII claims were first asserted in her
Amended Petition and are therefore untimely. Barrett’s Original Petition
listed Texas Labor Code § 21.051 as the statutory provision pursuant to which
she sought relief. By listing the state law cause of action and not specifying her
federal law cause of action under Title VII, it cannot be reasonably inferred
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that Barrett sought relief under both state and federal law. See, e.g., Johnson
v. Select Energy Servs., L.L.C., No. CIV.A. H-11-3486, 2013 WL 5425115, at *1,
*7 (S.D. Tex. Sept. 24, 2013) (concluding that the plaintiff’s original complaint
that contained employment discrimination claims under state law, but not
federal law, did not contain claims arising under Title VII). Cases in which
courts have found that both state and federal law employment discrimination
claims could be reasonably inferred involved petitions that did not incorporate
any particular statutory provision, thus leaving open the possibility of the
claim being under federal law, state law, or both. See, e.g., Zamora, 647 F.
App’x at 333; Hernandez v. Belt Con Const., Inc., No. EP-15-CV-00153-FM,
2015 WL 5542502, at *1, *6 (W.D. Tex. Sept. 18, 2015); Wal-Mart Stores, Inc.
v. McKenzie, 22 S.W.3d 566, 570–71 (Tex. App.—Eastland 2000, pet. denied).
                                      III.
      In sum, Barrett’s Title VII claims are untimely. Therefore, the district
court did not err in granting American’s motion to dismiss. The judgment of
the district court is AFFIRMED.




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