Walker v. Tyson Foods Inc

Filing 49

OPINION AND ORDER granting Tyson Foods, Inc.'s 42 motion to dismiss Derrick Wayne Walker's complaint as untimely or for summary judgment. Signed by Judge J. Leon Holmes on 5/10/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DERRICK WAYNE WALKER
v.

PLAINTIFF
No. 5:16CV00226 JLH

TYSON FOODS, INC.

DEFENDANT
OPINION AND ORDER

Derrick Wayne Walker alleges that Tyson Foods, Inc., violated Title VII of the Civil Rights
Act of 1964 by terminating his employment and failing to promote him based on his race, color, sex,
and religion. Tyson Foods has moved to dismiss the complaint as untimely or in the alternative for
summary judgment on the merits. For the reasons that will be explained, Tyson Foods’ motion is
granted.
Walker was employed at Tyson’s plant in Pine Bluff as an hourly production worker from
July 10, 2014, until he was terminated effective December 1, 2015. He was terminated under a
policy that provides for termination of an employee who receives two written warnings with a
suspension within twelve months.
Walker has filed two charges of discrimination with the Equal Employment Opportunity
Commission. He filed his first EEOC charge on December 17, 2014. In that charge he contended
that Tyson Foods had discriminated against him based on his race and sex. The EEOC issued a
dismissal and a right-to-sue letter on December 24, 2014. Walker filed a second charge of
discrimination on July 2, 2015, alleging that he was denied promotions and was disciplined in
retaliation for filing the prior EEOC charge and due to his age and sex. The EEOC issued a
dismissal and a right-to-sue letter on January 27, 2016.

A suit filed under Title VII must be brought within ninety days after the receipt of the notice
of the right to sue issued by the EEOC. 42 U.S.C. § 2000e-5(f)(1). This ninety-day period of time
within which suit must be filed begins to run on the day that the right-to-sue letter is received at the
most recent address that a plaintiff has provided to the EEOC. Hill v. John Chezik Imports, 869 F.2d
1122, 1124 (8th Cir. 1989). The law presumes that a letter is received three days after mailing.
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1, 104 S. Ct. 1723, 1724 n.1, 80 L. Ed.
2d 196 (1984).
Walker filed his complaint in this Court on July 20, 2016, which was more than a year and
a half after the right-to-sue letter was issued on his first EEOC charge. The complaint comes far too
late with respect to that charge. Walker does not argue to the contrary. Walker’s complaint was filed
175 days after the right-to-sue letter was issued on his second charge. Walker explained in his
deposition that he moved while his EEOC charge was pending, but he admitted that he did not notify
the EEOC of his new address. Document #42-5 at 16-17.
The ninety-day time requirement of 42 U.S.C. § 2000e-5(f)(1) is not jurisdictional and is
subject to equitable tolling, but equitable tolling is generally reserved for circumstances beyond the
control of the plaintiff. Hill, 869 F.2d at 1124. See also Williams v. Thomson Corp., 383 F.3d 789,
791 (8th Cir. 2004). Equitable tolling is not appropriate when the plaintiff failed to notify the EEOC
of his new address. Hill, 869 F.2d at 1124; cf. 29 C.F.R. § 1601.7(b) (requiring that a person who
has filed an EEOC charge provide the commission with notice of any change of his address and
notice of any prolonged absence from his current address). Equitable tolling is not appropriate here.
Walker attempts to avoid the conclusion that his complaint was untimely by arguing that the
EEOC mailed the right-to-sue letter a second time. He has attached to his response a copy of the

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January 27, 2016 right-to-sue letter on which someone has written “Remailed to P.O. Box 53,
Wabbaseka, AR 72175” followed by “KC 4/22/16.” Walker has presented nothing to show that this
is an authentic record of the EEOC. On its face, the document still states in the line marked “date
mailed” that it was mailed on January 27, 2016, and it still bears the signature of William A. Cash,
Jr., Director of the Area Office of the EEOC next to that date. See Document #47 at 7. The change
in the document is the addition of a handwritten note near the bottom of the page. The handwritten
note does not show that the initial right-to-sue letter was withdrawn and a new one issued. At best,
the handwriting represents an unofficial notation with no legal significance. Because Walker has
failed to establish that the EEOC withdrew the January 27, 2016 right-to-sue letter and issued a new
one which he received within ninety days of filing suit, his complaint is untimely.
Furthermore, Walker’s complaint fails for other reasons. To assert a claim under Title VII,
a plaintiff must first exhaust his administrative remedies. Williams v. Little Rock Mun. Water Works,
21 F.3d 218, 222 (8th Cir. 1994). “Exhaustion of administrative remedies is central to Title VII’s
statutory scheme because it provides the EEOC the first opportunity to investigate discriminatory
practices and enables it to perform its roles of obtaining voluntary compliance and promoting
conciliatory efforts.” Id. at 222. Under Title VII, before filing a lawsuit in federal court, aggrieved
individuals must “(1) timely file a charge of discrimination with the EEOC setting forth the facts and
nature of the charge and (2) receive notice of the right to sue.” Id. (citation omitted). A claim for
employment discrimination is barred if the plaintiff fails to file a timely charge. Kline v. City of
Kansas City Fire Dept., 175 F.3d 660, 664 (8th Cir. 1999). To exhaust his administrative remedies,
a plaintiff must give notice of all claims of discrimination in the initial EEOC charge. See Stuart
v. Gen. Motors Corp., 217 F.3d 621, 630-31 (8th Cir. 2000). Claims outside the scope of the EEOC

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charge circumvent the EEOC’s investigative and conciliatory process, and fail to provide the
charged party with notice. Duncan v. Delta Consol. Indus., Inc., 371 F.3d 1020, 1025 (8th Cir.
2004), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir.
2011). Even if a claim is not listed in the EEOC charge, a plaintiff is deemed to have exhausted his
administrative remedies as to any “discrimination that grows out of or is like or reasonably related
to the substance of the allegations in the administrative charge.” Nichols v. American Nat. Ins. Co.,
154 F.3d 875, 887 (8th Cir. 1998). It follows that “[t]he breadth of the civil suit is . . . as broad as
the scope of any investigation that reasonably could have been expected to result from the initial
charge of discrimination.” Stuart, 217 F.3d at 631.
Walker alleged that he was subjected to discrimination based upon his race in his first EEOC
charge but not his second. Thus, the second charge did not exhaust Walker’s administrative
remedies as to his claims of race discrimination.
As noted, Walker also alleges that he was subjected to discrimination based on religion. That
allegation, however, is beyond the scope of both charges that he filed with the EEOC, so he never
exhausted his administrative remedies as to that claim.
Walker also alleges that he was subjected to discrimination based on his sex and that he was
the victim of retaliation. Apart from the fact that Walker’s complaint is untimely, those claims fail
on the merits. Walker has presented no evidence to support those claims. He has presented no
evidence that any action was taken against him because he is a male and no evidence of a causal
connection between his complaints to the EEOC and any adverse employment action. The
undisputed facts show that Walker was discharged for legitimate, nondiscriminatory reasons.

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For the reasons stated, the motion filed by Tyson Foods, Inc., to dismiss Derrick Wayne
Walker’s complaint as untimely or for summary judgment is GRANTED. Document #42. A
judgment will be entered separately.
IT IS SO ORDERED this 10th day of May, 2017.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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