DeLeon v. General Insulation, Inc. of Louisiana

Filing 31

ORDER denying 13 Motion for Summary Judgment. Signed by Judge Susie Morgan. (cbn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FIDEL DeLEON,
Plaintiff

CIVIL ACTION

VERSUS

No. 13-7

GENERAL INSULATION, INC.,
Defendant

SECTION “E”

ORDER AND REASONS
Before the Court is defendant General Insulation, Inc.’s (“General Insulation”)
motion for summary judgment.1 For the reasons set forth below, General Insulation’s
motion is denied.
BACKGROUND
On June 16, 2010, plaintiff Fidel DeLeon (“DeLeon”) was hired by General Insulation
to work at the Avondale Shipyard in Louisiana.2 On November 23, 2011, DeLeon was
terminated due to a “Lack of Work.”3 On August 23, 2012, DeLeon filed an “Intake
Questionnaire” with the EEOC regarding his termination.4 On approximately September
18, 2012,5 DeLeon filed a charge of employment discrimination with the Equal Opportunity
1

R. Doc. 13.

2

See R. Doc. 13, Ex. 1.

3

R. Doc. 13, Ex. 2.

4

R. Doc. 18-2.

5

General Insulation has provided the Court with a copy of the notice given by the EEOC to
General Insulation as a result of DeLeon’s charge. See R. Doc. 13, Ex. 3. This notice was issued by the
EEOC on September 28, 2012. Id. By law, the EEOC is required to provide notice of a charge of
discrimination to the party against whom the charge is made no later than ten days after the charge is
filed. See 42 U.S.C. § 2000e-5(e)(1). Thus, the earliest DeLeon could have filed his charge is September
18, 2012. See id. DeLeon has not provided the Court with a copy of his EEOC charge, but he states in the
body of his memorandum in opposition to General Insulation’s motion for summary judgment that he
filed his charge with the EEOC on September 18, 2012. See R. Doc. 18 at p. 3. General Insulation does not

1

Employment Commission (“EEOC”), accusing General Insulation of discriminating against
him on the basis of his national origin, in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”).6 On October 15, 2012, the EEOC dismissed DeLeon’s charge of discrimination
because it was not timely filed.7 In this October 15, 2012 letter, the EEOC notified DeLeon
that he had ninety days to file suit in state or federal court.8
On January 3, 2013, DeLeon filed suit against General Insulation in this Court.9 As
he did in his EEOC charge, DeLeon alleges illegal employment discrimination, in violation
of Title VII, on the part of General Insulation.10 General Insulation now moves for
summary judgment, seeking a judgment as a matter of law that because DeLeon’s EEOC
charge was dismissed as untimely, DeLeon’s federal lawsuit must also be dismissed for
failure to exhaust administrative remedies.11 DeLeon opposes General Insulation’s motion
for summary judgment.12 General Insulation filed a reply in further support of its motion.13

contest DeLeon's statement that he filed his charge this date, and the Court, in keeping with its obligation
to draw all reasonable inferences in DeLeon's favor at this stage, will not question the parties' agreement
on September 18, 2012 as the filing date.
6

DeLeon alleges he was terminated because he is from the Dominican Republic.

7

R. Doc. 13, Ex. 4. DeLeon received the October 15, 2012 “Dismissal and Notice of Rights” letter
on October 19, 2012. Id.
8

Id.

9

R. Doc. 1.

10

Id.

11

R. Doc. 13.

12

R. Doc. 18.

13

R. Doc. 25.

2

ANALYSIS
I.

Summary Judgment Standard

Summary judgment is appropriate only “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56 ; see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
If the dispositive issue is one on which the moving party will bear the burden of proof
at trial, the moving party “must come forward with evidence which would ‘entitle it to a
directed verdict if the evidence went uncontroverted at trial.’” Int'l Shortstop, Inc. v.
Rally's, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease,
755 F. Supp. 948, 951 (D. Colo. 1991)). If the moving party fails to carry this burden, the
motion must be denied. If the moving party successfully carries this burden, the burden
then shifts to the non-moving party to show that a genuine issue of material fact exists.
Celotex, 477 U.S. at 322-23. Once the burden has shifted, the non-moving party must direct
the Court’s attention to something in the pleadings or other evidence in the record that sets
forth specific facts sufficient to establish that a genuine issue of material fact does indeed
exist. Id. at 324. The non-moving party cannot simply rely on allegations or blanket
denials of the moving party’s pleadings as a means of establishing a genuine issue of
material fact, but instead must identify specific facts that establish a genuine issue for trial.
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 28 2 (5th Cir. 2001). Likewise, an
affidavit cannot be used to preclude summary judgment unless its contains competent and
otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4) (“An affidavit or declaration
3

used to support or oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated”). “[A] self-serving affidavit, without more evidence, will not
defeat summary judgment.” Sanchez v. Dallas/Fort Worth Int’l Airport Bd., 438 F. App’x
343, 346-47 (5th Cir. 2011) (citing DIRECTV, Inc. v. Budden, 420 F.3d 521, 531 & n.49 (5th
Cir. 2005)); see also United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001); BMG
Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996). If the dispositive issue is one on which
the non-moving party will bear the burden of proof at trial, however, the moving party may
satisfy its burden by simply pointing out that the evidence in the record is insufficient with
respect to an essential element of the non-moving party's claim. See Celotex, 477 U.S. at
325.
“An issue is material if its resolution could affect the outcome of the action.”
DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). When assessing whether a
material factual dispute exists, the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the evidence.” Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150-51 (2000). All reasonable
inferences are drawn in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994). There is no genuine issue of material fact if, even viewing the
evidence in the light most favorable to the non-moving party, no reasonable trier of fact
could find for the non-moving party, thus entitling the moving party to judgment as a
matter of law. Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).

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II.

The Relevant Statutory Scheme

Federal law generally requires a would-be employment discrimination plaintiff to
file a charge of discrimination with the EEOC no later than one hundred eighty days after
the "the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1).
However, in "deferral states" like Louisiana,14 the filing deadline is extended to 300 days
from the date of the last alleged act of discrimination. See, e.g., Vandenweghe v. Jefferson
Parish, No. 11-2128, 2012 WL 1825300, at *4 (E.D. La. May 18, 2012) (internal citations
omitted). Failure to comply with the 180-day or 300-day filing deadline constitutes a
failure by the would-be plaintiff to exhaust his administrative remedies, see Taylor v. Books
A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002), and “[a]lthough the exhaustion
requirement is not a jurisdictional prerequisite, it is a ‘precondition to filing suit in district
court.’” Vandenweghe, 2012 WL 1825300, at *4 (quoting Cruce v. Brazosport Indep. Sch.
Dist., 703 F.2d 862, 863 (5th Cir. 1983)). “The failure to exhaust administrative remedies
results in dismissal.” Id. (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir.
1996)).
In a state in which the relevant state or local agency and the EEOC have entered into
a “worksharing agreement,” which means the EEOC and the state agency have an
arrangement by which the EEOC immediately forwards claims filed with it to the state
agency, both the federal and state agencies consider the claim validly filed on the day the
claims are filed with the EEOC. See Urrutia v. Valero Energy Corp., 841 F.2d 123, 125-26

14

"A deferral state is one in which state law prohibits discrimination in employment and a state
agency has been established to grant or seek relief for such discriminatory practice. . . . The Louisiana
Commission on Human Rights was initially funded and began operating in April 1994, making Louisiana a
deferral state since that time." Vandenweghe, 2012 WL 1825300, at *4 n. 4 (internal citations omitted).

5

(5th Cir. 1988). General Insulation argues in its reply brief that a plaintiff is only entitled
to the benefit of extended 300-day statute of limitations if he initiates proceedings with the
local or state agency, but, as explained above, in a state with a worksharing agreement, a
discrimination complaint lodged with the EEOC is considered filed with the corresponding
state agency on the same day the complaint is filed with the EEOC, thus triggering the 300day limitations period instead of the 180-day period. See Conner v. La. Dep't of Health and
Hosps., 247 F. App'x 480, 481 (5th Cir. 2007) (citing Vielma v. Eureka Co., 218 F.3d 458,
462 (5th Cir. 2000); Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994)).
Louisiana had a worksharing agreement with the EEOC at all times relevant to this case.
See Worksharing Agreement Between Louisiana Commission on Human Rights and Equal
Employment Opportunity Commission for Fiscal Year 2012, Governor's Office, Louisiana
Commission

on

Human

Rights,

available

HumanRights/worksharingagreements.html.

at

http://www.gov.state.la.us/

As a result, a Louisiana employment

discrimination plaintiff’s filing of a discrimination complaint with the EEOC institutes
proceedings with both the EEOC and the Louisiana Commission on Human Rights and is
timely so long as it is filed within 300 days of the alleged discriminatory incident. See
Equal Emp’t Opportunity Comm’n v. Commercial Office Prods. Co., 486 U.S. 107, 110
(1988) (300-day limitations period is triggered when plaintiff “institutes proceedings” with
a state or local agency).
Once a charge is validly filed with the EEOC, the EEOC makes a decision whether to
take the case, and, if the EEOC decides not to take the case, as it did in this case, the EEOC
informs the plaintiff of his right to sue in a "right to sue letter." See Taylor, 296 F.3d at 379.
The would-be plaintiff then has ninety days after receiving this right to sue letter to file suit
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in federal court. Id. As with the 180-day or 300-day deadlines described above, a would-be
plaintiff's failure to comply with this 90-day filing deadline is considered a failure to
exhaust administrative remedies which precludes the would-be plaintiff from filing suit in
federal court. Id.
II.

DeLeon’s EEOC Charge Was Timely and his Filing of this Lawsuit
was Timely

With this statutory scheme in mind, and because the material facts are not in
dispute, General Insulation’s motion for summary judgment raises one discrete issue of
law: if a would-be employment discrimination plaintiff timely files a discrimination charge
with the EEOC, but that charge is dismissed by the EEOC as untimely, must the plaintiff's
federal claim be dismissed for failure to exhaust his administrative remedies?15 The answer
to this question, at least in this case, is no.
The alleged unlawful employment practice in this case - General Insulation's
termination of DeLeon - occurred on November 23, 2012. The parties agree that DeLeon
filed his charge of discrimination on September 18, 2012, three hundred days later. As a
result, DeLeon's charge was timely filed with the EEOC.16 Finally, DeLeon filed his federal
15

For purposes of this motion, the Court assumes DeLeon's charge was filed on September 18,
2012. There is case law supporting the conclusion that DeLeon's intake questionnaire can be considered a
charge for timeliness purposes. See, e.g., Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402-04 (2008)
(a document filed with the EEOC constitutes a “charge” for the purposes of the Age Discrimination in
Employment Act when “it [can] be reasonably construed as a request for the agency to take remedial
action to protect the employee's rights or otherwise settle a dispute between the employer and the
employee"); Beckham v. Nat'l R.R. Passenger Corp., 590 F. Supp. 2d 82, 86 (D.D.C. 2008) (“because of
the similarities between the statutory scheme of the ADEA and Title VII concerning exhaustion of
administrative remedies,” the Holowecki rule applies in Title VII cases). However, because DeLeon's
charge was timely regardless of whether it was considered filed on August 23, 2012 or September 18, 2012,
the Court need not determine whether the charge was actually filed on August 23, 2012 and not September
18, 2012.
16

General Insulation makes much of the fact that the EEOC dismissed DeLeon's claims with that
agency as untimely. See R. Doc. 13, Ex. 4. While it is true that the EEOC did dismiss DeLeon's claims as
untimely, the EEOC's dismissal and right to sue letter does not contain any detail regarding the agency's

7

lawsuit on January 3, 2013, less than ninety days after DeLeon received the right to sue
letter from the EEOC, so his federal lawsuit is timely as well. Because DeLeon's charge of
discrimination with the EEOC was timely, and because DeLeon's federal lawsuit was timely
filed, the Court finds General Insulation's argument that DeLeon failed to exhaust his
administrative remedies to lack merit.
CONCLUSION
IT IS ORDERED that General Insulation’s motion for summary judgment be and
hereby is DENIED.
New Orleans, Louisiana, this ____ day of May, 2013.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

decision. The Court's calculations show that DeLeon's charge was timely, and the Court must make its
own calculation as to whether the charge was timely filed. The Court has found that DeLeon's charge was
timely filed under the relevant statutory scheme.

8