Robinson v. Grocers Supply

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARRYL ROBINSON,
Plaintiff,
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v. 	CIVIL ACTION NO. 4:25-cv-62
GROCERS SUPPLY,
Defendant.
MEMORANDUM AND RECOMMENDATION
Pending 	before 	the 	Court1 	is 	Defendant 	GSC 	Wholesale, 	LLC’s,
incorrectly named as “Grocers Supply” (“Grocers”), Motion to Dismiss Plaintiff
Darryl Robinson’s (“Robinson”) Complaint and Amended Complaint (ECF No.
17), and Robinson’s Motion to Review2 (ECF No. 22). Based on a review of the
motions and applicable law, the Court RECOMMENDS Grocers’s Motion to
Dismiss (ECF No. 17) be GRANTED, and Robinson’s Complaint and Amended
Complaint (ECF Nos. 1, 16) be DISMISSED WITH PREJUDICE. The Court
FURTHER RECOMMENDS Robinson’s Motion to Review (ECF No. 22) be
DENIED AS MOOT.
1 On April 29, 2025, this case was referred to the Undersigned for all purposes
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Federal Rule of Civil Procedure 72. (ECF
No. 24).
2 While Robinson titled this filing “Motion to Review,” the Court believes Robinson
intended for the filing to be a response to Grocers’s Motion to Dismiss (ECF No. 17). However,
for judicial efficiency, the Court will still issue a recommendation as to the filing.
United States District Court
Southern District of Texas
ENTERED
December 03, 2025
Nathan Ochsner, Clerk
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I. 	Factual and Procedural Background
This is an employment action brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (ECF No. 1).
According to the Complaint, on August 28, 2023, Grocers hired Robinson
as a driver. 	(Id. at 1). 	The following month, Robinson complained to Grocers
about other drivers “giving away company merchandise in exchange for not
having to count the merchandise delivered to client stores.” 	(Id. at 2). 	About
two weeks later, Robinson alleges he was falsely accused of not delivering
“$1,600 	worth 	of 	cigarettes, 	despite 	surveillance 	footage 	showing 	him
delivering the product.” 	(Id.). 	After his complaint, Robinson claims he was
harassed 	by 	his 	co-workers—they 	called 	him 	a 	“rat” 	for 	reporting 	the
merchandise scheme and called him “gay” for not accepting sexual advances
from co-workers. (Id.).
Robinson further alleges he was injured on the job in October 2023. (Id.).
The week after, Robinson contends he was “sexually harassed by a Hispanic
female employee,” which was witnessed by a safety supervisor who “refused to
cooperate with local authorities.” 	(Id.). 	Additionally, Robinson claims a
transportation manager “filmed” Robinson “several times,” and another person
stole Robinson’s personal property, including “meds and legal documents.”
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(Id.). 	Robinson claims he reported these incidents to a Human Resources
representative and the CEO. (Id.).
On January 	5, 2024, Robinson 	alleges he was “terminated for 	not
attending his therapy session through public transportation due to physical
mobility issues.” 	(Id.). 	Robinson states he received a right to sue letter from
the Equal Employment Opportunity Commission (“EEOC”) on October 7, 2024.
(Id.).
On January 7, 2025, Robinson, proceeding pro se, filed a complaint
against Grocers, asserting Title VII claims for (1) retaliation, (2) hostile work
environment, (3) wrongful termination, and (4) sexual harassment/assault,
“based on his protected activities and status.” 	(Id. at 1–3). 	Robinson also
contends Grocers exhibited “deliberate indifference” to his complaints and the
hostile work environment, alleging they failed to take appropriate action to
remedy the harassment and discrimination. (Id. at 3–4).3
3 Robinson attaches to his Original Complaint a right to sue letter involving another
matter against a different employer, Hogan Personnel LLC. (See ECF No. 1-2). This letter,
which was issued on August 27, 2024 for Charge No. 460-2024-02115, is not related to
Robinson’s instant lawsuit, but rather related to a different lawsuit he filed against Hogan
Personnel. See Robinson v. Hogan Personnel LLC, No. 4:24-cv-4643 (S.D. Tex. Nov. 25, 2024).
A review of the Court’s docket in that case confirms the same right to sue letter was filed at
Dkt No. 1, p. 8. On March 27, 2025, Robinson’s claims were dismissed without prejudice for
failure to provide proof of service. 	Additionally, Robinson’s Amended Complaint in this
lawsuit and his response to Grocers’s motion to dismiss confirms his instant lawsuit is based
on Charge No. 460-2024-05964. (See ECF No. 16 at 7; ECF No. 22 at 2–4).
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On 	February 	14, 	2025, 	Grocers 	filed 	a 	motion 	to 	dismiss, 	arguing
Robinson’s complaint should be dismissed with prejudice for being time-barred
because he failed to file his complaint within 90 days of receiving his right to
sue notice, as required by 42 U.S.C. § 2000e–5(f)(1). (ECF No. 11). With their
motion, Grocers attaches the EEOC’s Notice of Right to Sue, which shows it
was issued on October 7, 2024. 	(ECF No. 11-1). 	Robinson filed a response,
stating his complaint was timely because he did not view the email containing
the right to sue notice until December 2, 2024, and therefore, the 90-day
limitations period began on that date. 	(ECF No. 12). 	Grocers filed a reply,
arguing that the 90-day filing period begins on the date the notice is “received,”
not “viewed.” (ECF No. 13).
On March 26, 2025, Robinson filed an Amended Complaint, generally
asserting the same facts and Title VII claims, but revising the details of when
he received the right to sue notice. (ECF No. 16). Specifically, Robinson states:
“On 	October 	15, 	2024, 	Plaintiff 	received 	thru 	[sic] 	email 	an 	‘Important
Message’ from The EEOC. Although the letter states the date of the Notice Of
Right To Sue was dated October 7, 2024, Plaintiff received this Notice 8 days
later.” (Id. at 4). Robinson attaches the October 15 email from the EEOC, with
a subject line “REMINDER: Important Document Available for EEOC Charge
460-2024-05964,” and with the following message: “EEOC has made a decision
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regarding charge number 460-2024-05964. 	It is very important that you
download and retain a copy of this document. You may review this decision by
logging into the EEOC Public Portal.” (ECF No. 16 at 7).
Grocers then filed a renewed Motion to Dismiss Plaintiff’s Complaint and
Amended Complaint, along with a brief in support and Robinson’s entire EEOC
file regarding his Charge of Discrimination.4 (ECF No. 17). Grocers reargues
that Robinson received the Notice of Right to Sue on October 7, 2024, the 90-
day limitations period started on that date, and Robinson’s claims should
therefore be dismissed with prejudice as time-barred for filing suit after the
90-day period on January 7, 2025. (Id. at 6–7). To that end, Grocers contends
the EEOC file establishes that the EEOC emailed Robinson the Right to Sue
Notice on October 7, 2024, and Robinson merely attached a reminder email
regarding the notice. (Id. at 14–15; see ECF 17-1 at 24–26).
Robinson filed a “Motion to Review”—that the Court construes as a
response 	to 	Grocers’s 	motion 	to 	dismiss—in 	which 	Robinson 	reattaches
Grocers’s 	exhibits 	from 	the 	EEOC 	file 	and 	vaguely 	claims 	there 	were
contradictions and misstatements therein. 	(ECF No. 22). 	Grocers filed a
Reply. (ECF No. 23).
4 In light of the new pleadings, Grocers’s initial Amended Motion to Dismiss (ECF No.
11) was later denied as moot on August 4, 2025. (See ECF No. 27).
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II. 	Legal Standard
Federal Rule of Civil Procedure (“Rule”) 12(b)(6) provides for dismissal
of an action for “failure to state a claim upon which relief can be granted.” FED.
R. C IV . P. 12(b)(6). When considering a motion to dismiss, a court should accept
all well-pleaded facts as true and view those facts in the light most favorable
to the plaintiff. 	Sullivan v. Leor Energy, LLC, 600 F.3d 542, 546 (5th Cir.
2010). In the Fifth Circuit, motions to dismiss under Rule 12(b)(6) are viewed
with disfavor and rarely granted. 	Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 232 (5th Cir. 2009). To survive dismissal, a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” 	Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
However, a court is not bound to accept legal conclusions couched as
factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of a plaintiff, a plaintiff must
plead “specific facts, not mere conclusory allegations.” 	Tuchman v. DSC
Commc’ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); see also Firefighters’ Ret.
Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 2018) (“Although a
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complaint ‘does not need detailed factual allegations,’ the ‘allegations must be
enough to raise a right to relief above the speculative level . . . .’”). “‘Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” 	Firefighters’ Ret. Sys., 894 F.3d at 669 (quoting
Iqbal, 556 U.S. at 678). 	“The court is not required to conjure up unpled
allegations 	or 	construe 	elaborately 	arcane 	scripts 	to 	save 	a 	complaint.”
Santerre v. Agip Petrol. Co., Inc., 45 F. Supp. 2d 558, 568 (S.D. Tex. 1999)
(internal quotations omitted).
When reviewing a Rule 12(b)(6) motion to dismiss, courts look only to the
allegations in the complaint to determine whether they are sufficient to survive
dismissal. Atwater Partners of Tex. LLC v. AT & T, Inc., No. 2:10-cv-175, 2011
WL 1004880, at *1 (E.D. Tex. Mar. 18, 2011). 	“A court may, however, also
consider 	matters 	outside 	the 	four 	corners 	of 	a 	complaint 	if 	they 	are
incorporated by reference, items subject to judicial notice, matters of public
record, orders, items appearing in the record of a case, and exhibits attached
to a complaint whose authenticity is unquestioned.” 	Joubert on Behalf of
Joubert v. City of Houston, No. 4:22-cv-3750, 2024 WL 1560015, at *2 (S.D.
Tex. Apr. 10, 2024).
Importantly 	here, 	courts 	hold 	“pro 	se 	plaintiffs 	to 	a 	more 	lenient
standard than lawyers when analyzing complaints, but pro se plaintiffs must
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still plead factual allegations that raise the right to relief above the speculative
level.” 	Chhim v. Univ. of Tex. at Austin, 836 F.3d 467, 469 (5th Cir. 2016)
(citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)); see
also Ganheart v. Brown, 740 F. App’x 386, 389 (5th Cir. 2018) (“Pro se
complaints are held to less stringent standards than formal pleadings drafted
by lawyers but are nonetheless insufficient if they contain only labels and
conclusions, or a formulaic recitation of the elements of a cause of action.”
(citation modified)).
At the pleading stage, a plaintiff is not required to “make out a prima
facie case of discrimination in order to survive a Rule 12(b)(6) motion.” English
v. Purdue, 777 F. App’x 94, 99 (5th Cir. 2019) (quoting Raj v. La. State Univ.,
714 F.3d 322, 331 (5th Cir. 2013)). But a plaintiff must “plead sufficient facts
on all of the ultimate elements of a disparate treatment claim to make his case
plausible.” Chhim, 836 F.3d at 470. “On a motion to dismiss, it is not necessary
for the Court to follow the Title VII analysis established by the Supreme Court
in McDonnell Douglas.”5 Roberts v. Lubrizol Corp., No. 4:12-cv-3272, 2013 WL
12099843, 	at 	*5 	(S.D. 	Tex. 	June 	28, 	2013). 	“[T]he 	McDonnell 	Douglas
5 “Title VII affords employees the option of proving a violation through either direct
or circumstantial evidence.” Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010). When a
plaintiff’s allegations are based on circumstantial evidence, the court applies the McDonnell
Douglas burden-shifting framework. Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482
F.3d 408, 411 (5th Cir. 2007); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973).
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framework is an evidentiary standard, not a rigid pleading requirement.”
Puente v. Ridge, 324 F. App’x 423, 427 (5th Cir. 2009) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510 (2002)).
A statute of limitations may support dismissal pursuant to Rule 12(b)(6)
when it is evident from a plaintiff’s pleadings that the action is time-barred,
and the pleadings fail to set forth or raise some basis for tolling the statute.
Lawson v. Jason Pharm., Inc., No. 3:17-cv-2648, 2019 WL 2448849, at *3 (N.D.
Tex. June 12, 2019) (citing Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir.
2003)). 	After receiving a right to sue letter, a plaintiff wishing to file a Title
VII action in federal court must do so within ninety days. 	See 42 U.S.C. §
2000e-5(f)(1).
III. 	Discussion
Defendant moves to dismiss Robinson’s claims with prejudice arguing
they are time-barred. (ECF No. 17 at 17–18).
In this case, Robinson admits in his original complaint, and the EEOC
file shows, that he received a notice of right to sue from the EEOC on October
7, 2024.6 (ECF No. 1 at 2; ECF No. 17-1 at 2, 24–26). 	See also Chambliss v.
6 Because the allegations in the amended complaint are contradicted by the original
complaint 	and 	relevant 	exhibits, 	the 	Court 	considers 	the 	pleadings 	together. 	See
Hollingshead v. Aetna Health, Inc., 589 F. App’x 732, 737 (5th Cir. 2014) (“Conclusory
allegations and unwarranted deductions of fact are not admitted as true especially when such
conclusions are contradicted by facts disclosed by a document appended to the complaint.”
(quoting Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974)));
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Entergy Corp., No. 22-cv-2488, 2023 WL 7114669, at *7 (E.D. La. Oct. 27, 2023)
(“Plaintiff is deemed to have received notice of the right to sue . . . when his
counsel received the email from the EEOC advising that it was terminating
the investigation and providing notice of Plaintiff’s right to sue within 90
days.”); Young v. Martin Marietta Materials Inc., No. 6:22-cv-272, 2022 WL
18109693, at *5 (E.D. Tex. Nov. 8, 2022), report and recommendation adopted,
No. 6:22-cv-00272, 2023 WL 36069 (E.D. Tex. Jan. 4, 2023) (finding that
plaintiff received right to sue notice on date when counsel received an email
from the EEOC providing notice of plaintiff’s right to sue within 90 days and
that counsel’s failure to download the notice on that date did not change the
court’s 	analysis). 	After 	Robinson 	received 	the 	notice, 	he 	then 	filed 	his
complaint on January 7, 2025 (ECF No. 1); however, his deadline to file was
Monday, January 6, 2025.7
Although “pro se complaints are held to less stringent standards,” courts
nonetheless strictly construe the pre-filing requirements. 	Taylor, 296 F.3d at
Scott v. Performance Contractors, 166 F.R.D. 372, 373 (M.D. La. 1996) (“Well-pleaded factual
allegations should be taken as true, but ‘conclusory allegations and unwarranted deductions
of fact’ should not. 	Furthermore, when conclusions of fact made in the complaint are
contradicted by an attached exhibit, the appended document controls and dismissal is
appropriate.”); see also Taylor v. Collin College, No. 4:24-cv-584, 2025 WL 2210728, at *2
(E.D. Tex. Aug. 4, 2025) (“The Court may consider ‘the complaint, any documents attached
to the complaint, and any documents attached to the motion to dismiss that are central to
the claim and referenced by the complaint.’” (quoting Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010))).
7 90 days from October 7, 2024, is January 5, 2025. Because January 5, 2025, was a
Sunday, Robinson’s deadline was Monday, January 6, 2025. See FED. R. CIV. P. 6(a)(1).
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378–79; Lawson, 2019 WL 2448849, at *5 (“With respect to Title VII claims,
the ninety-day period of limitations begins to run on the date that the EEOC
right-to-sue letter is received, rather than the day the letter is issued. . . . ‘This
requirement to file a lawsuit within the ninety-day limitation period is strictly
construed.’”) 	(citation 	modified). 	Indeed, 	the 	Fifth 	Circuit 	has 	affirmed
dismissals of cases in which a plaintiff missed the ninety-day period by just
one or two days. 	See, e.g., Taylor, 296 F.3d at 380 (affirming dismissal of suit
filed one day after the ninety-day period expired); Ringgold v. Nat’l Maint.
Corp., 796 F.2d 769, 770 (5th Cir. 1986) (affirming dismissal of suit filed two
days after the ninety-day period expired). The ninety-day requirement “is not
a jurisdictional prerequisite;” rather, it “is akin to a statute of limitations.”
Lawson, 2019 WL 2448849, at *5 (citing Espinoza v. Missouri Pacific R. Co.,
754 F.2d 1247, 1249 n.1 (5th Cir. 1985)).
Accordingly, a complaint filed more than ninety days after the plaintiff’s
receipt of the EEOC notice must be dismissed as time-barred under Rule
12(b)(6) unless the plaintiff “establishes, for some justifiable reason, that the
limitations period should be equitably tolled.” 	Bowers v. Potter, 113 F. App’x
610, 613 (5th Cir. 2004). 	Therefore, absent a justifiable basis for equitable
tolling of the ninety-day period, Robinson’s claims are time-barred. 	Davis v.
ComputerShare Loan Services, No. 4:23-cv-1542, 2023 WL 9005670, at *2 (S.D.
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Tex. Nov. 8, 2023), report and recommendation adopted, No. 4:23-cv-01542,
2023 WL 9007275 (S.D. Tex. Dec. 27, 2023).
The Fifth Circuit has identified three potential bases for equitable
tolling: “(1) the pendency of a suit between the same parties in the wrong
forum; (2) the plaintiff’s lack of awareness of the facts supporting his claim
because of the defendant’s intentional concealment of them; and (3) the
EEOC’s misleading the plaintiff about his rights.” 	Stokes v. Dolgencorp, Inc.,
367 F. App’x 545, 548 (5th Cir. 2010) (citing Manning v. Chevron Chem. Co.,
LLC, 332 F.3d 874, 880 (5th Cir. 2003)). Here, Robinson has not identified any
facts that could support equitable tolling of the ninety-day period.
Because Robinson failed to initiate this lawsuit within the required
ninety-day period and has failed to provide facts that support equitable tolling,
the Court concludes that Robinson’s Title VII claims are time-barred. Further,
because leave to amend time-barred claims would be futile, Robinson’s Title
VII claims should be dismissed with prejudice. 	See Matter of Life Partners
Holdings, Inc., 926 F.3d 103, 125–26 (5th Cir. 2019) (explaining that a plaintiff
should be given an opportunity to amend a deficient pleading unless the court
determines that leave to amend would be futile); Davis, 2023 WL 9005670, at
*3 (recommending that plaintiff’s ADA claims be dismissed with prejudice
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because leave to amend time-barred claims would be futile considering plaintiff
did not sue within the required ninety-day period).
IV. 	Conclusion
Based on the foregoing, the Court RECOMMENDS Grocers’s Motion to
Dismiss (ECF No. 17) be GRANTED, and Robinson’s Complaint and Amended
Complaint (ECF Nos. 1, 16) be DISMISSED WITH PREJUDICE. The Court
FURTHER RECOMMENDS Robinson’s Motion to Review (ECF No. 22) be
DENIED AS MOOT.8
The Clerk shall send copies of this Memorandum and Recommendation
to the respective parties who have fourteen days from the receipt thereof to file
written objections thereto pursuant to Federal Rule of Civil Procedure 72(b)
and General Order 2002-13. Failure to file written objections within the time
period mentioned shall bar an aggrieved party from attacking the factual
findings and legal conclusions on appeal.
SIGNED in Houston, Texas on December 2, 2025.
Richard W. Bennett
United States Magistrate Judge
8 On April 7, 2025, the Court conducted the Initial Conference and granted Grocer’s
oral motion to stay discovery pending a resolution of its motion to dismiss. 	(ECF No. 21).
Because the Court has resolved Grocers’s motion, the stay is dissolved.
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