Kitziger v. Gulfstream Services, Inc.

Filing 45

ORDER AND REASONS: IT IS HEREBY ORDERED that Defendant Gulfstream Services, Inc.'s 17 Motion to Dismiss Plaintiffs First Amended, Restated and Superseding Complaint is DENIED.IT IS FURTHER ORDERED that Defendant's 18 Motion to Stay Pending Decision on Motion to Dismiss Plaintiff's First Amended, Restated and Superseding Complaint is DENIED AS MOOT, as set forth herein. Signed by Chief Judge Nannette Jolivette Brown on 2/17/2021. (pp)

Case 2:20-cv-00386-NJB-KWR Document 45 Filed 02/17/21 Page 1 of 20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JULIE GORDON KITZIGER

CIVIL ACTION

VERSUS

CASE NO. 20-386

GULFSTREAM SERVICES, INC.

SECTION: “G”(4)

ORDER AND REASONS
Pending before the Court are Defendant Gulfstream Services, Inc.’s (“Gulfstream”)
“Motion to Dismiss Plaintiff’s First Amended, Restated and Superseding Complaint”1 and
“Motion to Stay Pending Decision on Motion to Dismiss Plaintiff’s First Amended, Restated and
Superseding Complaint.”2 In this litigation, Plaintiff Julie Gordon Kitziger (“Plaintiff”) alleges
that her former employer, Gulfstream, subjected her to discrimination on the basis of her age and
gender.3 In the motion to dismiss, Gulfstream argues that Plaintiff’s claims should be dismissed
because they are time-barred.4 Considering Gulfstream’s motions, the memoranda in support and
opposition, the record, and the applicable law, the Court denies the motion to dismiss and denies
the motion to stay as moot.
I. Background
On February 4, 2020, Plaintiff filed a pro se complaint against Gulfstream in this Court.5
Thereafter, Plaintiff retained counsel and filed a First Amended, Restated, and Superseding

1

Rec. Doc. 17.

2

Rec. Doc. 18.

3

Rec. Doc. 1.

4

Rec. Doc. 17.

5

Rec. Doc. 1.

1

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Complaint.6 Plaintiff brings claims against Gulfstream under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621 et seq.7 Plaintiff alleges that she worked for Gulfstream as a salesperson from 2003
until she was terminated on September 28, 2015.8 During Plaintiff’s employment, Mike Mire
(“Mire”) was the majority owner and president of Gulfstream.9
Plaintiff alleges that beginning in 2013 she was unlawfully discriminated against and
harassed based on her age and gender by Gulfstream’s management.10 For example, Plaintiff
alleges that, based on her gender, her successful sales accounts were taken from her and given to
less qualified men and that she was paid less than her male counterparts, despite having more
experience.11 Plaintiff alleges that Gulfstream’s management retaliated against her for complaining
about the harassment, eventually leading to her termination on September 28, 2015.12
Prior to the instant lawsuit in this Court, Plaintiff filed a petition against Mire in 24th
Judicial District Court for the Parish of Jefferson, Louisiana on September 26, 2016.13 In the state
court litigation, Plaintiff brought claims against Mire “for negligent representation, detrimental
reliance, and enrichment without cause for [allegedly] inducing [Plaintiff] into the partnership or
joint venture, reaping the benefit of [Plaintiff’s] skills, book of business, and cash (in the form of

6

Rec. Docs. 10, 12.

7

Rec. Doc. 12 at 2.

8

Id. at 3.

9

Id.

10

Id. at 12.

11

Id. at 25.

12

Id at 15–17.

13

Id at 3.

2

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diminished compensation payments), then breaching their agreement.”14 Plaintiff contends that
she originally sued Mire in his personal capacity in state court because Mire purposefully mislead
Plaintiff into believing that she was his partner in their efforts to grow and sell Gulfstream.15
Accordingly, Plaintiff alleges in the instant litigation that she reasonably believed when she filed
the state court action that, as Mire’s partner, her legal recourse was against Mire, personally, rather
than against Gulfstream as her employer under Title VII and the ADEA.16
In the state court litigation, Mire filed peremptory exceptions of no cause of action, which
were denied by the state trial court.17 However, on September 24, 2019, the Louisiana Fifth Circuit
Court of Appeal reversed the state trial court’s decision, holding that Plaintiff’s causes of action
arose in the context of her employment relationship with Gulfstream.18 Plaintiff alleges that the
Louisiana Fifth Circuit’s decision was the first time that she was put on notice that her cause of
action against Mire was in reality against him as president and CEO of Gulfstream, not in an
individual capacity.19 On January 28, 2020, the Louisiana Supreme Court denied Plaintiff’s related
writ application.20
In the interim, Plaintiff filed a Charge of Discrimination against Gulfstream with the EEOC
on November 8, 2019.21 The EEOC issued a notice of right to sue on November 28, 2020.22 Less

14

Id at 5.

15

Id.

16

Id.

17

Id. at 6.

18

Id. (citing Kitziger v. Mire, 19-87 at 5–9 (La. App. 5 Cir. 9/24/19); 280 So. 3d 302, 305–08).

19

Id. at 7.

20

Id.

21

Id.

22

Id.

3

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than 90 days later, Plaintiff filed the original pro se complaint in this Court.23
On June 30, 2020, Gulfstream filed the instant motion to dismiss.24 Gulfstream also filed
the motion to stay pending ruling on the motion to dismiss.25 On July 21, 2020, Plaintiff filed
oppositions to both motions.26 On August 6, 2020, Gulfstream, with leave of Court, filed reply
briefs in further support of both motions.27
II. Parties’ Arguments
A.

Gulfstream’s Arguments in Support of the Motion to Dismiss
In the instant motion, Gulfstream argues that all of Plaintiff’s claims should be dismissed

as time-barred.28 First, Gulfstream argues that Plaintiff did not file the EEOC charge within the
300-day limitation period applicable to her claims.29 Gulfstream asserts that the latest alleged date
of discrimination was in September 2015, when Gulfstream terminated her employment.30 Because
Plaintiff waited until November 8, 2019 to file the EEOC charge, Gulfstream argues that Plaintiff’s
claims are clearly untimely.31
Second, Gulfstream contends that equitable relief is inappropriate in this case because
Plaintiff cannot show that she was unaware of the facts of discrimination prior to the expiration of

23

Id.

24

Rec. Doc. 17.

25

Rec. Doc. 18.

26

Rec. Docs. 26, 27.

27

Rec. Docs. 31, 33.

28

Rec. Doc. 17-1 at 1.

29

Id. at 7.

30

Id.

31

Id.

4

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the filing period.32 Gulfstream asserts that equitable estoppel does not apply because Mire did not
conceal facts of Plaintiff’s discrimination.33 According to Gulfstream, Plaintiff contends that
equitable tolling or equitable estoppel should apply because “she reasonably believed that she was
Mike Mire’s partner” and thus decided she must “endure the harassment.”34 Even accepting these
allegations as true, Gulfstream asserts that Plaintiff has failed to show that her belief that she was
a “partner” was reasonable and has failed to show that this alleged misrepresentation concealed
the facts of discrimination.35 Additionally, Gulfstream argues that equitable tolling does not apply
because the alleged lack of notice of the employment discrimination claims was due to attorney
error.36
Finally, Gulfstream alternatively argues that Plaintiff should have filed the EEOC charge
within 300 days of September 26, 2016, when she had retained counsel to pursue her claims against
Mire.37 Because Plaintiff had retained counsel at that time, Gulfstream asserts that she is presumed
to have actual or constructive knowledge of the statutory and administrative requirements for her
claims.38
B.

Plaintiff’s Arguments in Opposition to the Motion
In opposition, Plaintiff asserts that the question of whether a party is eligible for equitable

tolling generally requires consideration of evidence beyond the pleadings and is often best

32

Id.

33

Id. at 8.

34

Id. at 10 (citing Rec. Doc. 12 at 15).

35

Id.

36

Id. at 11.

37

Id. at 14. The memorandum in support incorrectly references September 26, 2019. Id.

38

Id. at 15.

5

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addressed on a motion for summary judgment or at trial.39 Despite Gulfstream’s suggestions to the
contrary, Plaintiff asserts that Gulfstream disputes the essential allegations in the Amended
Complaint and makes merit-based arguments suggesting that Plaintiff cannot claim tolling or
estoppel because she did not diligently protect her rights.40 Because the basic question of “whether
a litigant diligently pursued her rights is a question of fact,” Plaintiff asserts that the motion to
dismiss should be denied.41
Alternatively, accepting the well-pleaded allegations in the Amended Complaint as true,
Plaintiff contends that she is entitled to equitable estoppel or tolling for three reasons: (1) Plaintiff
was “induced or tricked by [her] adversary’s misconduct into allowing the [filing] deadline to
pass;”42 (2) Plaintiff filed her EEOC charge during the “pendency of a suit between the same
parties in the wrong forum;”43 and (3) Plaintiff “exercised due diligence in pursuing her rights.”44
First, Plaintiff asserts that Mire purposefully used an apparent partnership agreement
between the parties to silence Plaintiff’s complaints.45 Plaintiff contends that Mire tricked her into
believing she was Mire’s partner in their venture to sell Gulfstream, and Mire repeatedly implied
that if Plaintiff complained it would threaten the success of the sale.46 Plaintiff asserts that Mire
purposefully put her in an impossible position: to fulfil her duty of loyalty to their partnership, she

39

Rec. Doc. 26 at 1, 14.

40

Id. at 9.

41

Id. (quoting Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018)).

42

Id. at 10 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

43

Id. (quoting Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003)).

44

Id. (quoting Granger v. Aaron’s, Inc., 636 F.3d 708, 712–13 (5th Cir. 2011)).

45

Id. at 15.

46

Id. at 17.

6

Case 2:20-cv-00386-NJB-KWR Document 45 Filed 02/17/21 Page 7 of 20

could not complain.47 Plaintiff alleges that Mire took these actions specifically to prevent her from
filing any administrative or legal claim against Gulfstream while he was trying to sell the
company.48
Second, Plaintiff argues that she is entitled to tolling because she filed the EEOC charge
while her state court litigation against Mire was pending.49 Plaintiff asserts that she filed the EEOC
charge less than two months after the adverse ruling by the Louisiana Fifth Circuit Court of
Appeal.50 Plaintiff contends that Gulfstream cannot argue prejudice because Mire’s knowledge as
president and CEO are imputed to Gulfstream.51 Plaintiff acknowledges that she did not assert a
Title VII, ADEA, or Louisiana employment discrimination claim against Mire, but she asserts that
she did allege that she suffered workplace harassment and bullying at Gulfstream. 52 Plaintiff
asserts that she filed the state court lawsuit against Mire because she believed her termination and
mistreatment were related to Mire’s attempts to push her out of the joint venture to sell Gulfstream,
not necessarily in the context of an employment discrimination cause of action.53 Plaintiff contends
that she believed these things specifically because of Mire’s misrepresentations to her.54
Third, Plaintiff asserts that she exercised due diligence in pursuing her rights.55 Plaintiff
concedes that her prior attorney made a fundamental error not pursuing the EEOC charge while

47

Id.

48

Id.

49

Id. at 18.

50

Id.

51

Id. at 18–19.

52

Id. at 19.

53

Id.

54

Id.

55

Id.

7

Case 2:20-cv-00386-NJB-KWR Document 45 Filed 02/17/21 Page 8 of 20

simultaneously pursuing the state court lawsuit.56 When the Louisiana Fifth Circuit definitely put
Plaintiff on notice that her claims really arose from her employment relationship with Gulfstream,
Plaintiff asserts that she immediately filed an EEOC charge.57 Accordingly, Plaintiff contends that
she is entitled to equitable tolling.58
C.

Gulfstream’s Arguments in Further Support of the Motion
In reply, Gulfstream argues that the equitable doctrines do not apply to Plaintiff’s claims

as a matter of law.59 Gulfstream notes that Plaintiff clearly was aware of the facts necessary to
support a claim for discrimination prior to the accrual of the limitations period.60 Assuming
Plaintiff’s allegations that Mire made misrepresentations to Plaintiff prior to the sale of Gulfstream
in 2014 are true, Gulfstream notes that Plaintiff had nearly two more years after the sale before the
deadline for filing an EEOC charge expired in September 2016.61 Similarly, even assuming
Plaintiff did believe she and Mire were partners in a joint venture, Gulfstream asserts that notion
must have been dispelled when she was terminated from employment in 2015.62 Gulfstream
contends that the delay was clearly the result of attorney error, and therefore, even accepting
Plaintiff’s allegations as true, the equitable doctrines do not apply as a matter of law.63
Second, Gulfstream asserts that this suit was not instituted during the pendency of a suit
between the same parties in the wrong forum because the claims and parties in the state court

56

Id. at 20–21.

57

Id. at 22.

58

Id.

59

Rec. Doc. 31 at 3.

60

Id. at 4–5.

61

Id. at 5.

62

Id.

63

Id. at 4, 6.

8

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litigation differ from the instant suit.64 Gulfstream notes that Plaintiff did not assert discrimination
of any kind in the state court litigation.65 Therefore, Gulfstream argues that the “wrong forum”
doctrine does not apply as a matter of law.66
Third, Gulfstream contends Plaintiff cannot point to the state court litigation to show that
she diligently pursued her discrimination claims against Gulfstream because she did not assert a
discrimination claim in the state court litigation.67 To the contrary, Gulfstream notes that Plaintiff
chose to forego a discrimination claim in favor of asserting claims against Mire in his personal
capacity.68 Gulfstream argues that is not within the spirit of the equitable doctrines or the applicable
case law to permit Plaintiff to assert entirely different claims years after her deadline expired
merely because her first theory of recovery failed.69
Finally, Gulfstream argues that it would suffer prejudice if the Court allowed Plaintiff’s
case to proceed despite her substantial delay in filing the EEOC charge. 70 Gulfstream asserts that
Plaintiff insisted throughout the state court litigation that her claims were not related to her
employment and were not asserted against Gulfstream.71 Because Plaintiff’s claims in the instant
suit differ from those in the state court litigation, Gulfstream contends that the evidence and
witnesses at issue in the instant suit will differ.72 Given the passage of several years, Gulfstream

64

Id. at 6.

65

Id. at 7.

66

Id. at 8.

67

Id.

68

Id.

69

Id. at 9.

70

Id.

71

Id. at 10.

72

Id.

9

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argues that relevant evidence may no longer be available, which would severely prejudice the
defense.73
III. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”74 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”75 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is
plausible on its face.”76
The “[f]actual allegations must be enough to raise a right to relief above the speculative
level.”77 The complaint need not contain detailed factual allegations, but it must offer more than
mere labels, legal conclusions, or formulaic recitations of the elements of a cause of action.78 That
is, the complaint must offer more than an “unadorned, the defendant-unlawfully-harmed-me
accusation.”79
Although a court must accept all “well-pleaded facts” as true, a court need not accept legal
conclusions as true.80 “[L]egal conclusions can provide the framework of a complaint, [but] they

73

Id.

74

Fed. R. Civ. P. 12(b)(6).

75

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

76

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(internal quotation marks omitted).
77
Twombly, 550 U.S. at 555. Put another way, a plaintiff must plead facts that allow the court to draw a
“reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
78

Id.

79

Id.

80

Iqbal, 556 U.S. at 677–78.

10

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must be supported by factual allegations.”81 Similarly, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements” will not suffice. 82 If the factual
allegations are insufficient 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, the claim must be
dismissed.”83
IV. Analysis
In the instant motion, Gulfstream argues that all of Plaintiff’s claims should be dismissed
as time-barred.84 As an initial matter, Plaintiff asserts that the motion to dismiss should be denied
because this issue is best addressed in the context of a motion for summary judgment.85
Specifically, because the basic question of “whether a litigant diligently pursued her rights is a
question of fact,” Plaintiff asserts that the motion to dismiss should be denied.86 The issue of
whether a plaintiff is entitled to tolling or estoppel is an “equitable, often fact-intensive inquiry in
which courts are instructed to avoid mechanical rules and instead to draw upon decisions made in
other similar cases for guidance.”87 However, the Fifth Circuit has affirmed numerous district court
orders granting a Rule 12(b)(6) motion to dismiss based on timeliness even where equitable tolling
was raised.88 Accordingly, the Court proceeds to the merits of Gulfstream’s motion.

81

Id. at 679.

82

Id. at 678.

Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470,
2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
83

84

Rec. Doc. 17-1 at 1.

85

Rec. Doc. 26 at 11.

86

Id. (quoting Diaz v. Sessions, 894 F.3d 222, 226 (5th Cir. 2018)).

87

Palacios v. Stephens, 723 F.3d 600, 605 (5th Cir. 2013) (internal citations and quotation marks omitted).

88
Saldana-Fountain v. United States, 693 F. App’x 295 (5th Cir. 2017); Harris v. Boyd Tunica, Inc., 628
F.3d 237 (5th Cir. 2010); Teemac v. Henderson, 298 F.3d 452, 458 (5th Cir. 2002).

11

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The Fifth Circuit “has long required plaintiffs to exhaust their administrative remedies
before bringing suit” in federal court under Title VII and the ADEA.89 In order to file suit under
Title VII or the ADEA in federal court, a plaintiff must first file a charge with the EEOC within
300 days of the alleged discriminatory act.90 Once the EEOC issues a right-to-sue letter to the party
who has filed the EEOC charge, that party has 90 days to file an action in federal court.91
Plaintiff concedes that she did not timely file an EEOC charge within 300 days of her
termination on September 28, 2015.92 In fact, Plaintiff did not file the EEOC charge until
November 8, 2019, over four years later.93 Nevertheless, Plaintiff contends that the case should
not be dismissed because she has alleged facts supporting equitable tolling or equitable estoppel.94
“The timely filing of a complaint with the EEOC is not a jurisdictional requirement; the
limitation statute is subject to estoppel and equitable tolling.”95 “A defendant is equitably estopped
from asserting that a claim is time-barred where its conduct induced a plaintiff to refrain from
exercising its rights. ‘Equitable tolling focuses on the plaintiff’s excusable ignorance of the

89
Price v. Choctaw Glove & Safety Co., 459 F.3d 595, 598 (5th Cir. 2006) (Title VII). See also Walton-Lentz
v. Innophos, Inc., 476 F. App’x 566, 569 (5th Cir. 2012) (ADEA).

Price, 459 F.3d at 598 (citing 42 U.S.C. § 2000e, et seq.); Walton-Lentz, 476 F. App’x at 570 (citing 29
U.S.C. § 626(d)(1)(B)).
90

91

Price, 459 F.3d at 598 (citing 42 U.S.C. § 2000e, et seq.).

92

Rec. Doc. 26 at 10.

93

Rec. Doc. 12 at 7.

94

Id.

95
Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992) (citing Zipes v. TransWorld Airlines,
Inc., 455 U.S. 385, 393 (1982)).

12

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employer's discriminatory act.’”96 However, these equitable doctrines “are to be applied
sparingly.”97 The plaintiff bears the burden of demonstrating entitlement to tolling or estoppel.98
The Fifth Circuit has articulated three potential bases for equitable tolling in employment
discrimination cases: “(1) the pendency of a suit between the same parties in the wrong forum; (2)
plaintiff’s unawareness of the facts giving rise to the claim because of the defendant’s intentional
concealment of them; and (3) the EEOC’s misleading the plaintiff about the nature of her rights.”99
However, this list is not exhaustive, and the Fifth Circuit has opined that there may be other bases
that warrant equitable tolling.100
Accepting the facts alleged in the Amended Complaint as true, the first basis is not
applicable here. The Fifth Circuit has made clear that the first basis applies “during the pendency
of an action before a state court which had jurisdiction over the subject matter of the suit, but which
was the wrong forum under state law.”101 Equitable tolling applies where “the initial state court
action was filed against the same parties served in the federal suit and alleged an identical cause
of action.”102 Here, the state court action was against a different party and alleged different causes
of action.103 Plaintiff did not bring an employment discrimination claim against Mire in the state

96

Id. (quoting Amburgey v. Cohart Refractories Corp., 936 F.2d 805, 810 n. 14 (5th Cir. 1991)).

97

Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101,113 (2002).

98

Ramirez v. City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002) (internal citations omitted).

99

Melgar v. T.B. Butler Publ'g Co., Inc., 931 F.3d 375, 380 (5th Cir. 2019) (quoting Teemac v. Henderson,
298 F.3d 452, 457 (5th Cir. 2002). See also Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003)
(citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir. 1988)).
100

Melgar., 931 F.3d at 381 (citing Hood v. Sears Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999)).

101

Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302 (5th Cir. 1979).

102

Id. (citing International Union of Electrical Workers v. Robbins & Myers, 429 U.S. 229, 238 (1976)).

103

Rec. Doc. 12 at 3.

13

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court action.104 In fact, Plaintiff specified that she was bringing state claims against Mire in his
personal capacity.105
The third basis is also inapplicable to the facts of this case. Plaintiff does not allege that the
EEOC mislead Plaintiff about her rights. Accordingly, the Court’s inquiry focuses on the second
basis for equitable tolling––Plaintiff’s alleged lack of awareness of the facts supporting her claim
due to Gulfstream’s intentional concealment. This basis is for equitable tolling mirrors equitable
estoppel.106
In Manning v. Chevron Chemical Co., LLC, the plaintiff argued, inter alia, that equitable
tolling was proper because his employer allegedly concealed facts supporting his ADA claim.107
Specifically, the plaintiff argued that he was unaware that his alleged disability (his stuttering)
might have affected certain hiring decisions until the company released the notes from the
plaintiff’s interview for the positions, which included negative comments about the plaintiff’s
speech and communication skills.108 The Fifth Circuit reasoned that equitable relief is appropriate
“when the employer’s affirmative acts mislead the employee and induce him not to act within the
limitations period.”109 The Fifth Circuit determined that the plaintiff had not demonstrated
entitlement to equitable relief because he did not allege that his employer “took any action that
might have induced him not to file a charge of discrimination.”110

104

Id. at 5.

105

Id. at 5, 19.

106

See Tyler, 304 F.3d at 391.

107

Manning, 332 F.3d at 880.

108

Id.

109

Id. (citing Ramirez, 312 F.3d at 184; Tyler, 304 F.3d at 391).

110

Id.

14

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In Ramirez v. City of San Antonio, the plaintiff argued that equitable tolling was warranted
because his employer “led him to believe” that it would place him in another comparable
position.111 The Fifth Circuit instructed that courts should not apply the doctrine of equitable
tolling based solely on the plaintiff’s subjective impressions, but instead must examine “whether
the defendant’s conduct, innocent or not, reasonably induced the plaintiff not to file suit within the
limitations period.”112 Because the plaintiff pointed to no affirmative statement made by his
employer that his transfer was temporary the Fifth Circuit concluded that the district court did not
err in refusing to apply equitable estoppel to the facts of that case.113
Conversely, in Tyler v. Union Oil Co. of California, the Fifth Circuit held that equitable
estoppel was proper because the employer had induced the plaintiffs from timely filing their
claims.114 There, the employer required its employees to sign release forms that later turned out to
be invalid.115 At trial, the plaintiffs testified that they believed they had signed away all potential
claims and rights under the ADEA.116 The Fifth Circuit concluded that the evidence supported a
finding that the employer should have “unmistakably [] understood,” that the releases would
mislead the plaintiffs.117
In Rhodes v. Guiberson Oil Tools Division, the Fifth Circuit held that equitable estoppel
should apply to the facts of the case.118 The court found that the facts presented at trial clearly

111

Ramirez, 312 F.3d at 183.

112

Id. at 184 (quoting Tyler, 304 F.3d at 391).

113

Id.

114

Tyler, 304 F.3d at 391.

115

Id.

116

Id.

117

Id.

118

927 F.2d 876, 880–81 (5th Cir. 1991)

15

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demonstrated that the defendant concealed facts and misled the plaintiff.119 Specifically,
statements on the plaintiff’s severance form indicating that he may be reinstated and that the
position was eliminated due to a reduction in work force were revealed to be false.120 Instead, the
evidence showed that the employer hired an employee not within the protected age group at a
lower salary.121
In Clark v. Resistoflex Co., the Fifth Circuit reversed a district court order granting
summary judgment in favor of the employer on an age discrimination claim.122 The Fifth Circuit
determined that there was a genuine issue of material fact in dispute as to whether a letter from the
employer, which conditioned severance benefits upon the employee’s agreement not to undertake
any action derogatory to employer, deterred the employee from filing an EEOC charge. 123 The
Fifth Circuit emphasized that “[a] reasonable trier of fact could [] conclude that [the employer], by
design or with a clear understanding of the consequences, worded the severance agreement in such
a way as to deter [the employee] from asserting his ADEA rights.”124
In Coke v. General Adjustment Bureau, Inc., the Fifth Circuit ruled en banc that the district
court erred in granting summary judgment in favor of the defendant on the ground that the
plaintiff’s EEOC charge was untimely.125 Drawing reasonable inferences from affidavits in favor
of the plaintiff, the Fifth Circuit noted that the defendant misrepresented its intention to reinstate

119

Id.

120

Id. at 881.

121

Id.

122

854 F.2d 762, 769 (5th Cir. 1988).

123

Id.

124

Id.

125

640 F.2d 584, 595 (5th Cir. 1981).

16

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the plaintiff to one of the defendant’s customers (who wanted plaintiff reinstated), the defendant
knew or should have known that the customer would convey this misrepresentation to the plaintiff,
and the plaintiff reasonably relied on the misrepresentation in not filing his ADEA claim in a
timely fashion.126 The Fifth Circuit concluded that those facts, if proved, would suffice to
demonstrate entitlement to equitable estoppel.127
In the instant case, Plaintiff alleges that Mire offered her a partnership to grow Gulfstream,
sell it, and share in the profits.128 Plaintiff alleges that Mire used the alleged partnership to force
Plaintiff to remain silent about the discrimination she began to experience in the workplace in
2013.129 Specifically, Plaintiff alleges that Mire’s statements caused her to believe that she “had
no real remedy against the workplace misconduct she was experiencing, but that in any event Mr.
Mire would eventually sell the company, share his profits with [Plaintiff], and then she could
retire.”130 Plaintiff also alleges that Mire indicated it would hamper his efforts to sell the company
if Plaintiff publicly complained about management.131 Because of these misrepresentations,
Plaintiff allegedly believed that her cause of action was against Mire in his personal capacity as
her partner and not against Gulfstream as her employer.132 Additionally, Plaintiff alleges that “Mire
specifically took this position to induce [Plaintiff] into believing that she had no cause of action
against Gulfstream as her employer so that Mire could avoid any administrative or litigation claims

126

Id.

127

Id.

128

Rec. Doc. 12 at 11.

129

Id. at 12, 14.

130

Id. at 14.

131

Id.

132

Id. at 15.

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Case 2:20-cv-00386-NJB-KWR Document 45 Filed 02/17/21 Page 18 of 20

while attempting to sell Gulfstream.”133 Plaintiff alleges that a private equity firm purchased
Gulfstream in late 2014,134 and Plaintiff’s employment was terminated on September 28, 2015.135
Based on Mire’s repeated promises, Plaintiff alleges that she “reasonably believed that
Mire’s misconduct towards her, specifically including stripping [Plaintiff] of her clients and
attendant sales-based income, failing to protect her from an unlawful, hostile work environment
created by Gulfstream management; and ultimately terminating [Plaintiff’s] employment with
Gulfstream on September 28, 2015, was done by Mire against [Plaintiff] in his capacity as [her]
partner, and not by Gulfstream as [her] employe[r].”136 Plaintiff alleges that “Mire specifically
intended to dupe [Plaintiff] in this regard, misleading and encouraging [Plaintiff] to believe that
she was his partner specifically to avoid Gulfstream incurring any administrative or litigation
liability as [Plaintiff’s] employer under Title VII and the ADEA, all so that Mr. Mire could more
easily sell Gulfstream to reap the financial windfall for himself.”137 Plaintiff alleges that she
diligently pursued her claims against Mire in state court for four years because she “so strongly
believed that Mr. Mire had engaged in these unlawful employment actions” as Plaintiff’s
partner.138 After receiving a negative ruling from the Louisiana Fifth Circuit Court of Appeal “on
the predicate issue of whether her causes of action sounded in tort or contract versus her

133

Id.

134

Id. at 10.

135

Id. at 16.

136

Id. at 19.

137

Id.

138

Id. at 19, 22.

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Case 2:20-cv-00386-NJB-KWR Document 45 Filed 02/17/21 Page 19 of 20

employment status, [Plaintiff asserts that] she did not rest on her case but immediately filed a
Charge of Discrimination with the EEOC.”139
Accepting these allegations as true, as the Court must on a Rule 12(b)(6) motion to dismiss,
Plaintiff has alleged facts to show: (1) Mire offered her a partnership to grow Gulfstream, sell it,
and share in the profits; (2) Mire specifically used the “partnership” to force Plaintiff to remain
silent about the alleged discrimination; (3) because of these misrepresentations Plaintiff believed
that her cause of action was against Mire in his personal capacity as her partner; and (4) Plaintiff
diligently pressed her claims against Mire in state court. Defendants argue that Plaintiff could have
pursued an EEOC charge against Gulfstream while simultaneously pursuing her state law claims
against Mire. However, Plaintiff alleges that she was not aware that her firing was the result of
discrimination. Instead, Plaintiff alleges that she believed Mire had breached an implicit
partnership agreement with Plaintiff. Defendants argue that this claim is not credible because Mire
sold the company in late 2014, and Plaintiff was not terminated until September 28, 2015.
However, resolution of this issue would require the Court to make a credibility determination as
to whether it was reasonable for Plaintiff to believe that she was in a partnership with Mire. The
Court cannot resolve credibility issues on a Rule 12(B)(6) motion to dismiss.140 Therefore, this
issue must be addressed at a later stage of this litigation.

139

Id. at 22.

140

See Ramirez v. Escajeda, 921 F.3d 497, 501 (5th Cir. 2019); Brewer v. Wilkinson, 68 F.3d 470 (5th Cir.
1995) (“The district court’s dismissal pursuant to Rule 12 (b)(6) following the Spears hearing could not have been
based on a credibility determination in favor of the defendants.”).

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V. Conclusion
For the reasons discussed above and viewing the allegations most favorably to Plaintiff,
Plaintiff has alleged rare and extraordinary circumstances that could justify a finding of equitable
estoppel or equitable tolling. The Court cannot weigh the credibility of Plaintiff’s claims on a Rule
12(b)(6) motion to dismiss. Additionally, the Fifth Circuit instructs district courts to avoid
mechanical application of the equitable tolling rules as the issue presents an “equitably, often factintensive inquiry.”141 Therefore, this issue must be addressed at a later stage of these proceedings.
Accordingly,
IT IS HEREBY ORDERED that Defendant Gulfstream Services, Inc.’s “Motion to
Dismiss Plaintiff’s First Amended, Restated and Superseding Complaint”142 is DENIED.
IT IS FURTHER ORDERED that Defendant’s “Motion to Stay Pending Decision on
Motion to Dismiss Plaintiff’s First Amended, Restated and Superseding Complaint”143 is
DENIED AS MOOT.

17th

NEW ORLEANS, LOUISIANA, this ________ day of February, 2021.

_________________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

141

Palacios, 723 F.3d at 605 (internal citations and quotation marks omitted).

142

Rec. Doc. 17.

143

Rec. Doc. 18.

20