Scott v. Transport America, Inc. et al

Filing 20

MEMORANDUM OPINION AND ORDER GRANTING 8 MOTION to Dismiss State Law Claims as set out herein. GRANTING 16 MOTION to Dismiss State Law Claims as set out in footnote 8. Signed by Judge Virginia Emerson Hopkins on 3/2/2015. (JLC)

FILED
2015 Mar-02 AM 10:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LATICHA SCOTT,
Plaintiff,
v.
TRANSPORT AMERICA, INC,
SOUTHERN CAL TRANSPORT,
LLC
Defendant.

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) Case No.: 2:14-CV-2162-VEH
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MEMORANDUM OPINION AND ORDER
This employment discrimination case was filed on November 7, 2014, by the
plaintiff, Laticha Scott, against defendants Transport America, Inc. (“Transport
America”) and Southern Cal Transport, LLC (“Southern Cal”). (Doc. 1). Count One
of the complaint alleges sexual harassment in violation of Title VII of the Civil Rights
Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §2000e, et seq.
(“Title VII”). Count Two alleges race discrimination in violation of Title VII and 42
U.S.C. § 1981. The complaint also sets out counts under the Alabama state law
theories of outrage (Count Three), invasion of privacy (Count Four),
negligent/wanton retention (Count Five), and negligent/wanton supervision and
training (Count Six). All counts are alleged against all defendants.

The case comes before the court on Southern Cal’s motion, filed pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the state law claims
as barred by the applicable statute of limitations. (Doc. 8). For the reasons stated
herein, the motion will be GRANTED.
I.

STANDARD
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.

R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
2

Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
3

556, 127 S. Ct. at 1965).
II.

ANALYSIS
The parties agree that a two year statute of limitations applies to the plaintiff’s

state law claims. (Doc. 8 at 3-4 (citing Ala. Code § 6-2-38(l) and 6-2-38(n) and
applicable case law); doc.13 at 1 (“Plaintiff concedes that the applicable statute of
limitations for each of her four state law claims . . . is two years.”)). The defendant
argues, and the plaintiff does not dispute, that, because each of the state law causes
of action accrued no later than March 2012, and the complaint was not filed until
November 7, 2014, the state law claims have been filed outside the two year period.
(Doc. 8 at 5-9).
Still, the plaintiff contends that the filing of her EEOC charge (a prerequisite
to maintaining her Title VII claim only) tolled the running of the statutes of
limitations applicable to the state law claims. Her argument is two-fold. First she
contends that principles of judicial economy mandate tolling. Second, she insists that,
because the state law claims are not “separate, distinct, and independent” from the
Title VII claims, the running of the statutes was tolled until the plaintiff received her
right to sue letter from the EEOC. The court will address each argument in turn,
beginning with the second.

4

A.

“Separate,” “Distinct,” and “Independent”

The plaintiff argues that unless the state law claims are “separate,” “distinct,”
and “independent” from the Title VII claims, the statute of limitations on those claims
is tolled during the period of time that the plaintiff pursued her Title VII
administrative remedies with the EEOC. In support of this argument she cites only
Kelley v. Wal-Mart Stores East, LP, 2013 U.S. Dist. LEXIS 22027 (S.D. Ala. Feb. 13,
2013) (Granade, J.).
The plaintiff, somewhat awkwardly, argues that the Kelley court “denied that
the statute of limitations should be tolled because the federal claims and state law
claims must be demonstrated under different theories and facts.” (Doc. 12 at 3). The
defendant more clearly states in response that “Kelley held that the statute of
limitations for state law claims ‘[is] not tolled while the plaintiff is pursuing
administrative remedies, at least so long as the state law claims are separate and
distinct from the federal discrimination claims.’” (Doc. 13 at 5-6). However, a careful
examination of Judge Granade’s opinion in Kelley shows that, although the court did
examine whether the state law claims before it were separate and distinct from the
Title VII claims, the court did not hold that such an examination was required.
Further, an examination of the Supreme Court’s opinion in Johnson v. Ry. Exp.
Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975), where the
5

“separate and distinct” language first appears in this context, reveals that such an
examination is not necessary.
1.

Kelley v. Wal-Mart Stores East, LP.

In Kelley,
[the] [p]laintiff assert[ed] claims under Title VII alleging that she
suffered sexual harassment, retaliation, and a hostile work environment
during her employment. Plaintiff also assert[ed] state law claims of
negligent and wanton hiring, training, supervision, and retention (Count
III) and invasion of privacy (Count IV).
Kelley, 2013 WL 608030, at *1. The defendant moved for summary judgment on the
state law claims, claiming they were untimely filed. Like the plaintiff in the instant
case, the plaintiff in Kelley did not dispute that more than two years (the applicable
statute of limitations) had elapsed since her state law claims had accrued. However,
she argued that “the statute of limitations for state law claims are tolled while a Title
VII claim is pending before the EEOC.” Id. at 3.
The court in Kelley first noted that at least one case had held that “[i]t is
well-established that the statute of limitations for a plaintiff's state law claims is not
tolled while the plaintiff is pursuing administrative remedies with the EEOC.” Kelley,
2013 WL 608030, at *3 (citing Simmons v. Mobile Infirmary Medical Center, 391
F.Supp.2d 1124, 1131 (S.D.Ala.2005). The court then noted that
[o]ther Courts have agreed that the statute of limitations for a state law
6

claim are not tolled while the plaintiff is pursuing administrative
remedies, at least so long as the state law claims are separate and distinct
from the federal discrimination claims. See e.g. Horaist v. Doctor's
Hosp. of Opelousas, 255 F.3d 261, 268–269 (5th Cir.2001) (finding that
a Louisiana Statute which suspends or tolls the statute of limitations for
state discrimination claims for up to six months during the pendency of
an EEOC proceeding did not apply retroactively and that the EEOC
administrative proceeding did not toll the statute of limitations for any
of plaintiff's state law claims, which included intentional interference
with contract, battery, intentional infliction of emotional distress,
discrimination and retaliation); Juarez v. Ameritech Mobile
Communications, Inc., 957 F.2d 317, 322–323 (7th Cir.1992) (finding
that the time for filing plaintiff's state law invasion of privacy claim was
not tolled by the filing of a discrimination charge with the EEOC
because it is separate and independent from plaintiff's Title VII claim);
Arnold v. U.S., 816 F.2d 1306, 1312–1313 (9th Cir.1987) (finding that
there was no federal policy mandating equitable tolling, stating that
plaintiff's state law claims were distinct from plaintiff's Title VII claim
and that “Congress did not intend for these proceedings to delay
independent avenues of redress.”(citing Johnson supra )). While the
filing of the EEOC charge places the defendant employer on notice of
a claim of discrimination, unless “there is complete identity of the
causes of action,” the employer will not have sufficient “opportunity to
protect itself against the loss of evidence, the disappearance and fading
memories of witnesses, and the unfair surprise that could result from a
sudden revival of a claim that long has been allowed to
slumber.”Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 466
n. 14, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (citations omitted).1
Id. (emphasis added). Only then did the court extensively analyze whether the state
law claims were separate and independent. It held that
1

This court notes that, of the three Circuit Court of Appeals cases cited, only Juarez can
truly be said to have examined this issue in the same context, and then, only in a very cursory
manner. Further, as will be discussed in more detail below, the Supreme Court’s opinion in
Johnson was focused only on the differences in Title VII and Section 1981 (because of the need
to distinguish those statutes in that case).
7

plaintiff's state law claim for invasion of privacy is separate and
independent from her claims of sexual discrimination. The invasion of
privacy claim involves different facts and legal analysis than her Title
VII claims. The claim for invasion of privacy does not vindicate
plaintiff’s right to be free from discriminatory treatment, but rather her
right to be free from wrongful intrusion into her private activities.
Id. at 4 (emphasis added).
The Kelley court then noted that the “[p]laintiff's claims for negligent and
wanton hiring, training, supervision, and retention are more closely related to her
discrimination claims.” Id. at 4. That was because, under Alabama law, for an
employer to be guilty of negligent and wanton hiring, training, supervision, and
retention, the plaintiff must have been a victim of an underlying tort committed by a
co-employee. Id. The close relationship existed in the Kelley case because the
underlying tort was the Title VII sexual harassment claim. Id. The court then
compared the elements of a Title VII case with those of a negligent and wanton
hiring, training, supervision, and retention case. The court determined that, because
a negligent and wanton hiring, training, supervision, and retention claim “requires a
showing of notice and failure to respond,” id. at 5, elements not present in a Title VII
claim, “a claim for negligent and wanton hiring, training, supervision, and retention
may require proof of different theories and facts.” Id. The court used the word “may”
because, it noted, sometimes, when the harasser is not the plaintiff’s supervisor, a

8

plaintiff can demonstrate vicarious liability on the part of the employer by showing
that the employer had knowledge of the harassment and failed to take prompt
remedial action–a situation which would make the elements of the two claims
identical. Id. However, in Kelley, the harassing employee was the plaintiff’s
supervisor, so no such additional proof would be necessary for vicarious liability,
and, therefore, the elements (and therefore the facts and theories) of the two claims
would be different. Id. at 6. Then, the Kelley court concluded that
even if the statute of limitations should be tolled during the pendency of
an EEOC proceeding when the state law claims are based on the same
facts and theories, the state law claims in this case would not be tolled
because they are separate and distinct. Accordingly, the court finds that
the statute of limitations was not tolled during plaintiff's EEOC
proceeding and that plaintiff's state law claims are time-barred.
Id. at *6 (emphasis added).
This court does not find Kelley persuasive for two independent and alternative
reasons. First, and foremost, the court did not hold that a finding of “separate,”
“distinct,” and/or “independent” was necessary. It merely held that, if such a finding
was necessary, the claims in Kelley would qualify.
Second, the method used by the Kelley court for determining which claims are
“separate,” “distinct,” and “independent” from Title VII claims seems to this court to
be inconsistent with existing precedent. The Kelley opinion decided that claims are

9

“separate,” “distinct,” and “independent” when they involve “different facts and legal
analysis.” Kelley, 2013 WL 608030 at 4. The court then seems to say that claims
involve “different facts and legal analysis” when: 1) they each seek to vindicate
different types of rights; or 2) they have different elements.2 The court notes that
“Title VII and [Section] 1981 have the same requirements of proof and utilize the
same analytical framework,” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325
(11th Cir. 2011), and each type of claim seeks to vindicate the right to be free from
race discrimination in the workplace. Under the logic of Kelley, the two claims would
not be “separate, distinct, and independent,” yet the Supreme Court has already held
that they are. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 465-66, 95 S. Ct. 1716,
1723, 44 L. Ed. 2d 295 (1975). For that reason, it seems to this court that determining
“separate and distinct” with reference to each claim’s elements or rights to be
vindicated is not appropriate.3
2

Although the court does not explain how it arrived at these methods, it is clear that the
first method is borrowed from Juarez v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317 (7th
Cir. 1992), where the Seventh Circuit, determined that the statute of limitations for a state law
claim of invasion of privacy were not tolled during the period of EEOC review of the Title VII
claims because “[t]he state-law claim does not vindicate Juarez's right to be free from
discriminatory treatment based on her sex, but rather her right to be free from “offensive or
objectionable” intrusion into her seclusion.” Juarez, 957 F.2d at 322-23. Of course, Juarez too
does not explain how it arrives at this method. Nor does the court expend a tremendous amount
of judicial energy exploring the issue. The above quote is the extent of the Seventh Circuit’s
analysis.
3

Two of the state law claims are negligent/wanton retention (Count Five), and
negligent/wanton supervision and training (Count Six). It has been noted that “[a]n employer
10

In any case, Kelley is not binding on this court. However, Johnson, the case
from whence the separate, distinct, and independent language originally sprang, is.
Therefore, the court now turns to an examination of the Johnson opinion.

cannot be independently guilty of negligent training or supervision “‘in the absence of some tort
committed by [an employee] against [the plaintiff].’” Blackwood v. Arc of Madison Cnty., Inc.,
No. CV-12-S-1000-NE, 2012 WL 5932451, at *6 (N.D. Ala. Nov. 26, 2012) (quoting Taylor v.
Stevenson, 820 So.2d 810, 812 (Ala.2001) (in turn citing Stevenson v. Precision Standard, Inc.,
762 So.2d 820 (Ala.1999)). It has also been held that the employee's tort must be “recognized
under Alabama common law.” Jackson v. Cintas Corp., 391 F.Supp.2d 1075, 1100
(M.D.Ala.2005) (citing Stevenson, 762 So.2d at 824)). Counts Five and Six both relate, at least
in part, to the sexual harassment of the plaintiff.
As a general rule, under Alabama law, an independent cause of action for
sexual harassment does not exist and, thus, the alleged sexual harassment alone
cannot be the underlying tort necessary for plaintiff's negligent hiring, training,
supervision and retention claim. Stevenson v. Precision Standard, Inc., 762 So.2d
820, 824–25 (Ala.1999). However, the Alabama Supreme Court has recognized a
sexual harassment exception to the requirement that a common law tort must
underlie a negligent hiring, training, supervision, and retention claim. The
exception provides that “the manner in which a sexual-harassment complaint is
handled when sexual harassment has, in fact, occurred can form the basis for a
claim for negligent or wanton supervision” when the handling of the complaint
did not cause the harassment to cease or caused it to only temporarily cease.
Stevenson v. Precision Standard, Inc., 762 So.2d 820, 825 (Ala.1999); see also
Patterson v. Augat Wiring Sys., Inc., 944 F.Supp. 1509 (M.D.Ala.1996); Machen
v. Childersburg Bancorporation, Inc., 81 FEP Cases 815 (Ala.1999); Mardis v.
Robbins Tire & Rubber Co., 669 So.2d 885 (Ala.1995); Big B, Inc. v. Cottingham,
634 So.2d 999, 1003–04 (Ala.1993).
Folsom v. McAbee Const., Inc., No. 7:09-CV-01486-HGD, 2012 WL 3527876, at *15 (N.D. Ala.
June 6, 2012) report and recommendation adopted, No. 7:09-CV-01486-KOB, 2012 WL
3508587 (N.D. Ala. Aug. 14, 2012). Whether Counts Five and Six fall into the exception above
was not raised by the parties. Accordingly, the court makes no judgment as to whether, in the
alternative, these counts are also due to be dismissed as not based upon a common law Alabama
tort.
11

2.

Johnson v. Ry. Exp. Agency, Inc.

In Johnson, the plaintiff timely filed his Title VII claims, but missed the
deadline for filing a Section 1981 claim. He argued on appeal that the statute of
limitations applicable to that claim “was suspended during the pendency of his timely
filed administrative complaint with the EEOC under Title VII.” Johnson, 421 U.S.
at 457. The “separate,” distinct,” and “independent” language appears in the first part
of the Court’s opinion where it discusses the similarities and differences between a
Title VII action and an action under Section 1981.
After first discussing the nature, remedies, and administrative prerequisites of
a Title VII action, the court stated that
[d]espite Title VII’s range and its design as a comprehensive solution for
the problem of invidious discrimination in employment, the aggrieved
individual clearly is not deprived of other remedies he possesses and is
not limited to Title VII in his search for relief. [“](T)he legislative
history of Title VII manifests a congressional intent to allow an
individual to pursue independently his rights under both Title VII and
other applicable state and federal statutes.[”]
Johnson, 421 U.S. at 459 (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36,
48, 94 S. Ct. 1011, 1019, 39 L. Ed. 2d 147 (1974)). The Court then discussed
characteristics and remedies of one of those “other remedies”--a Section 1981 action.
Thereafter, the Court noted:
Section 1981 is not coextensive in its coverage with Title VII. The latter
12

is made inapplicable to certain employers. 42 U.S.C. s 2000e(b) (1970
ed., Supp. III). Also Title VII offers assistance in investigation,
conciliation, counsel, waiver of court costs, and attorneys' fees, items
that are unavailable at least under the specific terms of § 1981.
Johnson, 421 U.S. at 460.
Thereafter, the Supreme Court analyzed whether the two claims were
“independent.” The Court held:
Petitioner, and the United States as amicus curiae, concede, as
they must, the independence of the avenues of relief respectively
available under Title VII and the older § 1981. . . . Further, it has been
noted that the filing of a Title VII charge and resort to Title VII's
administrative machinery are not prerequisites for the institution of a §
1981 action. . . . We are satisfied, also, that Congress did not expect that
a § 1981 court action usually would be resorted to only upon completion
of Title VII procedures and the Commission's efforts to obtain voluntary
compliance. Conciliation and persuasion through the administrative
process, to be sure, often constitute a desirable approach to settlement
of disputes based on sensitive and emotional charges of invidious
employment discrimination. We recognize, too, that the filing of a
lawsuit might tend to deter efforts at conciliation, that lack of success in
the legal action could weaken the Commission's efforts to induce
voluntary compliance, and that a suit is privately oriented and narrow,
rather than broad, in application, as successful conciliation tends to be.
But these are the natural effects of the choice Congress has made
available to the claimant by its conferring upon him independent
administrative and judicial remedies. The choice is a valuable one.
Under some circumstances, the administrative route may be highly
preferred over the litigatory; under others the reverse may be true. We
are disinclined, in the face of congressional emphasis upon the existence
and independence of the two remedies, to infer any positive preference
for one over the other, without a more definite expression in the
legislation Congress has enacted, as, for example, a proscription of a
§1981 action while an EEOC claim is pending. We generally conclude,
13

therefore, that the remedies available under Title VII and under § 1981,
although related, and although directed to most of the same ends, are
separate, distinct, and independent.
Id. at 460-61 (citations omitted) (emphasis added). The court then stated: “With this
base established, we turn to the limitation issue.” Id. at 461.
After establishing the independence of Title VII and Section 1981, the court
then refused to toll the statute of limitations applicable to Section 1981. It first
determined that there was no basis in state law (which provided the limitations period
for plaintiff’s Section 1981 claim) for doing so. Id. at 472. Next, it examined whether
there was any federal policy which required tolling, writing:
Petitioner argues that a failure to toll the limitation period in this
case will conflict seriously with the broad remedial and humane
purposes of Title VII. Specifically, he urges that Title VII embodies a
strong federal policy in support of conciliation and voluntary
compliance as a means of achieving the statutory mandate of equal
employment opportunity. He suggests that failure to toll the statute on
a § 1981 claim during the pendency of an administrative complaint in
the EEOC would force a plaintiff into premature and expensive
litigation that would destroy all chances for administrative conciliation
and voluntary compliance.
We have noted this possibility above and, indeed, it is
conceivable, and perhaps almost to be expected, that failure to toll will
have the effect of pressing a civil rights complainant who values his §
1981 claim into court before the EEOC has completed its administrative
proceeding. One answer to this, although perhaps not a highly
satisfactory one, is that the plaintiff in his § 1981 suit may ask the court
to stay proceedings until the administrative efforts at conciliation and
voluntary compliance have been completed. But the fundamental answer
14

to petitioner's argument lies in the fact—presumably a happy one for the
civil rights claimant—that Congress clearly has retained § 1981 as a
remedy against private employment discrimination separate from and
independent of the more elaborate and time-consuming procedures of
Title VII. Petitioner freely concedes that he could have filed his § 1981
action at any time after his cause of action accrued; in fact, we
understand him to claim an unfettered right so to do. Thus, in a very real
sense, petitioner has slept on his § 1981 rights. The fact that his slumber
may have been induced by faith in the adequacy of his Title VII remedy
is of little relevance inasmuch as the two remedies are truly independent.
Moreover, since petitioner's Title VII court action now also appears to
be time barred because of the peculiar procedural history of this case,
petitioner, in effect, would have us extend the § 1981 cause of action
well beyond the life of even his Title VII cause of action. We find no
policy reason that excuses petitioner's failure to take the minimal steps
necessary to preserve each claim independently.
Id. at 465-66. In a footnote, the Court also wrote:
Petitioner argues that the timely filing of a charge with the EEOC
has the effect of placing the charged employer on notice that a claim of
discrimination is being asserted. Thus, petitioner argues, the employer
has the opportunity to protect itself against the loss of evidence, the
disappearance and fading memories of witnesses, and the unfair surprise
that could result from a sudden revival of a claim that long has been
allowed to slumber. . . . Even if we were to ignore the substantial span
of time that could result from tacking the § 1981 limitation period to the
frequently protracted period of EEOC consideration, we are not at all
certain that a Title VII charge affords the charged [party] the protection
that petitioner suggests. . . . Only where there is complete identity of the
causes of action will the protections suggested by petitioner necessarily
exist and will the courts have an opportunity to assess the influence of
the policy of repose inherent in a limitation period.
Id. at 476, n. 14 (emphasis added).
This court does not read the Johnson opinion as a requirement that a reviewing
15

court extensively analyze and compare an action’s Title VII claims with other claims
in the case to determine whether any similarities (of elements, theories, facts,
evidence, rights to be vindicated, or anything else) exist. Johnson was decided in
1975, only 11 years after the passage of Title VII. Additionally, until Johnson, the
Supreme Court had not held that Section 1981 could be used to address race
discrimination in employment. See, Johnson, 421 U.S. at 459-60 (“Although this
Court has not specifically so held, it is well settled among the federal Courts of
Appeals—and we now join them—that § 1981 affords a federal remedy against
discrimination in private employment on the basis of race.”). It therefore makes sense
that the Supreme Court would clarify the effect Title VII, and its administrative
prerequisites, had on a Section 1981 claim, by explaining exactly how the two were
different. To this court, Johnson’s discussion of separate, distinct, and independent,
was merely meant to eliminate any confusion in that one isolated instance. There is
no indication in the opinion that a similar analysis would be necessary in a case which
dealt with state law claims which are clearly separate, even if they were based on the
same conduct as the Title VII claims. In short, “separate” and “independent” simply
means “not Title VII.”
The Eleventh Circuit’s opinion in Lewis v. Asplundh Tree Expert Co., 305 F.
App'x 623, 626 (11th Cir. 2008), while not directly on point, nevertheless seems to
16

confirm this view. In Lewis, an African-American male employee brought an action
against his employer, the City of Gainesville, Florida, and a contractor, alleging
employment discrimination in violation of Title VII, a violation of 42 U.S.C. § 1983,
and assault and battery. Like the instant case, the plaintiff timely filed his Title VII
action after he received his right to sue, but was well past the applicable statute of
limitations on his Section 1983 and state law claims. The Eleventh Circuit conducted
no in-depth analysis of the elements of his Title VII claim versus his Section 1983
and state law claims. It also did not examine the rights each claim purported to
vindicate. Instead, the court wrote:
[The plaintiff] argues that the statute of limitations should be
tolled for the period of the EEOC investigation. The Supreme Court has
held, however, that the pendency of an EEOC claim does not toll the
statute of limitations for a private civil rights claim because the two
claims are “truly independent.” Johnson v. Ry. Express Agency, 421 U.S.
454, 466, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); see also Smith v.
McClammy, 740 F.2d 925, 927 (11th Cir.1984) ( “Since exhaustion of
administrative remedies is not a prerequisite to filing [a § 1983] suit, the
statute [of limitations] would not be tolled pending pursuit of
administrative remedies but would begin to run on the date the cause of
action accrued.”).
Here the injury that forms the basis of Lewis' § 1983 claim is the
alleged noose incident, which occurred on April 1, 1996. He did not file
this action until almost eight years later. As the district court pointed
out, even if we assume that the facts supporting Lewis' § 1983 claim
were not apparent until after he contacted the EEOC in August of 1996,
the statute of limitations expired well before Lewis filed his complaint
on May 25, 2004.
17

Lewis’ state law assault and battery claim based on the noose
incident is also subject to a four year statute of limitations. See Fla. Stat.
95.11(3)(o). The statute of limitations for that claim began to run on
April 1, 1996, see Fla. Stat. 95.031(1), and therefore is also time-barred.
The district court was correct to conclude that both the § 1983 and the
state law tort claims were barred on statute of limitations grounds.
Lewis, 305 F. App'x at 626-627.4
The court also notes that each of the three circuits which has considered this
issue has held that state law claims are not tolled, and none has engaged in the
extensive analysis done by the court in Kelley. In Castagna v. Luceno, 744 F.3d 254,
256-58 (2d Cir. 2014), the Second Circuit held that the “filing an EEOC charge does
not toll the time for filing state tort claims, including those that arise out of the same
nucleus of facts alleged in the charge of discrimination filed with the EEOC.”
Although the Second Circuit cited Johnson, it did not discuss the “separate,”
“distinct,” and “independent” concepts at all, much less engage in the same type of
extensive analysis of the respective causes of action as the Kelley court did. In Juarez
v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317, 322-23 (7th Cir. 1992), the
Seventh Circuit held that the time for filing a state law claim of invasion of privacy
is not tolled by the filing of a discrimination charge with the EEOC. However, it
based its decision on the fact that “the state-law claim of invasion of privacy in this

4

Arguably, the tolling discussion applies only to the Section 1983 claims. Still, it is
notable that the court felt no need to analyze the state law claims in depth either.
18

case is clearly separate from, and independent of, Title VII.” Juarez, 957 F.2d at
322-23. Still, the only analysis it conducted was to say that “[t]he state-law claim does
not vindicate [the plaintiff’s] Juarez's right to be free from discriminatory treatment
based on her sex, but rather her right to be free from “offensive or objectionable”
intrusion into her seclusion.” Id. Again, it did not compare the elements of each cause
of action. Similarly, in Arnold v. United States, 816 F.2d 1306, 1313 (9th Cir. 1987),
the Ninth Circuit found that “the wrong underlying [the plaintiff’s] Title VII claim is
distinct from that underlying her state-law tort claims.” Arnold, 816 F.2d at 1312-13.
However, that finding had nothing to do with the Johnson analysis, but rather was
directed at whether California (the state from which the state law tort came) would
permit equitable tolling. See id. (citing Johnson only after the discussion of the wrong
being distinct).
This court holds that, because the state law claims in this case are not Title VII
claims, they are “separate,” “distinct,” and “independent” of the Title VII claims. For
that reason, the statutes of limitations applicable to those claims were not tolled by
the Title VII administrative proceedings.
B.

Principles of Judicial Economy Do Not Require Tolling

The plaintiff also states:
Plaintiff could not have filed her federal Title VII claims until the
19

EEOC issued its right to sue. Courts have often found that the state
statute of limitations should be tolled while the EEOC claim was
pending. To hold otherwise could result in two separate litigation cases
involving the same parties, same witnesses and same nucleus of facts.
This would result in duplication and judicial inefficiency.
If the [p]laintiff were to file the state law claims within the statute
of limitations argued by [d]efendant, she would have had to file a case
in Alabama state court on or around March of 2014. During this time
frame, the EEOC Charge would still be pending while litigation of the
facts surrounding the invasion of privacy, outrage and negligence
claims, specifically related to [d]efendant’s knowledge and failure to act
would be actively litigated. Then, once the EEOC Charge was filed, the
[p]laintiff would have to file a case based on the same facts, with the
same parties in Federal Court.5 Under these circumstances, two separate
cases involving the same parties, same facts and witnesses would be
pending in two separate courts.
(Doc. 12 at 2).
This “judicial economy” issue has not been addressed by the Eleventh Circuit
Court of Appeals. However, it was recently addressed, very persuasively, by the
Second Circuit in Castagna, 744 F.3d 254. In Castagna, the Second Circuit wrote:
Castagna principally contends that, were the statute of limitations
for state tort claims not tolled pending the EEOC's consideration of a
charge of discrimination, to preserve her claims, a litigant would be
forced first to bring a tort case in state court “and later bring a federal,
5

The plaintiff is incorrect that she “must” file her Title VII claim in federal court. State
courts have concurrent jurisdiction over Title VII cases with federal courts. Yellow Freight Sys.,
Inc. v. Donnelly, 494 U.S. 820, 826, 110 S. Ct. 1566, 1570, 108 L. Ed. 2d 834 (1990).
Accordingly, assuming a previously filed case in state court was still pending, the plaintiff could
have sought leave to amend to add her Title VII claims once she received her right to sue letter.

20

discrimination related claim in federal court ... with an identical set of
facts,” thereby “thwart[ing] ... the judicial efficiency encouraged by the
grant of supplemental jurisdiction ... in 28 U.S.C. § 1367” (quoting
Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F.Supp. 450
(S.D.N.Y.1997)). Such a state of affairs, the argument continues, would
also “substantially undermine” one of the central “purposes of Title VII,
which affords the EEOC the opportunity to ... facilitate dispute
resolution prior to the commencement of litigation” (quoting Brown v.
Bronx Cross Cnty. Med. Grp., 834 F.Supp. 105, 111 (S.D.N.Y.1993)
(citing 42 U.S.C. § 2000e–5(b))). In short, Castagna's position is that
judicial efficiency mandates tolling of the relevant statutes of limitations
for state tort claims once a charge of discrimination is filed with the
EEOC.
The Seventh and Ninth Circuits—the only two federal courts of
appeals that appear to have considered the issue—have rejected similar
arguments regarding tolling of state tort claims. See Juarez v. Ameritech
Mobile Commc'ns, Inc., 957 F.2d 317, 323 (7th Cir.1992); Arnold v.
United States, 816 F.2d 1306, 1313 (9th Cir.1987).6 So, too, have the
“vast majority” of district court decisions in this circuit. See Kolesnikow
v. Hudson Valley Hosp. Ctr., 622 F.Supp.2d 98, 122 & n. 19
(S.D.N.Y.2009) (collecting cases).
The U.S. Supreme Court’s decision in Johnson v. Railway
Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295
(1975), supports the determinations of those courts. Johnson held that
the filing of a charge of discrimination with the EEOC does not toll “the
period of limitation applicable to an action based on the same facts,
instituted under 42 U.S.C. § 1981.” See id. at 455, 95 S.Ct. 1716. The
Supreme Court acknowledged that without tolling, once a discrimination
charge was lodged with the EEOC, a “civil rights complainant who
values his § 1981 claim” would often be “press [ed] ... into court before
the EEOC has completed its administrative proceeding.” Id. at 465, 95
S.Ct. 1716. Nonetheless, the Court determined that there was no tolling

6

The undersigned has found no Circuit opinions which post-date Castagna and address
this same issue.
21

of the statute because Title VII and section 1981 were two separate
statutes providing for different remedies. As Justice Blackmun wrote for
the majority, “Congress clearly ... retained § 1981 as a remedy against
private employment discrimination separate from and independent of the
more elaborate and time-consuming procedures of Title VII.” See id. at
466, 95 S.Ct. 1716. And “[t]he fact that [a claimant's] slumber may have
been induced by faith in the adequacy of [the] Title VII remedy is of
little relevance” to tolling “inasmuch as the two remedies are truly
independent.” See id.
Castagna attempts to distinguish Johnson on the ground that that
action involved exclusively federal causes of action—specifically Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. She argues
that, unlike Johnson, to preserve all of her claims she “would have had
to bring a separate state court action first and then a federal court action”
once her Title VII claim had ripened. Castagna’s argument that her
dilemma differs in kind from Johnson's is unavailing. First, as the Ninth
Circuit has recognized, although EEOC proceedings “often are
beneficial” in resolving workplace disputes, Johnson “held, nonetheless,
that Congress did not intend for these proceedings to delay independent
avenues of redress.” See Arnold, 816 F.2d at 1313. Second, as in
Johnson, a plaintiff who in the future finds herself in Castagna's
situation “may ask [a] court to stay proceedings” in the initial action
“until the [EEOC's] administrative efforts ... have been completed.” See
Johnson, 421 U.S. at 465, 95 S.Ct. 1716. Although such a stay
procedure is “perhaps not a highly satisfactory” response to Castagna's
plight, “the fundamental answer to [her] argument lies in the fact” that
she always had “an unfettered right” to pursue her tort claims. See id. at
466, 95 S.Ct. 1716. Notably, Castagna does not urge that she could not
have brought those claims within the applicable statute of limitations.
She simply failed to do so.
Moreover, contrary to Castagna's impermissibly narrow reading
of Johnson, the Court's reasoning against tolling encompassed more than
the federal statute there at issue, 42 U.S.C. § 1981:
Despite Title VII's range and its design as a
22

comprehensive solution for the problem of invidious
discrimination in employment, the aggrieved individual
clearly is not deprived of other remedies he possesses and
is not limited to Title VII in his search for relief. The
legislative history of Title VII manifests a congressional
intent to allow an individual to pursue independently his
rights under both Title VII and other applicable state and
federal statutes.
Id. at 459, 95 S.Ct. 1716 (alteration and quotation marks omitted)
(emphasis added). For that reason, following Johnson, the Seventh
Circuit rejected an employee's argument that the “Illinois statute of
limitations” applicable to an invasion of privacy claim “was tolled by
[an employee's] timely filing of a discrimination charge with the
[EEOC].” See Juarez, 957 F.2d at 322. The Ninth Circuit similarly
concluded that “federal policy [did not] mandate equitable tolling” of
the California statute of limitations applicable to “common law tort
claims” arising from the same facts as an employee’s Title VII claim
during the time that an EEOC charge was pending. See Arnold, 816 F.2d
at 1308, 1313.
In short, there is no basis for concluding that Congress intended
that a civil rights claimant should be entitled to delay filing any state tort
claims during the EEOC's consideration of a charge of discrimination.
We therefore join the Seventh and Ninth Circuits in holding as a matter
of federal law that filing an EEOC charge does not toll the time for
filing state tort claims, including those that arise out of the same nucleus
of facts alleged in the charge of discrimination filed with the EEOC.
Id. at 256-58 (underlining added) (original footnotes omitted).7 The court is
7

The plaintiff also writes:

A collection of cases have held that based on interests of fairness and judicial
economy, courts should equitably toll the state statute of limitations when an EEOC
Charge is pending. See EEOC v. Avecia Inc., 2003 U.S. Dist. LEXIS 19325, 2003
WL 22432911, *3 (D.Del. Oct. 23, 2003); Forbes v. Merrill Lynch, Fenner & Smith,
Inc., 957 F.Supp.450, 455-56 (S.D. N.Y. 1996)(noting a split of authority in that
23

persuaded by the Second Circuit’s opinion, and the cases cited therein, that the
plaintiff’s judicial economy argument is without merit.
III.

CONCLUSION
For the reasons stated herein, the court finds that the plaintiff’s state law claims

were untimely filed. Accordingly, it is hereby ORDERED, ADJUDGED, and
DECREED that the plaintiff’s claims for outrage (Count Three), invasion of privacy
(Count Four), negligent/wanton retention (Count Five), and negligent/wanton
supervision and training (Count Six), are DISMISSED with prejudice as to all
defendants.8

district, but finding tolling more persuasive); Gray v. Shearson Lehman Bros., 947
F.Supp. 132, 136 (S.D. N.Y. 1996)(holding that ins some circumstances when the
Title VII claims and state law claims are so related the statute of limitations should
be tolled while the EEOC action is pending); Brown v. Bronx Cross County Medical
Group, 834 F.Supp. 105, 111 (S.D. N.Y. 1993).
(Doc. 12 at 3). The court is not persuaded by the 1993 and 1996 opinions from the Southern District
of New York, as, to the extent that they are inconsistent with Castagna, a 2014 Second Circuit
opinion, they have been overruled, if not expressly, then impliedly. The court is not persuaded by
the plaintiff’s citation to the Delaware district court opinion, as that opinion failed to cite or discuss
any of the authority set out in Castagna, included the Supreme Court’s opinion in Johnson.
8

Very recently, Transport Corporation of America, Inc. filed its own motion to dismiss
the state law claims based on the same grounds as the instant motion. (Doc. 16). Since these
issues have been fully briefed, the court sees no reason to wait for briefing on the second motion
before dismissing the state law claims in their entirety, and as to all defendants. Document 16 is
also GRANTED.
24

DONE and ORDERED this 2nd day of March, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

25