Franklin v. Flowserve FSD Corporation
Filing
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MEMORANDUM OPINION. Signed by Judge Norman K. Moon on December 11, 2014. (sfc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
LORAINE FRANKLIN, JR.,
CIVIL NO. 6:14cv00040
Plaintiff,
v.
MEMORANDUM OPINION
FLOWSERVE FSD CORPORATION,
Defendant.
JUDGE NORMAN K. MOON
Plaintiff Loraine Franklin, Jr. (“Plaintiff,” or “Franklin”) filed this action on October 10,
2014, alleging, inter alia, race discrimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”). This matter is now before me on a Motion to Dismiss filed by Defendant
Flowserve FSD Corporation (“Defendant,” or “Flowserve”), in which it seeks to dismiss
Plaintiff’s Title VII race discrimination claim on the grounds that it is time barred. 1 For the
reasons stated herein, Defendant’s Motion to Dismiss is DENIED.
I. INTRODUCTION
A. Statement of Alleged Facts
Loraine Franklin is an African-American male who formerly worked as a material
handler with Flowserve. As a Flowserve employee, Franklin was involved in a workplace
altercation in which he was assaulted by another employee. Specifically, on September 16,
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In its Motion to Dismiss, Defendant repeatedly states that it seeks dismissal of Plaintiff’s Title
VII “discrimination claim based on the termination of [Franklin’s] employment.” Def.’s Mot. to
Dismiss at 1. However, no such claim is currently before the Court. See Pl.’s Compl. ¶¶ 38-42.
Rather, Franklin’s race discrimination claim is based on Flowserve’s “failure and refusal to hire
Franklin for the jobs that he applied to . . . .” Id. at ¶ 42. Accordingly, I will treat Defendant’s
Motion as seeking dismissal of Plaintiff’s race discrimination claim based on Flowserve’s refusal
to hire. See Fed. R. Civ. P. 8(e) (noting pleadings must be construed “so as to do justice”).
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2011, a male coworker “struck Franklin in his hip area” while he was using the bathroom.
Franklin could not identify who attacked him at the time, and so he sought out other employees
who witnessed the altercation for further information. One of those employees identified coworker Tony Evans as Franklin’s assailant. Upon learning this information, Franklin confronted
and physically attacked Evans on Flowserve property.
Flowserve followed up with an investigation of the event. As a component of the
investigation, Flowserve conducted an interview with Franklin in which he admitted to attacking
Evans. Because Franklin’s conduct conflicted with Flowserve’s policy against violence in the
workplace, Flowserve terminated Franklin in late September of 2011.
While Flowserve
terminated Franklin’s employment, it declined to do so under similar circumstances involving a
white employee. On April 24, 2013, a white male engaged in a physical altercation with another
coworker.
Though this employee also violated Flowserve’s policy against violence in the
workplace, he was not terminated. Since his termination, Franklin has submitted several job
applications to Flowserve, all of which have been rejected.
B. Procedural Background
In November of 2011, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging race discrimination in his termination.
On July 24, 2012, the EEOC issued a Dismissal and Notice of Rights (“Notice”) concerning the
charge, giving Franklin 90 days to pursue his claim. Despite receiving the Notice, Franklin
failed to pursue his Title VII claim within the prescribed time period. Thereafter, on November
12, 2013, Franklin filed a second charge of discrimination with the EEOC. In his second charge,
Franklin claims Flowserve refused to rehire him on the basis of his race in violation of Title VII.
On July 10, 2014, the EEOC issued Franklin a Notice of Right to Sue with respect to his second
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charge. Franklin subsequently filed this complaint on October 10, 2014.
II. LEGAL STANDARD
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint . . . [I]t
does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). 2 A court
considering dismissal under Rule 12(b)(6) must take the facts in the light most favorable to the
plaintiff. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991). Courts are not, however,
“bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Rather, a complaint must contain enough factual allegations to “state a claim for relief that is
plausible on its face.” Twombly, 550 U.S. at 570. In evaluating “plausibility,” the court may not
rely on mere “labels and conclusions” or a plaintiff’s “formulaic recitation of a cause of the
elements of a cause of action.” Id. at 555. Instead, the factual allegations must be enough to
raise “a right to relief above the speculative level.” Id. Thus, a “claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
III. DISCUSSION
In order to assert a timely violation of Title VII, plaintiffs in Virginia must first file a
charge with the EEOC within 300 days after the alleged unlawful practice occurred. See 42
U.S.C. § 2000e-5(e)(1); Edwards v. Murphy-Brown, LLC, 760 F. Supp. 2d 607, 619 (E.D. Va.
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A motion under Rule 12(b)(6) is not intended to address the merits of any affirmative defenses.
However, “[i]n the limited circumstances where the allegations of the complaint give rise to an
affirmative defense, the defense may be raised under Rule 12(b)(6), but only if it appears on the
face of the complaint.” Richmond, Fredericksburg & Potomac R. Co. v. Forst, 4 F.3d 244, 250
(4th Cir. 1993) (citations omitted).
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2011). If the EEOC decides not to pursue the charge itself, the EEOC delivers the plaintiff a
“right-to-sue letter,” which must be acted upon within 90 days of the letter’s receipt. See 42
U.S.C. § 2000e-5(f)(1) (“If a charge filed with the Commission . . . is dismissed by the
Commission . . . the Commission . . . shall so notify the person aggrieved and within [90] days
after the giving of such notice a civil action may be brought against the respondent named in the
charge . . . .”). Thus, to avoid dismissal, Franklin’s complaint must show the following: (1) that
he filed his charge of discrimination within 300 days of an alleged unlawful employment
practice, and (2) that he filed his complaint within 90 days of receiving his right-to-sue letter.
With respect to the first requirement, the United States Supreme Court’s decision in
National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002) is instructive. In
Morgan, the Court held that an “unlawful employment practice” occurs on the day in which an
employer engages in a “discrete act” of discrimination. Id. at 111. Discrete acts include “acts
such as termination, failure to promote, denial of transfer, or refusal to hire . . . .” Id. at 114.
With respect to an employer’s refusal to rehire an employee, the United States Court of Appeals
for the Fourth Circuit recognizes that such conduct constitutes a discrete act where “new
elements of unfairness, not existing at the time of the original violation, attached to denial of
reemployment.” See E.E.O.C v. City of Norfolk Police Dep’t., 45 F.3d 80, 84 (4th Cir. 1995)
(citing India v. United Air Lines, Inc., 565 F.2d 554, 561-62 (9th Cir. 1977)); see also Lawson v.
Burlington Indus. Inc., 683 F.2d 862, 863-64 (4th Cir. 1982) (“[A] layoff from employment
constitutes a completed act at the time it occurred, and . . . an employer's failure to recall or
rehire . . . constitutes a separate and completed act by the defendant.”).
Here, Flowserve terminated Franklin based on its policy against violence in the
workplace.
Subsequent to his termination, Franklin alleges a white Flowserve employee
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engaged in the same conduct that produced his termination. Despite engaging in similar conduct,
Flowserve refused to terminate the white employee. Franklin then submitted job applications for
several positions with Flowserve, all of which were rejected. Under such circumstances, “new
elements of unfairness” surround Defendant’s refusal to rehire, and I will therefore treat its
refusal to rehire Franklin as a “discrete act” of discrimination. Id. at 84; see also India, 565 F.2d
at 557-58 (recognizing a failure to rehire qualifies as a discrete act of discrimination where,
subsequent to the relevant employee’s termination, there is a discriminatory application of the
“policy that produced the initial firing”). Thus, Franklin had to file his charge within 300 days of
the date on which Flowserve rejected his application. Edwards, 760 F. Supp. 2d at 619. As
Flowserve rejected Franklin’s application on October 17, 2013, 3 and Franklin filed his charge
just one month later, Franklin has clearly satisfied the first requirement.
Next, it must be shown that Franklin filed his complaint within 90 days of receiving his
right-to-sue letter. Here, the EEOC issued the letter on July 10, 2014, and Franklin is presumed
to have received it on July 14, 2014. See Blackwell v. General Dynamics Land Sys., Inc., No.
1:10-cv-110, 2010 WL 2639829, at *4 (E.D. Va. June 28, 2010) (recognizing Federal Rule of
Civil Procedure 6(d) creates a presumption that notice is received three days after mailing,
excluding Sunday). Franklin then filed his complaint on October 10, 2014, three days before the
expiration of the 90-day window. Accordingly, because the second requirement is also satisfied,
Franklin filed within the prescribed limitations period and his Title VII claim is not subject to
dismissal. See Darden v. Cardinal Travel Ctr., 493 F. Supp. 2d 773, 776 (W.D. Va. 2007).
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Franklin does not specifically state when Flowserve rejected his job application. However, we
do know that Franklin submitted his final job application with Flowserve on October 17, 2013.
See Pl.’s Compl. ¶ 34. The earliest date Flowserve could have rejected Franklin’s October 17
application would be the same day. Accordingly, as I must construe the facts in the light most
favorable to the Plaintiff, see Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), I will treat
October 17, 2013 as the date Flowserve rejected Franklin’s application.
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Defendant argues Franklin’s entire Title VII action must be dismissed because he failed
to timely pursue his first charge of discrimination based on his termination. See Def.’s Mot. to
Dismiss at 3 (“Plaintiff’s Title VII discrimination claim based on the termination of his
employment was not filed within ninety days of Plaintiff’s receipt of the [EEOC “right-to-sue”
letter] and, consequently, is time-barred . . . .”). Franklin’s first charge, however, alleged only
discriminatory termination. By contrast, Franklin’s second charge alleged discrimination in his
termination and Flowserve’s refusal to hire. In such situations, “where the charge relates to two
or more acts, the statute of limitations issue must be evaluated separately as to each action.”
Talbot v. Mobil Corp., 46 F. Supp. 2d 468, 472 (E.D. Va. 1999). Accordingly, as Franklin’s
Title VII claim based on Flowserve’s refusal to hire is timely, Defendant’s “contention that the
entire action is barred is off the mark.” Talbot, 46 F. Supp. 2d at 470.
IV. CONCLUSION
Because Franklin has acted timely with respect to Flowserve’s refusal to hire,
Defendant’s Motion to Dismiss (docket no. 6) is DENIED. An appropriate order follows.
11th
Entered this ________ day of December, 2014.
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