Summary
dismissing a pro se plaintiff's complaint that was filed one day beyond the ninety-day period because she and her husband were prevented from filing on the 90th day due to family illnesses
Summary of this case from Williams v. Career Sys. Dev. Corp.Opinion
CIVIL ACTION NO: 00-0845 SECTION: "E" (4)
September 25, 2001
ORDERS AND REASONS
The defendant, the Orleans Parish School Board filed a Motion for Summary Judgment (doc. #31) seeking dismissal of the plaintiff's complaint on the grounds that it is untimely. I. Facts
The parties consented to proceed before the Magistrate Judge on October 24 and 25, 2000. (docs. #6 and #7).
On December 13, 1999, a notice of right to sue letter was issued to Gloria Butler advising her that an administrative complaint had been received by the Civil Rights Division of the Department of Justice and that they would not pursue the claim on her behalf. She was further advised that if she chose to commence a lawsuit that "such suit must be filed in the appropriate court within 90 days"of her receipt of the notice. (Butler Exhibit "E").
On March 17, 2000, Gloria Butler filed suit against the Orleans Parish School Board, Dr. Thomas Tewes and Ms. Carol Christie pursuant to Title 42 U.S.C. § 2000e. (doc. #1) On May 7, 2001, the plaintiff voluntarily dismissed her claims against Dr. Thomas Tewes and Ms. Carol Christi. (doc. #30)
In response to the complaint, the remaining defendant, the Orleans Parish School Board filed the subject Motion for Summary Judgment seeking dismissal of the plaintiffs complaint on the grounds that it is time barred. Butler admittedly filed the complaint on the ninety first day, one day beyond the statutory time period for Title VII claims. (Affidavit of Gloria Butler, June 5, 2001). The School Board also contends that to the extent the plaintiffs complaint seeks recovery pursuant to § 1981 or § 1983, her complaint is time barred. Finally, the defendant contends that to the extent the plaintiff seeks recovery pursuant to the Louisiana Anti-discrimination statute, her claim is time barred.
Butler contends, however, that the doctrine of equitable tolling should apply to her Title VII complaint rendering it timely filed because (1) she entrusted the complaint to her husband who was responsible for filing the lawsuit by March 16, 2001, and that due to his rheumatoid arthritis he was not able to file the suit until March 17, 2001; (2) she could not file the lawsuit on March 15, 2001, because she had to travel to Atlanta to assist her ill and elderly mother; (3) she is an unsophisticated claimant possessing a middle and high school teaching certification.
The plaintiff does not respond to the motion seeking dismissal of the § 1981 and § 1983 claims, or the challenge to the Louisiana Anti-discrimination statute. Having set forth the contentions of the parties, the Court will proceed with setting for the standard of review.
II. Summary Judgment
Summary judgment is proper if the evidence shows that there exists no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c). The moving party 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. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A party is entitled to summary judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits before the court at the time of summary judgment show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the Court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." See id. at 586.
The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue of fact for trial." Celotex Corp, 477 U.S. at 324. If 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. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); See also Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994). The Court will now proceed with analyzing the claims.
III. Title VII Claim and Timeliness
Title 42 U.S.C. § 2000e-5(f)(1), provides that, if the Commission dismisses a charge or if, within 180 days after a charge is filed, the Commission has not filed a civil action, "the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." (Emphasis added.) In Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, (5th Cir. 1985), the Fifth Circuit held that the giving of notice to the claimant at the address designated by him suffices to start the ninety-day period unless the matter should be equitably tolled for some other reason or if the notice was not received by the plaintiff.
Equitable relief, however is extended "only sparingly," as when "the complainant has been induced or tricked by his adversary's conduct into allowing the filing deadline to pass. [The courts] have generally been much less forgiving . . . where the claimant failed to exercise due dingence in preserving his legal rights." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990). Thus, "equitable tolling is premised on the plaintiff's excusable neglect, which may or may not be attributable to the defendant." Anderson v. Unisys Corp., 47 F.3d 302, 306 (8th Cir.), cert. denied, 116 S.Ct. 299 (1995). The plaintiff has the burden to demonstrate facts that justify equitable tolling. Wilson v. Secretary, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995).
The facts of this case, however, do not justify equitable tolling. The plaintiff's only contentions are that her husband, who she entrusted with the responsibility of filing the complaint, could not do so because of his health and that she could not do so because she had to tend to her mother's health in Atlanta. The plaintiff readily concedes that she was aware of the deadline but she thought that the 90-day notice excluded weekends.
See also Kaura v. Pinderton Security and Investigation Services, 965 F. Supp. 16 (S.D. Miss 1997).
However, the plaintiffs own affidavit contradicts this suggestion because she also acknowledges that she knew that the complaint was due to be filed one day earlier. The notice issued by the EEOC is clear. It expressly says that the claimant had "90 days to file the complaint". The Court therefore finds that the plaintiffs husband's inadvertence in filing the Title VII complaint is not sufficient grounds for equitable tolling of the 90-day filing period.
IV. Section 1981 Claim
Butler has not expressly filed suit pursuant to Title 42 U.S.C. § 1981. However, the School Board has filed a Motion for Summary Judgment seeking dismissal of any such claim to the extent that she may have included a claim pursuant to the statute.
Section 1981 prohibits intentional race discrimination in the making and enforcement of public and private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 459-460 (1975) (holding unequivocally that § 1981 protects against racial discrimination in private employment). Section 1981 liability must be founded on purposeful discrimination. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 389, (1982); Lincoln v. Board of Regents, 697 F.2d 928, 935 n. 6 (11th Cir. 1983), cert. denied, 464 U.S. 826 (1983).
A § 1981 claim is best characterized as a tort under Louisiana law and is, therefore, governed by the one-year prescriptive period for delictual actions dictated by La.Civ. Code Art. 3492. The filing and processing of charges with the EEOC under Title VII does not toll the running of the state prescriptive period governing § 1981 claims. The claim arose in July 1996 and the lawsuit was not filed until March 2000. Therefore to the extent that Butler's complaint incorporated a claim under § 1981 it should be dismissed.
Jones v. Orleans Parish School Bd., 679 F.2d 32, 35 (5th Cir. 1982), withdrawn in part on rehearing, 688 F.2d 342 (5th Cir. 1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983) (applying former La.Civ. Code art. 3536, the predecessor of art. 3492); Page v. U.S. Indus., Inc., 556 F.2d 346, 351-52 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978).
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66, 95 S.Ct. 1716, 1722-23, 44 L.Ed.2d 295, 304-05 (1975).
V. Section 1983 Claim
Butler has not expressly filed suit pursuant to Title 42 U.S.C. § 1983. However, the defendants contend that to the extent the complaint includes such a claim, it is time barred. Butler, does not oppose the motion seeking dismissal of the complaint pursuant to § 1983.
Actions brought under § 1983 are subject to the forum state's personal injury limitations period. See Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). In Louisiana, personal injury claims are governed by La. Civ. Code Art. 3492, which provides for a prescriptive period of one year from the date of injury or damage. See Jacobsen, 133 F.3d at 319.
Art. 3492 provides:
Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.
For purposes of calculating the limitations period, a § 1983 cause of action accrues when the plaintiff knows or has reason to know of the injury which forms the basis of his action. See Gonzales v. Wyatt, 157 F.3d 1016, 1020 (5th Cir. 1998).
Applying the foregoing principles to the case at bar, it is apparent from the face of Butler's complaint that her claims accrued on July 1996, the date she allegedly was not hired due to her race. Accordingly, Butler's claims prescribed one year later on July 1997. However the complaint was not filed until March 17, 2000. Accordingly, the plaintiff's complaint to the extent it incorporated a claim pursuant to Title 42 U.S.C. § 1983 is time barred.
VI. Louisiana Anti-discrimination Statute of Limitations
The School Board also seeks a dismissal of the plaintiffs complaint to the extent that she seeks recovery pursuant to the Louisiana anti-discrimination law, La. R.S. 23:33, on the grounds that it too has prescribed.
It is clear that claims under Louisiana's anti-discrimination statutory provisions, La.R.S. 23:33. are governed by the one-year prescriptive period under La.Civ. Code Art. 3492. Williams v. Conoco, Inc., 860 F.2d 1306 (5th Cir. 1988); King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181, 187. It is equally clear that prescriptive statutes are to be strictly construed against prescription. A court should adopt a construction which favors the maintenance of an action when there exists two possible constructions. King v. Phelps Dunbar, 743 So.2d 181, 187-88; Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992).
Without addressing whether the plaintiff has properly noticed a claim pursuant to the Louisiana Discrimination Statute, the period for doing so is clearly one year. The claim accrued in July 1996 and would have expired one year later. For the reasons assigned under the section analyzing her § 1983 claim, any claim filed pursuant to the Louisiana Anti-discrimination statute would also be prescribed.
VII. Conclusion IT IS HEREBY ORDERED that the defendants' Motion for Summary Judgment (doc. #31) is hereby GRANTED.