Menson v. City of Baton Rouge et al

Filing 18

MEMORANDUM RULING re 7 MOTION to Dismiss for Failure to State a Claim filed by Dept of Public Works, City of Baton Rouge. Signed by Magistrate Judge C. Michael Hill on 11/08/2012. (Williams, Lysandra)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
GERALD MENSON

CIVIL ACTION NO. 12-0131

VERSUS

MAGISTRATE JUDGE HILL

CITY OF BATON ROUGE, ET AL.

BY CONSENT OF THE PARTIES

MEMORANDUM RULING ON MOTION TO DISMISS
Pending before the undersigned is defendants’ Fed. R. Civ. P. 12(b)(6) Motion to
Dismiss on the Basis of Prescription filed by the City of Baton Rouge and the
Department of Public Works, on May 29, 2012. [rec. doc. 7]. Plaintiff, Gerald Menson
("Menson"), has filed opposition. [rec. doc. 14]. Oral argument was heard on October
30, 2012, after which I took the matter under advisement.
For the following reasons, the motion is GRANTED.
Background
Menson, born in 1947, brought this employment discrimination and retaliation
action against his former employer, the City of Baton Rouge and the Baton Rouge
Department of Public Works on March 2, 2012, claiming that he was unlawfully
terminated on the basis of his age and race. He filed suit pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Age Discrimination in
Employment Act of 1969 ("ADEA"), 29 U.S.C. § 621, and the Louisiana Employment
Discrimination Law (“LEDL”), LA. REV. STAT. § 23:301 et seq., LA. REV. STAT.
23:967 (Louisiana Whistleblower Statute), and LA. REV. STAT. 30:2027 (Louisiana
Environmental Whistleblower Statute).

Menson began working for defendant in December, 1998, as a trades worker II.
In 2002, he was given the job title of carpenter, although his primary job duties were
those of a plaster/drywall finisher.
In March, 2008, Menson made an internal complaint of race discrimination
against Scott Southall (“Southall”), who was the Building Services and Security
Manager. He submitted the complaint to Assistant Director Monica Sprull (“Sprull”). In
April, 2008, Sprull called a meeting to discuss and resolve plaintiff’s complaint.
Southall did not attend the meeting but, instead, called his own meeting with Menson’s
supervisor, Terry Gillis (“Gillis”), to discuss Menson. Menson did not receive any
response from either meeting.
Menson filed a formal EEO complaint with Employee Relations. On Friday, July
11, 2008, defendant’s Employee Relations department dismissed Menson’s complaint.
Upon arriving to work on July 14, 2008, Menson learned that Southall had
transferred him from the supervision of Gillis, an African-American, to the supervision
of Anthony Comeaux (“Comeaux”), a Caucasian, who is the supervisor over electrical
work. According to Menson, Comeaux assigned him to dangerous and unreasonable
tasks without giving him proper training. On one occasion, Comeaux allegedly directed
Menson to hang drywall without giving him adequate training, which caused him to fall,
resulting in severe injuries. Menson alleges that defendant intentionally transferred him
to a dangerous and hostile workplace environment in retaliation for his complaint of race
discrimination against Southall.

On July 23, 2008, Menson filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) under Charge No. 461-2008-01977,
claiming race discrimination and retaliation. [rec. doc. 14, Plaintiff’s Exhibit 2].
Following his filing of the EEOC complaint, Menson alleges that he was subjected to a
hostile work environment. On September 8, 2010, the EEOC dismissed Menson’s claim.
[rec. doc. 14, Plaintiff’s Exhibits 7, 8].
On November 9, 2010, Menson again complained about the hostile work
environment allegedly created by Southall to Pete Newkirk (“Newkirk”), Department of
Public Works Director. On November 19, 2010, Menson was escorted by Sprull and
Carla Bowers, Employee Relations Analyst, to a meeting with Newkirk and Southall
regarding Menson’s complaint. Instead of trying to resolve Menson’s complaint,
Menson alleges that Newkirk and Southall “retaliated, humiliated and terrorized” him.
(Complaint, ¶ 33).
On December 16, 2010, Menson filed another charge of discrimination under
Charge No. 461-2011-00144 with the Louisiana Commission on Human Rights
(“LCHR”). [rec. doc. 14, Plaintiff’s Exhibit 12]. He contacted EEOC again on May 6,
2011, and submitted another intake questionnaire claiming that he had been
discriminated against because of his race and age, and retaliated against for engaging in
protected activity. On July 26, 2011, LCHR dismissed Menson’s claim. [rec. doc. 14,
Plaintiff’s Exhibit 14].

On September 6, 2011, the EEOC issued a Dismissal and Notice of Rights,
indicating that it had adopted the findings of the state or local fair employment practices
agency that investigated this charge, No. 461-2011-00144, and was dismissing Menson’s
claim. [rec. 14, Exhibit 17]. The Notice stated that “Your lawsuit must be filed
WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this
charge will be lost.” Id.
By letter to the EEOC dated November 28, 2011, Menson requested a 90-day
extension to file suit. [rec. doc. 14, Plaintiff’s Exhibit 18]. A few days later, Maple T.
Thomas (“Thomas”), Supervisory Investigator of the EEOC, and Menson talked by
telephone. In that telephone conversation, Thomas apparently told Menson that the
EEOC could not give him a 90-day extension. [rec. doc. 14, Plaintiff’s Exhibit 1,
Affidavit of Gerald Menson].
In an undated letter to Menson, Thomas confirmed her telephone conversation
with Menson, stating as follows: “This will confirm our telephone conversation of today
wherein you were advised that the EEOC could not extend the 90 days to file a lawsuit in
the subject charge of employment discrimination.” [rec. doc. 14, Plaintiff’s Exhibit 20].
On March 2, 2012, Menson filed a Complaint with this Court. On May 29, 2012,
defendants filed the instant Motion to Dismiss on the grounds that Menson’s claims had
prescribed.

Law and Analysis
Standard for Motion to Dismiss
When deciding a Rule 12(b)(6) motion to dismiss, "[t]he ‘court accepts all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (internal quotations
omitted) (quoting Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d
464, 467 (5th Cir. 2004)). "To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead ‘enough facts to state a claim to relief that is plausible on its face.'" In re
Katrina Breaches Litig., 495 F.3d at 205 (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 1974 (2007)). "Factual allegations must be enough to raise a
right to relief above the speculative level[.]" Id. (quoting Twombly, 550 U.S. at 555, 127
S.Ct. at 1965). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555, 127 S.Ct.
at 1964-65 (citations, quotation marks, and brackets omitted) (emphasis added).
Prescription
Menson filed suit pursuant to Title VII, ADEA, the Louisiana Employment
Discrimination Law, and the Louisiana whistleblower statutes.

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Defendants seek dismissal of Menson’s Title VII and ADEA claims on the
grounds that Menson filed suit almost six months after the Right to Sue letter was issued
by the EEOC. Therefore, they assert, these claims have prescribed. Additionally, they
assert that because the alleged discriminatory and retaliatory acts occurred more than one
year prior to Menson’s filing suit, his state law claims have also prescribed.
Employment discrimination plaintiffs must exhaust administrative remedies before
pursuing claims in federal court. Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th
Cir. 2002). Exhaustion occurs when the plaintiff files a timely charge with the EEOC
and receives a statutory notice of right to sue. Id. (citing Dao v. Auchan
Hypermarket, 96 F.3d 787, 788-89 (5th Cir.1996)). An employment discrimination suit
under Title VII must be filed within 90 days of receipt from the EEOC’s right to sue
letter. King v. Miss. Employment Sec. Commission, 37 F.3d 633, 635 (5th Cir. 1994);
Dobbins v. Anthony Forest Products Co., 2008 WL 4829951 (W.D. La. Nov. 4, 2008)
(Walter, J.).
This requirement to file within the ninety-day limitation period is strictly
construed. Taylor, 206 F.3d at 379; Dobbins, supra. The Fifth Circuit has repeatedly
dismissed cases in which the plaintiff filed a complaint after the ninety-days had passed.
Id. (citing Butler v. Orleans Parish School Board, 2001 WL 1135616 (E.D. La.2001))
(Title VII claims dismissed where pro se plaintiff filed her complaint 91 days after
receiving the right to sue letter).

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Here, the Right to Sue letter was issued on September 6, 2011. [rec. doc. 14,
Plaintiff’s Exhibit 17, p. 2]. Menson filed his Complaint on March 2, 2012, which was
almost six months after the Right to Sue letter was issued. Therefore, his claim under
Title VII has prescribed.
In response to defendants’ argument, Menson asserts that the doctrine of equitable
estoppel should suspend prescription on these claims
In exceptional circumstances, federal courts have applied the equitable tolling
doctrine. Crowder v. Caddo Parish School Bd., 2008 WL 4461851 (W.D. La. Sept. 30,
2008) (Walter, J). However, this relief has been extended “only sparingly.” Irwin v.
Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457-58 (1990). The Supreme
Court has discussed the circumstances in which the equitable tolling doctrine may be
applied:
We have allowed equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a complaint that has been
induced or tricked by his adversary's misconduct into allowing the filing
deadline to pass. We have generally been much less forgiving in receiving
late filings where the claimant failed to exercise due diligence in preserving
his legal rights.
Id.
In Butler, supra, the court dismissed a claim that had been filed by a pro se
plaintiff ninety-one days after she received her right to sue letter. The plaintiff argued
that the doctrine of equitable tolling should be applied because (1) she entrusted the
complaint to her husband, but that he was unable to file suit because of his rheumatoid
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arthritis, (2) she was unable to file suit because she had to travel to Atlanta to assist her
ailing mother, and (3) she was an unsophisticated claimant. The court found that these
reasons did not justify equitable tolling and dismissed the case.
In the present case, Menson argues that the letter from Thomas constituted his
“right to sue” letter, and that the time for filing suit should run from that date. At oral
argument, he cited GATX Leasing Corp. v. Capital Bank & Trust Co., 717 F.Supp. 1160,
1166 (M.D. La. 1988), for the proposition that ambiguity in a contract (letter of credit in
that case) must be construed against the drafter. The Court does not disagree.
However, in the first paragraph of the letter that Thomas wrote to Menson she
said:
A review of agency records shows that your dismissal and notice of rights
was issued on September 6, 2011. Attached to your dismissal was a
document entitled “Information Related to Filing Suit Under the Laws
Enforced by the The EEOC.” An additional copy of those instructions is
printed below.
[rec. doc. 14, Plaintiff’s Exhibit 20].
Thomas clearly confirmed in her undated letter that the right to sue letter was
issued on September 6, 2011. [Plaintiff’s Exhibit 20]. Thus, the undated letter cannot be
construed as the actual right to sue letter. “This is not a case in which a claimant has
received inadequate notice, or where a motion for appointment of counsel is pending and
equity would justify tolling the statutory period until the motion is acted upon, or where
the court has led the plaintiff to believe that she had done everything required of her. Nor

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is this a case where affirmative misconduct on the part of a defendant lulled the plaintiff
into inaction.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct.
1723, 1725-26 (1984) (internal citations omitted).
The right to sue letter, and the instructions which were repeated in Thomas’ letter,
clearly informed Menson that he had only ninety days to act and that the ninety day
period had begun to run on September 6. Menson clearly knew that he had ninety days
to sue, otherwise he would never have requested the extension of the ninety day period
from the EEOC. Nothing in this case justifies the application of the equitable tolling
doctrine.1
Additionally, defendants argue that claimant’s ADEA claim has prescribed. The
statute of limitations for an age discrimination action is 90 days after receipt of a notice
that a charge filed with the EEOC has been dismissed or otherwise terminated. St. Louis
v. Texas Worker’s Compensation Commission, 65 F.3d 43, 47 (5th Cir. 1995); 29 U.S.C.
§ 626(e). Thus, Menson’s claim under ADEA has also prescribed.
Finally, defendants assert that all of Menson’s claims under Louisiana state law
have prescribed. The one-year prescription for tort actions set forth in Louisiana Civil
Code Article 3492 applies to employment discrimination actions brought under Louisiana
law. Rubinstein v. Administrators of Tulane, 58 F.Supp.2d 702, 708 (E.D. La.1998),
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Furthermore, there is no indication that the defendant was in any way involved in the issuance
of the undated letter from the EEOC. Counsel for the plaintiff was unable to provide any authority for the
proposition that the defendant should be estopped from raising the prescription defense for actions
allegedly undertaken by the EEOC; the Court knows of no such authority.

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affirmed in part and remanded, 218 F.3d 392 (5th Cir.), rehearing and suggestion for
rehearing en banc denied, 232 F.3d 212 (5th Cir. 2000), certiorari denied 121 S.Ct. 1393,
532 U.S. 937, 149 L.Ed.2d 316 (2001). Claims under the Louisiana Whistleblower
Statute, LA. REV. STAT. § 23:967, are also subject to the one-year prescriptive period.
Langley v. Pinkerton’s Inc., 220 F.Supp.2d 575, 581 (M.D. La. 2002); Nolan v. Jefferson
Parish Hosp. Service Dist. No. 2, 01-175 (La. App. 5 Cir. 2001); 790 So.2d 725, 733.
Here, the last act of which Menson complained occurred on November 9, 2010,
which was the meeting with Newkirk and Southall in which they allegedly “retaliated,
humiliated and terrorized plaintiff.” (Complaint, ¶ 32). The Complaint was filed on
March 2, 2012, which was more than one year after that meeting occurred. Accordingly,
Menson’s claims asserted under Louisiana law have prescribed.
Conclusion
Accordingly, IT IS ORDERED that the motion to dismiss is GRANTED, and
that all claims against defendants are DISMISSED WITH PREJUDICE.
Signed November 8, 2012, at Lafayette, Louisiana.

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