Hoerschgen et al v. U.S. Equal Employment Opportunity Commission et al

Filing 10

ORDER AND REASONS GRANTING 5 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss Party filed by Roy Ruff, Jacqueline A. Berrien, Jennifer Ortiz-Prather, Martin Ebel, Keith Hill, U.S. Equal Employment Opportunity Commission. Signed by Chief Judge Sarah S. Vance on 6/28/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RANDOLPH W. HOERSCHGEN

CIVIL ACTION

VERSUS

NO: 13-49

U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, ET
AL.
ORDER AND REASONS

SECTION: R(5)

Defendants move to dismiss plaintiff's complaint because it
is untimely.1 In the alternative, defendants argue that only the
head of the agency is the proper party to this suit. Plaintiff,
Randolph Hoerschgen, proceeds pro se and opposes defendants'
motion.2 This Court converted defendants' motion to one for
summary judgment and now GRANTS defendants' motion.
I.

BACKGROUND
Plaintiff brings this suit against his former employer, the

Equal Employment Opportunity Commission ("EEOC"), and other
individual members of the agency. Plaintiff worked for the EEOC
until he was fired on January 13, 2011. He claims that the EEOC
discriminated against him because of his age, race, and
disability and that the EEOC retaliated against him. On August
29, 2012, the Administrative Judge denied plaintiff's claims. The
EEOC issued a Final Order on October 1, 2012, and mailed the
Final Order to plaintiff. This notice informed plaintiff that he
1

R. Doc. 5-1.

2

R. Doc. 7.

had a right to file a civil suit challenging the Administrative
Judge's decision within 90 days of receiving the Final Order.
Plaintiff received these documents on October 10, 2012.3
Plaintiff filed a civil action on January 9, 2013, more than 90
days after he received the Final Order. Defendants now move to
dismiss plaintiff's claim for being untimely.
II.

STANDARD OF REVIEW
A federal employee who has exhausted a formal EEOC complaint

of discrimination may file a civil action within 90 days of the
date on which she receives the Commission's final decision on
appeal. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407. The
requirement to file the lawsuit within the ninety-day limitation
period is strictly construed. Bowers v. Potter, 113 F. App'x 610,
612 (5th Cir. 2004) (citing Ringgold v. Nat'l Maint. Corp., 796
F.2d 769, 770 (5th Cir. 1986); Espinoza v. Mo. Pac. R.R., 754
F.2d 1247, 1251 (5th Cir. 1985)). "For all intents and purposes,
the ninety-day filing period acts as a statute of limitations."
Bowers, 113 F. App'x at 612 (citing Espinoza, 754 F.3d at 1249
n.1). Accordingly, the proper vehicle to address the EEOC's
motion is Federal Rule of Civil Procedure 12(b)(6).
In support of defendants' motion to dismiss, defendants
submitted a certified-mail receipt and an affidavit. The
affidavit is beyond the pleadings, and if the Court is to
3

R. Doc. 5-3 at 23 (certified mail receipt).
2

consider it, it must convert defendants' motion to dismiss into a
motion for summary judgment. The Court provided the parties with
notice of its intent to convert the motion.4 See Benchmark Elecs.
v. J.M. Huber Corp., 343 F.3d 719, 725 (5th Cir. 2003) (“It is
well-settled that a district court may grant summary judgment sua
sponte, so long as the losing party has ten days notice to come
forward with all of its evidence in opposition to summary
judgment.”).
Summary judgment is appropriate when “the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994). When assessing whether a dispute as to any
material fact exists, the Court considers “all of the evidence in
the record but refrain[s] 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). All
reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are
insufficient to either support or defeat a motion for summary
4

R. Doc. 8.
3

judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216
(5th Cir. 1985) (quoting Wright & Miller, Federal Practice and
Procedure: Civil 2d § 2738 (1983)).
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). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or
“showing that the moving party’s evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.

The

nonmovant may not rest upon the pleadings but must identify
specific facts that establish a genuine issue for trial. Id. at
325; see also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
4

entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (quoting Celotex, 477 U.S. at 332).
III. PLAINTIFF'S CLAIMS ARE UNTIMELY
Courts in this circuit have "repeatedly dismissed cases in
which the plaintiff did not file a complaint until after the
ninety-day limitation period had expired." Bowers, 113 F. App'x
at 612 (citing Butler v. Orleans Parish Sch. Bd., No. Civ. A. 000845, 2001 WL 1135616, at *2 (E.D. La. Sept. 25, 2001)
(dismissing plaintiff's complaint when the plaintiff filed
ninety-one days after she received her right-to-sue letter)).
Plaintiff simply asserts that he filed the complaint within the
ninety-day limitation, but the certified-mail receipt in the EEOC
records shows that he received the Final Order on October 10,
2012.5 Plaintiff filed suit on January 9, 2013, which is outside
of the ninety-day limitation.
5

Even assuming that the date plaintiff received notice was
unknown, this Court would "presume that the letter was received
within three to seven days after it was mailed." Bowers, 113 F.
App'x at 612-13. Here, the notice was mailed on October 1, 2012.
R. Doc. 5-2 at 1. Accordingly, the actual date plaintiff received
notice, October 10, 2012, is more forgiving than the presumption
plaintiff asks this Court to apply. R. Doc. 7 at 5. Further,
plaintiff argues that the EEOC should have served notice on his
attorney. R. Doc. 9 at 5-6. But the prescriptive period begins
when the claimant receives notice, not his attorney. See
Espinoza, 754 F.2d at 1250.
5

Nevertheless, plaintiff maintains that this Court should
equitably toll the ninety-day limit because of Hurricane Isaac.
Plaintiff asserts that the hurricane flooded his house on August
29, 2012, and that this played a major role in his ability to
file this suit.6
The Court recognizes that it may equitably toll the ninetyday limitation period. See Espinoza, 754 F.2d at 1251. The Fifth
Circuit recognizes three bases for equitable tolling the ninetyday limitations period in Title VII cases: (1) the pendency of a
suit between the same parties in the wrong forum; (2) the
plaintiff’s lack of awareness of the facts supporting her claim
because of the defendant’s intentional concealment of them; and
(3) the EEOC’s misleading the plaintiff about his rights.
Bradshaw v. City of Gulfport, No. 10-60872, 2011 WL 2206685, at
*1 n.2 (5th Cir. June 7, 2011)(citing Manning v. Chevron Chem.
Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003)). None of these
recognized bases is applicable to plaintiff’s case, and therefore
the ninety-day limitations period cannot be equitably tolled.
Plaintiff has made no showing that he was misled by the Court, by
the EEOC, or by the defendants. See id. Plaintiff successfully
received the Final Order over a month after the Hurricane hit,
and had 90 days from that time to file his civil suit. In fact,

6

R. Doc. 7 at 5.
6

plaintiff's attorney advised him of the ninety-day limitation.7
Plaintiff is not entitled to equitable tolling. Accordingly, his
complaint must be dismissed.
IV.

CONCLUSION
The Court GRANTS defendants' motion to dismiss plaintiff's

claims as untimely.

New Orleans, Louisiana, this 28thday of June, 2013.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

7

R. Doc. 9-1 at 2.
7