Walter v. Bullock et al

Filing 43

MEMORANDUM RULING re 19 SECOND MOTION for Summary Judgment filed by J P S Aviation L L C, Jason Bullock, 17 MOTION for Summary Judgment filed by J P S Aviation L L C, Jason Bullock. Signed by Judge S Maurice Hicks on 01/10/2017. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
KRISTEN WALTER

CIVIL ACTION NO. 15-1938

VERSUS

JUDGE S. MAURICE HICKS, JR.

JPS AVIATION, LLC

MAGISTRATE JUDGE HAYES
MEMORANDUM RULING

Before the Court are: (1) two Motions for Summary Judgment by Defendant JPS
Aviation, LLC (“JPS”) (Record Documents 17 and 19); (2) JPS’s Motion to Strike Plaintiff
Kristen Walter’s (“Walter”) Memorandum in Opposition to the first Motion for Summary
Judgment, original affidavit, and amended affidavit and Motion for Attorney’s Fees
(Record Document 24); and (3) JPS’s Motion to Strike Portions of the Affidavit of Palmer
Jarrell (Record Document 33), an affidavit attached to Walter’s Response to JPS’s
Second Motion for Summary Judgment. For the reasons contained in the instant
Memorandum Ruling, JPS’s Motion to Strike Walter’s Memorandum in Opposition,
original affidavit, and amended affidavit and Motion for Attorney’s Fees is DENIED IN
PART and GRANTED IN PART. JPS’s first Motion for Summary Judgment is GRANTED.
As granting the first Motion for Summary Judgment disposes of all claims and all parties
to the instant action, the Court need not address JPS’s other Motions (Record Documents
19 and 33), and as such these Motions are DENIED AS MOOT.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant JPS Aviation, LLC (“JPS”) is a Louisiana limited liability company
engaged in the business of conducting chartered flights out of Monroe, Louisiana. See
Record Document 1 at ¶ 5. In February 2012, Walker began employment with JPS as a

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Charter Coordinator, a job that involved scheduling chartered flights and handling
correspondence related to those flights. She later became an Aviation Sales
Representative in April 2013. See id. at ¶¶ 10-13.
Former Defendant Jason Bullock (“Bullock”) is the son of the owner of JPS, Paul
Bullock. See id. at ¶ 25. In March 2013, Bullock became President/Chief Operations
Officer of JPS as well as Walter’s supervisor. See id. at ¶ 14. According to Walter, Bullock
subjected Walter to “an ongoing campaign of sexual harassment . . . from the time that
Bullock came to JPS.” Id. This campaign of unwelcome advances consisted of
“inappropriate and unwelcome sexual advances and comments to and about Ms. Walter,
and [Bullock] often commented on her looks in suggestive statements.” Id. In her
Complaint, Walter details several instances of Bullock’s actions, some of which occurred
in front of other employees of JPS. See id. at ¶¶ 14-23.
Walter alleges that in June 2013, she first reported Bullock’s alleged sexual
harassment to her immediate supervisor. See id. at ¶ 25. This supervisor reported the
complaint to Paul Bullock, but Paul Bullock dismissed the complaint without taking any
action. See id. Walter also reported the harassment to JPS’s Director of Business
Development, but again neither JPS nor anyone at the company took any action to
remedy the situation. See id. at 26. Eventually, JPS terminated Walter’s employment,
allegedly in retaliation for her complaints of sexual harassment. See id. at ¶¶ 24-29. The
Equal Employment Opportunity Commission (“EEOC”) issued and mailed a notice of right
to sue to Walter and her attorneys on March 3, 2015, and she filed this suit alleging
violations of 42 U.S.C. § 2000e, et seq. on June 22, 2015. See Record Document 1-1
(the EEOC letter).

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On October 22, 2015, former Defendant Bullock filed a Motion to Dismiss under
Federal Rule of Civil Procedure 12(b)(6), arguing that Walter had no federal employment
claims against him as a matter of law. See Record Document 4. On May 18, 2016,
Defendants filed their first Motion for Summary Judgment on the basis that the instant
action is barred because Walter filed it more than 90 days after receipt of the EEOC letter.
See Record Document 17. On June 6, 2016, Defendants filed their second Motion for
Summary Judgment on the basis that there is no genuine issue of material fact on several
elements of Walter’s claims. See Record Document 19-3. On June 9, 2016, Defendants
filed a Motion to Strike Plaintiff’s untimely Memorandum in Opposition to their first Motion
for Summary Judgment and its accompanying affidavit by Walter, as well as a Motion for
Attorney’s Fees for expenses incurred because of the submission of this affidavit. See
Record Documents 22, 23, and 24. On July 27, 2016, Defendants filed a Motion to Strike
Portions of the Affidavit of Palmer Jarrell, an affidavit attached to Walter’s response to
Defendants’ second Motion for Summary Judgment. See Record Document 33.
On September 22, 2016, this Court granted Bullock’s Motion to Dismiss (Record
Document 4), dismissing all of Walter’s claims against Bullock with prejudice and leaving
JPS as the sole Defendant. See Record Document 40. Thus, the Motions remaining
before the Court are JPS’s two Motions for Summary Judgment, two Motions to Strike,
and the Motion for Attorney’s Fees contained in the first Motion to Strike. See Record
Documents 17, 19, 24, and 33.

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LAW AND ANALYSIS
I.

Legal Standards
A. The Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure governs summary judgment. This

rule provides that the court "shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). Also, "a party asserting that a fact cannot be or is
genuinely disputed must support the motion by citing to particular parts of materials in the
record." Fed R. Civ. P. 56(c)(1)(A). "If a party fails to properly support an assertion of fact
or fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment." Fed. R. Civ. P. 56(e)(3).
In a summary judgment motion, "a party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings . . . [and] affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal quotations and citations omitted). If the movant meets
this initial burden, then the non-movant has the burden of going beyond the pleadings
and designating specific facts that prove that a genuine issue of material fact exists. See
id. at 325; see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). A non-movant,
however, cannot meet the burden of proving that a genuine issue of material fact exists
by providing only "some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little, 37
F.3d at 1075. Additionally, in deciding a summary judgment motion, courts "resolve

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factual controversies in favor of the nonmoving party, but only when there is an actual
controversy, that is when both parties have submitted evidence of contradictory facts." Id.
Courts "do not, however, in the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts." Id.
Affidavits are a permissible and common form of evidence that may be used to
oppose a motion for summary judgment. See Celotex Corp., 477 U.S. at 323. To be
competent summary judgment evidence, an affidavit “must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
. . . is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). However, a
party may not manufacture a genuine issue of material fact by submitting an affidavit that
impeaches sworn testimony without explanation. See S.W.S. Erectors v. Infax, Inc., 72
F.3d 489, 495 (5th Cir. 1996). If a party submits such a “sham” affidavit, the Court may
properly disregard or strike such an affidavit, grant summary judgment for the movant,
and award attorney’s fees to the opponent of the submitting party. See id. at 495-96; see
also Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 385-86 (5th Cir. 2000);
see Fed. R. Civ. P. 56(h).
B. Prerequisites to Filing Employment Claims
Walter filed this federal employment lawsuit under 42 U.S.C. § 2000e, et seq.,
alleging (1) sexual harassment and discrimination and (2) retaliation for reporting the
alleged sexual harassment to her superiors. See Record Document 1. To file a valid
federal employment discrimination claim, a plaintiff must first exhaust all administrative
remedies with the EEOC. See Taylor v. Books A Million, 296 F.3d 376, 378-79 (5th Cir.
2002). “Exhaustion occurs when the plaintiff files a timely charge with the EEOC and

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receives a statutory notice of right to sue.” Id. at 379. A plaintiff then has ninety days from
the receipt of the statutory notice of right to sue in which to file suit against his or her
employer. See 42 U.S.C. § 2000e-5(f)(1). This ninety-day requirement is a “precondition
to filing suit in district court” that is “strictly construed.” Taylor, 296 F.3d at 379.
When a plaintiff does not allege the date of receipt of the notice of right to sue letter
from the EEOC and the defendant raises the issue of timeliness, the Court must decide
when the ninety-day period began to run to determine whether the suit is timely. See id.
Courts, including the Fifth Circuit, have allowed for a presumption of receipt of the EEOC
notice between three and seven days from the mailing of the letter. See id. at 379-80; see
Jenkins v. City of San Antonio Fire Dep't, 12 F. Supp. 3d 925, 934-939 (W.D. Tex. 2014)
(extensively discussing the way courts have applied this presumption and deciding that a
three-day presumption is the most reasonable rule). When the date of the filing of the
lawsuit is beyond the timely filing period even with the benefit of this presumption, the
court may dismiss the plaintiff’s suit. See Taylor, 296 F.3d at 379-80.
II.

Analysis
A. Walter’s Affidavit Directly Contradicts Her Deposition Testimony, and
the Court May Therefore Strike the Affidavit.
JPS’s first Motion for Summary Judgment argues that Walter’s suit is untimely

under the ninety-day requirement for the filing of federal employment suits, citing Walter’s
deposition testimony as evidence that she received the notice of right to sue but failed to
file suit within ninety days of its receipt. See Record Document 17-1. Walter’s untimely
response to this Motion included an unsigned affidavit stating that she does not remember
receiving the notice of right to sue letter from the EEOC. See Record Document 22-2.
Walter filed a signed version of this affidavit as an amended exhibit later the same day.
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See Record Document 23. JPS then filed a Motion to Strike the response as untimely and
the affidavits as sham affidavits that contradict Walter’s prior sworn deposition testimony.
See Record Document 24.
First, the Court declines to strike the untimely response to JPS’s first Motion for
Summary Judgment. The decision to allow an untimely response is ultimately at the
discretion of the Court, and the Court declines to exercise that discretion to strike the
response itself here. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894-96 (1990).
Second, the Court must compare Walter’s deposition testimony to her affidavit
statements to determine whether the affidavit is a sham affidavit that must be stricken.
The relevant portions of Walter’s April 22, 2016, deposition testimony are as follows:
Q:

A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
A:

Go to Exhibit 9. Kristen, I’m going to try to hurry through these. This
was a Notice of Right to Sue that the EEOC sent advising it’s
terminating you of the Charge. You did receive this notice?
(Witness reviews document.) Oh I did receive it, yes.
Okay. And it shows it was sent on March the 3 rd to your address at
Lakeside. That was where you were living in March of 2015?
’15 yes.
Okay. And it shows it was sent March the 3rd down at the bottom. Do
you recall it on or around that date?
I don’t remember honestly.
Do you remember when you received it?
I don’t.
You don’t dispute that you would have received it on or around March
3rd, do you?
I’m not going to dispute it, but I don’t remember.
But you do remember getting it in the mail at your house?
Yeah.

Record Documents 17-4 and 19-5 at deposition pages 134-135.
Walter’s June 8, 2016, affidavit states:
I do not remember receiving the Notice of Right to Sue from the U.S.
Equal Employment Opportunity Commission and I do not have a copy of it
in my records of this lawsuit. After being made aware of the Defendants’
Motion for Summary Judgment, I reviewed the documents that I had
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received from the New Orleans Field Office of the Equal Employment
Opportunity Commission and I could not locate the document at issue. I do
not recall and I do not believe that I brought the document at issue to my
attorney’s office.
When asked about receiving the Notice of Right to Sue at her (sic)
April 22, 2016, deposition, I indicated that I did not recall if I received it, but
that the address listed was the correct address on March 3, 2015. In March
of 2015, I was in the process of moving. From the second week of March
through the fourth week of March I was moving from 123 Lakeside Drive,
West Monroe, LA 71291 to 2901 Jasmine Street, Monroe, LA, 71201. The
125 (sic) Lakeside Drive address was an apartment complex and, therefore,
the mail boxes were not located near my apartment. It was my customary
and usual practice to check my mail around the 1st and 15th of each month.
However, as I had already begun to move in the second week of March,
and I do not recall checking my mail during that time (sic). I moved to my
new address prior to April 1, 2015.
I had my mail forwarded some time in March to my new address, but do
not recall the exact date. I have contacted the U.S. Post Office to get an
exact date that my mail began to be forwarded, but they did not have the
information for me at that time and still have not provided me with the
information.
Record Document 23.
JPS argues that Walter’s affidavit contradicts her prior sworn deposition testimony
and that her affidavit must therefore be stricken as a sham affidavit. See Record
Document 24-1. In response, Walter argues that her affidavit is not a sham affidavit, but
rather “an explanation of what occurred according to her best recollection when she took
the time to sit down and think about what occurred in March and April of 2015” and that
she “did not correctly remember the details of what occurred during the two months at
issue” during her deposition. Record Document 29.
The Court finds that Walter’s affidavit directly contradicts her prior deposition
testimony, and therefore strikes both the unsigned affidavit and its signed replacement as
sham affidavits. In her deposition, counsel for JPS handed Walter a copy of the EEOC

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notice of right to sue letter. See Record Documents 17-14 and 19-5 at deposition pages
134-135. Walter then reviewed the letter and confirmed that she had received the letter
in response to questioning. See id. Though Walter then stated that she did not remember
the exact date when she received the letter, she also stated that she did not dispute that
she would have received the letter on or around March 3, 2015. See id. Finally, Walter
again confirmed that she remembered receiving the letter at her house. See id.
In her affidavit, by contrast, Walter states that she does not remember receiving
the EEOC letter. See Record Document 23. She also states that she does not have a
copy of the letter in her records and that she does not recall taking the document to her
attorney’s office. See id. She then explains that she was in the process of moving from
her old address to her new address in March 2015. See id.
Thus, Walter’s deposition statements that she received the EEOC letter directly
contrast with her assertion that she does not remember seeing the letter. Her affidavit
statements appear to the Court to be an attempt to manufacture a genuine issue of
material fact on the date of receipt of the EEOC letter. The Fifth Circuit has previously
rejected similar attempts by affiants to explain contradictions between affidavit statements
and deposition testimony. See, e.g., Dallas Indep. Sch. Dist., 220 F.3d at 385-86
(rejecting plaintiff’s attempt to explain contradictions between a 1999 affidavit and
deposition testimony from 1996). The Court therefore strikes the both the original and
corrected affidavits (Record Documents 22-2 and 23) and will not consider them in
deciding JPS’s Motion for Summary Judgment.
Finally, the Court also grants JPS’s request for attorney’s fees on its first Motion to
Strike (Record Document 24). Rule 56(h) states that “if satisfied that an affidavit or

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declaration under this rule is submitted in bad faith or solely for delay, the court—after
notice and a reasonable time to respond—may order the submitting party to pay the other
party the reasonable expenses, including attorney’s fees, it incurred as a result.” JPS’s
first Motion to Strike provided notice of the request for attorney’s fees and the basis for
the request to Walter, and she responded to the Motion. See Record Documents 24 and
29. The Court finds that Walter submitted the affidavit in bad faith, in an attempt to
manufacture a fact question with affidavit statements directly contradicting prior sworn
deposition testimony. The attorney’s fees awarded are limited to those incurred in drafting
the Motion to Strike (Record Document 24) and JPS’s Reply Memorandum in Support of
its Motion for Summary Judgment (Record Document 25), as these documents directly
address the sham affidavit. The instant action is referred to the Magistrate Judge for
determination of the amount of attorney’s fees to be awarded.
B. Walter’s Suit Is Untimely and Must Be Dismissed.
The EEOC sent its notice of right to sue letter on March 3, 2015. See Record
Document 1-1. Walter filed the instant action on June 22, 2015. See Record Document
1. Thus, the date of filing of the instant action is 120 days after the date on which the
EEOC mailed its notice of right to sue letter. JPS argues that the Court must dismiss
Walter’s suit because it is untimely under the ninety-day time limit for the filing of
employment discrimination suits under 42 U.S.C. § 2000e-5(f)(1), even with the benefit
of a presumption that Walter received the letter up to seven days after the EEOC sent it.
See Record Document 17-1.
The Court agrees with JPS; Walter’s suit is untimely. Courts in the Fifth Circuit and
in other circuits have generally afforded plaintiffs the benefit of presuming that they

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received the EEOC notice letter up to 7 days after the day on which the EEOC mailed it
when the date of receipt is unknown or disputed. See Taylor, 296 F.3d at 379-80. In the
instant action, Walter attempted to manufacture a fact question as to the date of the
receipt of the letter by submitting the affidavit that contradicted her deposition testimony.
See Record Document 23. Because the Court struck that affidavit as a sham affidavit, the
affidavit cannot be used to demonstrate a fact question on the date of receipt of the notice.
Even if the Court had allowed the affidavit, however, it would not affect the Court’s
decision that Walter’s suit is untimely. Taylor states that a presumed receipt date of up to
seven days after mailing applies when the receipt date “is either unknown or disputed.”
296 F.3d at 379. Thus, even if there were a factual dispute as to the receipt date, Walter
could only gain the benefit of up to a seven-day delay of the commencement of the ninetyday clock for filing of the instant action. As she filed the instant action 120 days after the
date the EEOC mailed the letter, the suit is untimely even with the benefit of this extension
of time.
CONCLUSION
Because Walter’s affidavit directly contradicts her prior deposition testimony in an
attempt to create a genuine issue of material fact on the receipt date of the EEOC notice
of right to sue letter, JPS’s Motion to Strike (Record Document 24) both the original and
amended versions of this affidavit (Record Documents 22-1 and 23) is GRANTED. JPS’s
Motion to Strike (Record Document 24) the opposition memorandum itself (Record
Document 22) as untimely is DENIED. JPS’s Motion for Attorney’s Fees (Record
Document 24) regarding the sham affidavit is GRANTED, but such attorney’s fees are
limited to those incurred in drafting the Motion to Strike (Record Document 24) and JPS’s

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Reply Memorandum in Support of its Motion for Summary Judgment (Record Document
25).
JPS’s first Motion for Summary Judgment (Record Document 17) on the basis that
Walter’s suit is untimely under the ninety-day time limit for the filing of employment
discrimination suits under 42 U.S.C. § 2000e-5(f)(1), even with the benefit of a
presumption that Walter received the letter up to seven days after the EEOC sent it, is
GRANTED. Because granting the first Motion for Summary Judgment eliminates all
claims and all parties, the Court need not address JPS’s second Motion for Summary
Judgment (Record Document 19) or its second Motion to Strike (Record Document 33).
As such, those Motions are DENIED AS MOOT.
IT IS SO ORDERED.
THUS DONE AND SIGNED at Shreveport, Louisiana, on this the 10th day of
January, 2017.

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