Kern v. MeadWestvaco Corp et al

Filing 97

MEMORANDUM RULING re 55 MOTION for Summary Judgment filed by Ingevity Corp. Signed by Magistrate Judge Kathleen Kay on 10/16/2017. (crt,Keller, J)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

RON KERN

:

DOCKET NO. 15-cv-2694

VERSUS

:

MAGISTRATE JUDGE KAY

INGEVITY CORP.
f/k/a MWV SPECIALTY CHEMICALS
CO.

:

MEMORANDUM RULING

Before the court is a Motion for Summary Judgment [doc. 55] filed pursuant to Rule 56 of
the Federal Rules of Civil Procedure by Ingevity Corp., formerly known as MWV Specialty
Chemicals Co. (“MWV,” “defendant”), the sole remaining defendant in this action. The plaintiff,
Ron Kern, opposes the motion. Doc. 74. The defendant’s Motion for Oral Argument [doc. 64] was
granted, and this matter was heard on October 12, 2017, at 11:00 am. Doc. 65.
For the following reasons, the Motion for Summary Judgment [doc. 55] will be
GRANTED, and the action DISMISSED WITHOUT PREJUDICE by accompanying
judgment, each party to bear its own costs.
I.
BACKGROUND
Kern was employed at MWV1 as a full-time lead process chemist at that company’s facility
in DeRidder, Louisiana, from August 2011 until October 2014. Doc. 55, atts. 3, 33. He received a

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Subsequent to Kern’s termination, MWV became known as Ingevity.

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poor performance review in December of 2013 and expressed his disagreement with same. Doc.
55, att. 7; doc. 55, att. 8, pp. 7, 11. In February 2014 plaintiff was diagnosed with shingles. See
doc. 55, att. 10. Though he attempted to return to work on a few occasions, he largely remained
on leave from February 21, 2014, onward. Id.; see doc. 55, atts. 12–14, 16; see doc. 74, att. 2, pp.
3–4; doc. 55, att. 33.
During this time Kern continued to express disagreement with his 2013 performance
review to his manager and sent a request for assistance to the MWV ethics line on March 23, 2014.
Doc. 55, atts. 15–17. On March 26, 2014, Kern sent another email to the MWV ethics line, stating
that he “fear[ed] the worst” as he had heard nothing to date and that, as he was “a 59 year old male
with ongoing medical issues,” he had contacted the Equal Employment Opportunity Commission
(“EEOC”) for assistance. Doc. 55, att. 22. He completed an EEOC intake questionnaire that same
date, alleging discrimination on the basis of age and disability based on his 2013 performance
review and the resulting performance improvement plan. Doc. 55, att. 29. This questionnaire
resulted in a discrimination charge (“2014 EEOC charge”), to which MWV responded. See doc.
55, atts. 30, 31. On July 15, 2014, the EEOC dismissed the charge and informed Kern of his right
to file suit within ninety days. Doc. 55, att. 32.
On September 26, 2014, a human resources representative from MWV sent a letter to Kern,
informing him that a recent medical release, allowing him to begin working part-time, was
insufficient for his full-time position and pointing out that he would run out of his short-term leave
allowance on October 10, 2014. Doc. 55, att. 33. Accordingly, she stated, his employment at MWV
would end once his leave was exhausted. Id. On that same date, a termination request was
processed by MWV, effective October 10, 2014. Doc. 74, att. 1, p. 29. In December 2014 Kern

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applied for another position with the defendant but the position was never filled due to a reduction
in force. Doc. 74, att. 2, p. 12; doc. 55, att. 23, pp. 19–20.
On March 2, 2015, Kern submitted another intake questionnaire to the EEOC, alleging
retaliation for his 2014 EEOC charge and discrimination on the basis of age and disability. Doc.
55, att. 38. His case was recommended for closure after he failed to provide a required signature
within the allotted time. Doc. 55, att. 40. The EEOC issued a dismissal and notice of suit rights on
June 3, 2015. Doc. 55, att. 41. Kern filed suit in the 36th Judicial District, Beauregard Parish,
Louisiana, on September 1, 2015, alleging that defendant had violated federal statutes forbidding
retaliation, and discrimination on the basis of age and disability, as well as Louisiana statutes
forbidding same. Doc. 1, att. 1, pp. 4–9. In relief he seeks compensatory and exemplary damages,
as well as an award of attorney’s fees. Id. at 8–9.
Defendant now moves for summary judgment on all claims, asserting that there is no
genuine issue as to any material fact on Kern’s claims of discrimination and retaliation and that
the defendant is entitled to judgment as a matter of law and dismissal of this action at plaintiff’s
cost. Specifically, it maintains that Kern failed to exhaust the claims raised in the 2015 EEOC
charge and that the claims raised in the 2014 EEOC charge have prescribed. Doc. 62. Should this
court disagree on either front, defendant asserts that plaintiff does not show a right to relief on the
merits. Id. Kern opposes the motion. Doc. 74.
II.
SUMMARY JUDGMENT STANDARD
A court should grant a motion for summary judgment when the pleadings, including the
opposing party’s affidavits, “show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); see also Celotex Corp.
v. Catrett, 106 S.Ct. 2548, 2553 (1986). The party moving for summary judgment is initially
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responsible for demonstrating the reasons justifying the motion for summary judgment by
identifying portions of pleadings and discovery that show the lack of a genuine issue of material
fact for trial. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny
the moving party’s motion for summary judgment if the movant fails to meet this burden. Id.
Once the movant makes this showing, the burden then shifts to the non-moving party to set
forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
106 S.Ct. 2505, 2510 (1986). The burden requires more than mere allegations or denials of the
adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other
admissible evidence that there are genuine issues of material fact or law. Celotex, 106 S.Ct. at
2553. There is no genuine issue of material fact if, viewing the evidence in the light most favorable
to the non-moving party, no reasonable trier of fact could find for the non-moving party. Tolan v.
Cotton, 134 S.Ct. 1861, 1866 (2014). Furthermore, a court may not make credibility
determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000). However, the nonmovant must
submit “significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). If the evidence is merely colorable or is not
significantly probative, summary judgment may be granted. Anderson, 106 S.Ct. at 2511.
III.
APPLICATION
The defendant contends that the claims raised in the 2015 EEOC intake questionnaire are
subject to dismissal due to his failure to properly exhaust administrative remedies through a charge
of discrimination. In his opposition to this motion, Kern concedes that all claims raised in his 2014
EEOC charge have prescribed. Doc. 74, pp. 1–2. As such, a finding in the defendant’s favor on
the exhaustion claim is dispositive for the case as a whole.
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A. Legal standards for exhaustion
1. Federal claims
Private sector employees seeking relief on claims of employment discrimination under
Title VII of the Civil Rights Act must exhaust their administrative remedies before filing suit by
filing a charge of discrimination with the EEOC. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273
(5th Cir. 2008). “The charge enables the EEOC to investigate and, if appropriate, negotiate a
resolution with the employer.” Id. For an EEOC filing to be considered a properly filed charge of
discrimination, it must have the name of the charged party, an allegation, and a request for remedial
action. See Stone v. La. Dep’t of Revenue, 996 F.Supp.2d 490, 502 (E.D. La. 2014) (citing Fed.
Express Corp. v. Holowecki, 128 S.Ct. 1147, 1157–58 (2008)), reversed in part on other grounds,
590 Fed. App’x 332 (5th Cir. 2014) (unpublished). An intake questionnaire may be construed as a
charge so long as it fulfills these requirements. Crevier-Gerukos v. Eisai, Inc., 2012 WL 681723,
*6–*9 (S.D. Tex. Feb. 29, 2012) (citing Holowecki, 128 S.Ct. at 1157–58).
This requirement extends to employees asserting claims under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq. Stith v. Perot Sys. Corp., 122 Fed. App’x 115, 118 (5th Cir.
2005); Williamson v. American Nat. Ins. Co., 695 F.Supp.2d 431, 444–45 (S.D. Tex. 2010).
Specifically, a plaintiff must file a claim with the EEOC within 180 days of the unlawful act (or
within 300 days if filing with a state or local agency). Williamson, 695 F.Supp.2d at 445 (citations
omitted). After the plaintiff receives a “right to sue” letter from the agency, he must file suit in the
district court within ninety days. Id. For Title VII and ADA claims, “exhaustion occurs when the
plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue.” Garcia
v. Penske Logistics, LLC, 631 Fed. App’x 204, 207 (5th Cir. 2015) (citing Taylor v. Books A

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Million, Inc., 296 F.3d 376, 278–79 (5th Cir. 2002)) (alteration omitted). No right to sue notice is
required under the ADEA, however, and such a claim is instead exhausted when the plaintiff files
a timely charge and then waits sixty days, regardless of whether the agency takes any action. Julian
v. City of Houston, Tex., 314 F.3d 721, 725–26 (5th Cir. 2002) (citing 29 U.S.C. § 626(d)).
2. State claims
Kern also asserts claims under state antidiscrimination law. The Louisiana Employment
Discrimination Law (“LEDL”), LA. REV. STAT. § 23:301 et seq., requires a plaintiff who intends
to pursue court action based on a claim of discrimination to provide the defendant with written
notice of his claim at least thirty days before filing suit. LA. REV. STAT. § 23:303(C). Under this
requirement, “both parties shall make a good faith effort to resolve the dispute prior to initiating
court action.” Id. Failure to comply with Section 303(C) renders the un-noticed claims subject to
dismissal without prejudice. See, e.g., Dunn v. Nextel So. Corp., 207 F.Supp.2d 523, 524 (M.D.
La. 2002); Stubberfield v. Offshore, 2016 WL 2855480, *2 (E.D. La. May 16, 2016). Filing a
discrimination charge with the EEOC satisfies the notice requirement. Johnson v. Hospital Corp.
of America, 767 F.Supp.2d 678, 700 (W.D. La. 2011).
B. Application
In this matter Kern appears to have completed the 2015 intake questionnaire himself but
requested there that the EEOC “please communicate with attorney.” Doc. 55, att. 38. There he
provided his own contact information and, underneath it, the contact information for plaintiff’s
counsel in this matter (in the space provided for a secondary contact). Id. at 1. On April 21, 2015,
the EEOC notified Kern that his intake questionnaire “[constituted] a charge of discrimination”
and that he must therefore sign an enclosed form (EEOC Form 5, Charge of Discrimination) and
return it to the agency within thirty days. Doc. 55, att. 39. This letter clearly explained that,

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although Kern’s employer had been given notice that a charge had been filed, no investigation
would be initiated until Kern provided his signature. Id. It also provided that if Kern did not
comply, the agency would be authorized to dismiss his charge and issue a right to sue letter. Id.
Kern did not comply, and a recommendation for closure was issued within the EEOC. See doc. 55,
att. 40. The EEOC then issued a dismissal and notice of suit rights. Doc. 55, att. 41.
Accordingly, the defendant alleges that the matter was not actually exhausted because the
signature was not provided and no investigation ever took place. Kern, meanwhile, contends that
the matter was exhausted based on the EEOC’s issuance of a notice of suit rights.
The Seventh and Fourth Circuits have expressly rejected the imposition of a cooperation
component to the exhaustion requirement under Title VII. See Doe v. Oberweis Dairy, 456 F.3d
704, 709–12 (7th Cir. 2006), cert. denied, 127 S.Ct. 1815, 1828 (2007); Austin v. Winter, 286 Fed.
App’x 31, 37 (4th Cir. 2008). However, the Tenth Circuit holds that a plaintiff must make a good
faith effort to cooperate with the EEOC in order to allow the agency to reach the merits of the
charge. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005). The Fifth Circuit has
not reached the issue for private sector employees proceeding through the EEOC, though it does
recognize a duty of “good faith participation in the administrative process” in order for federal
employees to satisfy the exhaustion requirement. Fontenot v. Our Lady of Holy Cross College,
2011 WL 4368836, *3 (E.D. La. Sep. 19, 2011) (citations omitted).
Mindful of the fact that the administrative review requirement, as originally set out in Title
VII, “clearly contemplates that no issue will be the subject of a civil action until the EEOC has
first had the opportunity to attempt to obtain voluntary compliance,” Pacheco v. Mineta, 448 F.3d
783, 789 (5th Cir. 2006), we conclude that it would violate the spirit and purpose of the exhaustion
requirements under federal law for claims to be shuttled through administrative review while the

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claimant’s lack of cooperation prevents any meaningful attempt at conciliation between employer
and employee. Thus Kern’s unexcused lack of cooperation in the administrative process should
render his claims unexhausted.
Kern’s lack of good-faith cooperation also renders his state law claims unexhausted under
the LEDL. Although that statute’s exhaustion requirement is premised on “notice,” and the EEOC
did provide that it had alerted defendant to the charge, this provision also states that “both parties
shall make a good faith effort to resolve the dispute prior to initiating court action.” La. Rev. Stat.
§ 23:303(C). As stated above, a plaintiff’s failure to comply with LEDL’s notice provision renders
his claim subject to dismissal. Kern’s failure to provide a signature and allow the investigation to
be opened by the EEOC was a plain violation of LEDL’s pre-suit dispute resolution mandate. He
has not shown any other attempts to engage in a good faith effort at dispute resolution with
defendant prior to bringing this action. Accordingly, both his state and federal claims are
unexhausted based on his lack of cooperation with regard to his 2015 EEOC filings.
IV.
CONCLUSION
Based on the above, the Motion for Summary Judgment [doc. 55] will be GRANTED, and
the action DISMISSED WITHOUT PREJUDICE via accompanying judgment, each party to
bear its own costs.
THUS DONE AND SIGNED in Chambers this 16th day of October, 2017.

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