Williams v. Cardinal Health 200 L.L.C.

Filing 46

ORDER & REASONS: granting 25 , 42 , defendant's motions to dismiss under Rule 12(b)(6); Further Ordered that all of plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 5/31/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WILLIAMS

CIVIL ACTION

VERSUS

NO: 12-2935

CARDINAL HEALTH 200, LLC

SECTION: "J” (2)

ORDER AND REASONS
Before the Court are Defendant's Motions to Dismiss under
Rule 12(b)(6) (Rec. Docs. 25, 42), Plaintiff's oppositions to
both (Rec. Docs. 38, 45, respectively), and Defendant's reply
(Rec. Doc. 41). Defendant's first Motion to Dismiss was set for
hearing on May 8, 2013. Defendant’s second Motion to Dismiss is
set for hearing on June 5, 2013. Because these motions are based
on the same underlying facts and raise contingent arguments, they
are addressed jointly in this Order and Reasons. The Court,
having

considered

the

motions

and

memoranda

of

counsel,

the

record, and the applicable law, finds that Defendant's motions
should be GRANTED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This

suit

arises

out

of

claims
1

of

race

discrimination,

sexual harassment, and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq., and
race and gender discrimination under Louisiana Revised Statute §
23:332. Plaintiff, Natasha Williams, filed her Complaint with
this Court on December 12, 2012, naming Cardinal Health 200, LLC
as

the

Defendant.

causes of action

Plaintiff’s

initial

Complaint

only

alleged

for race discrimination, sexual harassment, and

retaliation under Title VII. On April 18, 2013, Plaintiff filed a
First Amended Complaint which added a cause of action for race
discrimination under Louisiana Revised Statute § 23:332. On April
25, 2013, Plaintiff was granted leave to file a Second Amended
Complaint which added an additional cause of action for gender
discrimination under the same state statute. While each complaint
contains

additional

causes

of

action,

all

of

Plaintiff’s

complaints are based on the following factual allegations.
Plaintiff alleges that she was employed by Defendant for
several years, beginning employment on December 22, 2003, leaving
briefly and returning on September 7, 2007. Plaintiff maintains
that

after

returning,

she

was

employed

by

Defendant

from

September 7, 2007 until September 26, 2011.
Plaintiff

asserts

that

the

events

leading

up

to

her

termination began on September 14, 2011, when her husband got

2

into a fist fight with one of her co-workers. Plaintiff reports
that the fight occurred during an hour-long dinner break from
work at a nearby restaurant.1 After the fight, Plaintiff returned
to work and met with two supervisors to tell them that her
husband

had

been

in

a

fight

with

her

co-worker.

Plaintiff

explained that she did not know why her husband got into the
fight.2
a

Plaintiff was also asked to provide her supervisors with

written

statement.

That

same

evening,

the

police

began

investigating the incident as well, going to Plaintiff’s job site
and asking her to provide them with a statement. Plaintiff then
alleges

that

investigation.

she
On

was

sent

September

home

on

paid

17,

2011,

leave

pending

Plaintiff’s

the

supervisor

allegedly informed Plaintiff that she could return to work on
September 19, 2011.
Plaintiff asserts that on September 18, 2011, her husband
told her that he had gotten into the fight because Plaintiff’s
co-worker

had

sent

Plaintiff

avers

some

that

she

text

messages

to

Plaintiff’s

unaware

of

the

was

phone.

messages,

but

explains that she reported the conversation with her husband to

1

Plaintiff explains that her hours were from 2:00 p.m. to 10:00 p.m. and
that she was given a one hour dinner break at 6:00 p.m. At the time of the fight,
Plaintiff was getting dinner with her husband and two children.
2
Plaintiff’s co-worker was brought to the hospital after the fight and was
not available to speak to management for several days following the incident.

3

her supervisors when she returned to work on September 19, 2011.
Plaintiff

asserts

that

she

was

fired

the

following

week

on

September 26, 2011. Plaintiff contends that her co-worker was
involved in “some type of inappropriate behavior” toward her.3
She alleges that she was terminated as a result of race or gender
discrimination and/or in retaliation “for having participated in
an investigation of workplace sexual harassment.”4
Defendant filed its first Motion to Dismiss (Rec. Doc. 25)
on April 17, 2013. After Defendant filed its motion, Plaintiff
filed two amended complaints. Plaintiff filed her opposition to
Defendant’s motion on May 2, 2013. Defendant filed a reply on May
8, 2013. In response to the two amended complaints, Defendant
filed an additional Motion to Dismiss (Rec. Doc. 42) on May 10,
2013. Plaintiff responded in opposition on May 28, 2013.
THE PARTIES’ ARGUMENTS
In Defendant’s first Motion to Dismiss, it argues that the
Court should dismiss this matter because Plaintiff has failed to
exhaust

her

administrative

remedies.

Specifically,

Defendant

asserts that Plaintiff failed to file a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”) or the

3

4

Compl., Rec. Doc. 1, p. 6 ¶ 19.
Compl., Rec. Doc. 1, p. 7 ¶ 22.

4

Louisiana Commission on Human Rights (“LCHR”) within 300 days of
her

termination.

Plaintiff’s

Defendant’s

claims

of

race

motion

specifically

discrimination,

refers

retaliation,

to
and

sexual harassment under Title VII. In support of its argument,
Defendant sets out the following facts concerning Plaintiff’s
EEOC charge.
Defendant

contends

that

Plaintiff

was

terminated

on

September 26, 2011, meaning that she needed to file a charge of
discrimination by July 22, 2012. Defendant asserts that on July
11,

2012,

Plaintiff’s

Questionnaire

with

the

attorney
EEOC

on

filed

an

Plaintiff’s

unverified
behalf.

Intake

Defendant

reports that the questionnaire did not specifically state that
Plaintiff wanted to file a charge of discrimination with the
EEOC. In fact,

Defendant notes that Plaintiff did not check the

box on the Intake Questionnaire which stated “I want to file a
charge or discrimination . . . .”, or the box which said “I want
to talk to an EEOC employee before deciding whether to file a
charge.”5

Defendant

further

contends

that

on

July

17,

2012,

Plaintiff was sent a letter which informed her that the EEOC
needed more information in order to determine how to proceed.
Defendant explains that the letter stated that “IF [the EEOC had

5

Ex. 1 to Def.’s 1st Mot. to Dismiss, Rec. Doc. 25-1, p. 13.

5

not] HEARD FROM [Plaintiff] WITHIN 30 DAYS OF THIS LETTER [they
would] ASSUME THAT [she] DID NOT INTEND TO FILE A CHARGE OF
DISCRIMINATION WITH [them].”6 Defendant asserts that Plaintiff
did not respond to the letter within thirty-days (i.e., by August
16, 2012); however, Defendant explains that on September 27,
2012, after the 300 day period had expired, Plaintiff’s counsel
sent

a

fax

to

the

EEOC

requesting

a

Right

to

Sue

Letter.

Defendant reports that the EEOC received the request on October
1, 2012, and issued a Notice of Discrimination (“the Notice”) to
Defendant that same date. Defendant avers that the Notice did not
contain any details about Plaintiff’s allegations. Defendant also
asserts that the Notice did not include a copy of Plaintiff’s
Intake

Questionnaire.

The

Notice

states

that

“[a]

perfected

charge (EEOC Form 5) will be mailed to you once it has been
received from the Charging Party.”7
Under these facts, Defendant argues that it is clear that
Plaintiff

did

not

timely

file

a

charge

of

discrimination.

Specifically, Defendant asserts that (1) Plaintiff never filed a
charge

of

discrimination,

and

that

(2)

Plaintiff’s

Intake

Questionnaire cannot be construed as a timely filed charge. With
6

Ex. 1 to Def.’s 1st Mot. to Dismiss, Rec. Doc. 25-1, p. 9 (emphasis in
original).
7

Ex. 1 to Def.’s 1 st Mot. to Dismiss, Rec. Doc. 25-1, p. 17.

6

regard to Plaintiff’s Intake Questionnaire, Defendant asserts
that

it

cannot

be

construed

as

a

charge

of

discrimination

because (1) it is not verified, (2) it did not cause the EEOC to
take

administrative

questionnaire

were

action,
never

and
sent

(3)
to

the

contents

Defendant.

of

the

Furthermore,

Defendant argues that the Court should not liberally construe
Plaintiff’s submissions to the EEOC because she was represented
by an attorney throughout the entire EEOC filing process.
In response, Plaintiff does not contest the facts as set
forth by the Defendant; however, Plaintiff claims that the Intake
Questionnaire

constituted

a

charge

of

discrimination.

In

particular, Plaintiff argues that Defendant has had actual notice
of Plaintiff’s discrimination allegations since the date of her
termination. Plaintiff avers that since that date, Plaintiff and
Defendant have been in an ongoing dispute about a separately
filed

application

for

unemployment

benefits

that

was

denied.

Because of that dispute, Plaintiff explains that “Plaintiff’s
counsel has been in continuous and uninterrupted contact with the
[Defendant].”8

Plaintiff

further

notes

that

on

June

7,

2012,

Plaintiff’s counsel sent Defendant’s counsel a letter outlining
the allegations of sexual harassment and noting that the deadline

8

Pl.’s Opp. to Def.’s 1st Mot. to Dismiss, Rec. Doc. 38, p. 2.

7

to file an EEOC charge was July 21, 2012. This letter included an
offer of settlement.9
With

regard

to

Plaintiff’s

arguments

about

the

Intake

Questionnaire, Plaintiff asserts that the questionnaire contained
all

of

the

information

that

is

required

for

a

charge

of

discrimination, namely the plaintiff’s name, mailing address,
race, the defendant’s name and contact information, plaintiff’s
hire and discharge date, plaintiff’s rate of pay, and a brief
description

of

the

events.

Plaintiff

relies

on

Price

v.

Southwestern Bell Telephone Co., 687 F.2d 74 (5th Cir. 1982),
arguing that in Price, the United States Court of Appeals for the
Fifth Circuit

held that an intake questionnaire can constitute a

charge of discrimination and that “the crucial element of a
charge

of

therein.”10

discrimination
Thus,

is

the

Plaintiff

factual

contends

statement
that

contained

the

Intake

Questionnaire that was submitted on Plaintiff’s behalf on July
11, 2012, fulfilled all of the necessary requirements in this
circuit. Likewise, Plaintiff asserts that as a result of the
Intake

Questionnaire,

the

EEOC

did

initiate

administrative

9

Ex. 1 to Pl.’s Opp. to Def.’s 1 st Mot. to Dismiss, Rec. Doc. 38-1, pp.
2-3. The letter states that “[t]he deadline to file a charge with the [EEOC] is
July 21, 2012. Rather than get into protracted litigation, my client is willing
to settle all claims on the following terms.”
10

Pl.’s Opp. to Def.’s 1st Mot. to Dismiss, Rec. Doc. 38, p. 5.

8

proceedings. Specifically, Plaintiff points to the Notice that
the EEOC sent to Defendant on October 23, 2012. Plaintiff further
contends that any requirement that the Intake Questionnaire or
charge of discrimination be signed under oath by Plaintiff is
waivable.
In Defendant’s second Motion to Dismiss, it specifically
seeks dismissal of all of Plaintiff’s claims under Louisiana
Revised Statute § 23:332. Defendant contends that Plaintiff’s
state law claims should be dismissed with prejudice because they
are prescribed. Defendant asserts that the prescriptive period
for claims under Louisiana Revised Statute § 23:332 is one year.
Defendant notes that Plaintiff was terminated on September 26,
2011, and brought the instant action on December 12, 2012, one
year, two months, and sixteen days after her termination. Thus,
Defendant

argues

that

Plaintiff’s

state

law

claims

have

prescribed. Defendant further notes that the date that this suit
was instituted was not the actual day that the state law claims
were raised. Rather, Plaintiff did not raise her state law claims
until April 18, 2013, making them one year, five months, and
twenty-two days overdue.
Furthermore, Defendant also notes that while the one-year
prescriptive period may be extended by six months during the

9

pendency of an administrative hearing, even if this Court were to
find

that

(which

the

EEOC

Defendant

has

denies),

instituted

an

Plaintiff’s

administrative
claims

would

hearing

still

be

prescribed. Defendant explains that if an administrative hearing
was pending, it was only pending from July 11, 2012 until October
25, 2012, the day that the EEOC issued the right to sue letter.
Thus, Defendant contends that Plaintiff would only be entitled to
a three month and fourteen day extension of the prescriptive
period. As such, Defendant contends that Plaintiff would have had
to filed her state law claims by January 9, 2013. Thus, Defendant
asserts that because Plaintiff’s state law claims were filed on
April 18, 2013, they were untimely. Plaintiff argues that under
Federal Rule of Civil Procedure 15(c), Plaintiff’s state law
claims cannot be found to relate back to the date of her original
complaint.
In response, Plaintiff argues that his state law claims are
not prescribed. Plaintiff contends that an administrative hearing
was pending in her case from July 11, 2012, the date that her
counsel

filed

the

Intake

Questionnaire

on

her

behalf,

until

October 25, 2012, the date the EEOC issued the Right to Sue
letter, thereby tolling her state law claims. As such, Plaintiff
asserts

that

she

had

until

January

10

9,

2013

to

file

suit.

Plaintiff notes that she filed suit on December 12, 2012, making
her suit timely. Furthermore, Plaintiff notes that her state law
claims,

although

brought

after

the

case

was

initially

filed

necessarily “relate back” to the original claim because they
arise out of the same transaction and occurrence. Thus, Plaintiff
argues that the December 12, 2012, filing date is the correct
date for prescription purposes and, consequently, that she timely
filed her complaint. Plaintiff further reiterates that Defendant
has had actual notice of these claims since her termination
and/or the June 7, 2012, letter.
DISCUSSION
A.

Legal Standard

Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

FED. R. CIV. P. 8(a)(2).

The

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005).
simple, concise, and direct.”

The allegations “must be

FED. R. CIV. P. 8(d)(1).

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678
11

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.

A court

must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
B.

Charge of Discrimination

In an employment discrimination case, the plaintiff must
exhaust all administrative remedies before pursuing her claims in
federal court.

Taylor v. Books A Million, Inc., 296 F.3d 376,

379 (5th Cir. 2002) (citing Dao v. Auchan Hypermarket, 96 F.3d
787,

789

(5th

administrative

Cir.

1996)).

remedies

when

The

she

plaintiff

files

a

exhausts

timely

charge

her
of

discrimination with the EEOC. Dao, 96 F.3d at 788-89 (noting that
although filing a claim with the EEOC is not a jurisdictional
prerequisite, it “‘is a precondition to filing suit in district
court’” (quoting Cruce v. Brazosport Indep. Sch. Dist., 703 F.2d
862, 863 (5th Cir. 1983))). As a general rule, discrimination

12

victims must file a charge with the EEOC within 180 days of when
the unlawful employment practice occurred. 42 U.S.C. § 2000e5(e)(1). In deferral states, such as Louisiana, an exception to
this general rule applies and an individual must file a charge
within

300

days

of

the

allegedly

discriminatory

act.11

The

limitations period for filing a charge of discrimination with the
EEOC starts

to run from the date the discriminatory act occurs

or the date that the plaintiff knows or reasonably should know of
the discriminatory act. Delaware State College v. Ricks, 449 U.S.
250, 258 (1980); Merrill v. S. Methodist Univ., 806 F.2d 600, 605
(5th Cir. 1986).
A charge of discrimination must be filed “in writing under
oath or affirmation and shall contain such information and be in
such form as the Commission requires.”42 U.S.C. § 2000e-5(b). The
EEOC’s regulations also require that a charge be in writing,
signed,

and

verified.

29

C.F.R.

§§

1601.9,

1601.3(a).

This

requirement is designed to protect employers from the filing of
frivolous claims. Price, 687 F.2d at 77. In addition, to be
sufficient a charge “should contain . . . [t]he full name and

11

42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d); 29 U.S.C. § 633(b). This
exception occurs where the state in which the alleged discrimination occurs “has
a law prohibiting discrimination in employment.” 29 U.S.C. § 633(b). Neither
party to this suit disputes that this 300-day exception applies to the instant
case.

13

address of the person against whom the charge is made” and “[a]
clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment practices.”
Id.

§

1601.12(a).

A

sufficient

charge

will

“identify

the

parties, and [] describe generally the [complained of] action or
practices.” Id. § 1601.12(b). In general, employment charges are
construed “with the ‘utmost liberality’” because they are often
prepared by laymen. Price, 687 F.2d at 77 (quoting Terell v.
United States Pipe & Foundrey Co., 644 F.2d 1112 (5 th Cir.
1981)). However, some courts have found that “‘[t]he leniency
accorded a layman in drafting the EEOC charge should not be
extended to an attorney.’” Fassbender v. Treasure Chest Casino,
No. 07-5265, 2008 WL 170071, at *6 (E.D. La. Jan. 16, 2008)
(quoting Cannon v. St. Paul Fire & Marine Ins. Co., No. 03-2911,
2005 WL 1107372, at *1n.1 (N.D. Tex. May 5, 2005)).
In

the

instant

case,

the

parties

agree

that

the

discriminatory act occurred on September 26, 2011, the date that
Plaintiff was terminated. Thus, in order to timely file a charge
of discrimination, Plaintiff must have filed the charge by July
22, 2013. Relying on Price v. Southwestern Bell Telephone Co.,
Plaintiff
charge

of

argues

that

her

discrimination

Intake
properly

14

Questionnaire
filed

with

constituted
the

EEOC

a

and,

therefore, she contends that she has exhausted her administrative
remedies. The Court disagrees.
In Price, the Fifth Circuit considered whether a pro se
plaintiff’s unverified EEOC intake questionnaire could constitute
a charge of discrimination for the purposes of satisfying the
time limitation for filing a charge. 687 F.2d at 75 -79. In that
case, on January 10, 1979, within 180 days of her termination,
plaintiff met with an EEOC Specialist to discuss her alleged
discrimination.

Id.

at

75.

During

the

meeting,

the

EEOC

Specialist recorded the factual basis of plaintiff’s complaint on
an EEOC Form 283. Id. Subsequently, on January 12, 1979, the EEOC
wrote plaintiff’s employer and advised it that plaintiff had
filed a charge of discrimination with the EEOC. Id. The letter to
plaintiff’s employer also included an official Notice of Charge.
Id.

After

plaintiff’s

initial

meeting

with

the

EEOC,

she

corresponded with the EEOC at least four additional times. Id. On
March 12, 1979, the EEOC Specialist mailed plaintiff a draft of a
proposed
return

amended

the

charge

charge,
in

requesting

thirty

days.

that
Id.

plaintiff

Rather

than

sign

and

sign

the

charge, plaintiff sent the EEOC Specialist a 110-page description
of the discriminatory incidents. Id. On July 31, 1979, the EEOC
sent plaintiff a Notice of Right to Sue letter. Id. Thereafter,

15

plaintiff instituted her suit. Id. Upon filing her suit, the
defendant moved to dismiss arguing that plaintiff had not filed a
charge

of

discrimination.

Id.

The

court

denied

defendant’s

motion, finding that plaintiff had filed a charge. Id. at 78.
Specifically, the court explained that despite that fact that the
January 10, 1979 EEOC Form 283 was “neither signed nor sworn” the
form had “described the alleged discriminatory conduct in enough
detail to enable [the EEOC] to issue an official notice of charge
to” plaintiff’s employer. Id. (emphasis added). The court stated
that the fact that the EEOC had “considered the circumstances
surrounding the receipt of [plaintiff’s] complaint sufficient to
initiate

the

Furthermore,

administrative
the

court

process,

noted

that

is

because

relevant.”

Id.

plaintiff

was

“unschooled in the law and without aid of counsel,” it was not
unreasonable

that

she

took

“no

further

action

during

the

limitation period in the belief that she had done that which was
required of her.” Id. at 79. (emphasis added).
In the instant case, the Intake Questionnaire in question
was not filed by a plaintiff unschooled in the law like the
plaintiff in Price. Rather, it was filed by an attorney who
arguably should not be afforded the same leniency as a pro se
plaintiff. Furthermore, upon receiving the July 11, 2012 Intake

16

Questionnaire, unlike the EEOC in Price, the EEOC in this case
did

not

immediately

send

a

Notice

of

Charge

to

Plaintiff’s

employer. Rather, on July 17, 2012 the EEOC actually sent a
letter to Plaintiff explaining that her Intake Questionnaire was
insufficient and that the EEOC needed additional information in
order to take action. Thus, the Intake Questionnaire did not
“describe the alleged discriminatory conduct in enough detail to
enable

the

Plaintiff’s

EEOC

to

employer,

issue

an

nor

did

official
it

notice

initiate

the

of

charge

to”

administrative

process. Moreover, the letter mailed to Plaintiff specifically
informed Plaintiff that if she did not respond within thirty days
(which she did not) the EEOC would assume that she did not want
to file a charge. This language makes it plainly clear that as of
July 17, 2012, the EEOC did not consider that Plaintiff had filed
a

charge

of

discrimination.

Likewise,

Plaintiff’s

failure

to

respond to the EEOC’s letter further confirms that as of August
16, 2012, as per the EEOC’s letter, no charge had been filed. As
such, the Court finds that Price is distinguishable from the
instant case and does not support Plaintiff’s argument that the
Intake Questionnaire constituted an EEOC charge.
In addition to the court’s reasoning in Price, the Court
also finds a subsequent Fifth Circuit case helpful in guiding its

17

analysis.

In

Harris

v.

Honda,

213

Fed.

App’x

258

(5th

Cir.

2006),12 the Fifth Circuit declined to find that a plaintiff’s
intake questionnaire constituted a charge of discrimination. Id.
at 262. Specifically, the court noted that the key difference
between an initial questionnaire and a charge of discrimination
is the notification requirement. Id. (citing Early v. Bankers
Life & Cas. Co., 95 F.2d 75, 79 (7th Cir. 1992). The court
explained that the employer is only notified once a charge has
been

filed

with

the

EEOC,

not

when

an

initial

intake

questionnaire is completed. Id. Thus, the court reasoned that
“without more” allowing a questionnaire to serve as a charge
would “be equivalent of dispensing with the requirement to notify
the perspective defendant.” Id. The Harris court then noted that
while it had allowed an intake questionnaire to serve as a charge
in Price, “the defendant [in that case] . . . was on notice of
all of the plaintiff’s allegations.” Id. In particular, the court
explained that in Price, the EEOC had commenced its investigation
and notified the defendant of the nature of the charges upon
completing the initial intake. Id. Thus, the court determined
that where the defendant was not put on notice of the charges

12

Harris is an unpublished Fifth Circuit case. While the Court recognizes
that its unpublished status means that it has no precedential significance, the
Court nevertheless finds that the case is highly persuasive as it clearly
interprets Price and explains the reasoning behind that case.

18

after the intake questionnaire was completed, the questionnaire
could not constitute a charge. Id.
In

the

instant

case,

as

this

Court

has

explained,

Plaintiff’s Intake Questionnaire was not sufficient to lead the
EEOC to send a Notice of Charges to Defendant. Rather, the EEOC
only informed Defendant that anything had been filed with it on
October 1, 2012, well after the 300 day deadline, and only at
Plaintiff’s counsel’s prompting. At most, all the Court can find
was

that

as

of

October

1,

2012,

when

the

EEOC

received

Plaintiff’s counsel’s fax, it was put on notice for the first
time that Plaintiff intended to file a charge of discrimination.
October

1,

2012

is

well

after

the

300

day

deadline

and,

therefore, the charge was untimely. Furthermore, the Notice of
Discrimination that was sent to Defendant did not include any
specified allegations like the Notice of Charges in Price. While
the Court recognizes that it should not penalize Plaintiff for
the EEOC’s failure to include allegations, it also finds the
omission of allegations telling within the context of this case.
The EEOC had already explained to Plaintiff that the information
provided on the Intake Questionnaire was insufficient. Thus, it
follows that the EEOC did not have sufficient information about
the

allegations

to

include

in

19

the

Notice

and

pass

on

to

Defendants, hence, the EEOC’s statement that it would send a
perfected charge to Defendant when it was filed. Lastly, although
Plaintiff has argued that her counsel’s June 7, 2012, letter was
sufficient to put Defendant on notice, the Court notes that while
the letter did inform Defendant that Plaintiff believed some sort
of sexual harassment had taken place, it did not provide any
conclusive

indication

based

those

on

that

Plaintiff

allegations.13

Thus,

would

take

legal

the

Court

action

finds

that

Plaintiff did not timely file a charge of discrimination and, as
such, she has failed to exhaust her administrative remedies.
C.

Prescription of State Law Claims

Louisiana

Revised

Statute

§

23:332

“is

subject

to

a

prescriptive period of one year.” La. Rev. Stat. § 23:303(d).
This

period

“shall

be

suspended

during

the

pendency

of

any

administrative review or investigation of the claim.” Id. “No
suspension . . . shall last longer than six months.” Id.
Plaintiff was terminated on September 26, 2011. Therefore,
Plaintiff’s

cause

of

action

accrued

on

September

26,

2012.

Plaintiff filed suit in this Court on December 12, 2012, with her

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While Plaintiff’s letter threatened litigation, it did not state that
it would definitely sue and/or contact the EEOC. A Notice of Charge not only
provides an employer with an account of the substantive nature of the
accusations, but it also informs the employer that if they do not take action
litigation will surely follow. Plaintiff’s counsel’s letter just stated that
Plaintiff would like to avoid litigation.

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state law claims following on April 18, 2013. At most, Plaintiff
can

claim

thirty-seven

day

suspension

period

of

prescription

extending from July 11, 2012 until August 16, 2012. These dates
represent the date that Plaintiff filed her Intake Questionnaire
and the last day of the thirty-day period that Plaintiff had to
update the EEOC on the status of her “charge.” As of August 16,
2012,

as

the

EEOC

had

clearly

informed

Plaintiff,

the

EEOC

assumed that Plaintiff did not want to file a charge. Thus, on
August 17,

2012, the clock began running again on Plaintiff’s

state law claims, and she was given until November 2, 2012 to
file suit. Plaintiff’s suit was filed on December 12, 2012,
approximately one month and ten days after the clock had run out.
Accordingly, this Court finds that Plaintiff’s state law claims
are

prescribed

and,

therefore,

should

be

dismissed.

For

the

foregoing reasons,
IT IS ORDERED that Defendant’s motions are GRANTED.
IT IS FURTHER ORDERED that all of Plaintiff’s claims are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 31st day of May, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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