Stewart v. Caton

Filing 60

ORDER & REASONS: granting in part and denying in part 44 Motion to Dismiss or Alternatively, Motion for Summary Judgment as set forth in document. Signed by Judge Carl Barbier on 1/8/14. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LYNETTE STEWART

CIVIL ACTION

VERSUS

NO: 13-823

MODERN AMERICAN RECYCLING
SERVICES, INC., DWIGHT J.
CATON, SR., and SHORE
CONSTRUCTION, L.L.C.

SECTION: J

ORDER AND REASONS
Before

the

Alternatively,

Court
Motion

are
for

Defendants'
Summary

Motion

Judgment

to

(Rec.

Dismiss
Doc.

or

44),

Plaintiff's Opposition (Rec. Doc. 51), and Defendants' Reply (Rec.
Doc. 57). Defendants' motion was set for hearing on the briefs on
Wednesday, December 18, 2013. Having considered the motion, the
parties’ submissions, the record, and the applicable law, the Court
finds, for reasons expressed below, that Defendants' motion should
be GRANTED IN PART and DENIED IN PART.
PROCEDURAL AND FACTUAL BACKGROUND
This case arises out of allegations of sex discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
1964 ("Title VII") and the Louisiana Employment Discrimination Law
("LEDL"). Plaintiff, Lynette Chyrie Stewart ("Plaintiff"), was an
employee of Defendant Modern American Recycling Service, Inc.
("Modern"). Plaintiff alleges that while she was employed at

1

Modern, her supervisor, Defendant Dwight Caton ("Mr. Caton"),
sexually harassed her by pulling up her blouse, touching her
breasts, and making repeated comments regarding her breasts.1
Plaintiff claims to have suffered extreme anxiety and distress that
necessitated

medical

treatment.

Mr.

Caton

is

the

owner

and

registered agent of Modern.
Plaintiff alleges that Mrs. Kristi Yates-Caton ("Mrs. YatesCaton"), who recently married Mr. Caton, is an officer of Defendant
Shore Construction, L.L.C. ("Shore"), and is also the Senior Vice
President of Modern. Plaintiff alleges that Shore and Modern share
office space, a kitchen, and common phone and computer systems.
Additionally, Plaintiff alleges that Mr. Caton and Mrs. Yates-Caton
share a common office and fax machine. According to Plaintiff, Mr.
Caton and Mrs. Yates-Caton jointly run Modern and Shore as a
single, common enterprise that together has over 300 employees.
Plaintiff alleges that Modern itself has seventeen (17) employees,
plus contract workers. Defendants maintain that although Mr. Caton
owns Modern, he has no affiliation with Shore in any way.
Plaintiff filed a charge of sexual discrimination against
Modern with the Equal Employment Opportunity Commission ("EEOC") on

1

Examples of the comments that Mr. Caton allegedly made are: calling
Plaintiff a "cow," telling Plaintiff to "come on over here, I'm bored ... it's
boob playing time when I'm bored," and referring to Plaintiff's breasts as
"utters [sic]" or "big old titties." (Pl.'s Compl., Rec. Doc. 1, ¶¶ 10, 37, &
45). A third party salesman also affirms that Mr. Caton initially identified
Plaintiff to him by calling her "the big titted blond" and that Mr. Caton
referred to Plaintiff as "cow tits." (Dec. of Tony Serventi, Rec. Doc. 1-9, ¶¶
2-3).

2

November 28, 2012, and despite an allegedly clean employment
record, Plaintiff's employment with Modern ended the following day.
The parties dispute whether Plaintiff was terminated or voluntarily
ended her employment. Plaintiff filed a second EEOC charge of
retaliation against Modern on December 3, 2012. The EEOC issued
Plaintiff a right-to-sue notice regarding Modern on February 14,
2013. Plaintiff also filed a charge with the EEOC against Shore on
September 4, 2013, and the EEOC issued a right-to-sue notice
regarding Shore only one day later, on September 5, 2013. On April
15, 2013, Plaintiff filed suit against Caton, individually and in
his supervisory capacity. On October 8, 2013, Plaintiff amended her
complaint to add Shore as a defendant. It appears to be uncontested
that in her EEOC charge against Shore, Plaintiff named Mr. Caton,
and not Mrs. Yates-Caton, as Shore's representative, and for that
reason, the EEOC right-to-sue notice regarding Shore was served
only on Mr. Caton, and not on Mrs. Yates-Caton.
On December 2, 2012 and December 3, 2012, Plaintiff's counsel
faxed two written letters to the common fax machine for Modern and
Shore. Both letters were addressed solely to Mr. Caton as President
of

Modern

and

stated

that

Plaintiff

intended

to

offer

an

opportunity to settle before she filed suit. There was no mention
of Shore in either of the letters.
Plaintiff filed suit on April 15, 2013, and Defendants filed
a

motion

to

dismiss.

On

August

3

16,

2013,

the

Court

granted

Plaintiff leave to amend her complaint to remedy any unclear
allegations regarding Shore. (Rec. Doc. 33). Plaintiff filed an
amended complaint on October 8, 2013, and Defendants filed the
instant Motion to Dismiss or Alternatively, Motion for Summary
Judgment (Rec. Doc. 44) on November 26, 2013.
PARTIES' ARGUMENTS
A. Title VII Claims
Defendants argue that Plaintiff's Title VII claims should be
dismissed because the EEOC issued right-to-sue notices to Plaintiff
without

fulfilling

its

statutory

obligation

to

investigate

Plaintiff's claims. Defendants argue that because Plaintiff filed
charges with the EEOC against Modern on November 28, 2012 and
December 3, 2012, and the EEOC issued the right-to-sue notice on
February 14, 2013, the EEOC could not possibly have had time to
fully investigate Plaintiff's claims against Modern. Defendants
make the same argument with respect to the right-to-sue notice
regarding Shore, which was issued only one day after Plaintiff
filed her EEOC charge. Defendants urge the Court to adopt the D.C.
Circuit's

reasoning

in

Martini

v.

Federal

National

Mortgage

Association and find that Plaintiff was not permitted to file suit
against Defendants until 180 days after she filed her EEOC charges.
Plaintiff points out that in both of the right-to-sue notices,
the EEOC specifically stated that it was likely unable to complete
an investigation within 180 days of the date that Plaintiff filed
4

the charges and therefore, the EEOC was terminating its processing
of

the

charges.

Both

right-to-sue

notices

also

stated

that

Plaintiffs' lawsuit would have to be filed within ninety (90) days
of her receipt of the letters, lest she lose her right to sue.
Plaintiff argues that if she had not filed suit within ninety (90)
days of her receipt of the right-to-sue notices, Defendants would
have then sought to have her Title VII claims dismissed on that
ground.
B. Louisiana Employment Discrimination Law (LEDL) Claims
1. LEDL Claims Against Shore
a. Shore's Employer Status
Shore argues that Plaintiff's LEDL claims against it should be
dismissed because Shore was not Plaintiff's employer for purposes
of the LEDL. According to Shore, it never paid Plaintiff's wages,
withheld taxes from Plaintiff, or included Plaintiff's name on its
payroll. Plaintiff does not appear to address this argument, and
she has not alleged that she was paid by Shore.
b. Notice to Shore
Shore argues that Plaintiff's LEDL claims against it should be
dismissed because Plaintiff failed to provide Shore with notice of
her claims as required by statute. Plaintiff argues that her
counsel faxed two written letters offering to discuss settlement
before suit was filed but that Shore refused to negotiate. Those
letters were addressed to Dwight Caton as President of Modern.
5

(Rec. Docs. 57-2 & 57-3). Plaintiff argues that although the
letters were technically addressed to Mr. Caton as President of
Modern, they were faxed to the common office, and to the common fax
machine, that Modern and Shore share. Both letters stated that
Plaintiff's intention was to offer an opportunity for settlement,
and one of the letters explicitly stated that Plaintiff intended to
provide notice in compliance with the relevant statute. (Rec. Docs.
57-2 & 57-3). Plaintiff argues that Defendants' joint attorney
acknowledged receipt of these letters and responded to them, and
therefore, it is clear that Shore received written notice as
required by statute, despite the fact that the letters were
addressed to Mr. Caton as President of Modern. Shore points out
that its name did not appear in either letter and that the letters
were not technically faxed to Mrs. Yates-Caton, who is the owner of
Shore, as a recipient. Additionally, Shore argues that Plaintiff's
EEOC charge was never served on Mrs. Yates-Caton, but was only
served

on

Mr.

Caton,

who

is

not

affiliated

with

Shore;

and

therefore, Plaintiff's EEOC charge cannot be deemed to satisfy the
statutory notice requirement.
2. LEDL Claims Against Modern
Modern argues that Plaintiff's LEDL claims against it should
be dismissed because Modern does not employ more than twenty (20)
employees in Louisiana and therefore is not considered an LEDL
employer. Modern points out that Plaintiff has only alleged that

6

Modern

has

seventeen

(17)

employees,

plus

contract

workers.

Plaintiff directs the Court to the Title VII test for combining
companies to meet the statutory definition of "employer," which
examines the interrelation of the operations of the companies, as
well as whether the companies have centralized control, common
management, and common ownership or financial control. Plaintiff
argues that Modern and Shore act as a common enterprise under the
Title VII test because the companies share offices and operate from
the same location, and because Mrs. Yates-Caton is arguably an
employee or owner of both companies. Plaintiff contends that
although Shore purports to employ 300 people, those employees are
employed by Shore in name only and are actually employees of Modern
for all legal purposes. Plaintiff claims that because Modern and
Shore are a singular employer, Modern should be considered to have
at least twenty (20) employees and thus should be deemed an LEDL
employer.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal
where a plaintiff fails “to state a claim upon which relief can be
granted.”

FED. R. CIV. P. 12(b)(6).2

When considering a motion to

dismiss pursuant to Rule 12(b)(6), a court must accept all well2

Defendants have filed a motion to dismiss or alternatively, a motion for
summary judgment. The Court concludes that a motion for summary judgment is
premature in this case. Defendants have not filed an answer in this matter, and
consequently, the parties have not likely conducted extensive discovery.
Therefore, the Court will treat the instant motion as a motion to dismiss as not
as a motion for summary judgment.

7

pled 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 bound, however, to accept as true legal

conclusions couched as factual allegations.

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead sufficient facts “to state a claim to relief that is
plausible on its face.”

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

(2009) (citing Twombly, 550 U.S. at 570).

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. (citing Twombly, 550 U.S. at 556).

In order to be deemed legally sufficient, a complaint must
establish more than a “sheer possibility” that the plaintiff's
claims are true.

Id.

The complaint must contain enough factual

allegations to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim. Lormand,
565 F.3d at 255-57.

If there are insufficient factual allegations

to raise a right to relief above the speculative level, or if it is
apparent

from

the

face

of

the

complaint

that

there

is

an

insuperable bar to relief, however, the claim must be dismissed.
Jones v. Bock, 549 U.S. 199, 215 (2007); Twombly, 550 U.S. at 555;
Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007).
8

DISCUSSION
A. Title VII Claims
With respect to Title VII claims, the EEOC regulations state
as follows:

When a person claiming to be aggrieved requests, in
writing, that a notice of right to sue be issued, and the
charge to which the request relates is filed against a
respondent other than a government, governmental agency
or political subdivision, the Commission may issue such
notice as described in § 1601.28(e) with copies to all
parties, at any time prior to the expiration of 180 days
from

the

date

of

filing

of

the

charge

with

the

Commission; provided that the District Director, the
Field Director, the Area Director, the Local Director,
the Director of the Office of Field Programs or upon
delegation, the Director of Field Management Programs has
determined that it is probable that the Commission will
be unable to complete its administrative processing of
the charge within 180 days from the filing of the charge
and has attached a written certificate to that effect.

29 C.F.R. § 1601.28(a)(2) (West 2009).
Defendants contend that Plaintiff was not permitted to file
9

suit against Defendants until 180 days after she filed her EEOC
charges and that the EEOC's issuance of right-to-sue notices within
180 days of the filing of the charges indicates that the EEOC
failed

to

fulfil

its

statutory

obligation

to

investigate

Plaintiff's claims. Defendants urge the Court to adopt the D.C.
Circuit's

reasoning

in

Martini

v.

Federal

National

Mortgage

Association, where the court found that the EEOC regulation, 29
C.F.R § 1601.28(a)(2), is an invalid regulation and that Title VII
plaintiffs may not bring suit until 180 days have passed from the
time initial EEOC charges are filed. Martini v. Fed. Nat'l Mortg.
Ass'n, 178 F.3d 1336, 1340-48 (D.C. Cir. 1999). However, there is
a circuit split on this issue, and although the Fifth Circuit has
not ruled on the issue, all other circuits that have ruled appear
to disagree with the D.C. Circuit.3 These include the Ninth, Tenth,
and Eleventh Circuits.4

3

Note that the Supreme Court does not appear to have expressly ruled on
this issue either. Defendants argue that according to the Supreme Court, a
private right of action under Title VII does not arise until 180 days after an
EEOC charge has been filed, and so a Title VII plaintiff must wait 180 days
before filing suit. Occidental Life Ins. Co. v. E.E.O.C., 432 U.S. 355, 361
(1977). However, Defendants admit in their Opposition that this statement by the
Supreme Court is merely dictum, and the Martini court, upon which Defendants
heavily rely, expressly acknowledged that the statement is dictum. Martini, 178
F.3d at 1341.
4

Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726,
729 (9th Cir. 1984) (Ninth Circuit held that Title VII right-to-sue notices
issued prior to the expiration of 180 days from the filing of an EEOC charge are
valid); Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1271-73 (10th Cir.
2001) (Tenth Circuit found it inappropriate to dismiss a Title VII plaintiff's
claims based on the plaintiff's receipt of a right-to-sue notice within 180 days
of the filing of the EEOC charge); Sims v. Trus Joist MacMillan, 22 F.3d 1059,
1060-63 (11th Cir. 1994) (Eleventh Circuit held that the EEOC regulation, 29
C.F.R. § 1601.28(a)(2), is valid); see also Weise v. Syracuse Univ., 522 F.3d
397, 412 (2d Cir. 1975) (Second Circuit found, under facts distinguishable from

10

It is clear that the EEOC has an express statutory duty to
investigate all EEOC charges that are filed. 42 U.S.C. § 2000e-5
(West 2009). However, the Court finds persuasive the reasoning of
the Ninth and Tenth Circuits that a Title VII plaintiff's "right to
sue is conditioned only on her taking all steps necessary for
administrative

exhaustion,

not

on

EEOC's

performance

of

its

administrative duties ... ." Walker v. United Parcel Serv., Inc.,
240 F.3d 1268, 1273 (10th Cir. 2001) (citing Jefferson v. Peerless
Pumps Hydrodynamic, Div'n of FMC Corp., 456 F.2d 1359, 1361 (9th
Cir.1972)). As stated by the Tenth Circuit in Walker,

Indeed, as a policy matter [a Title VII plaintiff] should
be entitled to rely in good faith on the accuracy of a
notice sent to her by a federal administrative agency.
She should not be denied her day in court because of
EEOC's negligence. Nor should she or her counsel ... be
commandeered to act as EEOC's superintendent, obligated
to oversee its processing of the charge to ensure that it
is following its own regulations.

Walker, 240 F.3d at 1273.
Here,

Plaintiff

has

requested

and

received

right-to-sue

the instant case, that where it is unlikely that conciliation will occur,
issuance of a Title VII right-to-sue notice three days after the charge is filed
is acceptable).

11

notices, each of which clearly states that the EEOC was likely
unable to complete an investigation within 180 days and that
Plaintiff was required to file suit within ninety (90) days of
receipt of the notices, lest she lose her right to sue. Plaintiff
has

taken

remedies,
statutory

all

necessary

regardless
duty.

of

steps
whether

Therefore,

to

exhaust

the

her
has

EEOC

Plaintiff's

administrative
fulfilled

right-to-sue

its

notice

regarding Modern, issued on February 14, 2013, and her right-to-sue
notice regarding Shore, issued on September 5, 2013, are both
sufficient to enable her to bring suit.5
B. Louisiana Employment Discrimination Law (LEDL) Claims
1. LEDL Claims Against Shore
a. Shore's Employer Status
According to the Supreme Court of Louisiana,

To be an employer for the purposes of the LEDL one must
1) receive services from an employee ... and in return
give compensation to that employee and 2) must meet the

5

With respect to Defendants' argument that the EEOC could not possibly
have fulfilled its duty to investigate with respect to Shore because the EEOC
charge was filed on September 4, 2013 and the right-to-sue notice was issued on
September 5, 2013, the Court finds the Second Circuit's opinion in Weise
instructive, despite that the facts in Weise are distinguishable from those in
the instant matter. Weise v. Syracuse Univ., 522 F.3d 397, 412 (2d Cir. 1975).
In Weise, a first EEOC charge against an employer had been pending for more than
180 days when the EEOC issued a Title VII right-to-sue notice only three days
after the filing of a second charge against the same employer. The court found
that the issuance of a right-to-sue notice within three days, under circumstances
where conciliation was unlikely to occur, was appropriate. Id.

12

requirement of a minimum number of employees (currently
twenty or more). ... In determining whether an employer
gave compensation, factors to consider include: who paid
the

employee's

wages;

who

withheld

federal,

state,

unemployment, or social security taxes; whether the
employee's name appeared on the employer's payroll; and
whether the employee participated in the employer's
benefit plans. Central to the determination of whether
one is an employer for purposes of the LEDL is whether
the defendant paid the plaintiff's wages and withheld
federal, state, unemployment, or social security taxes
from his check.

Dejoie v. Medley, 2008-2223 (La. 5/5/09); 9 So. 3d 826, 830 (citing
Onyeanusi v. Times-Picayune Publishing Corp., 485 So.2d 622, 623
(La. App. 4 Cir. 1986)).6
It appears that Plaintiff has not alleged any of the above
6

Note that the definition of "employer" for LEDL purposes is distinct from
the definition of "employer" for Title VII purposes. The LEDL defines "employer"
in the following way:
“Employer” means a person, association, legal or commercial entity,
the state, or any state agency, board, commission, or political
subdivision of the state receiving services from an employee and, in
return, giving compensation of any kind to an employee. The
provisions of this Chapter shall apply only to an employer who
employs twenty or more employees within this state for each working
day in each of twenty or more calendar weeks in the current or
preceding calendar year. “Employer” shall also include an insurer,
as defined in R.S. 22:46, with respect to appointment of agents,
regardless of the character of the agent's employment.
LA. REV. STAT. ANN. § 23:302(2) (2001).

13

factors that would indicate that Shore was her employer. Defendant
argues that Shore did not pay wages to Plaintiff or withhold taxes
from her and that Plaintiff was never on Shore's payroll. Plaintiff
has never alleged otherwise. Therefore, Plaintiff has failed to
sufficiently allege that Shore was her employer for purposes of the
LEDL, and Plaintiff's LEDL claim against Shore must be dismissed.
b. Notice to Shore
The LEDL contains the following notice requirement:

...

A

plaintiff

who

believes

he

or

she

has

been

discriminated against, and who intends to pursue court
action

shall

give

the

person

who

has

allegedly

discriminated written notice of this fact at least thirty
days before initiating court action, shall detail the
alleged discrimination, and both parties shall make a
good

faith

effort

to

resolve

the

dispute

prior

to

initiating court action.

LA. REV. STAT. ANN. § 23:303 (2008). If a plaintiff fails to comply
with the notice requirement before filing suit, and also fails to
file a qualifying EEOC charge against a defendant, the plaintiff's
claims must be dismissed. Simpson-Williams v. Andignac, 2004-1539
(La. App. 4 Cir. 4/20/05); 902 So. 2d 385, 387. For an EEOC charge
to satisfy the notice requirement, the charge must "effectively

14

accomplish the same goals as the statutory notice under state law"
and

must

be

"provided

to

the

person

who

has

allegedly

discriminated." Johnson, 767 F. Supp. 2d at 704. The purpose of the
notice requirement is to give a defendant notice that it may be
sued and that it should preserve evidence, and also to provide the
defendant with sufficient time to attempt to resolve the claim
outside of court. Snear v. Turnbull Cone Baking Co. of Louisiana,
No. 93-2761, 1994 WL 34031, at *3 (E.D. La. Jan. 31, 1994)
(Livaudais, J.); Brown v. Menszer, No. 99-0790, 2000 WL 1228769, at
*2 (E.D. La. Aug. 23, 2000) (Duval, J.).
Even if Shore were considered to be Plaintiff's LEDL employer,
the Court finds that Plaintiff failed to give sufficient notice to
Shore. Even if the letters that Plaintiff faxed to Mr. Caton as
President of Modern were sent to a fax machine that is shared with
Shore, these letters could not reasonably have put Shore on notice
that it might be sued. Neither of Plaintiff's letters mention
Shore, and therefore, the most that could be gleaned from the
letters would be that Modern might be sued, not that Shore might be
sued. Plaintiff's EEOC charge regarding Shore was never served on
Shore

or

on

Mrs.

Yates-Caton,

but

only

on

Mr.

Caton,

which

similarly fails to provide Shore with adequate notice. Therefore,
Plaintiff

has

failed

to

comply

with

the

statutory

notice

requirement in this case, and Plaintiff's LEDL complaint against
Shore must therefore be dismissed.

15

2. LEDL Claims Against Modern
To be an LEDL employer, Modern must have employed at least
twenty (20) employees in Louisiana for each working day for at
least twenty (20) calendar weeks in the current or preceding
calendar year. LA. REV. STAT. ANN. § 23:302(2) (2001). The definition
of "employer" for purposes of the LEDL is quite distinct from the
definition of "employer" for purposes of Title VII. Johnson v.
Hosp. Corp. of Am., 767 F. Supp. 2d 678, 691 (W.D. La. 2011). Title
VII allows separate entities to be joined together to constitute a
single "employer" for purposes of the statute; however, it appears
that no similar practice is authorized for LEDL claims. See id. at
691-693. Therefore, Plaintiff is not permitted to join Shore's
employees with Modern's employees for purposes of reaching the
twenty (20) employee minimum that is required under the LEDL,
regardless of whether such a joining would be permitted under Title
VII. Plaintiff has only alleged that Modern has seventeen (17)
employees.7 Therefore, Plaintiff has failed to state an LEDL claim
against Modern, and this claim must be dismissed.
CONCLUSION
Accordingly,

7

Although Plaintiff also alleged that Modern has independent contractors,
Plaintiff has never alleged that Modern paid compensation to those contractors,
provided benefits to them, withheld taxes from them, or included them on the
payroll. Plaintiff has never contradicted Defendants' contention that Modern does
not pay compensation or provide benefits to the contract laborers. (Rec. Doc. 441, p. 15). Therefore, Plaintiff has not sufficiently alleged that any contract
laborers should be considered employees of Modern for purposes of the LEDL.

16

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss or
Alternatively, Motion for Summary Judgment (Rec. Doc. 44) is DENIED
IN PART insofar as it challenges Plaintiff's Title VII claims.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss or
Alternatively, Motion for Summary Judgment (Rec. Doc. 44) is
GRANTED IN PART insofar as it challenges Plaintiff's LEDL claims.
IT IS FURTHER ORDERED that Plaintiff's LEDL claims against
Modern and Shore are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 8th day of January, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

17