Nathan v. St. Martin
Filing
34
ORDER & REASONS granting 32 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 12/17/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOBBY L. NATHAN
CIVIL ACTION
v.
NO. 11-2275
MARCIA ST. MARTIN, EXEC. DIR.
OF THE SEWERAGE & WATER BOARD
OF NEW ORLEANS
SECTION F
ORDER AND REASONS
Before the Court is the defendant’s motion for summary
judgment.
For the reasons that follow, the motion is GRANTED.
Background
This disputes involves alleged discrimination that resulted
from employee reclassification.
Bobby Nathan, employed by the Sewerage and Water Board of
New Orleans (“SWB”), has held the position of Equal Employment
Opportunity Officer since 1991.
As such, Mr. Nathan’s civil
service title is Management Development Supervisor I, and he
reports directly to the Executive Director, Marcia St. Martin.
In April 2005, at the request of SWB, the City Civil Service
Commission performed a comprehensive management study of various
positions, including Mr. Nathan’s position at the time
(Management Services Supervisor I).
The study examined the
duties and responsibilities of the various positions.
As a
result of the study, some SWB employees who held the title
Management Services Supervisor I and supervised a permanent
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employee were reclassified as Utility Service Managers, which is
in a higher pay grade.
Although his title was Management
Services Supervisor I, Mr. Nathan was not reclassified, in part
because he did not supervise a permanent employee.
He
subsequently requested that a permanent secretary be assigned to
him.
On September 18, 2007, Mr. Nathan sent an interoffice
memorandum to Ms. St. Martin, asserting that he was being
discriminated against because he had more job experience than his
peers and subordinates that had been reclassified to Utility
Service Managers.
Mr. Nathan sent a second interoffice
memorandum to Ms. St. Martin on September 25, 2007, reiterating
that he felt discriminated against.
On September 27, 2007, Mr.
Nathan filed a formal grievance, stating that he was “denied
proper clerical support,” and by doing so “[SWB] systematically
and deliberately denied [him] the opportunity to be promoted to
Utility Services Manager.”
According to the record, it does not
appear that Ms. St. Martin responded to the grievance.
On December 18, 2009, Mr. Nathan filed a charge of
discrimination with the Equal Employment Opportunity Commission,
alleging age discrimination, and on June 22, 2011, the EEOC
issued a right-to-sue letter.
In turn, Mr. Nathan sued Ms. St.
Martin in this Court on November 23, 2011.
for summary judgment on plaintiff’s claims.
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Defendant now moves
I. Legal Standard
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.
See Matsushita Elec.
Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine
issue of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion.
See id.
Therefore, "[i]f the evidence is merely
colorable, or is not significantly probative," summary judgment
is appropriate.
Id. at 249-50 (citations omitted).
Summary
judgment is also proper if the party opposing the motion fails to
establish an essential element of his case.
Catrett, 477 U.S. 317, 322-23 (1986).
See Celotex Corp. v.
In this regard, the non-
moving party must do more than simply deny the allegations raised
by the moving party.
See Donaghey v. Ocean Drilling &
Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
Rather, he
must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.
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Id.
Hearsay evidence and
unsworn documents do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549
(5th Cir. 1987).
Finally, in evaluating the summary judgment
motion, the Court must read the facts in the light most favorable
to the non-moving party.
Anderson, 477 U.S. at 255.
II. Discussion
The defendant contends that summary judgment is appropriate
because plaintiff’s claim is time barred.
The Court agrees.
A.
In Louisiana, a deferral state,1 an employee must file his
charge of discrimination with the EEOC within 300 days of the
alleged discriminatory conduct.
See 42 U.S.C. § 2000e-5(e)
(2006); Hartz v. Adm’rs of Tulane Educ. Fund, 275 F. App’x 281,
287 (5th Cir. 2008).
If the employee fails to submit a timely
EEOC charge, the employee may not challenge the alleged
discriminatory conduct in court. See 42 U.S.C. § 2000e-5(f)(1);
Hartz, 275 F. App’x at 287.
It is well established within the
Fifth Circuit that the 300-day time period begins to run from
1
Generally, an EEOC charge must be filed within 180 days of the
alleged unlawful employment practice. If a state does not have a
state agency with mechanisms in place to challenge employment
discrimination, it is called a non-deferral state and the 180-day
timeline applies. If a state has a state agency that accepts
employment discrimination claims, then the state is deemed a
deferral state and the 300-day timeline applies. See, e.g.,
Conner v. La. Dep't of Health & Hosps., 247 F. App'x 480, 481
(5th Cir. 2007); see also 42 U.S.C. 2000e-5(e).
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“the time the complainant knows or reasonably should have known
that the challenged act has occurred.”
Ramirez v. City of San
Antonio, 312 F.3d 178, 181 (5th Cir. 2002); Conaway v. Control
Data Corp., 955 F.2d 358, 362 (5th Cir. 1992) (“‘The time begins
when facts that would support a cause of action are or should be
apparent.’” (quoting Blumberg v. HCA Mgmt. Co., Inc., 848 F.2d
642, 645 (5th Cir. 1988))).
Defendant contends, and the record supports, that the basis
of Mr. Nathan’s discrimination complaint is that he was denied
clerical support, which in turn prevented him from being promoted
to the position of Utility Services Manager.
Defendant submits
Mr. Nathan’s September 18, 2007 interoffice memorandum, which
explicitly states that plaintiff believes “discrimination has
been practiced against [him] and should be corrected” because he
was not “elevated to the new classification of Utility Service
Manager.”
Further, Mr. Nathan’s September 25, 2007 interoffice
memorandum asserts that “[plaintiff] was denied promotion to the
new classification of Utility Service Manager by [Ms. St. Martin]
and the Civil Service Commission, thereby being denied an
increase in salary,” and the fact plaintiff cannot “be promoted
because [he] does not have a Clerk does not set well [with him] .
. . . It is just plain disparate treatment and discrimination.”
Therefore, even construing the facts in a light most favorable to
the plaintiff, no genuine dispute exists as to the fact that Mr.
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Nathan knew of the alleged discrimination on September 18, 2007
(or, at the latest, September 25, 2007) and was complaining that
discrimination occurred.
Moreover, in both memoranda, plaintiff
asserts what is still the core of his complaint today; that he
was allegedly discriminated against when he was not reclassified.
Plaintiff filed his EEOC charge on December 18, 2009, well
outside the 300-day time period that began on September 18, 2007.
His claim is quite simply untimely.
B.
Plaintiff contends that his complaint is not untimely for
three reasons: (1) the exception of equitable estoppel applies,
(2) the exception of equitable tolling applies, and (3) there was
an occurrence of discrimination within the 300-day time period to
file an EEOC charge.
The Court finds the plaintiff’s allegations
to be without merit.
First, Plaintiff contends that the exception of equitable
estoppel should apply.
Equitable estoppel applies “when a
defendant intentionally engages in misconduct to prevent the
plaintiff from filing a timely charge.”
Deveaux v. Napolitano,
No. 12-9477, 2012 WL 3065431, at *4 (E.D. La. July 27, 2012).
Plaintiff asserts that SWB intentionally prolonged its grievance
process and failed to follow its own grievance procedures to
prevent Mr. Nathan from timely filing his EEOC charge.
Specifically, plaintiff points to the fact that Ms. St. Martin
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never responded to Mr. Nathan’s grievance, and SWB’s policy
requires supervisors to respond, in writing, to the employee
within a set number of days.2
The fact that Ms. St. Martin did
not respond, however, does not indicate that SWB obstructed
plaintiff from filing a charge.
of her attitude.
It might simply be a reflection
Contrary to what the plaintiff asserts, SWB’s
grievance policy does not mandate exhaustion before a plaintiff
is able to seek other remedies.
The choice of forum clause
simply states that if “the employee seeks resolution of the
matter through an agency outside of the Board, whether
administrative or judicial, the Board in its discretion may
refuse to process or further consider the grievance.”
On this
record, the Court cannot say that SWB intentionally engaged in
conduct to deprive the plaintiff of his ability to file a charge.
Second, plaintiff asserts that equitable tolling applies
here.
The Fifth Circuit has warned that equitable tolling is
limited in concept, and that equitable modification should be
“applied sparingly.”
See, e.g., Granger v. Aaron’s, Inc., 636
F.3d 708, 712 (5th Cir. 2011); Ramirez, 312 F.3d at 183.
The
doctrine applies when a plaintiff suffers because of negligence
“caused by the EEOC or another party.”
at *4.
Deveaux, 2012 WL 3065431,
The Fifth Circuit has described three non-exhaustive
2
Step 1 of the grievance process requires the immediate
supervisor to respond, in writing, to the employee within seven
working days, and Step 2 requires the next supervisor to respond
within five working days.
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bases for equitable tolling:
(1) a pending action between
parties in the wrong forum, (2) the plaintiff’s unawareness of
the facts supporting his claim because defendant intentionally
concealed them, and (3) the EEOC’s misleading the plaintiff about
his rights.
Granger, 636 F.3d at 712.
Plaintiff alleges that he filed a discrimination complaint
with the Office of Federal Contract Compliance Program on October
1, 2007, and with the Department of Labor on October 31, 2007,
because he believed those agencies to be the correct forum.
Plaintiff contends that the OFCCP and the DOL responded to him on
September 11, 2009, indicating that they no longer handled
complaints like Mr. Nathan’s and referring the matter to the
EEOC.
The EEOC then accepted and investigated Mr. Nathan’s claim
without ever telling him that it was untimely.
Therefore,
according to the plaintiff, the negligence of the OFCCP, DOL, and
the EEOC delayed his filing, and equitably tolling should apply.
Examining the record, however, the Court finds no support
for the plaintiff’s assertion that he filed a complaint with the
OFCCP and the DOL in October of 2007.3
Moreover, the fact that
the plaintiff may have sent a complaint to the wrong agency does
3
The plaintiff directs the Court’s attention to a document in
the record that appears to be nothing more than a document he
created, in which the plaintiff states in a conclusory fashion
that he sent a letter to the OFCCP and the DOL. The plaintiff
also submits a DOL form, which is not dated. The form does,
however, state that the plaintiff “has been issued a notice of
the Right to Sue in State or Federal Court” by the EEOC, which
occurred in 2011, thus belying plaintiff’s assertion.
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not indicate that the OFCCP, DOL, or EEOC themselves were
negligent, causing the plaintiff to suffer.
Cf.
McGarrah v.
Kmart Corp., No 97-2386, 1999 WL 455716, at *3 (N.D. Tex. July 2,
1999) (noting that the EEOC was negligent because the agency lost
the forms and therefore equitable tolling applies).
Notably,
equitable tolling is “not available to avoid the consequences of
the plaintiff’s own negligence.”
Deveaux, 2012 WL 3065431, at *4
(emphasis added) (internal quotation marks omitted); see also
Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 478 (5th Cir.
1991) (holding that the lack of knowledge of the applicable
filing deadlines and unfamiliarity with the legal process are not
bases for equitable tolling).
Moreover, the fact that the EEOC
investigated plaintiff’s claim is not dispositive.
Deveaux, 2012
WL 3065431, at *3 (noting that the EEOC does not waive the
timeliness objection solely because it agrees to investigate a
claim).
Therefore, equitable tolling does not apply here.
Third, plaintiff contends that he suffered ongoing
discrimination and that new acts of discrimination occurred
within the 300-day time period.
Specifically, plaintiff alleges
that Ms. St. Martin denied another request for support staff and
a promotion in March 2009.
The Fifth Circuit has held that a
denial of a promotion is a discrete act and not an ongoing
violation.
Muthukumar v. Univ. of Tex. at Dall., 471 F. App’x
407, 408-09 (5th Cir. 2012) (“[D]iscrete acts such as
9
termination, failure to promote, denial of transfer, or refusal
to hire . . . are easy to identify and each constitutes a
separate actionable unlawful employment practice.”).
Therefore,
even if the Court were to construe the March 2009 evaluation as a
failure to promote, which would result in an alleged
discriminatory act within the 300 day-window, summary judgment
remains appropriate.
There is nothing in the record to indicate
that SWB failed to promote or reclassify the plaintiff in March
2009.
Mere conclusory allegations are not competent summary
judgment evidence, and thus are insufficient to defeat a motion
for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996); see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998) (“The party opposing summary judgment is
required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his
or her claim. . . . Rule 56 does not impose upon the district
court a duty to sift through the record in search of evidence to
support a party’s opposition to summary judgment.” (citation and
internal quotation marks omitted)).
Accordingly, the defendant’s motion for summary judgment is
GRANTED.
New Orleans, Louisiana, December 17, 2012
_________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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