Vasser v. Dallas-Selma CA & CDC Inc

Filing 32

ORDER denying 22 Motion to Dismiss filed by Defendant Dallas-Selma CA & CDC, Inc. The 31 Sur-Reply filed by the Plaintiff is stricken. Signed by Chief Judge William H. Steele on 10/3/2011. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
LARRY DONNELL VASSER,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 11-0234-WS-B
)
DALLAS-SELMA CA &CDC, INC., etc., )
et al.,
)
)
Defendants.
)
ORDER
This matter is before the Court on the Rule 12(b)(6) motion to dismiss filed by
Defendant Dallas-Selma CA & CDC, Inc. (“Dallas-Selma”). (Doc. 22). The pro se
plaintiff has filed a response and Dallas-Selma a reply, (Docs. 26, 30),1 and the motion is
ripe for resolution.
According to the amended complaint and the plaintiff’s attached declaration, the
plaintiff was employed by Dallas-Selma for 28 years. He was laid off on May 15, 2009
as a temporary cost-saving measure, with the understanding he would be returned to work
in June 2009. He was not returned to work in June, and defendant Mary Twitty, among
others, maneuvered to have Dallas-Selma terminate him. On June 9 and June 23, 2009,
Twitty pushed Dallas-Selma to vote for terminating the plaintiff. Both votes failed, and
Twitty continued her quest to terminate the plaintiff.
“A motion to dismiss [under Rule 12(b)(6)] may be granted only when a defendant
demonstrates beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Kirwin v. Price Communications Corp., 391
1

The plaintiff’s sur-reply, (Doc. 31), filed without permission and after the motion to
dismiss was taken under submission, (Doc. 25), is stricken.

[1]

F.3d 1323, 1325 (11th Cir. 2004) (emphasis added) (internal quotes omitted); accord
Beck v. Deloitte & Touche, 144 F.3d 732, 735-36 (11th Cir. 1998) (“In seeking dismissal
for failure to state a viable claim, a defendant thus bears the very high burden of showing
that the plaintiff cannot conceivably prove any set of facts that would entitle him to
relief.”) (emphasis added) (internal quotes omitted). Dallas-Selma, then bears the burden
of establishing its entitlement to dismissal.
The amended complaint asserts that it is for sexual discrimination under Title VII.
(Doc. 7 at 1). In a one-page argument, Dallas-Selma asserts that the claim must be
dismissed for failure to file a timely EEOC charge.
“A charge under this section shall be filed within one hundred and eighty days
after the alleged unlawful employment practice occurred ....” 42 U.S.C. § 2000e-5(e)(1).
“A discriminatory act which is not made the basis for a timely charge is the legal
equivalent of a discriminatory act which occurred before the statute was passed. ... [I]t is
merely an unfortunate event in history which has no present legal consequences.” United
Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). Failure to file a timely charge entitles
the defendant to summary judgment. E.g., Armstrong v. Martin Marietta Corp., 138 F.3d
1374, 1394 (11th Cir. 1998); accord Wilson v. Bailey, 934 F.2d 301, 304 n.1 (11th Cir.
1991) (“Failure to file a timely complaint with the EEOC mandates the dismissal of the
Title VII suit.”).
Dallas-Selma attaches a copy of a charge signed by the plaintiff and dated
February 10, 2010. (Doc. 23, Exhibit A). Dallas-Selma identifies the dates of
discrimination as May 15 and June 23, 2009 and concludes that the February 2010 charge
comes too late. The argument fails at several points. (Doc. 23 at 2).
First, Dallas-Selma has not attempted to show that this is one of those infrequent
occasions on which a defendant may rely on documents not attached to the complaint
without converting the motion into one for summary judgment.
Second, the plaintiff responds that the February 2010 charge was an amended or
superseding charge and that his initial charge was filed on or about June 23, 2009, (Doc.
[2]

26 at 4), and Dallas-Selma has not demonstrated that this is factually inaccurate or
procedurally inadequate. Dallas-Selma points out that the document the plaintiff
submitted to the EEOC in June 2009 (and, as an amended version, in November 2009), is
an intake questionnaire, but that is not dispositive as to whether it constitutes a charge.
Dallas-Selma identifies two reasons the intake questionnaire cannot be construed
as a charge. First, it notes that the questionnaire is not verified. (Doc. 30 at 3). True
enough, but “a charge may be amended to cure technical defects or omissions, including
failure to verify the charge,” and “[s]uch amendments … will relate back to the date the
charge was first received.” 29 C.F.R. § 1601.12(b). The February 2010 charge was
verified, (Doc. 23, Exhibit A), and Dallas-Selma does not explain how this scenario fails
to satisfy the verification requirement. See Cole v. Mountain View Marketing, Inc., 744
F. Supp. 2d 1240, 1245 (S.D. Ala. 2010) (verified charge related back to unverified
intake questionnaire).
Dallas-Selma also argues the intake questionnaire cannot be construed as a charge
because the form language does not indicate that it would be considered as a charge.
(Doc. 30 at 3). It says this is so because the form states that its purpose is “to solicit
information about claims of employment discrimination, determine whether the EEOC
has jurisdiction over those claims, and provide charge filing counseling, as appropriate.”
(Doc. 26, Exhibit 3 at 5). Yes, but the form continues in the very next sentence that,
“[c]onsistent with 29 CFR 1601.12(b) …, this questionnaire may serve as a charge if it
meets the elements of a charge.” (Id.). Dallas-Selma does not address this language or
explain how it fails to indicate the questionnaire would be considered as a charge.
Other language in the form, likewise ignored by Dallas-Selma, also indicates the
form would be considered as a charge. The form contains two alternative boxes, and
employees are instructed to check one box or the other. The second box states that “I
want to talk to an EEOC employee before deciding whether to file a charge of
discrimination. I understand that by checking this box, I have not filed a charge with the
EEOC. I also understand that I could lose my rights if I do not file a charge in time.”
[3]

(Doc. 26, Exhibit 3 at 4 (emphasis added)). A reasonable implication from the
emphasized language is that, by checking the first box (which the plaintiff did), the
employee is filing a charge with the EEOC.
The language of the first box furthers this implication. It states that “I want to file
a charge of discrimination, and I authorize the EEOC to look into the discrimination I
described above.” (Doc. 26, Exhibit 3 at 4). The box further explains that the EEOC
must give the employer “information about the charge” and that the EEOC “can only
accept charges of discrimination” based on statutorily protected categories. (Id.).
Moreover, the form elsewhere states that the EEOC may disclose information
from the form “to congressional offices in response to inquiries from parties to the
charge” and “to disciplinary committees investigating complaints against attorneys
representing the parties to the charge.” (Doc. 26, Exhibit 3 at 5). Finally, the form
encourages employees to provide information requested by the form because “the failure
to do so may hamper the Commission’s investigation of a charge of discrimination.”
(Id.).
Even had Dallas-Selma established that the intake questionnaire does not serve as
a charge, it has not shown that the relevant date or dates of the plaintiff’s claim fall more
than 180 days before the February 2010 charge. Dallas-Selma identifies the plaintiff’s
claims as being for discriminatory termination on May 15, 2009 and discriminatory
failure-to-rehire on June 23, 2009, but this is not consistent with the amended complaint.
The amended complaint alleges a temporary layoff on May 15, 2009, not a termination.
The amended complaint further alleges that the plaintiff remained employed as of June
23, 2009, since Twitty’s efforts to have him terminated had failed, so there could be no
failure-to-rehire on that date. Dallas-Selma has not established when the plaintiff was
terminated and thus has not demonstrated that a Title VII claim based on termination or
failure to rehire would be time-barred even if the February 2010 charge is the operative
document.

[4]

The amended complaint also includes a count of negligence against all defendants.
(Doc. 7 at 8-10). Dallas-Selma, in a three-sentence argument, asserts that the negligence
claim is “merely a restatement of the allegations which [the plaintiff] contends will
support his Title VII claim and thus is subsumed by his Federal claim” and barred by the
plaintiff’s asserted failure to file a timely charge. (Doc. 23 at 3). It is far from clear that
the plaintiff in fact relies on the same allegations for both his Title VII and negligence
claims. In any event, Dallas-Selma has offered no legal or analytical support for the
proposition that Title VII preempts a state-law negligence claim – unsurprising, given
Title VII’s express anti-preemption provision. 42 U.S.C. § 2000e-7; see Bradshaw v.
School Board of Broward County, 486 F.3d 1205, 1210 (11th Cir. 2007) (“[S]ection
2000e-7 is an anti-preemption provision that allows states latitude in the design of their
own antidiscrimination law.”).
Finally, the amended complaint includes a count for “punitive damages against all
defendants.” (Doc. 7 at 10). Dallas-Selma points out that there is no separate cause of
action for punitive damages, (Doc. 23 at 3), but there is a cause of action for wantonness,
which appears to be the thrust of this count.2
The Court has and expresses no opinion whether, with more adequate briefing,
Dallas-Selma could obtain dismissal of all or part of the amended complaint on the
grounds it has asserted. The Court rules only that the superficial briefing offered the
Court is inadequate to carry Dallas-Selma’s burden of showing that the complaint fails to
state a claim upon which relief can be granted. For the reasons set forth above, DallasSelma’s motion to dismiss is denied.
DONE and ORDERED this 3rd day of October, 2011.

s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
2

This count describes the defendants’ conduct as “egregious.” (Doc. 7 at 10).

[5]