Mullins v. Charleston Stamping & Manufacturing, Inc. et al
Filing
34
MEMORANDUM OPINION AND ORDER denying defendant's 32 MOTION to Strike. Defendant is entitled to judgment as a matter of law on statute of limitations grounds. Signed by Judge John T. Copenhaver, Jr. on 6/20/2011. (cc: attys; any unrepresented party) (lca)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JARRELL W. MULLINS
Plaintiff
v.
Civil Action No. 2:10-0792
CHARLESTON STAMPING &
MANUFACTURING, INC.
Defendant
MEMORANDUM OPINION AND ORDER
Pending are motions by Charleston Stamping &
Manufacturing, Inc., (“CSM”) for summary judgment filed March 21,
2011, and to strike plaintiff Jarrell W. Mullins’ untimely
memorandum in opposition to CSM’s summary judgment motion, filed
April 13, 2011.
Mullins has not responded to the motion to strike.
applicable time period has elapsed.
The
Nevertheless, the court
concludes the better course is to receive the untimely memorandum
in opposition in order to assure a complete evidentiary record
upon which to resolve CSM’s summary judgment motion.
The court,
accordingly, ORDERS that the motion to strike be, and it hereby
is, denied.
I.
In December 2006, CSM was formed.
It acquired the
assets of a former manufacturing facility (“Plant”) located in
South Charleston, West Virginia.
hourly positions.
applications.
In May 2007, it advertised for
In June 2007, it commenced accepting
On January 14, 2008, CSM began hiring.
For hourly employees the hiring process had multiple
stages.
First, applicants submitted their materials to Workforce
West Virginia (“WWV”).
If an applicant’s materials were
complete, WWV conducted some basic testing in math, reading, and
other disciplines.
If the applicant achieved success on that
testing, he was informed that further evaluations would be
scheduled.
Next, Peoplework Solutions (“Peoplework”) conducted the
follow-on evaluative process for CSM.
in 1991.
Peoplework was established
as Toyota.
It performs pre-employment assessments for clients such
Peoplework’s testing focused on the traits necessary
for the production-oriented Manufacturing Specialist positions
that CSM wished to fill.
The tests were developed over an
extended period of time by Peoplework, in consultation with CSM
management employees familiar with the associated job
2
requirements.
CSM asserts that the tests were designed to be
entirely age neutral.
It is undisputed that both Peoplework and
CSM lacked information about the applicants’ ages.
The Peoplework testing consisted of a full day of
activities.
It involved problem solving and group related
events, along with a simulated “Work Day” of job-related tasks.
The activities took place in a fictional company setting where
candidates assumed team member roles.
Peoplework scored the
participants without input or involvement by CSM.
The final step in the process occurred when Peoplework
forwarded to CSM each application, the WWV scores, and the
Peoplework scores.
CSM set a minimum score benchmark for the
Peoplework scores of 2.63 or higher.
If an applicant did not
achieve that minimum mark, he was culled from the pool and
received no further consideration.
In June 2007, Mullins submitted to WWV an application
for CSM employment and completed its testing.
In January or
February 2008, Mullins participated in the Peoplework testing.
By his own admission he had no difficulty performing the tasks
and did so to the best of his ability.
He also raised no concern
about either the nature of the tests or the manner in which they
3
were administered.
score of only 2.09.
Unfortunately, however, Mullins achieved a
He was thus automatically
further hiring consideration.
disqualified from
On February 11, 2008, at a time
when Mullins was 56 years of age, he was informed by CSM that he
would no longer be considered for employment.
The same objective criteria was applied to all hourly
applicants.
testing.
A total of 244 individuals completed the Peoplework
Of those, (1) 205 achieved the minimum 2.63 score and
continued to further screening, and (2) 39 candidates, including
Mullins, failed to achieve the minimum score.
A majority of
employees hired by CSM were over 40 years of age.
Fully 12 of
21, or 57%, were age 40 or older, with 7 employees in their 40s,
4 in their 50s, and one who was age 60.
On June 30, 2008, Mullins, acting pro se, filed a
charge alleging age discrimination with the West Virginia Human
Rights Commission (“WVHRC”).
On January 14, 2009, the WVHRC
issued a Determination stating pertinently as follows:
A full investigation was conducted by officers of
the [WVHRC] . . . to determine issues of fact and law
pertaining to the above-captioned charge. All relevant
testimonies, documentation and other forms of evidence
jurisdictional to the Commission and having value for
deciding the issues, have been considered.
Accordingly, a determination of NO PROBABLE CAUSE is
made based primarily on the following reason[]: . . .
The [WVHRC] . . . investigation did not substantiate
4
the Complainant’s allegations that Respondent failed to
hire him because of his Age.
(Ex. L, Def.’s Mot. Summ. J.
at 2).
The Determination provided Mullins additional
information about his options going forward:
The West Virginia Human Rights Act . . . provides that
you may request an Administrative Review of the No
Probable Cause determination. Such request shall be
made within ten (10) days of receipt of this letter.
(Id.
at 3).
On February 6, 2009, after Mullins took no further
action, the WVHRC dismissed and closed the case.
Mullins’ charge of discrimination was “dual filed” with
the Equal Employment Opportunity Commission (“EEOC”).1
In or
about April 2009, Mullins received a call from the EEOC about the
Garcia v. Village of Mount Prospect, 360 F.3d 630, 642–43
n.13 (7th Cir. 2004) (noting that in a dual-filing system the
filing of a charge with the state agency is also considered as a
filing in the EEOC). Mullins asserts that he filed his WVHRC
charge after he filed his EEOC charge. That contention appears
inaccurate based upon Exhibit Q to CSM’s reply brief. That
Exhibit, entitled “NOTICE OF CHARGE OF DISCRIMINATION,” contains
separate EEOC and WVHRC charge numbers and states materially as
follows:
1
You are hereby notified that the above-referenced
charge of employment discrimination has been received
by the [WVHRC] . . . and sent to the EEOC for dualfiling purposes.
(Id. at 1). CSM asserts that it, and Mullins, were “advised” of
the “NOTICE OF CHARGE OF DISCRIMINATION.” (CSM Reply at 2).
Mullins does not challenge that assertion.
5
dual-filed charge.
him.
Mullins testified the contact “surprised”
The reason for his surprise was explained by him during his
deposition:
They asked if I was Jarrell Mullins and I said yes.
They identified their self as the Federal [EEOC] . . .
and they was following my case, and I said, well, the
state of West Virginia says there was no probable cause
and I thought it was over with.
(Ex. J, Dep. of Jarrell W. Mullins at 52).
On December 18, 2009, the EEOC determined that there
was reasonable cause to believe age discrimination had occurred.
The EEOC suggested that the Peoplework tests "are not properly
validated and adversely impact applicants within the protected
age group, particularly those applicants who are age 55 and
older."
(Ex. N, Def.’s Mot. Summ. J. at 1).
declined to litigate on Mullins' behalf.
The EEOC, however,
On March 4, 2010, it
instead issued a Notice of Right to Sue (“notice”) advising
Mullins that he could "file a lawsuit against the respondent[s]
under federal law based on this charge in federal or state court.
Your lawsuit must be filed WITHIN 90 DAYS from your receipt of
this Notice . . . (The time limit for filing suit based on a
state claim may be different.)"
(Ex. O, Def.’s Mot.
(emphasis in original)).
6
Summ.
J.
On May 3, 2010, Mullins instituted this action in the
Circuit Court of Kanawha County.
He alleges a single count of
age discrimination by CSM in violation of the West Virginia Human
Rights Act, West Virginia Code section 5-11-1 to -21 (“WVHRA”).2
On June 4, 2010, CSM removed.
CSM now seeks judgment as a matter
of law, asserting alternatively that (1) Mullins’ claim is barred
by the applicable statute of limitations, and (2) he cannot make
out a prima facie case of age discrimination.
II.
A.
Governing Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any 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).
Material facts are those
necessary to establish the elements of a party’s cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The complaint originally contained two counts, one against
CSM and another against John Wise, the CSM employee who informed
Mullins of the unfavorable outcome of his application. The claim
against Wise was dismissed by stipulation on January 3, 2011.
2
7
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id.
The moving
party has the burden of showing -- “that is, pointing out to the
district court -- that there is an absence of evidence to support
the nonmoving party’s case.”
317, 325 (1986).
Celotex Corp. v. Catrett, 477 U.S.
If the movant satisfies this burden, then the
non-movant must set forth specific facts as would be admissible
in evidence that demonstrate the existence of a genuine issue of
fact for trial.
Fed. R. Civ. P. 56(c); id. at 322-23.
A party
is entitled to summary judgment if the record as a whole could
not lead a rational trier of fact to find in favor of the nonmovant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.
Anderson, 477 U.S. at
Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.
Overstreet v.
Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
8
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995), nor make determinations of credibility.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
Sosebee v.
Rather, the party
opposing the motion is entitled to have his or her version of the
facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor.
Charbonnages de France
v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Inferences that are
“drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
B.
Analysis
In syllabus point 1 of McCourt v. Oneida Coal Co.,
Inc., 188 W. Va. 647, 648, 425 S.E.2d 602, 603 (1992), the
Supreme Court of Appeals of West Virginia stated as follows:
In circuit court cases alleging a discriminatory
discharge from employment, which a complainant might
bring in the West Virginia Human Rights Commission
under the West Virginia Human Rights Act, W.Va. Code,
5-11-1 et seq., the statute of limitations period for
filing a complaint with the circuit court ordinarily
begins to run on the date when the employer
unequivocally notifies the employee of the termination
decision.
Id.
On February 11, 2008, Mullins was unequivocally notified
that he would no longer be considered for employment by CSM.
9
He
was thus obliged to institute an action under the WVHRA in the
circuit court no later than February 11, 2010.
May 3, 2010.
He waited until
His claim is thus barred by the applicable
limitations period.
Jarrell appears to concede as much.
He asserts,
however, that he should be given the benefit of equitable
tolling.3
He focuses on the 90-day period to institute an action
mentioned by the EEOC in its March 4, 2010, notice.
contention fails for a variety of reasons.
The
First, the EEOC
notice explicitly speaks only to “a lawsuit . . . under federal
law.”
(Ex. O, Def.’s Mot. Summ. J. at 1).
The notice thus does
not control the filing period for an action filed in state court
under state law.
The notice says as much.
The supreme court of appeals has previously observed as
follows:
3
[T]he time period
Rights Commission
Rights Act is not
subject to waiver
and estoppel.
for filing a complaint with the Human
alleging a violation of the Human
jurisdictional in nature and is
and equitable doctrines of tolling
Syl. Pt. 1, Independent Fire Co. No. 1 v. West Virginia Human
Rights Comm'n, 180 W. Va. 406, 376 S.E.2d 612 (1988). The court
is willing to assume for purposes of the present case that
equitable tolling might also apply to the two-year period
applicable for instituting an action in the circuit court under
the WVHRA.
10
Second, it does not appear that the circumstances would
warrant equitable tolling in any event.
Mullins believes equity
demands relief from the time bar based upon his mistaken notion
that the EEOC and WVHRC charges were not dual filed.
As noted
supra, however, the assertion appears inaccurate.
Third, Mullins appears to assert that he was not aware
that his circumstances would support a charge of discrimination
until the EEOC issued its notice.
That is not the case.
The
EEOC is not the arbiter of whether a particular scenario
justifies the filing of a civil action by an individual under the
WVHRA.
That privilege is Mullins’ alone.
Mullins having failed to act seasonably, CSM is
entitled to judgment as a matter of law on statute of limitations
grounds.
In view of this disposition, the court need not reach
CSM’s second contention supporting its dispositive motion.
The Clerk is directed to transmit copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
ENTER:
June 20, 2011
John T. Copenhaver, Jr.
United States District Judge
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?