Summary Calendar RAYMOND WILLIAMS WASHINGTON v. Mhanna Construction Inc; Stad Carlson; Does Athru Z

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 According to Defendants, “Stad Carlson” is actually “Thad Carson.”
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-20351
Summary Calendar
RAYMOND WILLIAMS WASHINGTON
Plaintiff - Appellant
v.
M HANNA CONSTRUCTION INC; STAD CARLSON; DOES A THRU Z
Defendants - Appellees
Appeal from the United States District Court for the
Southern District of Texas
No. 4:07-CV-01417
Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiff Raymond Williams Washington, who is pro se, appeals multiple
rulings by the district court in his suit against his former employer, M. Hanna
Construction Inc. (“M. Hanna”), and individual Defendants Stad Carlson1 and
“Does A Thru Z.” (“A through Z Defendants”). For the following reasons, we
AFFIRM.
United States Court of Appeals
Fifth Circuit
F I L E D
November 14, 2008
Charles R. Fulbruge III
Clerk

-- 1 of 5 --

No. 08-20351
2
Plaintiff first contends that he was entitled to default judgment against
M. Hanna because its motion to dismiss was purportedly filed one day outside
of the 20-day period allowed for filing a responsive pleading or motion under
Fed. R. Civ. P. 12. A default judgment is a “drastic remedy, not favored by the
Federal Rules and resorted to by courts only in extreme situations.” Sun Bank
of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)
(footnotes omitted). Here, before Plaintiff moved for default, M. Hanna appeared
in the suit by filing a motion to dismiss. Id. at 277 (“The filing of a motion to
dismiss is normally considered to constitute an appearance . . . .”). The district
court therefore did not abuse its discretion by denying Plaintiff’s motion for
default judgment. See, e.g., Mason & Hanger-Silas Mason Co. v. Metal Trades
Council of Amarillo, 726 F.2d 166, 168 (5th Cir. 1984).
We also find no abuse of discretion in the district court’s refusal to strike
the motion to dismiss as untimely or for failure to include a proposed order as
required under the court’s local rules. M. Hanna’s motion was filed less than 20
days after it received the summons and complaint, which Plaintiff had sent to
the wrong address. Additionally, the application of local rules prescribing the
form and content of motions rests squarely within the province of the district
court. Cf. Phillips v. Ins. Co. of N. Am., 633 F.2d 1165, 1167-68 (5th Cir. 1981)
(rejecting the contention that granting a motion that was filed in a manner
inconsistent with local district court rules constituted reversible error).
Plaintiff also challenges the district court’s order dismissing all claims in
his original complaint pursuant to Fed. R. Civ. P. 12(b)(6), except the Title VII
claims asserted against M. Hanna. We review the district court’s dismissal for
failure to state a claim de novo. Kaltenbach v. Richards, 464 F.3d 524, 526 (5th
Cir. 2006).
Contrary to Plaintiff’s contentions, the court did not dismiss these claims
sua sponte and without prior notice; rather, the court’s order resolved a properly

-- 2 of 5 --

No. 08-20351
3
filed motion to dismiss and Plaintiff’s response thereto. Moreover, the district
court did not dismiss all non-Title VII actions asserted against Carlson and A
through Z Defendants merely because they were not “employers” subject to Title
VII, as Plaintiff mistakenly believes. The court first concluded that Plaintiff’s
claims against all Defendants except for race and age discrimination and
retaliation under Title VII should be dismissed. The court’s ensuing reference
to the individual defendants’ lack of employer status merely explained why the
Plaintiff was granted leave to replead his remaining Title VII claims against M.
Hanna, but not Carlson and A through Z Defendants, who were dismissed with
prejudice. Based on our review of Plaintiff’s voluminous pleading, we also
conclude that Plaintiff’s myriad claims against Carlson and A through Z
Defendants, and his non-Title VII claims against M. Hanna, were either
inadequately pleaded or not actionable under governing law. Plaintiff has
therefore failed to identify any error in the court’s dismissal of these claims.
Additionally, Plaintiff asserts that the district court erred by dismissing
the retaliation claim in his amended complaint on the grounds that the
Occupational Safety Health Act (“OSHA”) provides no private right of action for
retaliatory discharge, when the claim was not pleaded as an action under OSHA.
A fair reading of the amended complaint reflects that Plaintiff attempted to state
a claim for retaliation under Title VII, which required him to establish that:
“(1) he engaged in protected activity, as described in Title VII; (2) he suffered an
adverse employment action; and (3) a causal nexus exists between the protected
activity and the adverse employment action.” Mota v. Univ. of Tex. Houston
Health Science Ctr., 261 F.3d 512, 519 (5th Cir. 2001). Because Title VII does
not encompass violations of OSHA, see 42 U.S.C. § 2000e-2(a) (prohibiting
employers from discriminating on the basis of race, color, religion, sex or
national origin), Plaintiff’s alleged reporting of M. Hanna to authorities for
violating OSHA does not qualify as protected activity under Title VII,

-- 3 of 5 --

No. 08-20351
2 In his brief, Plaintiff cites factual allegations in his original pleading to support the
Title VII retaliation claim asserted in his amended complaint. Those allegations have no legal
effect in light of his filing an amended complaint that neither refers to nor incorporates his
original pleading. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (“An amended
complaint supersedes the original complaint and renders it of no legal effect unless the
amended complaint specifically refers to and adopts or incorporates by reference the earlier
pleading.”).
4
see § 2000e-3(a) (prohibiting discrimination for opposing any practice made
unlawful by Title VII, or making a charge, testifying, assisting, or participating
in any investigation, proceeding, or hearing under Title VII). The other vague
allegations regarding Plaintiff’s complaints about other conduct by M. Hanna,
none of which are facially directed at the enforcement of rights protected by Title
VII, are insufficient to state a retaliation claim that is “plausible on its face.”
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).2 In sum, the district
court’s dismissal of the retaliation claim was not erroneous.
The district court also granted summary judgment to M. Hanna on
Plaintiff’s remaining claim for disparate treatment under Title VII, which
Plaintiff contends was error. However, Plaintiff failed to respond below to the
motion for summary judgment, and he does not now dispute that he failed to
raise a genuine issue of material fact regarding this claim. Instead, Plaintiff
merely reprises his contention that the retaliation claim was improperly
dismissed, an argument we have already rejected. We find no error with the
district court’s ruling on summary judgment.
Finally, Plaintiff challenges the district court’s imposition of sanctions in
the amount of $1,500 to reimburse M. Hanna for the attorney’s fees it incurred
in securing an appropriate order to compel Plaintiff to respond to written
discovery and re-submit himself for a deposition. Although he objects to the fact
of sanctions, Plaintiff does not dispute the reasonableness of the amount. We
review the court’s sanctions ruling for abuse of discretion. See United States v.
$49,000 Currency, Etc., 330 F.3d 371, 374 n.6 (5th Cir. 2003).

-- 4 of 5 --

No. 08-20351
5
Rule 37(a)(5)(A) provides that if a motion to compel discovery is granted,
the court must, after providing an opportunity to be heard, require the party
whose conduct necessitated the motion to pay the movant’s reasonable expenses
incurred in making the motion, unless the movant failed to attempt in good faith
to obtain the discovery without court intervention, the non-disclosure was
substantially justified, or other circumstances make such an expense award
unjust. FED. R. CIV. P. 37(a)(5)(A). Plaintiff proffered no justification for his
failure to respond to written discovery and repeated refusals to answer
deposition questions related to those discovery requests and to the merits of his
employment discrimination claim. The transcript of Plaintiff’s deposition also
belies his assertion that M. Hanna did not confer with him at his deposition
regarding the motion to compel, as was represented in the certificate of
conference attached to the motion. Indeed, in that transcript, Plaintiff
acknowledged his understanding that M. Hanna would take action in court if he
refused to provide the requested discovery. It is therefore apparent that M.
Hanna made a good faith attempt to obtain this information before moving to
compel. We further find no special circumstances, and Plaintiff has identified
none, that render the expense award unjust. Accordingly, the imposition of
reasonable attorney’s fees as sanctions was not an abuse of discretion.
AFFIRMED.

-- 5 of 5 --