Adams, et al v. United Assoc of Jour, et al

Filing 726

RULING granting in part and denying in part 702 Motion to Amend Judgment. Defendant's motion to amend Ruling is granted in part, and the Plaintiffs' Title VII claims are dismissed with prejudice based on untimeliness as set forth herein. Defendant's motion to amend ruling is denied in part, and John Green's Title VII claims remain pending. Granting 720 Motion to Strike its motion to amend ruling, and denying 717 Motion for Reconsideration. Signed by Judge John W. deGravelles on 10/3/2019. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CHARLES ADAMS, ET AL.

CIVIL ACTION

VERSUS

NO. 98-400-JWD- RLB

UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES
OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND
CANADA, AFL-CIO, LOCAL 198, ET AL.

RULING
This matter comes before the Court on a Motion to Amend Ruling by Defendant, United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL-CIO, Local 198, (“Local 198” or “Defendant”), (Doc. 702), which Local
198 subsequently moved to strike, in part, (Doc. 720). Plaintiffs opposed Local 198’s motion.
(Doc. 714). Also, before the Court is Plaintiffs’ Omnibus Motion for Reconsideration. (Doc. 717).
Local 198 opposed Plaintiffs’ motion. (Doc. 724). Plaintiffs filed a reply. (Doc. 725). Oral
argument is not necessary. The Court has carefully considered the law, the facts in the record, and
the arguments and the submissions of the parties and is prepared to rule. For the following reasons,
Defendant’s Motion to Amend Ruling is granted in part and denied in part; Defendant’s Motion to
Strike Motion to Amend Ruling is granted; and Plaintiffs’ Omnibus Motion for Reconsideration
is denied.
I.

Procedural Background
The Court ruled on Local 198’s motion for summary judgment based on the timeliness of

some of the Plaintiffs’ claims, (Doc. 639), on July 18, 2019. (Doc. 700). In response to this ruling,
Local 198 filed a motion to amend the ruling. (Doc. 702). Plaintiffs also filed a series of motions

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for reconsideration, (Docs. 705, 707, 708, 709, 711 and 712), which were dismissed without
prejudice, and Plaintiffs were ordered to file one omnibus motion for reconsideration. (Doc. 715).
Plaintiffs complied with the order and filed an omnibus motion for reconsideration on August 10,
2019. (Doc. 717). Also relevant to the motions presently before the Court is Local 198’s motion
to strike a portion of its motion to amend the ruling on its motion for summary judgment. (Doc.
720).
II.

Relevant Standard – Motion to Amend/Motion for Reconsideration
While the Federal Rules of Civil Procedure do not formally recognize the existence of

motions for reconsideration (e.g., Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.
1991)), courts customarily consider such motions under Rule 60(b) or Rule 59(e). Fuller v. M.G.
Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991). Rule 59(e) of the Federal Rules of Civil Procedure
allows a party to move to alter or amend a judgment within twenty-eight (28) days of its entry.
Fed. R. Civ. Proc. 59(e).
District courts have considerable discretion in deciding whether to grant a Rule 59(e)
motion. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993). The
factors to be considered in a Rule 59(e) analysis are: (1) the judgment is based upon a manifest
error of fact or law; (2) newly discovered or previously unavailable evidence exists; (3) the initial
decision was manifestly unjust; (4) counsel engaged in serious misconduct; and (5) an intervening
change in law alters the appropriate outcome. Livingston Downs Racing Ass’n, Inc. v. Jefferson
Downs Corp., 259 F.Supp.2d 471, 475-76 (M.D. La. 2002) (citing Metairie Bank & Trust Co. v.
Payne, 2000 WL 979980 (E.D. La. July 17, 2000); Campbell v. St. Tammany Parish School Bd.,
1999 WL 777720 (E.D. La. Sept. 29, 1999)). However, a motion for reconsideration is an
extraordinary remedy and should be used sparingly in the interest of finality and conservation of

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judicial resources. Carroll v. Nakatani, 342 F.3d 943, 945 (9th Cir. 2003). The court should deny
a motion for reconsideration when the movant rehashes legal theories and arguments that were
raised or could have been raised before the entry of the judgment. See Templet v. HydroChem
Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). A motion for reconsideration does not support old
arguments that are reconfigured. Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310, 1316, n.18
(S.D. Tex. 1994). Mere disagreement with a prior ruling does not support a Rule 59(e) motion.
See e.g., Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993).
Courts in the Fifth Circuit are directed to take motions under Rule 59(e) seriously. Two
cases note that Rule 59(e) does not place any particular limitations upon the possible grounds for
relief. Ford v. Elsbury, 32 F.3d 931, 937 (5th Cir. 1994); Lavespere v. Niagara Mach. & Tool
Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990), cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126
L.Ed.2d 131 (1993), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th
Cir. 1994)(en banc). The Court notes the Fifth Circuit’s general principle that “the district court
must strike a proper balance between two competing interests: ‘the need to bring litigation to an
end and the need to render just decisions.’” Ford v. Elsbury, 32 F.3d at 937 (quoting Lavespere,
supra).
III.

Local 198’s Motion to Amend Ruling (Doc. 702)1
Local 198’s motion asks the Court to reconsider that part of this Court’s prior ruling, (Doc.

700), where the Court allowed certain Plaintiffs to piggyback their Title VII claims upon those by
Plaintiff Lee Fox and/or Plaintiff Earnest Ford. (Doc. 702). Specifically, this Court previously
found that Fox’s Title VII claims were untimely. (Doc. 700, pp. 49-50). Local 198 argues that

Local 198’s motion is titled, “Defendant’s Motion to Amend Ruling”. (Doc. 702). However, its memorandum in
support of its motion is entitled, “Memorandum in Support of Defendant’s Motion to Alter Ruling”. (Doc. 702-1).
The Court’s understanding is that Local 198 is bringing one motion under Rule 59(e), seeking to “alter or amend” this
Court’s prior ruling on Local 198’s motion for summary judgment. Fed. R. Civ. Proc. 59(e).
1

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those Plaintiffs who attempted to piggyback upon Fox’s Title VII claims should also have their
Title VII claims dismissed as untimely. (Doc. 702).
Plaintiffs oppose Local 198’s motion.2 (Doc. 714). Plaintiffs incorporate by reference the
arguments they made in two of their original motions for reconsideration. (Docs. 705 and 707).
Specifically, Plaintiffs argue that Fox’s Title VII claims were, in fact, timely; therefore, Plaintiffs
should be allowed to piggyback upon Fox’s Title VII claims to render their own claims timely.
(Doc. 707). Even if Fox’s Title VII claims are untimely, Plaintiffs argue that there are Plaintiffs
other than Fox upon whose claims Plaintiffs may piggyback in order to render their claims timely.
(Doc. 705).
For the reasons more fully set forth below in the section addressing Plaintiffs’ Omnibus
Motion for Reconsideration, the Court rejects Plaintiffs’ arguments, primarily because Plaintiffs
did not raise them in opposition to the underlying motion for summary judgment and could have
done so. (Docs. 646, 648, 687, 688, 692). Local 198, in its motion to strike motion to amend
ruling, also noted that Plaintiffs “raised an issue that they never raised in their opposition”. (Doc.
720-1, p. 1 (citing Rec. Doc. 645)). Plaintiffs are making these arguments for the first time after
the entry of judgment. The law does not support consideration of arguments that could have been
raised before the entry of judgment on reconsideration.

See Templet, 367 F.3d at 478-79.

The Court now turns to address the Title VII claims of which Local 198 seeks
reconsideration.

Curiously, Plaintiffs seem to admit that the Court’s prior ruling that certain Plaintiffs could piggyback upon Fox’s
untimely Title VII claim was “erroneous”. (Doc. 717-2, p. 2 (“Many other claims were allowed to piggy-back on this
claim [Fox’s claim], which erroneous finding may jeopardize other claims.”)). Yet, Plaintiffs oppose Defendant’s
motion.
2

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A.

Frank Cage; Yvonne Catherine (heir to Joseph Catherine); Umeca O’Conner
(heir to Joseph Catherine); Corey Catherine (heir to Joseph Catherine); Leo
Davis; Kevin Gauthier; Larry Gilmore; and Michael Jackson

Local 198 first argues that because Plaintiff Fox’s Title VII claims were not timely, then
certain Plaintiffs should not be allowed to piggyback upon Fox’s untimely claims, thus rendering
those Plaintiffs’ Title VII claims also untimely. (Doc. 702-1, p. 1).
In its ruling on Local 198’s motion for summary judgment regarding the timeliness of
certain Plaintiffs’ claims, the Court considered the timeliness of Plaintiff Lee Fox’s Title VII
claims and found that these claims were untimely because Fox filed his EEOC charge almost three
years after filing suit and, therefore, did not exhaust his administrative remedies before filing suit.
(Doc. 700, p. 50). Fox’s claims under Title VII were dismissed with prejudice. (Id.).
In the same ruling, the Court considered the timeliness of various other Plaintiffs’ Title VII
claims.

The timeliness of these certain Plaintiffs’ Title VII claims was dependent upon

piggybacking upon Plaintiff Fox’s Title VII claims. The Court ruled that the following Plaintiffs’
Title VII claims were timely based on piggybacking on Fox’s Title VII claims: Frank Cage, (Doc.
700, pp. 31-35); Yvonne Catherine (heir to Joseph Catherine), (Doc. 700, pp. 35-38); Umeca
O’Conner (heir to Joseph Catherine), (Doc. 700, p. 38); Corey Catherine (heir to Joseph
Catherine), (Doc. 700, p. 38); Leo Davis, (Doc. 700, pp. 41-44); Kevin Gauthier, (Doc. 700, pp.
58-60); Larry Gilmore, (Doc. 700, pp. 60-63); and Michael Jackson, (Doc. 700, pp. 65-67). This
ruling was in error. Because Fox’s Title VII claims were found to be untimely, these certain
Plaintiffs’ Title VII claims are also untimely. Plaintiffs may only piggyback upon a timely filed
Title VII claim. Price v. Choctaw Glove, 459 F.3d 595, 598 (5th Cir. 2006); Frank v. Xerox Corp.,
347 F.3d 130, 136 (5th Cir. 2003).

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Also, Plaintiffs Cage, the Catherine heirs, Davis, Gauthier, Gilmore, and Jackson, were all
named as Plaintiffs in the original Complaint filed on May 1, 1998. Therefore, it would be futile
for the Court to consider whether they may piggyback their Title VII claims upon Plaintiff Ford’s
Title VII claims, as Ford was not named until the First Amended Complaint, filed on July 27, 2001.
In other words, Ford’s suit did not exist on May 1, 1998, for those Plaintiffs to piggyback upon it.
Under Rule 59(e), the Court finds that its prior ruling on Local 198’s motion for summary
judgment was manifestly erroneous in part. See, e.g., Eckhardt v. Qualitest Pharmaceuticals, Inc.,
889 F.Supp.2d 901 (S.D. Tex. Aug. 9, 2012)(“’Manifest error’ is one that ‘is plain and
indisputable…’”.). The Court erroneously allowed Plaintiffs Cage, the Catherine heirs, Davis,
Gauthier, Gilmore, and Jackson, to piggyback upon the untimely Title VII claims of Plaintiff Fox.
Also, reconsideration of this Court’s prior ruling would not be futile, as the Court is able to correct
its error. See Ferraro v. Liberty Mut. Fir Ins. Co., 796 F.3d 529, 534 (5th Cir. 2015)(A motion to
reconsider under Rule 59(e) should be granted only if the facts discovered are of such a nature that
they would probably change the outcome.). Therefore, the Court grants Local 198’s motion to
amend its ruling, and having reconsidered its ruling in this regard, the Court amends its ruling to
find that the Title VII claims of the following Plaintiffs are untimely and, therefore, dismissed with
prejudice: Frank Cage; Yvonne Catherine (heir to Joseph Catherine); Umeca O’Conner (heir to
Joseph Catherine); Corey Catherine (heir to Joseph Catherine); Leo Davis; Kevin Gauthier; Larry
Gilmore; and Michael Jackson.
B.

John Green

Local 198 also seeks to amend the Court’s prior ruling to dismiss the Title VII claims of
Plaintiff John Green for the same reasons as stated immediately above. However, Local 198’s
motion for summary judgment was denied as to Green’s Title VII claims because the Court found

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a genuine issue of material fact as to whether Green had filed an EEOC charge of his own. (See
Doc. 700, pp. 64-65).

Green’s Title VII claims were not found to be timely based on the

application of the piggyback rule and/or Fox’s Title VII claims. Therefore, the Court maintains
its prior ruling regarding Green’s Title VII claims. Green’s claims under Title VII remain pending.
C.

Joseph Collins, Earnest Johnson, Carl Judson, and Ivan Morgan

Local 198 also moves the Court to amend its ruling regarding the Title VII claims of
Plaintiffs Joseph Collins, Earnest Johnson, Carl Judson, and Ivan Morgan. (Doc. 702-1, p. 3).
Local 198 argues that these four Plaintiffs filed suit on July 27, 2001, in the First Amended
Complaint and should not be allowed to piggyback upon Fox’s untimely Title VII claims. Local
198 is correct that these four Plaintiffs cannot have timely Title VII claims that are dependent upon
piggybacking on Fox’s untimely Title VII claims. For that reason, as is explained more fully
above, it was erroneous for the Court to find that these four Plaintiffs’ Title VII claims were timely.
However, because these Plaintiffs filed suit at the same time as Plaintiff Ford, whose Title VII
claims were found to be timely, these Plaintiffs may be allowed to piggyback upon Ford’s claims.
The Court did not analyze whether these four Plaintiffs’ Title VII claims could piggyback upon
Ford’s claims in its prior ruling, and the Court endeavors to do so now in the interest of correcting
its prior ruling and a just result.
1.

Joseph Collins

Collins is a named Plaintiff in the First Amending Complaint filed on July 27, 2001. (Doc.
227). Collins has not given his deposition. He completed a questionnaire, dated October 26, 1998,
and he responded “no” to every question regarding potential claims of discriminatory acts related
to Local 198. (Doc. 639-2 at p. 23, citing Doc. 639-49). However, Collins confirmed that he was
a member of Local 198, (Doc. 639-49 at p. 9); that he was the “second black man to join Local

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198”, (Doc. 639-49 at p. 12); that he believes employers (not Local 198) were responsible for the
alleged discrimination, (Doc. 639-49 at p. 10); that some of the Local 198 members “did dislike
blacks”, (Doc. 639-49 at p. 12); that supervisors “recalled who they pleased”, (Doc. 639-49 at p.
12); and that blacks were never considered for the supervisor positions. (Doc. 639-49 at p. 12).
No dates were provided. Collins has not filed an EEOC charge. (Doc. 639-49).
Plaintiffs opposed Defendant’s motion and argued that Defendant should not be able to
argue that Collins has not provided any dates when Defendant is in control of membership
information. (Doc. 648 at p. 17). Plaintiffs make no mention of the lack of dates of discrimination.
Collins argues that he “is entitled to use the continuous acts or racial discrimination by the Local
198 that went abatement [sic] since he joined as the second black man and he may also use the
piggy-back rule.” (Doc. 648 at pp. 17-18).
The record offered on summary judgment does not reflect any specific dates of alleged
discriminatory acts. The Court notes that Collins’ questionnaire is dated October 26, 1998;
therefore, the alleged acts presumably occurred before that date. Significantly, Collins states in
his questionnaire that he does not have any proof that Local 198 has a general practice of
discrimination, (Doc. 687-49 at p. 2), and that he does not claim to have been subjected to a hostile
workplace environment. (Doc. 687-49 at p. 6). The Court recognizes that Plaintiffs generally
argue a continuous, unabated practice of racial discrimination before and after the filing of suit,
(Doc. 648 at p. 6, citing Doc. 648-1, 648-2, 648-3, 648-4); however, Collins does not offer
evidence and complaints in any timeframe, and he denies a general practice of discrimination or
hostile work environment. The same holds true for the two charges filed with the EEOC by Lee
Fox (Doc. 639-23) and Earnest Ford (Doc. 639-52) upon which Collins presumably wishes to
“piggyback”. Both charge Local 198 with class-wide racial discrimination from January 1998

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until as late as May 24, 2001. (Doc. 639-52). Collins denies general practices of discrimination
and a hostile work environment, which calls the content of the EEOC charges into question
regarding applicability to Collins. Collins’ claims cannot be lumped together with the general
claims of ongoing alleged discrimination simply to save his claims by the continuing violation
doctrine. Boyd v. Trinity Industries, Inc., Civ. A. 14-469, 2015 WL 3969464, at *2 (M.D. La. June
30, 2015); Pegram v. Honeywell, Inc., 361 F.3d 272, 280 (5th Cir. 2004).
Regarding Collins’ claims of racial discrimination under Title VII, it is undisputed that
Collins did not file a charge with the EEOC. Rather, Collins attempts to prove exhaustion of
administrative remedies and timely filing of suit by “piggybacking” upon charges filed by others.
Ford’s charge reflects complaints of racial discrimination by Local 198 from January 1998 to May
24, 2001. Ford claims that he was “continuously” subjected to unequal treatment, specifically
regarding “call-outs” and “call-backs”. (Doc. 639-52). Collins has not made a showing that he is
“similarly situated” to Ford. See Price, 459 F.3d at 598-99. Collins makes claims of racial
discrimination generally and in recalls, but there is no evidence of specifically being subjected to
unequal treatment regarding “call-outs” and “call-backs” as Ford complained or of being a member
of Local 198 in 1998-2001. While Ford’s charge may be interpreted to include notice of a
collective or class-wide nature (i.e., “Blacks, as a class, are similarly discriminated against on a
continuous basis,” Doc. 639-52 at p. 1) and Ford filed suit as a plaintiff named in the first amending
complaint, (Doc. 227), there is no evidence that Collins meets the first condition to invoke the
single filing rule. See Price, 459 F.3d at 598-99. Because Collins does not meet the requirements
for the single file rule or “piggyback” rule, there is no record of an EEOC charge filing to render
Collins’ filing of his Title VII claims timely.

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Based on the foregoing, all claims under Title VII by Joseph Collins are dismissed with
prejudice based on untimeliness.
2.

Earnest Johnson

Johnson is a named Plaintiff in the First Amending Complaint filed on July 27, 2001. (Doc.
227). It is undisputed that Johnson was a member of Local 198 at the time of his 2002 deposition;
however, Johnson testified that his complaints of “being laid off before other people”, “getting the
dirtiest jobs” and “being called racially derogatory terms” took place before December 4, 1998.
(Doc. 639-2 at p. 30, citing Doc. 639-56 at pp. 21-22, 61, 63-65, 95-96). Johnson has not filed an
EEOC charge. (Doc. 639-2 at p. 30).
Plaintiffs opposed Defendant’s motion and argued that Johnson’s complaints of “layoffs,
getting the dirtiest jobs, and racial epithets” were not complaints against Local 198 and should not
be used to argue prescription. (Doc. 646 at p. 4). Instead, Johnson argues that Local 198 exercised
“unfair work practices”, specifically regarding recalls by new companies to the area. (Doc. 646 at
p. 4, citing

Doc. 646-1 at pp. 5-7). No dates were provided. In reply, Defendant insists that

Johnson’s testimony regarding these alleged acts is that they all occurred before the date of his
questionnaire, December 4, 1998. (Doc. 654 at p. 10, citing Doc. 639-56 at pp. 95-96 (reflecting
Johnson’s testimony that all complaints of alleged discrimination occurred before he signed and
dated the questionnaire on December 4, 1998)).
The summary judgment evidence reflects that alleged discriminatory acts occurred before
December 1998. The Court recognizes that Plaintiffs generally argue a continuous, unabated
practice of racial discrimination before and after the filing of the original suit on May 1, 1998,
(Doc. 648 at p. 6, citing Doc. 648-1, 648-2, 648-3, 648-4); however, Johnson offers evidence and
complaints in different timeframes specific to him. The two charges filed with the EEOC by Lee

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Fox (Doc. 639-23) and Earnest Ford (Doc. 639-52) upon which Johnson presumably wishes to
“piggyback” both charge Local 198 with class-wide racial discrimination from January 1998 until
as late as May 24, 2001. (Doc. 639-52). Johnson testified to “unfair work practices”; however,
he also testified that this occurred before December 1998. Johnson’s claims cannot be lumped
together with the general claims of ongoing alleged discrimination simply to save his claims by
the continuing violation doctrine. Boyd, 2015 WL 3969464, at *2; Pegram, 361 F.3d at 280.
Regarding Johnson’s claims of racial discrimination under Title VII, it is undisputed that
Johnson did not file a charge with the EEOC. Rather, Johnson attempts to prove exhaustion of
administrative remedies and timely filing of suit by “piggybacking” upon charges filed by others.
Ford’s charge reflects complaints of racial discrimination by Local 198 from January 1998 to May
24, 2001. Ford claims that he was “continuously” subjected to unequal treatment, specifically
regarding “call-outs” and “call-backs”. (Doc. 639-52). Johnson has not made a showing that he
is “similarly situated” to Ford. See Price, 459 F.3d at 598-99. Johnson has alleged that he
experienced unfair practices due to being denied recall. (Doc. 646 at p. 4, citing Doc. 646-1 at
pp. 5-7). Johnson testified that the alleged activity occurred before December 1998. (Doc. 63956 at pp. 95-96).

There is no evidence of specifically being subjected to unequal treatment

regarding “call-outs” and “call-backs” as Ford complained or of being a member of Local 198 in
1998-2001. While Ford’s charge may be interpreted to include notice of a collective or class-wide
nature (i.e., “Blacks, as a class, are similarly discriminated against on a continuous basis,” Doc.
639-52 at p. 1) and Ford filed suit as a plaintiff named in the First Amending Complaint, (Doc.
227), there is no evidence that Johnson meets the first condition to invoke the single filing rule.
See Price, 459 F.3d at 598-99. Because Johnson does not meet the requirements for the single file

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rule or “piggyback” rule, there is no record of an EEOC charge filing to render Johnson’s filing of
his Title VII claims timely.
Based on the foregoing, Earnest Johnson’s Title VII claims are dismissed with prejudice.
3.

Carl Judson

Judson is a named Plaintiff in the First Amending Complaint filed on July 27, 2001. (Doc.
227). Judson entered the apprenticeship training in 1982, completed training in 1986, and has been
a member of Local 198 since that time. (Doc. 639-2 at p. 30, citing Doc. 639-57 at p. 12). Judson
has not filed an EEOC charge. (Doc. 639-2 at p. 30, citing Doc. 639-57 at p. 16). Judson testified
to working from 1999-2002, (Doc. 639-57 at p. 17); blacks being the first to be laid off from
Borden in the 1980’s, (Doc. 639-57 at pp. 23-28); racial slurs and graffiti in the workplace, (Doc.
639-57 at pp. 31-33, 70-72); unequal training opportunities, (Doc. 639-57 at pp. 56-59); and failure
to “get recalls” in the 1980’s, (Doc. 639-57 at p. 75). He testified that he last worked with Local
198 in 1991. (Doc. 639-2 at p. 31, citing Doc. 639-57 at p. 99).
Plaintiffs opposed Defendant’s motion and agreed with Defendant’s representations of
Judson’s testimony above. Judson also argues that he “declares” that while working at Hall’s
Mortuary in 1999-2002, that he “went by the union two-three times a month, including the year
before suit was filed”. While he was at the union, he would “hear about jobs” but not see them
posted. He does not know if these jobs “went to whites” without discovery. While Judson does
not cite to record evidence in support of these representations, the Court is aware of an unsigned
declaration reflecting these representations. (Doc. 646-1 at p. 9). Because the declaration is not
signed or authenticated, it is hearsay and shall not be considered by this Court on summary
judgment. See Smith v. Baton Rouge Radiology Group, 2013 WL 4782142, *3 (M.D. La. Sept. 5,
2013).

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The summary judgment evidence reflects that alleged discriminatory acts occurred in the
1980’s and up to 1991. There are other allegations of discriminatory acts without any showing of
a time period. There is testimony of Judson working from 1999-2002; however, it is unclear
whether this was through Local 198 or not. The Court recognizes that Plaintiffs generally argue a
continuous, unabated practice of racial discrimination before and after the filing of the original suit
on May 1, 1998, (Doc. 648 at p. 6, citing Doc. 648-1, 648-2, 648-3, 648-4); however, Judson offers
evidence and complaints in different timeframes specific to him. The two charges filed with the
EEOC by Lee Fox (Doc. 639-23) and Earnest Ford (Doc. 639-52) upon which Judson presumably
wishes to “piggyback” both charge Local 198 with class-wide racial discrimination from January
1998 until as late as May 24, 2001. (Doc. 639-52). Judson testified that all acts occurred by 1991;
however, he also testified to working from 1999-2002.
Regarding Judson’s claims of racial discrimination under Title VII, it is undisputed that
Judson did not file a charge with the EEOC. Rather, Judson attempts to prove exhaustion of
administrative remedies and timely filing of suit by “piggybacking” upon charges filed by others.
Ford’s charge reflects complaints of racial discrimination by Local 198 from January 1998 to May
24, 2001. Ford claims that he was “continuously” subjected to unequal treatment, specifically
regarding “call-outs” and “call-backs”. (Doc. 639-52). There is no evidence of specifically being
subjected to unequal treatment regarding “call-outs” and “call-backs” as Ford complained. While
Ford’s charge may be interpreted to include notice of a collective or class-wide nature (i.e.,
“Blacks, as a class, are similarly discriminated against on a continuous basis,” Doc. 639-52 at p.
1) and Ford filed suit as a plaintiff named in the First Amending Complaint, (Doc. 227), there is
no evidence that Judson meets the first condition to invoke the single filing rule. See Price, 459
F.3d at 598-99. Because Judson does not meet the requirements for the single file rule or

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“piggyback” rule, there is no record of an EEOC charge filing to render Judson’s filing of his Title
VII claims timely.
Based on the foregoing, Carl Judson’s Title VII claims are dismissed with prejudice.
4.

Ivan Morgan

Morgan is a named Plaintiff in the First Amending Complaint filed on July 27, 2001. (Doc.
227). Morgan has not given his deposition. He completed a questionnaire, and he did not provide
any dates regarding potential claims of discriminatory acts related to Local 198. (Doc. 639-2 at p.
31, citing Doc. 639-58). In his questionnaire, Morgan represents the following: that he was denied
employment with Local 198 for discriminatory reasons, (Doc. 639-58 at p. 2); that he was
discriminated against regarding job referrals, (Doc. 639-58 at p.5); and that he was not recalled
due to discrimination, (Doc. 639-58 at p. 7). Morgan does not have any proof of a general policy
or practice of discrimination. (Doc. 639-58 at p. 2).
Plaintiffs opposed Defendant’s motion and argued that Defendant did not provide dates of
membership “as they should have” and because Local 198 already “produced them, the Local is
not letting us have access to them on summary judgment”. (Doc. 648 at p. 19). Morgan adds that
he did not receive referrals due to racial discrimination. (Doc. 648 at p. 19, citing Doc. 639-58 at
pp. 2, 5, 7, 10, 12-13).
In their supplemental opposition, Plaintiffs offered member biographic information
produced by Defendant in discovery which purports to show that Morgan was a member of Local
198 in 2000 and 2001, and his original initiation date was 1991. (Doc. 687 at p. 8, citing Doc.
687-11). Plaintiffs also argue that in the questionnaire, “Mr. Gatlin indicated he was not getting
call backs or call outs and that blacks were not being placed in supervisory positions due to racial
discrimination”. (Doc. 687 at p. 8). The Court believes “Mr. Gatlin” is likely a typographical

14

error, but the Court reviewed Morgan’s questionnaire, and it does not reflect this reference. (Doc.
639-58).
The record offered on summary judgment does not reflect any dates of alleged
discriminatory acts. Significantly, Morgan states in his questionnaire that he does not have any
proof that Local 198 has a general practice of discrimination, (Doc. 639-58 at p. 2). The Court
recognizes that Plaintiffs generally argue a continuous, unabated practice of racial discrimination
before and after the filing of suit, (Doc. 648 at p. 6, citing Doc. 648-1, 648-2, 648-3, 648-4);
however, Morgan does not offer evidence and complaints in any timeframe, and he denies a
general practice of discrimination. The same rationale holds true for the two charges filed with
the EEOC by Lee Fox (Doc. 639-23) and Earnest Ford (Doc. 639-52) upon which Morgan
presumably wishes to “piggyback”. Both charge Local 198 with class-wide racial discrimination
from January 1998 until as late as May 24, 2001. (Doc. 639-52). Although Morgan was a member
in 2000 and 2001, Morgan denies general practices of discrimination, which calls the content of
the EEOC charges into question regarding applicability to Morgan. Morgan’s claims cannot be
lumped together with the general claims of ongoing alleged discrimination simply to save his
claims by the continuing violation doctrine. Boyd, 2015 WL 3969464, at *2; Pegram, 361 F.3d at
280.
Regarding Morgan’s claims of racial discrimination under Title VII, it is undisputed that
Morgan did not file a charge with the EEOC. Rather, Morgan attempts to prove exhaustion of
administrative remedies and timely filing of suit by “piggybacking” upon charges filed by others.
Ford’s charge reflects complaints of racial discrimination by Local 198 from January 1998 to May
24, 2001. Ford claims that he was “continuously” subjected to unequal treatment, specifically
regarding “call-outs” and “call-backs”. (Doc. 639-52). Morgan must make a showing that he is

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“similarly situated” to Ford. See Price, 459 F.3d at 598-99. There is no reliable evidence of
specifically being subjected to unequal treatment regarding “call-outs” and “call-backs” as Ford
complained. While Ford’s charge may be interpreted to include notice of a collective or classwide nature (i.e., “Blacks, as a class, are similarly discriminated against on a continuous basis,”
Doc. 639-52 at p. 1) and Ford filed suit as a plaintiff named in the First Amending Complaint,
(Doc. 227), there is no evidence that Morgan meets the first condition to invoke the single filing
rule. See Price, 459 F.3d at 598-99. Because Morgan does not meet the requirements for the
single file rule or “piggyback” rule, there is no record of an EEOC charge filing to render Judson’s
filing of his Title VII claims timely.
Based on the foregoing, Ivan Morgan’s claims under Title VII are dismissed with prejudice.
D.

Summary

In summary, Local 198’s motion to amend ruling is granted in part and denied in part. The
Court finds that its prior ruling on Local 198’s motion for summary judgment on the issue of
timeliness was manifestly erroneous in part. For the reasons stated above, the Court finds that the
following Plaintiffs’ Title VII claims are untimely and are dismissed with prejudice: Frank Cage;
Yvonne Catherine (heir to Joseph Catherine); Umeca O’Conner (heir to Joseph Catherine); Corey
Catherine (heir to Joseph Catherine); Leo Davis; Kevin Gauthier; Larry Gilmore; Michael Jackson;
Joseph Collins, Earnest Johnson, Carl Judson, and Ivan Morgan. In this respect, Local 198’s
motion is granted.
For the reasons stated above, Local 198’s motion is denied with respect to the Title VII
claims of John Green. John Green’s Title VII claims remain pending.

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IV.

Local 198’s Motion to Strike Motion to Amend Ruling (Doc. 720)
After Local 198 filed its Motion to Amend Ruling, (Doc. 702), Plaintiffs filed numerous

motions for reconsideration arguing that its Title VII claims were timely because Plaintiffs did not
assert Title VII claims in their original complaint. (Docs. 705, 707, 708, 709, 711, 712). Instead,
Plaintiffs argued, for the first time, that the Title VII claims in the original complaint were
essentially a placeholder. Plaintiffs only intended to amend their complaint some time in the future
to assert claims under Title VII once a right to sue letter was received. (Doc. 707). Local 198 was
not aware of this argument or purported pleading until after it filed its motion to amend ruling.
(Doc. 720). Once Local 198 learned this information, Local 198 felt it was their duty to move to
strike a portion of their motion to amend ruling which relied upon the fact that Plaintiffs asserted
Title VII claims in their original complaint. (Doc. 720-1, p. 1).
In their motion to strike, Local 198 argues that “[b]ecause the original plaintiffs did not
make claims under Title VII in their original complaint, the question of whether the EEOC charges
should have been dated to the earlier date of attached discovery Questionnaires is not pertinent.”
(Doc. 720-1, p. 2). Local 198 moves to strike that part of its motion to amend ruling. Essentially,
Local 198 is moving to strike that part of their original motion to amend ruling that argued the
relevance of the dates of the questionnaires. Although the Court does not find that this changes its
analysis above, the Court will grant Local 198’s motion to strike due to its limited scope.
Local 198 notes in a footnote that Plaintiffs’ argument that they only plead an intent to
pursue Title VII claims in the original complaint still does not render Plaintiffs’ Title VII claims
timely. Local 198’s reasoning for why Plaintiffs’ Title VII claims remain untimely uses a different
analysis. However, Local 198 also notes that “since Local 198 did not raise this issue in its motion
for summary judgment it will not try to raise it by means of a motion for reconsideration but will

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brief the issue when the Court deems it appropriate”. (Doc. 720-1, p. 2, n. 1). For the reasons
which follow, this Court agrees that neither Plaintiffs’ new arguments of timeliness of Title VII
claims, nor Local 198’s arguments in response to same are before the Court at this time. Further,
it is improper to make arguments for the first time on a motion for reconsideration that could have
been made in support of or in opposition to the underlying motion before judgment was rendered.
See Templet, 367 F.3d at 478-79. Such is the case here.
V.

Plaintiffs’ Omnibus Motion for Reconsideration of Ruling and Order (Doc. 717)
Pursuant to the Court’s Order, (Doc. 715), Plaintiffs filed an Omnibus Motion for

Reconsideration of Ruling and Order, (Doc. 717), essentially combining Plaintiffs’ numerous
motions for reconsideration previously filed. In the omnibus motion, Plaintiffs argue: (1) that the
Court should review the questionnaires “in the record” of Lee Fox, Larry Freeman, Andre Gatlin,
Sam Parker, Donald Robertson and Tommie Williams, and amend its ruling on Local 198’s motion
for summary judgment based on the information contained therein, (Doc. 717-2, pp. 1-2); (2) that
it was erroneous to find that Fox’s Title VII claims were untimely because Fox amended the
complaint after receiving his right to sue letter to properly and timely assert a Title VII claim that
“relates back” to the original filing of suit, (Doc. 717-2, pp. 2-6); (3) that the Court should use the
EEOC charges filed by James Miles and/or Charles Adams upon which other Plaintiffs may
piggyback because they were not challenged on summary judgment, (Doc. 717-2, pp. 2-3); (4) that
Local 198 waived the defense of failure to exhaust administrative remedies because Local 198 did
not raise this argument under Rule 12(b)(6). (Doc. 717-2, pp. 6-7).
A.

Reconsideration of questionnaires of Larry Freeman, Andre Gatlin, and
Donald Robertson.

With regard to Plaintiff Larry Freeman, Plaintiffs specifically argue that his questionnaire
should be reconsidered because it is “identical to that of Lee Fox”, thereby allowing Freeman to
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piggyback upon Fox. (Doc. 717-2, p. 7). Plaintiffs argue that Freeman’s questionnaire can be
found at “RD 285 or 287” and “RD 260 #9”. (Doc. 717-2, p. 8). Finally, Plaintiffs argue that
Freeman should be allowed to piggyback upon not only Fox, but also Plaintiffs James Miles and
Ernest Ford. (Id.).
In its ruling on Local 198’s motion for summary judgment, this Court considered Plaintiffs’
citation to the record for the questionnaire of Freeman. In their opposition to the motion for
summary judgment, Plaintiffs cited to “Doc. 285” and Exhibit “Z”. However, as the Court pointed
out in its ruling, Doc. 285 is a memorandum in opposition to a prior motion for partial summary
judgment, and there were no exhibits, “Z” or otherwise, at that citation. (Doc. 700, p. 53 (citing
Doc. 648 at p. 13, citing Doc. 285 at p. 17)). Now, Plaintiffs re-urge the same faulty citation to
Doc. 285 and cite to other parts of the record for the first time. The Court declines Plaintiffs’
invitation to re-visit this issue. Plaintiffs should have accurately cited to the record in opposition
to the underlying motion. The Court will not scour the record, especially one as voluminous as
the instant record, searching for questionnaires that Plaintiffs claim are in the record and purport
to evidence and advance Plaintiffs’ claims. See United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991)(“Judges are not like pigs, hunting for truffles buried in briefs.”). Also, no argument
that could have been raised prior to ruling and was not is not proper on a Rule 59(e) motion. See
Templet, 367 F.3d at 478-79. For these reasons, the Court will not re-visit any questionnaire of
Freeman.
Further, this Court analyzed whether Freeman could piggyback upon Fox and Ford in its
prior ruling. (Doc. 700, pp. 53-54). Plaintiffs have not provided any basis for the Court to
reconsider or alter its prior ruling in this regard. Plaintiffs’ argument amounts to simply not
agreeing with the Court’s ruling, which is not a sound basis to alter or amend the prior ruling under

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Rule 59(e). See Hutchinson, 994 F.2d at 1082. The argument that Freeman should be allowed to
piggyback on Miles is new and could have been raised in opposition to the underlying motion.
Therefore, it will not be considered. See Templet, 367 F.3d at 478-79. For these reasons, the Court
will not reconsider the Title VII claims of Freeman, and Plaintiffs’ motion is denied in this regard.
Plaintiffs make the same argument for Plaintiff Donald Robertson as they made for
Freeman. (Doc. 717-2, pp. 13-15). Again, this Court was previously directed to a questionnaire
for Robertson at “RD 285, at 14 of 32, Ex J1 and J2”; however, Doc. 285 is a memorandum in
opposition to a prior motion and there are no exhibits at that citation. (Doc. 700, pp. 78-79 (citing
Doc. 648 at p. 13, citing Doc. 285 at p. 14)). Plaintiffs now, for the first time, redirect the Court
to a different citation to the record where this questionnaire might be found, seeking the Court’s
consideration of it at this time. The Court will not do so for the same reasons stated above with
regard to Freeman. See United States, 927 F.2d at 956; See Templet, 367 F.3d at 478-79. Further,
Plaintiffs ask that the Court reconsider Robertson’s Title VII claims and allow them to piggyback
upon the claims of Miles, Fox and Ford. The Court already analyzed Robertson’s Title VII claims
and considered whether the single filing rule applied regarding Fox and Ford’s Title VII claims.
(Doc. 700, pp. 79-80). The Court stands by its prior ruling and finds no suitable grounds to
reconsider this ruling under Rule 59(e). Finally, Plaintiffs’ argument that Robertson should
piggyback upon Miles is a new one, which the Court addressed above. See Templet, 367 F.3d at
478-79. The Court denies Plaintiffs’ motion with regard to the Title VII claims of Robertson.
Regarding Plaintiff Andre Gatlin, Plaintiffs admit that his questionnaire was not in the
record at the citation to which Plaintiffs directed the Court in opposition to the underlying motion.
In fact, Plaintiffs admit that they “inadvertently” failed to file this questionnaire. (Doc. 717-2, p.
9). However, Plaintiffs now claim that they found the questionnaire of Gatlin in the record in a

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different location and “put a sticky on it”. (Id.). For these reasons, Plaintiffs argue that the Court
should reconsider Gatlin’s questionnaire. The Court declines to do so. For the same reasons set
forth above, including Plaintiffs’ failure to accurately cite to the record and/or file evidence into
the record which is something Plaintiffs’ could have and should have done prior to the ruling but
did not, the Court denies Plaintiffs’ motion in this regard. See Templet, 367 F.3d at 478-79.
B.

Pleading of Title VII claims – Lee Fox, Sam Parker, Tommie Williams

In its prior ruling, this Court dismissed Fox’s Title VII claims as untimely. (Doc. 700, pp.
49-50). The Court then proceeded to analyze the timeliness of various other Plaintiffs’ Title VII
claims and erroneously allowed some of those Plaintiffs to piggyback upon Fox’s untimely Title
VII claims to render their claims timely. As set forth above, this was manifestly erroneous, and
the Court granted Local 198’s motion to amend in this regard, attempting to correct the Court’s
error.
However, what Plaintiffs now argue regarding the timeliness of Fox’s Title VII claims is a
new argument, one that Plaintiffs did not advance in opposition to the underlying motion. (Docs.
646, 648, 687, 688, 692). Plaintiffs’ argument is that in the original Complaint, Plaintiffs alleged
that their intent was to plead a Title VII claim in the future, after EEOC charges were filed and
right to sue letters were received. (See Doc. 1, ¶ 86). Essentially, Plaintiffs’ reference to Title VII
claims in the original Complaint was intended to be a placeholder only. Subsequent to the filing
of the original Complaint, Fox filed an EEOC charge and received a right to sue letter. Plaintiffs
then amended their complaint, this time with the intention of actually pleading and asserting claims
under Title VII.3 (See Doc. 227, ¶ 86). Plaintiffs claim that the First Amended Complaint was

The Court notes with interest that Plaintiffs’ amendment to Paragraph 86 is as ambiguous as the original Complaint.
In the First Amended Complaint, Plaintiffs plead that they filed a complaint with the EEOC and seek damages under
Title VII “once the EEOC issues a ‘right to sue’ letter”. (Doc. 227, ¶ 86). The question here is whether Plaintiffs
3

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timely filed after administrative remedies were exhausted and that it relates back to the filing of
the original Complaint. (Doc. 717-2, pp. 2-5). For these reasons, Plaintiffs argue that Fox’s Title
VII claims are timely and the Plaintiffs who piggybacked on Fox have timely Title VII claims as
well.
The Court declines to engage in an analysis of the substance of Plaintiffs’ arguments on
this issue. The fatal flaw for Plaintiffs is that Plaintiffs did not raise this argument in their
oppositions to Local 198’s motion for summary judgment. See Templet, 367 F.3d at 478-79.
Therefore, that argument was waived and will not be considered. More pertinent to the motion
presently before the Court, Plaintiffs have selected the wrong procedural vehicle to now invoke
this argument. Motions to Amend or Alter a Ruling under Rule 59(e) are not the proper vehicle to
raise arguments that could have been raised prior to the ruling. Here, Plaintiffs could have raised
this argument, but they did not. See U.S. Bank Nat. Ass’n v. Verizon Communications, Inc., 761
F.3d 409, 426 (5th Cir. 2014)(“The Trustee raised its arguments concerning a right to a jury trial
… for the first time in its motion for reconsideration…. [T]his is insufficient to preserve the
Trustee’s arguments.

Accordingly, in its order denying reconsideration, the district court

concluded that these arguments had been waived. We agree…. [W]e will not consider [those
arguments] here.”); See Templet, 367 F.3d at 478-79. Therefore, the Court denies Plaintiffs’
motion on this issue.
Plaintiffs make the same argument regarding Plaintiffs Sam Parker and Tommie Williams
as was made for Fox – that the intent to plead a Title VII claim was preserved in the original
Complaint and that the suit was later amended once right to sue letters were received and
administrative remedies exhausted. (Doc. 717-2, pp. 9-13). However, Plaintiffs admit that with

have plead a Title VII claim, as they claim that they intended to do, or are Plaintiffs averring that they will assert this
Title VII claim once the EEOC issues a right to sue letter? At best, Plaintiffs’ pleading is ambiguous.

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regard to Sam Parker and Tommie Williams, the suit was never amended to reflect that these
Plaintiffs exhausted their administrative remedies. (Doc. 717-2, p. 11 (“It is unknown, why the
claims were not amended.”)). Also, just as with Fox, Plaintiffs are raising this argument for the
first time in its motion for reconsideration. Plaintiffs could have raised this argument before the
ruling in their multiple oppositions to Local 198’s motion for summary judgment, but they did not
do so. For these reasons as well as those stated above with regard to Fox, Plaintiffs’ motion is
denied regarding Plaintiffs Sam Parker and Tommie Williams.
C.

James Miles and Charles Adams; Waiver of defense

By the same token, Plaintiffs’ arguments that: (1) the Court should allow Plaintiffs to
piggyback upon the Title VII claims of Miles and Adams; and, (2) that Local 198 waived the
defense of failure to exhaust administrative remedies because it did not first raise the defense by a
Rule 12(b)(6) motion, are declined for consideration. These are arguments of first impression
erroneously raised by a motion under Rule 59(e). See Templet, 367 F.3d at 478-79.
D.

Summary

For the reasons set forth above, Plaintiffs’ Omnibus Motion for Reconsideration is denied.
The Court will not reconsider its prior ruling on the Title VII claims of Plaintiffs Lee Fox, Larry
Freeman, Andre Gatlin, Sam Parker, Donald Robertson, or Tommie Williams.
VI.

Conclusion
Accordingly, IT IS ORDERED that Defendant’s, United Association of Journeymen and

Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,
Local 198’s, motion to amend ruling (Doc. 702) is GRANTED IN PART AND DENIED IN
PART. Defendant’s motion to amend ruling is granted in part, and the following Plaintiffs’ Title
VII claims are dismissed with prejudice based on untimeliness: Frank Cage, Yvonne Catherine,

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Umeca O’Conner, Corey Catherine, Leo Davis, Kevin Gauthier, Larry Gilmore, Michael Jackson,
Joseph Collins, Earnest Johnson, Carl Judson, and Ivan Morgan. Defendant’s motion to amend
ruling is denied in part, and John Green’s Title VII claims remain pending.
IT IS FURTHER ORDERED that Defendant’s motion to strike its motion to amend
ruling (Doc. 720) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ omnibus motion for reconsideration is
DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on October 3, 2019.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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