Dunn v. Apache Industrial Services, Inc. et al
Filing
54
ORDER AND REASONS: IT IS ORDERED that Defendant Apache's 15 motion to dismiss is GRANTED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/24/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALDINE DUNN
CIVIL ACTION
VERSUS
NO. 17-12777
APACHE INDUSTRIAL
SERVICES, INC. ET. AL.
SECTION: "B"(2)
ORDER AND REASONS
Before the Court is Defendant Apache Industrial Services,
Inc.’s (“Defendant Apache”) Motion to Dismiss (Rec. Doc. 15),
Plaintiff Geraldine Dunn’s Response in Opposition (Rec. Doc. 40),
and Defendant Apache’s Reply (Rec. Doc. 47). For the reasons
discussed below,
IT IS ORDERED that Defendant Apache’s motion to dismiss is
GRANTED.
FACTS AND PROCEDURAL HISTORY
Plaintiff is approximately 40-years old and a resident of the
parish of East Baton Rouge, Louisiana. See Rec. Doc. 1 at 2. In or
around June 2016, she was employed as a bus driver and painter for
Defendant Apache, a foreign corporation with its principal place
of business in Texas and subcontractor for Defendant Phillips 66
Company (“Defendant Phillips”). See id. at 3. Plaintiff alleges
that
Defendant
Apache,
along
with
Defendant
Phillips,
discriminated against her, retaliated against her, and wrongly
terminated her. See id.
1
On
or
around
August
8,
2016,
Plaintiff
began
working
a
turnaround job for Defendant Apache. See id. Plaintiff, who claims
approximately 15 years of experience, alleges that she was earning
$19.00 per hour while her male counterparts were earning $23.00
per hour. See id. Plaintiff further alleges that she spoke with
management about raising her hourly pay to $23.00 on more than one
occasion. See id. She was told that her hourly pay would be
increased to $23.00 but she never received an increase. See id.
She states that she was subsequently subjected to harassment and
discrimination. See id. Specifically, she states that she was
forced to performed additional duties that other male employees
were not required to perform and yelled at in front of other male
employees. 1 See id. at 4.
On or around October 13, 2016, Plaintiff filed an Equal
Employment
Opportunity
Commission
(“EEOC”)
Charge
of
Discrimination (“October 2016 Charge”) alleging unfair treatment.
See id. On or around October 24, 2016, Plaintiff attended a meeting
with safety management to discuss knee pain. See id. She was given
two days off from work. See id. She returned to work on October
27, 2016 and was terminated. See id. Plaintiff “believes that she
1 Plaintiff alleges in her Complaint that on or around September 28, 2016 a
supervisor brought paint to the work area for other male employees only.
Plaintiff was told to get her own paint and when she asked why, the supervisor
began to yell at her. See Rec. Doc. 1 at 4.
2
was terminated in retaliation and as a result of her filing an
EEOC Charge of [D]iscrimination. 2” See id.
On November 28, 2016, Plaintiff filed another EEOC Charge of
Discrimination
(“November
2016
discrimination,
retaliation,
and
Charge”)
unequal
alleging
pay.
See
gender
id.
at
5.
Plaintiff explained the facts surrounding her allegations (being
paid less than her male counterparts and yelled at by her male
supervisor)
and
named
Defendant
Apache
as
the
employer
that
discriminated against her. See Rec. Doc. 15-3 at 1.
On January 4, 2017, Plaintiff filed another EEOC Charge of
Discrimination
(“January
2017
Charge”)
alleging
retaliatory
wrongful termination. See Rec. Doc. 1 at 13-14. Plaintiff explained
the facts surrounding her allegation (that she filed an EEOC Charge
of
Discrimination
and
subsequently
was
discharged)
and
named
Defendant Apache as the employer that discriminated against her.
See Rec. Doc. 15-3 at 1. Plaintiff also mentioned that she was
told she was being discharged because “[Defendant Phillips] did
not want [her] on their property” and that she thought she was
being discharged “in retaliation for filing [November 2016 Charge]
. . ..” Rec. Doc. 15-4 at 1.
2 There is ambiguity as to which charge Plaintiff is referencing. See FN 4
(explaining the ambiguity). Even though Plaintiff fails to fully mention the
October 2016 Charge, Plaintiff must be referring to that charge because it is
hard to imagine that Plaintiff was terminated on October 27, 2016 for the
November 2016 Charge or the January 2017 Charge as those two Charges were filed
after her termination occurred.
3
On August 20, 2017, Plaintiff received a “Dismissal and Notice
of
Rights”
for
“both
of
her
aforementioned
Charges
of
Discrimination 3.” Rec. Doc. 1 at 5. Exactly three months after
receiving her “Notice of Right to Sue” letter from the EEOC,
November 20, 2017, Plaintiff filed her Complaint. 4 On April 03,
2018, Defendant Apache filed a motion to dismiss for failure to
state a claim in lieu of an answer. See Rec. Doc. 15. On May 17,
2018, Plaintiff filed a response in opposition. See Rec. Doc. 40.
On May 24, 2018, Defendant Apache filed for leave to file a reply.
See Rec. Doc. 43. On May 29, 2018, Defendant Apache’s reply was
added to the record. See Rec. Doc. 47.
LAW AND ANALYSIS
There is ambiguity in the phrase “both of her aforementioned Charges of
Discrimination.” Specifically, it is unclear which two charges Plaintiff is
referring to when she writes “both.” Plaintiff uses the phrase for the first
time at Rec. Doc. 1 at 5. At that point, she has only mentioned two charges,
October 2016 Charge and November 2016 Charge. See Rec. Doc. 1 at 4-5. Plaintiff
uses the phrase two more times at Rec. Doc. 1 at 7, 8. At those points, she has
mentioned three charges. It seems that she is using “both” to refer November
2016 Charge and January 2017 Charge, not October 2016 Charge. Plaintiff refers
to October 2016 Charge once and makes no mention of it being attached to her
Complaint as an exhibit. See id. at 4. Plaintiff refers to the other two charges,
November 2016 Charge and the January 2017 Charge, throughout her Complaint and
states that true and accurate copies are attached. See id. at 5, 6, 8. However,
there is still some ambiguity because there are no exhibits attached to her
Complaint and Plaintiff only mentions the October 2016 Charge and November 2016
Charge in her Response. See Rec. Doc. 1; Rec. Doc. 41 at 2. Defendant Apache
attached only November 2016 Charge (Rec. Doc. 15-3) and January 2017 Charge
(Rec. Doc. 15-4) to its motion to dismiss. So, it may be that those two charges
are the material charges in this case. The ambiguity surrounding this issue can
be solved with a copy of the “Dismissal and Notice of Rights” letter, Plaintiff’s
suppose-to-be-attached Exhibit C.
4 Plaintiff brings her claims under (1) Title VII of the Civil Rights Act of
1964; (2) the Equal Pay Act of 1963; (3) the Age Discrimination in Employment
Act of 1967; (4) Louisiana Civil Code Article 2315; (5) the Louisiana
Whistleblower Statute, LA Rev Stat § 23:967. Plaintiff also seeks damages under
the Equal Rights Under the Law, 42 U.S.C. § 1981(a); Retaliation, 29 U.S.C. §
215 (a)(3); and Reasonable Attorney Fees, 29 U.S.C. § 216 (b). See Rec. Doc. 1
at 4-10.
3
4
A. Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted. To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff’s complaint “must contain
‘enough facts to state a claim to relief that is plausible on its
face.’” Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
other words, a plaintiff’s “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly,
550
U.S.
at
555.
“A
claim
has
facial
plausibility
when
the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
that
the
defendant
is
liable
for
the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556).
When deciding whether a plaintiff has met his or her burden,
a court “accept[s] all well-pleaded factual allegations as true
and interpret[s] the complaint in the light most favorable to the
plaintiff, but ‘[t]hreadbare recitals of the elements of a cause
of
action,
establish
supported
facial
by
mere
conclusory
plausibility.”
Snow
statements’
Ingredients,
cannot
Inc.
v.
SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir. 2016) (quoting Iqbal,
556 U.S. at 678) (some internal citations and quotation marks
5
omitted). Plaintiff must “nudge[] [his or her] claims across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.
B. ADEA Claims
To bring a claim under the ADEA, a plaintiff must first
exhaust his or her administrative remedies. See Patterson v.
Houston Indep. Sch. Dist., 2012 U.S. Dist. LEXIS 192253 *1, *20
(S.D. Tex. 2012) citing to Jefferson v. Christus St. Joseph Hosp.,
374 F. App’x 485, 489-90 (5th Cir. 2010); Julian v. City of
Houston, Tex., 314 F.3d 721, 725 (5th Cir. 2002). To properly
exhaust their administrative remedies, the employee must file a
charge with the EEOC. See Pacheco v. Mineta, 448 F.3d 783, 788
(5th Cir. 2006). The primary purpose of this exhaustion requirement
is to trigger both the investigatory and conciliatory procedures
of the EEOC, in attempt to reach a non-judicial resolution of the
alleged discrimination. See id. at 789.
While the Fifth Circuit does not require a plaintiff to check
a certain box, recite specific language, or allege a [prima face]
case before the EEOC, it does expect that after a “somewhat
[broad]” reading of the charge, it can reasonably identify claims
expected to grow from the charge. See id. at 792. The claims
expected to reasonably to from the charge set the scope of the
plaintiff’s complaint. See Clayton v. Rumsfeld, 106 Fed. Appx.
268,
271
(5th
Cir.
2004).
In
other
words,
the
scope
of
a
plaintiff’s complaint is limited by the scope of their EEOC charge.
6
See id. If plaintiffs were allowed to go beyond the scope of their
charges, the primary purpose of the exhaustion requirement would
be circumvented, and the charged party would be deprived of notice.
See id.
Plaintiff’s Complaint does not contain sufficient facts to
state
that
Plaintiff
properly
exhausted
her
administrative
remedies by first filing an EEOC charge asserting allegations of
age
discrimination.
Specifically,
in
her
Complaint,
Plaintiff
states that she filed an EEOC Charge on or around October 13, 2016,
alleging unfair treatment; filed another EEOC Charge on or around
November 28, 2016, alleging gender discrimination, retaliation,
and equal pay; and filed another EEOC Charge on January 4, 2017,
alleging retaliatory wrongful termination. See Rec. Doc. 1 at 48. She makes no mention of filing an EEOC charge alleging age
discrimination. Instead, Plaintiff argues that she was over 40
years of age at the time she filed the November 2016 Charge. That
conclusory statement fails to plausibly establish that Plaintiff
properly exhausted her administrative remedies.
Her arguments do not establish that she filed an EEOC Charge
asserting allegations of age discrimination. First, her argument
that she “may not have been fully aware . . .” and “was unschooled
and unsophisticated in the use of the EEOC forms” is unconvincing.
Rec. Doc. 40, pg. 4. Plaintiff failed to check the “age” box on
the form but checked several other boxes. See Rec. Doc. Nos. 157
3, 15-4. Plaintiff even checked the “other” box to specify grounds
of discrimination not on the form. See id. This Court is not
holding that Plaintiff was required to check the “age” box but is
using Plaintiff’s checking of several other boxes to dismiss
Plaintiff’s
“unschooled
and
unsophisticated”
argument.
If
Plaintiff held enough schooling and sophistication to specify
additional grounds of discrimination, she held the same to check
boxes for grounds already on the form.
Next, Plaintiff’s claim that she “identified her age on the
[charges], but did not realize that she needed to include each and
every detailed fact . . .” is unconvincing. Rec. Doc. 40, pg. 4.
She merely inserted, at the top of the charge forms, the year she
was born along with her name, phone number, and address. See Rec.
Doc. Nos. 15-3, 15-4. Plaintiff failed to assert any allegations
of age discrimination on any of the EEOC Charges provided to this
Court 5. An ADEA claim against Defendant Apache cannot reasonably
be expected or presumed to arise from the foregoing. Therefore,
Plaintiff’s ADEA claims are dismissed as they are outside of the
scope of her EEOC Charges and thereby outside of the scope of her
Complaint. See Pacheco, 448 F.3d at 789 citing to Young v. Houston,
906 F.2d 177 (5th Cir. 1990) (holding that a sex discrimination
The Court relied on unopposed copies of charge forms filed as attachments by
Defendants because Plaintiff failed to attach any EEOC Charges to her
Complaint.
5
8
claim had not been exhausted by the plaintiff's charge of race and
age discrimination).
C. LA. Civil Code Article 2315 and LA. R.S. 23:967 Claims
Article 2315 is subject to the prescriptive period set out in
Article 3492. See LA. CIV. CODE ANN. art. 3492. R.S. 23:967 is also
subject to the prescriptive period set out in Article 3492. See
Lefort
v.
Lafourche
Parish
Fire
Protection
Dist.
No.
3,
39
F.Supp.3d 820 (E.D. La. 2014). Article 3492 lays out “a liberative
prescription period of one year” and provides that the one-year
prescriptive period “commences to run from the day injury or damage
is sustained.” LA. CIV. CODE ANN. art. 3492. “Liberative prescriptive
statutes, intended to protect defendants from prejudice. . . are
to be strictly construed.” Edwards v. Sawyer Indus. Plastics, Inc.,
738 So. 2d 1232, 1236 (La.App. 2 Cir. 08/18/99).
Here, Plaintiff’s Article 2315 and R.S. 23:967 claims are
prescribed. In fact, Plaintiff does not contend that the applicable
prescription period is more than one year. See Rec. Doc. 40 at 5.
Instead, Plaintiff contends that the one-year prescriptive period
should be tolled because Defendant Apache had notice of her state
law
claims
within
the
one-year
prescriptive
period.
See
id.
Specifcally, Plaintiff mistakenly relies heavily on a Louisiana
Supreme Court case, Maquar v. Transit Mgmt. of Southeast La., Inc.
593 So. 2d 365 (La. 1992). In Maquar, the issue was whether, under
Article 3492, the filing of the Plaintiff’s worker compensation
9
claim with the Office of Worker’s Compensation Administration
(“OWCA”) interrupted prescription on the delictual action for
retaliatory discharge penalties. 593 So. 2d at 368. The court held,
under narrow and particular facts, that the running of prescription
against the retaliatory discharge claim was tolled and plaintiff’s
action was timely, if the claim filed with OWCA included a claim
for retaliatory discharge and the employer received notice of the
retaliatory claim. See Edwards, 738 So. 2d at 1236 (explaining
Maquar) (emphasis added).
In this case, Plaintiff fails to allege sufficient facts to
state that any of her Charges included an I.I.E.D./Article 2315
claim or
a
Whistleblower
claim
or
that
Defendant
Apache
was
adequately given notice of either of the claims. Plaintiff also
fails to offer any case law in support of her proposition that
filing a charge with the EEOC tolls the prescription period of
state
law
claims.
Therefore,
the
prescription
period
for
Plaintiff’s Article 2315 claim and R.S. 23:967 claim will not be
tolled “in accordance with the Louisiana Supreme Court Maquar case
. . ..” Rec. Doc. 40 at 7.
The prescriptive period began to run, at the latest, on
October 27, 2016, allowing Plaintiff to bring her state law claims
no
later
October
27,
2017.
Plaintiff
filed
her
Complaint
on
November 20, 2017, after the time required by statute. Both claims
are prescribed and thereby are dismissed.
10
D. 42 U.S.C. § 1981 Claims
42 U.S.C. § 1981, in relevant part, states that “All persons
within the jurisdiction of the United States shall have the same
right(s) . . . as is enjoyed by white citizens . . ..” This statute
was enacted with the Thirteenth Amendment and Fourteenth Amendment
in mind. Specifcally, the statute’s purpose is to protect classes
of people who are subjected to intentional discrimination solely
because of their ancestry or ethnic characteristics. See Rhyce v.
Martin, 173 F. Supp. 2d 521, 529 (E.D. La. 2001) citing to St.
Francis College v. Al-Khazraji, 481 U.S. 604, 6113 (1987).
To prove a prima face case of discrimination under 42 U.S.C.
§ 1981, a plaintiff must establish that (1) he or she is a member
of
a
racial
minority,
(2)
the
defendant
had
an
intent
to
discriminate on the basis of race, and (3) the discrimination
concerned at least one of the rights enumerate in the statute. See
Dunaway v. Cowboys Nightlight, Inc., 436 Fed. Appx. 386, 390 (5th
Cir. 2011) (emphasis added). As established by both the U.S.
Supreme Court and the Fifth Circuit, a plaintiff need not establish
a prima facie case of discrimination to survive a motion to
dismiss. See Johnson v. Mixon, 2013 U.S. Dist. LEXIS 111317 *1, *8
(E.D. La. 2013). However, a plaintiff must allege sufficient facts
to establish “an inference that [he or she] was discrimination
against [because of their] race.” See id at *9. (emphasis added).
Courts
have
generally
excluded
11
gender
and
age
discrimination
claims from within the scope of 42 U.S.C. § 1981. See e.g., Hawkins
v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998); Jones
v. Bechtel, 788 F.2d 571, 574 (9th Cir. 1986); Bobo v. ITT,
Continental
Baking
Co.,
662
F.2d
340,
342
(5th
Cir.
1982);
Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir.
1979); Bates v. Carborundum Co., 623 F. Supp. 613, 619-20 (N.D.
Ind. 1985); Boddorff v. Publicker Industries, Inc., 488 F. Supp.
1107, 1110 (E.D. Pa. 1980).
Plaintiff’s Complaint seeks damages pursuant to 42 U.S.C. §
1981(a)
but
does
discriminated
Plaintiff’s
not
against
Response
allege
any
because
of
avers
that,
facts
her
showing
race.
within
See
the
that
she
Rec.
Doc.
context
of
was
1.
her
Complaint, “it is quite clear” that she “intended to reference 42
U.S.C.
§
1981a”
because
she
“references
multiple
times
the
Plaintiff’s damages of emotional distress.” Id. at 9. This argument
is unconvincing. “42 U.S.C. § 1981(a)” is written throughout
Plaintiff’s Complaint approximately 8 times. See id. at 4-11. This
Court reads Plaintiff’s Complaint as it is written. 6
Absent factual allegations in the complaint (or the EEOC
Charges) that tend to show race-based discrimination against her,
Plaintiff’s 42 U.S.C. § 1981 claims are dismissed with prejudice.
See Johnson, 2013 U.S. Dist. LEXIS 111317 at *9; compare also,
Plaintiff may seek leave to amend her Complaint if she’s able to
demonstrate, in good faith, factual and legal support.
6
12
Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct.
1246, 1250, 163 L. Ed. 2d 1069 (2006), Foley v. Univ. of Houston
Sys., 355 F.3d 333, 339 (5th Cir. 2003), and Colesanti v. St.
Patrick's
Home, No.
92
Civ.
0657,
1992
WL
167389
at
*3
(S.D.N.Y.1992).
New Orleans, Louisiana, this 24th day of December, 2018.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
13
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