Reyes v. Tidewater Inc et al

Filing 33

ORDER AND REASONS granting 26 Partial Motion to Dismiss claims. For the foregoing reasons, defendants' partial motion to dismiss is GRANTED. Plaintiff's retaliation claims under the ADA and the ADEA are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 10/2/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUAN REYES, JR.

CIVIL ACTION

VERSUS

NO. 17-17739

TIDEWATER INC. AND
TIDEWATER MARINE, LLC

SECTION “R” (5)

ORDER AND REASONS
Before the Court is defendants’ partial motion to dismiss plaintiff’s
retaliation claims.1 Because the Court finds that plaintiff failed to exhaust
his administrative remedies for his retaliation claims before filing suit in
federal court, it grants the motion.

I.

BACKGROUND
This case arises out of claims of age and disability discrimination in

employment and unlawful retaliation. 2 Plaintiff Juan Reyes, Jr. alleges that
he worked for Defendants Tidewater, Inc. and Tidewater Marine, LLC as a
maritime engineer.3 In January 2013, defendants allegedly required plaintiff
to undergo a physical examination.4 According to the amended complaint,

1
2
3
4

R. Doc. 26.
R. Doc. 25.
Id. at 3 ¶¶ 18-19.
Id. ¶ 21.

the examining physician cleared plaintiff to work but stated that he could not
take prescription pain medication while working offshore. 5 Plaintiff asserts
that he was willing to comply with this condition. 6 Plaintiff further alleges
that he provided defendants with notes from his treating physicians stating
that he was no longer being prescribed pain medication.7 But defendants
allegedly refused to permit plaintiff to return to work under any terms. 8
Plaintiff was born in 1955.9 He alleges that defendants permitted
engineers under the age of 40 to continue working despite medical problems
that were as or more severe than his condition. 10 On November 1, 2013,
plaintiff filed a charge of age and disability discrimination with the Equal
Employment Opportunity Commission (EEOC). 11 According to the amended
complaint, plaintiff called the Tidewater Marine personnel department in
March 2014 to inquire about returning to work, and he was told that he could
not return to work because he had filed an EEOC charge. 12 This decision was
allegedly made at Tidewater, Inc.’s New Orleans headquarters.13 On March

5
6
7
8
9
10
11
12
13

Id. ¶ 22.
Id. ¶ 24.
Id. ¶ 26.
Id. ¶ 27.
Id. at 1 ¶ 2.
Id. at 3-4 ¶ 28.
Id. at 2 ¶ 10; R. Doc. 10-2 at 4.
R. Doc. 25 at 4 ¶ 30.
Id.
2

26, 2014, plaintiff mailed a handwritten letter to Madeline Bealer of the
EEOC, mentioning what Tidewater had told him earlier that month. 14 The
EEOC issued plaintiff a notice of his right to sue on September 29, 2017. 15
On December 22, 2017, plaintiff filed a complaint alleging employment
discrimination in violation of the Americans with Disabilities Act (ADA) and
the Age Discrimination in Employment Act (ADEA). 16 The complaint alleged
that defendants refused to allow plaintiff to return to work and later
terminated his employment because of his age and perceived disability.17
Plaintiff further alleged unlawful retaliation under the ADA and the ADEA.18
On April 12, 2018, the Court granted defendants’ partial motion to dismiss
plaintiff’s retaliation claims, on the ground that plaintiff failed to allege that
he exhausted his administrative remedies. 19 The Court also granted plaintiff
leave to amend his complaint. 20 Plaintiff filed his amended complaint on
May 3, 2018.21 The only substantive change from the original complaint is
plaintiff’s inclusion of the March 26, 2014 letter to the EEOC explaining

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15
16
17
18
19
20
21

Id. ¶ 31.
R. Doc. 25 at 2 ¶ 14.
R. Doc. 1.
Id. at 4 ¶ 32, 5 ¶¶ 46-47.
Id. at 5 ¶ 39, 6 ¶ 52.
R. Doc. 22 at 4-7.
Id. at 7-8.
R. Doc. 25.
3

plaintiff’s conversation with a member of the Tidewater Marine personnel
department. 22

Defendant moves again to dismiss plaintiff’s retaliation

claims under Federal Rule of Civil Procedure 12(b)(6). 23

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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. at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff. See Lormand v. US
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause of action. Id.

22
23

See id. at 2 ¶ 11; 4 ¶¶ 31-32.
R. Doc. 26.
4

In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION
A.

Plaintiff Did Not Exhaust His Administrative Remedies
For His Retaliation Claims

Defendants assert that plaintiff’s retaliation claims must be dismissed
because he failed to exhaust his administrative remedies. 24

Before

proceeding with a civil action under the ADA or the ADEA, a plaintiff must
timely file an administrative charge with the EEOC. See Patton v. Jacobs
Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017); Clark v. Resistoflex Co.,
854 F.2d 762, 765 (5th Cir. 1988). The amount of time that a plaintiff has to
file a charge with the EEOC depends on whether the unlawful practice
occurred in a “nondeferral” state or a “deferral” state. Clark, 854 F.2d at 765.

24

R. Doc. 26.
5

Louisiana is a deferral state for purposes of the ADA and the ADEA, and
plaintiff was thus required to file his charge within 300 days of the alleged
unlawful employment act. See Patton, 874 F.3d at 443; Walton-Lentz v.
Innophos, Inc., 476 F. App’x 566, 570 (5th Cir. 2012); Conner v. La. Dep’t of
Health and Hosps., 247 F. App’x 480, 481 (5th Cir. 2007) (citing La. R.S.
51:2231 et seq.).

Defendants assert that plaintiff did not file an

administrative charge with the EEOC for his retaliation claims within this
time period.25
The critical question before the Court is whether plaintiff’s letter to
Madeline Bealer at the EEOC on March 26, 2014 constituted a charge that
exhausted his retaliation claims. The letter states in pertinent part:
I received a letter from Tidewater on 3-14-14, which I copied for
you on 3-18-14, I called Tidewater about returning to work.
JoAnn Falcon Singer[’s] reply was my returning, getting release
by their doctor was out of their hands due to my complaint to
EEOC. Told me to gather my thoughts on paper and send to
Mary Torrens, Tidewater, New Orleans, LA. 26

R. Doc. 26-1.
R. Doc. 26-2 at 1. The Court may consider the entirety of plaintiff’s
March 2014 letter without converting defendants’ motion into a motion for
summary judgment because defendants attached the letter to their motion,
plaintiff refers to the letter in his amended complaint, and the document is
central to plaintiff’s claims. Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 288 (5th Cir. 2004); R. Doc. 29 at 2.
6
25

26

For plaintiff’s letter to be deemed a charge, it must (1) comply with
EEOC regulations and (2) “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.” Fed. Express
Corp. v. Holowecki, 552 U.S. 389, 402 (2008). The filer’s state of mind when
drafting the document is not the determinative question; rather, the court
must examine the document “from the standpoint of an objective observer
to determine whether, by a reasonable construction of its terms, the filer
requests the agency to activate its machinery and remedial processes.” Id.
The Holowecki decision permits “a wide range of documents” to be classified
as charges. Id. The standard is consistent with the statutory purpose of the
ADA and ADEA, which “set[] up a ‘remedial scheme in which laypersons,
rather than lawyers, are expected to initiate the process[es].’” Id. at 402-03
(quoting EEOC v. Commercial Prods. Co., 486 U.S. 107, 124 (1988)). A
charge can thus be “a form, easy to complete, or an informal document, easy
to draft.” Id. at 403.
The Court now determines whether plaintiff’s letter constitutes a
charge exhausting his retaliation claims brought under the ADA (Count Two)
and ADEA (Count Four).

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i.

Count Two – Retaliation Under the ADA

The EEOC regulations pertaining to claims brought under the ADA
require that administrative charges be “in writing and signed and . . .
verified.” 29 C.F.R. § 1601.9 (emphasis added). Plaintiff’s letter does not
contain a sworn verification, and thus does not comply with the EEOC
regulations and cannot constitute a charge under the ADA.27 See Patton, 874
F.3d at 443 (finding that an unverified intake questionnaire submitted
alongside a formal charge did not constitute a charge under the ADA);
Holowecki, 552 U.S. at 402. Plaintiff’s retaliation claim under the ADA
therefore must be dismissed.
ii.

Count Four – Retaliation Under the ADEA

Unlike the ADA, regulations for the ADEA do not require
administrative charges to be verified. 29 C.F.R. §§ 1626.6, 1626.8. Instead,
the EEOC’s regulations simply require that the filing name “the prospective
respondent and . . . generally allege the discriminatory act(s).” 29 C.F.R. §§
1626.6, 1626.8(b); see also Holowecki, 552 U.S. at 402. Plaintiff sufficiently
named the prospective respondent in his letter. 28 The relevant questions are
therefore (1) whether plaintiff’s letter includes an allegation that defendants

27
28

See R. Doc. 26-2.
Id. at 1.
8

retaliated against him for his discrimination charge filed with the EEOC, and
(2) whether the letter satisfies the requirement in Holowecki that it can be
“reasonably construed as a request for the agency to take remedial action.”
Holowecki, 552 U.S. at 402.
The Court finds that plaintiff’s March 2014 letter is legally insufficient
to satisfy the standard for administrative exhaustion set forth in Holowecki.
This question turns on plaintiff’s statement in the letter that a Tidewater
employee told him that “getting release by [Tidewater’s] doctor was out of
their hands due to [plaintiff’s] complaint to [the] EEOC.”29 To the extent this
lone statement constitutes an allegation that defendants retaliated against
plaintiff for his discrimination charge, it cannot by itself be reasonably
construed as a request for the EEOC to take remedial action. Nowhere in the
letter does plaintiff state or imply that he would like the EEOC to investigate
whether Tidewater was retaliating against him. Cf. Holowecki, 552 U.S. at
405 (plaintiff’s request that the EEOC “force Federal Express to end their age
discrimination plan” constitutes a request for remedial action); Becerra v.
Ms. Ellie’s Kitchen, No. 11-1833, 2012 WL 5363793, at *4 (E.D. La. Oct. 31,
2012) (construing an intake questionnaire as a request for remedial action
when the plaintiff checked the box that explicitly authorized the EEOC to

29

Id. at 1.
9

“look into the discrimination” described in the questionnaire); see also
Featherston v. District of Columbia, 910 F. Supp. 2d 1, 6 (D.D.C. 2012) (an
intake questionnaire that simply “provide[s] information about the alleged
discrimination . . . suffered and nothing more” does not constitute a charge
under the Holowecki standard).
Holowecki notes that the discriminatory or retaliatory acts recounted
in a document may be “so clear or pervasive that the agency could infer from
the allegations themselves that action is requested and required.”
Holowecki, 552 U.S. at 405. But the alleged retaliatory act described in
plaintiff’s letter is neither clear nor pervasive. Instead, the letter is largely a
reiteration of his previous discrimination claims. 30 Then in one sentence
plaintiff alludes to a single vague comment by a Tidewater employee that
plaintiff now construes as Tidewater retaliating against him for his
discrimination charge.31

When viewing the letter as a whole, this one

sentence cannot be reasonably construed as a request for the EEOC to
“activate its machinery and remedial processes” to investigate a retaliation
claim. Holowecki, 552 U.S. at 402.

See id. at 1-2 (“I felt I was discriminated because I’ve worked with
younger engineers with back surgeries complaining about heavy lift work at
Tidewater.”); id. at 2 (“All this has occurred due to the company physical in
January 2013.”).
31
Id. at 1.
10
30

Because plaintiff’s letter does not satisfy the standard set forth in
Holowecki, plaintiff has not exhausted his retaliation claim under the ADEA,
and that claim must also be dismissed.
B.

Gupta Exception

Plaintiff also renews his argument that he was not required to amend
or refile his EEOC charge to add retaliation claims because the retaliation
grew out of his initial charge.32 Plaintiff relies on the Fifth Circuit’s decision
in Gupta v. E. Tex. State Univ., 654 F.2d 411 (5th Cir. 1981). The Gupta Court
held that “it is unnecessary for a plaintiff to exhaust administrative remedies
prior to urging a retaliation claim growing out of an earlier charge.” Id. at
414. The Fifth Circuit reasoned that “[i]t is the nature of retaliation claims
that they arise after the filing of the EEOC charge.” Id.
But as the Court explained in its Order on defendants’ first partial
motion to dismiss, the Fifth Circuit has held that the Gupta exception does
not apply when a plaintiff alleges that the same adverse employment action
was the result of both discrimination and retaliation. 33 Simmons-Myers v.
Caesars Entm’t Corp., 515 F. App’x 269, 273-74 (5th Cir. 2013); Sapp v.
Potter, 413 F. App’x 750, 752-53 (5th Cir. 2011); see also Phipps v. Hous.

32
33

R. Doc. 29 at 4.
See R. Doc. 22 at 6.
11

Auth. of New Orleans, No. 15-3296, 2016 WL 164916, at *4 (E.D. La. 2016).
Here, plaintiff’s discrimination and retaliation allegations are identical.
Plaintiff alleges that “[d]efendants refused to allow [him] to return to work,
and later terminated his employment,” both because they “believed that he
was disabled” and “because he had filed an EEOC charge.”34

Because

plaintiff asserts claims of discrimination and retaliation arising out of the
same adverse employment actions, his claims do not fall within the Gupta
exception.
C.

Dismissal Without Prejudice

Defendants ask the Court to dismiss plaintiff’s claims with prejudice
because plaintiff has already had one opportunity to amend his complaint. 35
But the “administrative exhaustion requirement is not a jurisdictional
requirement;” rather, it is a “precondition to filing suit, subject to waiver or
estoppel defenses.” Stroy v. Gibson, 896 F.3d 693, 698 (5th Cir. 2018).
Accordingly, the Fifth Circuit has instructed district courts that when
dismissing a claim for failure to exhaust under Federal Rule of Civil
Procedure 12(b)(6), the dismissal should be without prejudice so that

34
35

R. Doc. 25 at 4 ¶ 36, 5 ¶ 43, 6 ¶¶ 51, 57.
R. Doc. 26-1 at 12-13.
12

plaintiff may refile his complaint after he has exhausted his administrative
remedies. Id. at 698 n.2.

IV.

CONCLUSION
For the foregoing reasons, defendants’ partial motion to dismiss is

GRANTED. Plaintiff’s retaliation claims under the ADA and the ADEA are
DISMISSED WITHOUT PREJUDICE.

2nd
New Orleans, Louisiana, this _____ day of October, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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