Washington v. Atmos Energy Corp

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 4, 2007
• Docket: 07-50296
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 4, 2007

_______________________ Charles R. Fulbruge III Clerk No. 07-50296 Summary Calendar _______________________

DARRELL WASHINGTON, SR.,

Plaintiff-Appellant,

versus

ATMOS ENERGY CORPORATION; THOMAS SEHON,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas No. 6:06-CV-326

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

Darrell Washington appeals the district court’s Rule

12(b)(6) dismissal of his claims arising under 28 U.S.C. §§ 1983,

1985(3), and 1981. Washington alleged that his former employer,

Atmos Energy Corporation (“Atmos”), and Falls County District Judge

Thomas Sehon (“Sehon”) conspired to fire him after he was involved

in a verbal dispute with Sehon at a local doughnut shop. Sehon’s

police report led to Washington’s arrest for retaliation against a

public official and his subsequent termination.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. With respect to Washington’s § 1983 claim, Atmos, a

private company, indisputably was not acting under color of state

law. See Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 747-

50 (5th Cir. 2001). Sehon, even though he is a judge, did not act

under color of law when he filed a criminal complaint as a private

individual. See Daniel v. Ferguson, 839 F.2d 1124, 1130 (5th Cir.

1988); Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981)

(per curiam).

Moreover, Washington’s § 1985(3) conspiracy claim fails

because he did not plead that racial animus motivated Sehon’s

actions, see Word of Faith World Outreach Ctr. Church, Inc. v.

Sawyer, 90 F.3d 118, 124 (5th Cir. 1996), and, with respect to

Atmos, Ҥ 1985(3) may not be invoked to redress violations of Title

VII.” Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366,

378, 99 S.Ct. 2345, 2352 (1979); see also Horaist v. Doctor’s Hosp.

of Opelousas, 255 F.3d 261, 270-71 (5th Cir. 2001).

Finally, the district court dismissed Washington’s § 1981

claim because he did not establish that he was a member of a

protected class. A review of Washington’s complaint clearly shows

that he never identified himself as a member of a racial minority.

Nevertheless, Washington argues that this court should liberally

construe his complaint because (1) he stated to Sehon that he

disapproved of politicians running for office “on the backs of

black people”; and (2) he identified white and Hispanic employees

receiving more favorable treatment. However, nothing in our case

2 law would permit this court to excuse Washington’s failure to

allege an essential element of a § 1981 claim. See Causey v.

Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288-89 (5th Cir.

2004) (plaintiff must show that “he or she is a member of a racial

minority”). This court will not speculate about Washington’s race

when he failed to allege this simple fact despite two opportunities

to amend his complaint.

AFFIRMED.