Caycho Melgar v. T.B. Butler Publishing Company, Inc. et al

Filing 102

ORDER ADOPTING 92 REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE. The 31 Motion to Dismiss, or Alternatively, for More Definite Statement filed by Defendants T.B. Butler Publishing Company, Inc. and T.B.B. Printing Ltd. is GRANTED-IN-PART and DENIED-IN-PART. The 31 motion to dismiss is GRANTED as to Plaintiff's claims pursuant to 42 U.S.C. § 1985, the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42 U.S.C. § 19 83 and 42 U.S.C. § 1986. Therefore, those claims are DISMISSED. The motion is DENIED as to Plaintiff's claims for age, disability and national origin discrimination. It is further ORDERED that the 32 Motion to Dismiss filed by Nelson Clyde, IV, is GRANTED and the claims asserted against Defendant Nelson Clyde, IV are DISMISSED WITH PREJUDICE. Signed by Judge Robert W. Schroeder, III on 9/19/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JOSE CARLOS CAYCHO MELGAR

v.

T.B. BUTLER PUBLISHING
COMPANY, INC., et al.

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CASE NO. 6:16-CV-362

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions and recommendation for the disposition of this matter, has been presented for
consideration. The Report and Recommendation recommends that the Motion to Dismiss, or
alternatively, for More Definite Statement (Docket No. 31) filed by Defendants T.B. Butler
Publishing Company, Inc. and T.B.B. Printing Ltd. (the “Tyler Paper Defendants”) be
GRANTED-IN-PART and DENIED-IN-PART and that the Motion to Dismiss, or alternatively,
for More Definite Statement (Docket No. 32) filed by Defendant Nelson Clyde, IV be GRANTED.
The Tyler Paper Defendants and Plaintiff filed written objections. Docket Nos. 99, 100.
Plaintiff’s written objections concern his discrimination claims. Docket No. 100. The
Report and Recommendation recommends denying the Tyler Paper Defendants’ motion to dismiss
as to Plaintiff’s claims for age, disability and national original discrimination. Docket No. 92. To
the extent Plaintiff objects to the dismissal of Nelson Clyde, IV, Plaintiff has not alleged any facts
against Clyde in his individual capacity and has not shown that Clyde was his employer as
contemplated by Title VII. Moreover, even if Plaintiff had stated a claim against Clyde in his

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official capacity, he is also suing the Tyler Paper Defendants. He may not pursue a Title VII claim
against both his employer and its agent in his official capacity. Smith v. Amesdisys, Inc., 298 F.3d
434, 449 (5th Cir. 2002).
The Tyler Paper Defendants argue for the first time in their written objections that
Plaintiff’s claims are barred as a result of his failure to timely exhaust his administrative remedies.
The Tyler Paper Defendants’ motion to dismiss briefly mentions an untimely Charge of
Discrimination with the EEOC,1 but the motion does not brief the issue and does not seek dismissal
on that basis. Defendant waited until after the Report and Recommendation was issued to assert
and brief its argument that Plaintiff has not exhausted his administrative remedies, thereby
depriving Plaintiff of an opportunity to respond to that issue or for the Magistrate Judge to consider
the issue. As a result, it is inappropriate for the Court to consider this new argument during
consideration of the Report and Recommendation. Cupit v. Whitley, 28 F.3d 532, 535 n.5 (5th Cir.
1994) (a party’s entitlement to de novo review does not entitle it to raise issues at that stage that
were not adequately presented to the Magistrate Judge), cert. denied, 513 U.S. 1163, 115 S.Ct.
1128 (1995).
Having made a de novo review of the written objections filed by Plaintiff and the Tyler
Paper Defendants in response to the Report and Recommendation, the Court concludes that the
findings and conclusions of the Magistrate Judge are correct and that the objections are without
merit. It is therefore
ORDERED that the Report and Recommendation filed on August 11, 2017 (Docket No.
92) is ADOPTED. The Motion to Dismiss, or Alternatively, for More Definite Statement (Docket
No. 31) filed by Defendants T.B. Butler Publishing Company, Inc. and T.B.B. Printing Ltd. is

See Defendant T.B.B. Printing, Ltd. and T.B. Butler Publishing Company, Inc.’s Motion for dismiss, or
alternatively, for More Definite Statement (Docket No. 31) at 4.
1

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GRANTED-IN-PART and DENIED-IN-PART. The motion to dismiss (Docket No. 31) is
.
GRANTED as to Plaintiff’s claims pursuant to 42 U.S.C. § 1985, the Lilly Ledbetter Fair Pay Act
of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42 U.S.C. § 1983 and 42 U.S.C. § 1986. Therefore,
those claims are DISMISSED. The motion is DENIED as to Plaintiff’s claims for age, disability
and national origin discrimination. It is further
ORDERED that the Motion to Dismiss, or alternatively, for More Definite Statement
(Docket No. 32) filed by Defendant Nelson Clyde, IV is GRANTED and the claims asserted
against Defendant Nelson Clyde, IV are DISMISSED WITH PREJUDICE.
SIGNED this 19th day of September, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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