Summary Calendar HENDERSON R. PRYOR v. Alan M. Wolfe

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
142 U.S.C. § 2000e-2000e17.
United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2006
Charles R. Fulbruge III
Clerk
In The United States Court Of Appeals
For The Fifth Circuit
No. 05-21067
Summary Calendar
HENDERSON R. PRYOR,
Plaintiff – Appellant,
v.
ALAN M. WOLFE; JOSEPH W. JOHNSON; EVA S. HARKLESS; JOE D. WARD;
JOANN E. HICKERSON; TIFFANY WILLIAMS; METHA VASQUEZ; and M.D.
ANDERSON CANCER CENTER,
Defendants – Appellees.
———————
Appeal from the United States District Court
for the Southern District of Texas
No. 05-CV-00717
———————
Before KING, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Henderson R. Pryor, appearing pro se, appeals the district court’s orders dismissing
his Title VII1 race discrimination and retaliation claims against his employer, M.D.
Anderson, and his alleged supervisors, Alan Wolfe, Joseph Johnson, Eva Harkless, Joe
Ward, Joann Hickerson, Tiffany Williams, and Metha Vasquez. We AFFIRM IN PART and

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2
REVERSE AND REMAND IN PART.
Pryor sued the defendants following a dispute about whether sick leave he took in
February 2004 should be classified as leave under the Family and Medical Leave Act
(FMLA). Pryor alleges he was charged with FMLA leave against his wishes and that his
compensation for the period he was absent from work was reduced. He claims that his
absence was classified as FMLA leave because of his race and that classification of his
absence as FMLA leave violated M.D. Anderson’s FMLA policy. Pryor does not allege that
he had any paid leave benefits or that he was denied those benefits. He claims, however, that
the defendants withheld his pay check for hours he worked in December 2004 after he filed
a race discrimination complaint with the Equal Employment Opportunity Commission
(EEOC).
The individual defendants filed a motion to dismiss Pryor’s claims pursuant to FED.
R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted, arguing that
they cannot be held liable in their individual or official capacities under Title VII even if they
are all supervisors as Pryor alleges in his complaint. M.D. Anderson also asked the court to
dismiss Pryor’s claims under Rule 12(b)(6) because his pleadings do not demonstrate that
he suffered an actionable “adverse employment action.” The district court granted the
motions to dismiss and dismissed Pryor’s claims without prejudice. Pryor was not afforded
an opportunity to replead.

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2Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).
3Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005) (internal quotation marks and
citations omitted).
4Id.; C.C. Port, Ltd. v. Davis-Penn Mortgage Co., 61 F.3d 288, 289 (5th Cir.1995).
5Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002).
6Causey, 394 F.3d at 288.
7FED. R. CIV. P. 12(b); Scanlon v. Tex. A&M Univ., 343 F.3d 533, 539 (5th Cir. 2003).
3
A decision to dismiss a case under Rule 12(b)(6) is reviewed de novo.2 A complaint
cannot be dismissed for failure to state a claim “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief.”3
In determining whether to dismiss a complaint under Rule 12(b)(6), the allegations in the
complaint and its attachments must be liberally construed in the plaintiff’s favor and all
alleged facts must be taken as true.4 In this case, we must also consider that Pryor is
appearing pro se and hold his pleadings “to less stringent standards than formal pleadings
drafted by lawyers.”5 We may also consider documents attached to a motion to dismiss if
those documents are referred to in the plaintiff’s complaint and are central to the plaintiff’s
claims.6
Pryor generally complains that the district court improperly considered materials
beyond the pleadings in dismissing his claims and found facts that are not supported by the
record. If materials outside the pleadings are considered, the motion to dismiss must be
treated as a motion for summary judgment under FED. R. CIV. P. 56(c), which requires notice
and an opportunity to respond with evidence.7 The district court did not treat the motions

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8See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 531 (5th Cir. 2003); Urbano
v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir. 1998).
9Willis v. Coca Cola Enters. Inc., 445 F.3d 413, 420 (5th Cir. 2006).
10126 S. Ct. 2405, 2414 (2006) (internal quotation marks omitted and alteration added).
4
to dismiss as motions for summary judgment; therefore, we confine our review to the
allegations in the pleadings.
To prevail on his discrimination claim, Pryor must show that he suffered an “adverse
employment action” because of his race or because he engaged in an activity protected by
Title VII.8 In this Circuit, only “ultimate employment decisions” such as “hiring, granting
leave, discharging, promoting, and compensation” are actionable “adverse employment
actions” under Title VII.9 In holding that Pryor’s “complaint and other pleadings fail to
establish that [M.D. Anderson] committed any act that may be classified as an adverse
employment action,” the district court discussed only the allegations in the complaint
concerning Pryor’s absence from work in February 2004. The court said that neither failure
to pay an employee who was absent from work nor classification of an absence as FMLA
leave constitutes an “ultimate employment decision.” Because we agree that those
allegations do not state a claim under Title VII, we AFFIRM dismissal of Pryor’s race
discrimination claim against M.D. Anderson.
However, the Supreme Court recently held in Burlington Northern & Santa Fe Railway
Co. v. White that Title VII’s anti-retaliation provision is not limited to “ultimate employment
decisions.”10 Rather, a plaintiff states a retaliation claim under Title VII by “show[ing] that

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11Id. at 2415.
12Cf. Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 193-94 (5th Cir. 2001) (holding that
denial of a $57-per-month merit pay increase constituted an “ultimate employment decision” for
purposes of the plaintiff’s Title VII retaliation claim).
5
a reasonable employee would have found the challenged action materially adverse, which
in this context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”11 The district court did not consider Pryor’s
retaliation claim under this new standard, but because we conclude that the allegations in
Pryor’s complaint meet this standard as well as the more stringent “ultimate employment
decision” standard, we REVERSE the district court’s dismissal order as to Pryor’s retaliation
claim and REMAND that claim for further proceedings.
Pryor alleges in his complaint that M.D. Anderson did not pay him for work
performed from December 21, 2004 to December 31, 2004. According to Pryor’s complaint,
other employees were paid for that same pay period on January 5, 2005 but he was “denied
and deprived of his paycheck.” Pryor contends that M.D. Anderson wrongfully withheld his
paycheck because Pryor filed a race discrimination complaint with the EEOC on December
29, 2004. Pryor does not specifically allege that M.D. Anderson had notice of the EEOC
filing but that is a reasonable inference from the allegations in the complaint. Pryor’s
complaint thus alleges that he was deprived of earned compensation in retaliation for filing
an EEOC complaint, which if true would constitute an adverse employment action.12
Moreover, deprivation of earned compensation would almost certainly “‘dissuade[] a

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13Burlington N., 126 S. Ct. at 2415 (alteration added).
14Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 381 n.1 (5th Cir. 2003); see also Thomas v.
Choctaw Mgmt./Servs. Enter., 313 F.3d 910, 911 (5th Cir. 2002).
15See Pease v.Pakhoed Corp., 980 F.2d 995, 998 (5th Cir. 1993) (stating that motions for
relief from judgment are reviewed for abuse of discretion).
6
reasonable worker from making or supporting a charge of discrimination.’”13 Therefore,
Pryor’s complaint states a claim under the Burlington Northern standard. Although there is
evidence in the record that Pryor’s paycheck was merely delayed, not withheld entirely, this
evidence is not included in the documents constituting the “pleadings,” and we have no
choice but to conclude that Pryor has stated a retaliation claim under Title VII against M.D.
Anderson.
We AFFIRM the district court’s order dismissing Pryor’s claims against the individual
defendants because “[i]ndividuals are not liable under Title VII in either their individual or
official capacities.”14
Pryor also complains that the district court abused its discretion in denying his
amended motion to vacate the judgment. This argument is moot as to Pryor’s retaliation
claim against M.D. Anderson, and we find no abuse of discretion regarding the remaining
claims.15
AFFIRMED IN PART; REVERSED AND REMANDED IN PART

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