     Case: 12-50386       Document: 00512128680         Page: 1     Date Filed: 01/29/2013




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

                                                                            FILED
                                                                         January 29, 2013

                                     No. 12-50386                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



BEAU DAVID PRICE,

                                                  Plaintiff - Appellant
v.

ALAN STEEN, Chief Administrator of the Texas Alcoholic Beverage
Commission; JOEL MORENO, Chief of Operations/Enforcement of Texas
Alcoholic Beverage Commission; ROD VENNER, Assistant Chief of
Enforcement of Texas Alcoholic Beverage Commission; ANDY PENA, Captain
of the Office of Professional Responsibility; CAPTAIN RICK CRUZ,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Western District of Texas, Austin
                              USDC No. 1:11-CV-644


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Beau David Price filed a complaint against officials of his former employer,
the Texas Alcoholic Beverage Commission (TABC), alleging that they
discriminated against him because of his race, and that they violated his First


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50386

and Fourteenth Amendment rights.            The district court dismissed Price’s
employment discrimination claim because he failed timely to file a charge with
the Equal Employment Opportunity Commission and failed to demonstrate that
he is entitled to equitable tolling. The district court dismissed Price’s First and
Fourteenth Amendment claims for failure to state a claim upon which relief
could be granted.
      Price argues that the district court erred by failing to apply equitable
tolling because TABC and the defendants concealed from him facts material to
his employment discrimination claims, which facts he did not discover until an
administrative hearing was conducted shortly before he filed his EEOC charge.
Based on the allegations in Price’s complaint, the district court held that, as of
the date of his discharge, Price knew or should have known that he was being
treated less favorably than his similarly-situated, non-white colleagues.
Accordingly, the district court held that the limitations period for filing an EEOC
charge ran from the date of Price’s discharge and was not tolled until the
administrative hearing.
      The district court did not err in dismissing Price’s employment
discrimination claim on the ground that he did not timely file a charge of
discrimination with the EEOC. As the district court pointed out, the allegations
in Price’s complaint demonstrate that at the time of his discharge, he knew or
should have known the facts that would support a charge of discrimination.
Price alleged in his complaint that a similarly-situated Hispanic TABC agent
was treated more favorably than he was. Although the complaint does not say
when that occurred, it had to have happened before Price was discharged,
because he presented evidence of it in the initial administrative appeal of his
discharge in 2009. Price further alleged in his complaint that the more favorable
treatment of the Hispanic agent was not an isolated occurrence, but was part of



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                                  No. 12-50386

TABC’s pattern and practice of treating non-white employees more favorably
than white employees.
      The district court dismissed Price’s First Amendment claim because he did
not allege that the defendants took any adverse actions against him as a result
of his refusal to waive his right against self-incrimination. Price argues that if
the district court had properly drawn all required inferences from his pleadings,
it could have reasoned that the defendants falsified records in retribution
against him for not waiving his right against self-incrimination, resulting in the
termination of his employment. The district court did not err by failing to infer
that the defendants falsified records and ultimately discharged him because of
his refusal to waive his right against self-incrimination. Price did not allege in
his complaint that any falsified records were the cause of his discharge and, in
fact, alleged that the documents were falsified after he had been discharged.
      The district court dismissed Price’s Fourteenth Amendment claim on the
ground that he failed to allege that he had a property interest in his
employment. Price argues that the district court erred by dismissing his
Fourteenth Amendment claim, because he pleaded a violation of a liberty
interest by asserting that the defendants falsely represented the reason for his
termination, knowing that it would effectively destroy his career in law
enforcement. The district court did not err. Price did not allege a property
interest in his employment. Further, he failed to allege all of the elements of a
liberty interest violation because he failed to allege that he requested and was
denied a name-clearing hearing.         To the contrary, he alleged that an
administrative hearing was held and that the administrative judge ordered that
his discharge be changed from “general” to “honorable.”
      Because Price did not timely file a charge of discrimination with the EEOC
and failed to state a claim under the First and Fourteenth Amendments, the
district court’s dismissal of his complaint is

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                          No. 12-50386

                                                            AFFIRMED.




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