ORDER AND REASONS

G. THOMAS PORTEOUS, United States District Judge

Before the Court is motion by Defendant, Medical Center of Louisiana at New Orleans ("MCLNO"), for partial summary judgment against Plaintiff, Henry Wallace, pursuant to Federal Rules of Civil Procedure, Rule 56. Defendant's motion is supported by memorandum of law and exhibits to which the Plaintiff has responded by filing an opposition memorandum including exhibits to the motion of partial summary judgment. The Court having considered the legal memoranda submitted by the parties, the record, and relevant law is fully advised and ready to rule.

I. BACKGROUND

Between 1990 and 1994, Charity Hospital of New Orleans ("Charity") was in the process of merging with Hotel Dieu which had been acquired by the State of Louisiana. The combined organization is now known as Medical Center of Louisiana at New Orleans ("MCLNO") composed of Charity Hospital and University Hospital. It is operated by the Health Care Services Division of Louisiana State University Medical Center. Prior to the merger, each Hospital had its own Chief Financial Officer ("CFO"). At the time immediately prior to the merger, Joel Sellers, a Caucasian female, was the CEO at University Hospital and Joseph Jankite, a Caucasian male, was the CEO at Charity. Once the merger took place, there was no need for two CEO positions.

From April 12, 1993, to June 30, 1994, Joseph Jankite, a Caucasian male, held the position of Director of Fiscal and Business Affairs of CEO over the merged organization. He was hired for a one year unclassified appointment at a salary of EIGHTY-EIGHT THOUSAND FOUR HUNDRED SIXTEEN DOLLARS AND NO/100 ($88,416.00) per year.

Following the resignation of Jankite, there was no CEO over the merged organization.

On January 1, 1995, Joel Sellers, a Caucasian female, and former CEO at Hotel Dieu, accepted a probational appointment as Administrative Director 5/CFO, continuing to earn the same salary she earned as CEO over Hotel Dieu of ONE HUNDRED FIVE THOUSAND FIVE HUNDRED TWENTY-EIGHT DOLLARS AND NO/100 ($105,528.00) per year. Effective January 1, 1995, Civil Service caused the job title of Administrative Director 5/CEO to be allocated in the state classified service at a GS-24 level. The then maximum salary for the GS-24 level was FIFTY-NINE THOUSAND TWO HUNDRED FIFTY-SIX DOLLARS AND NO/100 ($59,256.00) annually. Ms. Sellers' salary, continued from her employment at Hotel Dieu, was more than 28 percent above the maximum amount for the GS-24 level. She was scheduled for a significant reduction in salary, and thereafter resigned on February 9, 1996.

Effective February 22, 1996, the job title of Administrative Director was allocated to the job title of A/C Hospital Associate Administrator 3 at the GS-25 level which is 7 percent higher than the GS-24 level. This new GS-25 level position is the one to which Henry Wallace was detailed. Plaintiff held this position from January 22, 1996 until December 6, 1998.

Effective June 29, 1998, through November 30, 1998, a Caucasian female, Helen Bates was placed in the position of the Director of Patient Billing at a salary of EIGHTY-FIVE THOUSAND DOLLARS AND NO/100 ($85,000.00) per year. This position had been placed in the unclassified service by the Director of the Department of Civil Service. This was to be a temporary job for the purpose of bringing collections up to date which was said to be seriously in arrears. Starting in February 1, 1999, Bates also began serving as the acting CEO with no increase in salary. She has since left the position.

By memo dated August, 9, 1996, Plaintiff wrote to Ron Broadus, Director of Human resources requesting that his "detail to the position" of Chief Financial Officer be established as an unclassified position with a salary of NINETY THOUSAND DOLLARS AND NO/100 ($90,000.00) retroactive to January 22, 1996, when he assumed the position. By e-mail dated August 9, 1996, Ron Broadus acknowledged receiving Plaintiffs August 9, 1996 memo and advised Plaintiff that his request was not possible.

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on or around July 14, 1999. In conjunction therewith he prepared and signed a Charge Questionnaire dated July 12, 1999, as well as an Affidavit and a Supplemental intake Questionnaire. In the charge, he marked "Race" indicating the basis for his charge of discrimination, and he described the particulars of the discrimination taking place from January 22, 1996 to December 6, 1998, in that he was denied equal wages while he held the detailed position of Chief Financial Officer. He did not mark that his cause of discrimination is based on sex or any type of discrimination, nor did he indicate that the alleged discrimination was a `continuing action' on the EEOC charge form. In 1994, Mr. Wallace previously filed a different charge with the EEOC in a separate matter.

Plaintiff filed his action, on March 6, 2001, based on sex discrimination and race discrimination in violation of 42 U.S.C. § 2000e, et seq., i.e. Title VII of the Civil Rights Act of 1964, and in violation of 29 U.S.C. § 206, et seq., i.e. the Equal Pay Act. Plaintiff also claims that he was not alerted to the discriminatory acts until Helen Bates, his successor, served as CEO. Defendant files partial summary judgment claiming the Plaintiff did not timely file the correct complaints with the EEOC and is thus barred from filing this suit.

II LEGAL ANALYSIS

A. LAW ON PARTIAL SUMMARY JUDGMENT

The Federal Rules of Civil Procedure provide that summary judgment should be granted "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 moving for summary judgment bears the initial responsibility of informing the District Court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 655-56 (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. (1992)) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), cert. denied, 56 U.S. 832 (1992)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must go beyond the pleadings and through depositions or admissions on file come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied); Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 588.

Finally, the court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Under proper circumstances, awarding summary judgment is favored in the federal courts: "Summary judgment reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5^th Cir 1986).

B. TITLE VII (RACE AND SEX DISCRIMINATION)

1. Exhaustion of Administrative Remedies

Pursuant to Title VII, employees may sue their employers for discriminatory employment decisions. 42 U.S.C. § 2003-2(a), 2000e-5; Oden v. Oktibbeha County, Mississippi, 246 F.3d 458, 465 (5^th Cir. 2001). Title VII requires that plaintiffs exhaust their administrative remedies before instituting a lawsuit in federal court. 42 U.S.C. § 2000e-5(f)(1). It is well settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies. National Association of Government Employees v. City Public Service Board of San Antonio, Texas, 40 E.3d 698, 711 (5^th Cir. 1994); Brown v. General Servs. Admin., 425 U.S. 820, 831-32, 96 S.Ct. 1961, 1967 (1976); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995). In other words, before a Title VII complaint is properly before the court, a charge must be timely filed with the EEOC and notice of the right to sue must be received. Zipes v. Trans World Airlines, 455 U.S. 385, 392, 102 S.Ct. 1127, 1132 (1982); Hood v. Sears, Roebuck, 168 E.3d 213, 232 (5th Cir. 1999).

The scope of the Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Thomas v. Texas Department of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). A judicial complaint filed pursuant to Title VII may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the commission. Nat. Assoc. of Gov. Empl., 40 F.3d at 711, quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). This is because the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation. Id. The suit filed may encompass only the discrimination stated in the charge itself or developed in the course of a reasonable EEOC investigation of that charge. National Association of Government Employees, 40 F.3d at 711-12, quoting King v. Seaboard Coastline R. Co., 538 E.2d 581, 583 (4th Cir. 1976); see also Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir. 1988). Making a claim based on one type of discrimination in an EEOC charge does not permit a plaintiff to assert a claim about a totally different type of discrimination in a later lawsuit. Dudley v. Wal-Mart Stores, Inc., 931 F. Supp. 773 (M.D. Ala. 1996) citing Ang. v. Proctor Gamble, 932 E.2d 540, 545 (6th Cir. 1991); See also Buffington v. General Time Corp., 677 F. Supp. 1186, 1194 (M.D. Ga. 1988).

2. Burden Shifting of Title VII Cases

In a Title VII race discrimination case, plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In order to meet this initial burden, plaintiff must demonstrate: (1) that she was a member of a protected class; (2) that she was qualified for the position in question; (3) that she was discharged from that position; and, (4) that she was either replaced by someone outside the protected class or otherwise discharged because of the protected trait. See McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973); Bodenheimer v. PPG Industries, Inc. 5 F.3d 955, 957 (5th Cir. 1993).

Once plaintiff has set forth a prima facie case of discrimination, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for its employment action. Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1087 (5th Cir. 1994). "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2106 (2000) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). The presumption of unlawful discrimination disappears once the employer offers admissible evidence that is sufficient for the trier of fact to conclude that there was a legitimate reason for the discharge. See id.

Because the ultimate burden of proving discrimination lies at all times with the plaintiff, she is then afforded the opportunity to prove that the employer's proffered reasons for termination were not true and that the true reason was, in fact, discrimination. See id. The Supreme Court ruled in Reeves that a prima facie showing of the elements of an employment discrimination claim in conjunction with substantial evidence that the employer's stated reason for termination was pre-textual, could alone, with no additional evidence of discrimination being offered by the plaintiff, allow a reasonable jury to infer that the employer's motivation for the termination was discriminatory. See 120 S.Ct. at 2106. However, the Reeves Court did caution:

[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred.

3. Statute of limitations for Title VII claims

Generally, a Title VII litigant must file a claim with the EEOC within 180 days of the complained of violation. 42 U.S.C. § 2000-e-5(e). If the plaintiff has filed his complaint with a State or local agency with authority to grant or seek relief, the litigant must file with the EEOC within 300 days of the discriminatory act. Id. In states with a work-sharing agreement in effect, including Louisiana, in which the EEOC routinely transmits a copy of the complaint to the state referral agency, a plaintiff may file his complaint within 300 days of the alleged discriminatory act. Schutte v. Gulf Coast Marine, 2000 WL 222170, 3, n. 5 (Berrigan, J. (E.D. La. 2000); Bordelon v. Winn-Dixie Louisiana, Inc., 1998 WL 560351, 1 (Berrigan, J. (E.D. La. 1998); Urrutia v. Valero Energy Corp., 841 F.2d 123, 125-26 (5^th Cir. 1988).

The standard principles of limitations law, including the continuing violation theory and the discovery rule, apply to Title VII cases. Messer v. Meno, 130 (5th Cir., 1997); Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir., 1983). The continuing violation theory relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period if the plaintiff can show a series of related acts, one or more of which falls within the limitations period. Id. at 979. The Fifth Circuit has explained:

"The core idea [of the continuing violations theory,] however, is that equitable considerations may very well require that the filing periods not begin to run until facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated. The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights. At the same time, the mere perpetuation of the effects of time-barred discrimination does not constitute a violation of Title VII in the absence of independent actionable conduct occurring within the statutory period. . . ." Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985).

Thus, a plaintiff can avoid a limitations bar for an event that fails to fall within the statutory period where there is "[a] persisting and continuing system of discriminatory practices in promotion or transfer [that] produces effects that may not manifest themselves as individually discriminatory except in cumulation over a period of time." Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560-61 (5th Cir. 1985). see Rendon v. ATT Technologies, 883 F.2d 388, 395-96 (5th Cir. 1989); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103-04 (5th Cir. 1990); Alldread v. City of Greneda, 988 F.2d 1425, 1430-32 (5th Cir. 1993).

4. Analysis: Sex Discrimination Allegation

The Plaintiff alleges sex discrimination within his lawsuit. The Plaintiff's claim arises out of his allegation that Sellers and Bates, both Caucasian females, were paid higher wages than he for holding the CEO position in violation of Title VII.

The Plaintiff checked the box asserting discrimination based on race in his Charge of Discrimination. (Exhibit A, p. 17, lines 20-25; see also Exhibit 2 attached thereto.) The "Particulars" section of the EEOC charge and the attached affidavit contain only specific references that the Plaintiff believes he was discriminated against based on his race. (Exhibit A, p. 17, lines 20-25; see also Exhibit 2 attached thereto — see also Exhibit 12 attached to Exhibit A). There is no mention in the Charge, Affidavit, or the Questionnaire that he also complains of sex discrimination. (Exhibit A, p. 17, lines 20-25; see also Exhibit 2 attached thereto-see also Exhibit 12 attached to Exhibit A — see also Exhibit 11 attached to Exhibit A.) Therefore, sexual discrimination was not reasonably expected to grow out of the Plaintiff's EEOC charge nor did the EEOC investigation uncover evidence to support such a conclusion enlarging or fixing the scope of the Plaintiff's subsequent right to institute a civil suit. The Plaintiff did not articulate a claim before the EEOC based on gender discrimination. (Exhibit E; Opposition to motion for partial summary judgement. P 6-7). The Plaintiff has failed to timely file such a claim with EEOC. The Plaintiff has failed to exhaust his administrative remedies before instituting a lawsuit in federal court. Furthermore, the Plaintiff concedes that he did not notify the EEOC of his sex discrimination claim, and that their investigation did not lead to evidence to support such a claim. Upon legal analysis of Title VII, applicable case law, and the facts, this Court finds that the Plaintiff's sex discrimination claims are barred and dismissed as a matter of law. This Court GRANTS the Defendant's Motion for Partial Summary Judgment as to the Plaintiff's sex discrimination claims.

5. Analysis: Racial Discrimination

The Plaintiff also alleges race discrimination within his lawsuit. The Plaintiff's claim arises out of his allegation that Jankite, Sellers, and Bates, all caucasians, were paid higher wages than he, for holding the CEO position, in violation of Title VII.

The Plaintiff learned of the alleged disparity in salaries with respect to his predecessors Jankite and Sellers after he assumed the position of acting CEO in July of 1996. As of then, he was on notice that he could not be placed in an unclassified position with a comparable salary of $90,000.00 as far back as August 9, 1996. (Exhibit A, See Exhibits 5, 6, and 7). Mr. Wallace was given the explanation, by his Director of Human Resources, that it was no longer possible for him to be placed into an unclassified position in order to receive a commensurate salary to that of his predecessors. The reason given to him was that the civil service had since established the CEO position as a classified position. Mr. Wallace accepted Mr. Broadus' explanation and continued to perform his duties until December 7, 1998. (Deposition pg. 63).

Subsequently, Mr. Wallace learned of the alleged disparity in salary with respect to his successor in early 1999. Mr. Wallace claims that it was at this point he realized that he had been discriminated against based on his race. Helen Bates was placed in an unclassified position and paid a salary of $85,000.00 per year from June 29, 1998 through November 30, 1998. Bates also began serving as CEO with no increase in salary on February 1, 1999. Plaintiff argues that the earliest Mr. Wallace could have possibly learned of the disparity in salary for the CEO position, with respect to Helen Bates, was February 1, 1999. This Court agrees. Mr. Wallace filed a Charge of Discrimination based on race discrimination with the EEOC on July 14, 1999, which is well within 180 days of when Mr. Wallace claims to have been alerted to the discrimination. This Court finds that the record taken as a whole could lead a rational trier of fact to find that Plaintiff has shown a series of related acts, one of which falls within the limitations period relieving himself of establishing that all of the complained-of conduct occurred within the actionable period and that the acts did not produce effects manifesting themselves as individually discriminatory except over a period of time. The Plaintiff would have otherwise exhausted his administrative remedies, and this suit is properly before this court. The Defendant's Motion for Partial Summary Judgment as the racial discrimination allegation is DENIED.

II CONCLUSION

The Court has reviewed the record, the law, and the memoranda submitted by the parties. In summary, the Court finds that the Defendant's motion for partial summary judgment based on the Plaintiff's failure to file timely a Charge of Discrimination with the appropriate agency based on sexual discrimination has merit.

The Court finds that the Defendant's motion for partial summary judgement based on the Plaintiff's failure to file timely a Charge of Discrimination with the appropriate agency based on race discrimination does not have merit.

Accordingly,

IT IS ORDERED that the motion of defendant, Medical Center of Louisiana at New Orleans, for partial summary judgment (Doc. #25) pursuant to Rule 56 of the Federal Rules of Civil Procedure, be, and the same are hereby DENIED IN PART and GRANTED IN PART.