Coleman v. Housing Authority of the City of Weirton et al
Filing
23
MEMORANDUM OPINION AND ORDER CONFIRMING PRONOUNCED ORDER OF THE COURT GRANTING IN PART AND DENYING IN PART AS FRAMED MOTION FOR PARTIAL SUMMARY JUDGMENT: Granting in part and Denying in part 13 Motion for Partial Summary Judgment. All of Count I and Count V, as to the outrageous conduct claim based on race or age discrimination, in the Complaint are Dismissed. Signed by Senior Judge Frederick P. Stamp, Jr on 9/27/13. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NORA H. COLEMAN,
Plaintiff,
v.
Civil Action No. 5:12CV151
(STAMP)
HOUSING AUTHORITY OF THE
CITY OF WEIRTON and
GEORGE VARGO, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
CONFIRMING PRONOUNCED ORDER OF THE COURT
GRANTING IN PART AND DENYING IN PART AS FRAMED
MOTION FOR PARTIAL SUMMARY JUDGMENT
I.
Procedural History
On September 18, 2012, the plaintiff, Nora H. Coleman, filed
the underlying employment discrimination action in the Circuit
Court of Hancock County, West Virginia.
On October 9, 2012, the
defendants, the Housing Authority of the City of Weirton (“Weirton
Housing Authority”) and George Vargo (“Vargo”), removed the action
to this Court.
On June 18, 2013, the defendants submitted to this
Court a motion for partial summary judgment on the plaintiff’s
claims for age discrimination, race discrimination, retaliatory
discharge, and outrageous conduct.
to this motion.
The plaintiff did not respond
Upon review of this issue, this Court finds that
the defendants’ motion for partial summary judgment should be
granted in part and denied in part.1
II.
Facts
The plaintiff was hired by the co-defendant, Vargo, and began
working for the Weirton Housing Authority in 1984.
On November 2,
2007, defendant Vargo, individually and as a representative of the
Weirton Housing Authority, was serviced with an Equal Employment
Opportunity Commission (“EEOC”) charge alleging claims of race
discrimination,
age
discrimination,
and
retaliatory
discharge
because the plaintiff had filed a claim with the EEOC. On November
20, 2007, the plaintiff was terminated from her employment at the
Weirton
Housing
Authority.
On
October
28,
2009,
the
EEOC
determined that the Department of Justice would not file suit on
the EEOC charge and provided the plaintiff with a notice of right
to sue within 90 days, informing the plaintiff that a civil action
must be filed in the appropriate court within 90 days of her
receipt of that notice.
The plaintiff filed suit in the Circuit
Court of Hancock County, West Virginia, on April 25, 2012.
In her complaint, the plaintiff claims that she was discharged
based on her race and because of her age; her discharge was
1
This Court met with the parties on the defendants’ motion to
motion to modify the scheduling conference order on September 24,
2013. ECF No. 18. This Court, however, also made findings as to
the defendants’ earlier motion for partial summary judgment during
that status conference. This memorandum opinion and order confirms
in slightly more detail the rulings made at the conclusion of
that hearing.
2
retaliatory because she had complained to defendant Vargo about the
misuse of the Housing Authority’s funds, inappropriate treatment of
clients, and inappropriate personal relationships of employees and
supervisor; and that a family member of defendant Vargo was given
preferential
treatment
over
the
plaintiff.
Based
on
these
allegations, the complaint sets forth eight counts.
In their motion for partial summary judgment, the defendants
contend
that
Count
discrimination;
I(a),
Count
I(b),
civil
civil
rights
violation
rights
for
violation
for
race
age
discrimination; Count I(c), civil rights violation for retaliatory
discharge; and Count V, breach of implied covenant of good faith
and fair dealing (“outrageous conduct”), should be dismissed.
III.
Summary
judgment
is
Applicable Law
appropriate
if
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c).
The
party seeking summary judgment bears the initial burden of showing
the absence of any genuine issues of material fact.
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
See Celotex
“The burden then
shifts to the nonmoving party to come forward with facts sufficient
to create a triable issue of fact.”
3
Temkin v. Frederick County
Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
In this case, the plaintiff failed to respond to defendants’
motion for summary judgment.
However, the plaintiff’s failure to
file a response does not relieve the defendants from the burden
imposed upon the moving party.
See Custer v. Pan Am. Life Ins.
Co., 12 F.3d 410 (4th Cir. 1993).
The court in Custer held that
while “the failure to respond to a summary judgment motion may
leave uncontroverted those facts established by the motion, the
moving party must still show the uncontroverted facts entitle the
party to ‘a judgment as a matter of law.’”
Id. (quoting Fed. R.
Civ. P. 56(c)).
IV.
Discussion
In the motion for partial summary judgment, the defendants
argue that they are entitled to judgment as a matter of law with
respect to all of the allegations of civil rights violations and
the allegation as to outrageous conduct.
A.
Counts I(a) and I(b)
The defendants contend that as to the civil rights violations
for race and age discrimination, the plaintiff is barred from
asserting them because the plaintiff failed to bring her claims
within 90 days after the EEOC provided her with a notice of right
to sue.
Further, the defendants assert that the Weirton Housing
4
Authority does not meet the definition of an “employer” as required
by the Age Discrimination in Employment Act (“ADEA”).
After the EEOC has completed investigations, it may either
conclude that the discrimination claims are with or without merit.
Coleman v. Talbot County Detention Center, 242 F. App’x 72, 73 (4th
Cir. 2007).
If the “EEOC concludes that the discrimination charge
is without merit, it will issue a ‘right-to-sue’ letter to the
charging party, who then has 90 days to file a civil complaint.”
Id. (citing 42 U.S.C. § 2000e-5(f)(1)).
The EEOC has no legal
authority to “reissue” the right-to-sue letter, and any complaint
filed in the appropriate court after the 90 days has expired is
untimely.
Id.
Based on the untimely nature of the plaintiff’s complaint in
this case, this Court finds that the plaintiff has in fact failed
to diligently bring the claims charged in Counts I(a) and I(b) as
to race and age discrimination.
The plaintiff did not file this
case until a year after the 90 day right-to-sue period expired.
Thus, the plaintiff’s action is untimely as to Counts I(a) and
I(b).
Further, based on the defendants’ representations, the
Weirton Housing Authority would not meet the definition of an
“employer” under the ADEA as it has only seven full-time employees.
The ADEA’s definition for “employer” states as follows:
The term “employer” means a
affecting commerce who has
each working day in each of
in the current or preceding
person engaged in an industry
twenty or more employees for
twenty or more calendar weeks
calendar year: Provided, That
5
prior to June 30, 1968, employers having fewer than fifty
employees shall not be considered employers. The term
also means (1) any agent of such a person, and (2) a
State or political subdivision of a State and any agency
or instrumentality of a State or a political subdivision
of a State, and any interstate agency, but such term does
not include the United States, or a corporation wholly
owned by the Government of the United States.
29 U.S.C. § 630.
the
defendant
Based on the information provided to this Court,
Weirton
Housing
Authority
would
not
meet
the
definition provided by the ADEA because it only has seven full-time
employees. Accordingly, this Court finds that Counts I(a) and I(b)
should be dismissed.
B.
Count I(c)
The defendants next assert that the retaliatory discharge
claim in Count I(c) is moot because the race and age discrimination
claims cannot be brought against the defendants.
Because the
plaintiff is claiming that the defendants retaliated against her
based on her age or race, the defendants contend, the retaliation
claim is barred for being moot.
Further, if not barred for being
moot, the defendants argue that under West Virginia law, the
applicable statute of limitations period for a claim of retaliatory
discharge expires within two years of the injury.
This Court, however, will not have to reach the statute of
limitations issue.
The plaintiff’s claims as to race and age
discrimination, as described earlier, are dismissed because neither
were filed within the 90-day window given by the EEOC and because
the Weirton Housing Authority does not meet the ADEA definition of
6
“employer.” Thus, because the retaliatory discharge claim is based
on race or age discrimination, it cannot stand on its own and fails
because the race and age discrimination claims fail.
C.
Count V
The defendants assert that as to Count V, the plaintiff’s
claim for outrageous conduct is duplicative of her claim for
retaliatory discharge.
Because the damages would be essentially
the same under both claims, the defendants argue, the plaintiff
should only be able to recover damages for one injury.
This Court agrees with the defendants insofar as it can adopt
the reasoning for dismissing the retaliatory discharge claim for
dismissing the outrageous conduct claim.
The outrageous conduct
claim in Count V, that would rely on the race or age discrimination
claims, should be dismissed because those claims fail based on the
findings of this Court above. Because the outrageous conduct claim
and the retaliatory discharge claim would rely on the same factual
basis, the outrageous conduct claim insofar as it relies on the
race or age discrimination allegations should be dismissed.
This
Court finds, however, that the outrageous conduct claims and any
other claim made in Count V that can stand alone without relying on
the claims made in plaintiff’s allegations in Counts I(a) and Count
I(b) should not be dismissed.
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Accordingly, this Court dismisses Counts I(a)-I(c) and Count
V as framed above.
The remaining claims for the plaintiff are
Counts II-IV, Count V as framed in this opinion, and Counts VI-IIX.
V.
Conclusion
Based on the analysis above, this Court concludes that no
genuine
issue
of
material
fact
exists
with
respect
to
the
plaintiff’s allegation that the defendants engaged in race or age
discrimination; retaliated based on the plaintiff’s race or age; or
engaged in outrageous conduct based on the plaintiff’s race or age.
Accordingly, the defendants’ motion for partial summary judgment on
this issue should be and hereby is GRANTED IN PART AS FRAMED as to
Counts I(a), I(b), I(c), and Count V, as to the outrageous conduct
claim based on race or age discrimination.
The defendants’ motion
for partial summary judgment is DENIED IN PART AS FRAMED as to
Count V, insomuch as the outrageous conduct claim does not rely on
the plaintiff’s allegations of race or age discrimination.
Further, for the reasons stated above, Count I, in its
entirety, and Count V, as to the outrageous conduct claim based on
race or age discrimination, of the plaintiff’s complaint are
DISMISSED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
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DATED:
September 27, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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