Opinion
Civil Action No. SA-05-CA-0999-XR.
January 18, 2006
ORDER
Before the Court is Defendant Ingram Ready-Mix's motion to dismiss, filed December 2, 2005. Defendant claims Plaintiff Terrence Carmicheal's employment discrimination causes of action are time-barred as a matter of law. The Court's records indicate Plaintiff is representing himself on a pro se basis. Plaintiff did not respond to Defendant's motion to dismiss within the time period prescribed by Local Rule CV-7(d) (11 days). On December 19, 2005, the Court afforded Plaintiff an additional fourteen (14) days to respond to the motion. Plaintiff was warned that "[t]he failure to file a response may result in the granting of the motion." Plaintiff again did not respond. Accordingly, the Court would be within its discretion to grant Defendant's motion without further inquiry. However, as Plaintiff is representing himself, the Court will critically analyze Defendant's motion. After careful consideration of the motion, as well as the pleadings on file, the Court is of the opinion that Defendant's motion should be GRANTED (docket no. 7).
I. Factual and Procedural Background
Plaintiff was employed by Defendant as a truck driver from March 21, 2003 through July 24, 2003. On July 24, 2003, Defendant terminated Plaintiff. Plaintiff immediately filed an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging he was terminated in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Equal Pay Act. See EEOC Charge No. 360-2003-04436 (July 24, 2003). Plaintiff's EEOC charge claims he received less wages and was given less favorable assignments than similarly situated non-Black employees, and was subjected to racial slurs by Defendant's office manager and dispatcher. Plaintiff initially claims he was terminated on July 24, 2003 "for reasons unknown, not misconduct related", but later reveals Defendant terminated him for failure to follow instructions. Plaintiff, however, alleges he carried out the instructions as ordered by his supervisor. On September 26, 2004, Plaintiff received a right-to-sue letter from the EEOC. The right-to-sue letter notified Plaintiff that if he desired to pursue his Title VII and ADEA claims, he must file suit within ninety (90) days of receiving the letter. On November 10, 2004, Plaintiff timely filed a proposed complaint, motion to proceed in forma pauperis and motion for appointment of counsel in a case styled Terrence Carmicheal v. Ingram Ready-Mix, SA-04-CA-1026-RF. On April 25, 2005, United States District Judge Royal Ferguson dismissed Plaintiff's case without prejudice for failure to prosecute.
Plaintiff did not provide his age or date of birth, as requested on the third page of the pro se complaint, but he did indicate his desire to pursue a claim under the ADEA.
On October 12, 2005, Plaintiff filed a motion to proceed in forma pauperis, motion for appointment of counsel, and a proposed complaint, which was nearly identical to the previously dismissed action. United States Magistrate Judge Pamela Mathy granted Plaintiff leave to file his Original Complaint in forma pauperis, but denied his request for counsel. See docket no. 3. Plaintiff's Original Complaint was filed on October 17, 2005. Plaintiff requests $2.6 million in compensatory damages and the issuance of orders requiring Defendant to "[e]ndeavor to hire more Negro/African Americans [without] discrimination as found qualified for hire" and discontinue discriminatory acts.
II. Analysis
A. Title VII and ADEA.
Prior to filing a lawsuit asserting violations of Title VII or the ADEA, a claimant must file an EEOC charge. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d). A private civil action under Title VII and the ADEA must be brought within ninety days of the claimant's receipt of an EEOC right-to-sue letter. 42 U.S.C. § 2000e-5(f); 29 U.S.C. § 626(e); Price v. Digital Equipment Corp., 846 F.2d 1026, 1027 (5th Cir. 1988). Barring some equitable basis for tolling the limitations period, the failure to file suit within ninety days precludes the claimant from recovering for any alleged discrimination that was the subject of the EEOC charge. Way v. Mueller Brass Co., 840 F.2d 303, 306 (5th Cir. 1988). The dismissal of a timely filed Title VII and ADEA complaint does not toll the ninety-day limitations period for a subsequent suit. Price, 846 F.2d at 1027 (second Title VII lawsuit time-barred following first lawsuit being dismissed for failure to prosecute); see also Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992) ("If a Title VII complaint is timely filed pursuant to an EEOC right-to-sue letter and is later dismissed, the timely filing of the complaint does not toll the ninety-day limitations period."). Here, Plaintiff received the EEOC's right-to-sue letter on September 26, 2004, but did not file this lawsuit until October 17, 2005. Because Plaintiff's previous lawsuit did not toll the running of the ninety-day limitations period, the reasserting of the same Title VII and ADEA claims more than ninety days following receipt of the EEOC's right-to-sue letter is barred by the statute of limitations as a matter of law.
B. Equal Pay Act.
Violations of the Equal Pay Act are subject to a two-year statute of limitations. 29 U.S.C. § 255(a). A separate Equal Pay Act violation accrues with the alleged underpayment on each regular pay day. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973). The EEOC right-to-sue letter notified Plaintiff that "[Equal Pay Act] suits must be filed in federal or state court within 2 years . . . of the alleged [Equal Pay Act] underpayment. This means that backpay due for any violations that occurred more than 2 years . . . before you file suit may not be collectible." See EEOC Right-to-Sue Letter, dated September 26, 2004 (emphasis in original).
Although the Equal Pay Act provides a three-year statute of limitations for willful violations, Plaintiff has not pled that Defendant acted willfully. The Court will apply the Equal Pay Act's two-year statute of limitations to Plaintiff's claim.
Plaintiff was terminated on July 24, 2003, thus Defendant's last possible violation of the Equal Pay Act accrued on July 24, 2003, or shortly thereafter depending on Plaintiff's last pay date. The two-year statute of limitations required Plaintiff to file suit on or about July 25, 2005. Plaintiff filed this action on October 17, 2005, nearly three months after limitations expired. Because Plaintiff has failed to respond and offer any grounds supporting the equitable tolling of the statute of limitations, the Court finds Plaintiff's Equal Pay Act claims are time-barred as a matter law.
III. Conclusion
Plaintiff filed an employment discrimination action alleging violations of Title VII, the Age Discrimination in Employment Act, and the Equal Pay Act. Defendant filed a motion to dismiss claiming Plaintiff's claims were barred by the statute of limitations. Specifically, Defendant asserted Plaintiff failed to file a lawsuit asserting violations of Title VII and the ADEA within ninety days of receipt of the EEOC's right-to-sue letter and within two years of any alleged underpayment violations of the Equal Pay Act. In November 2004, Plaintiff filed an identical lawsuit that was dismissed without prejudice for failure to prosecute. Plaintiff's previous lawsuit does not toll the running of limitations for his Title VII, ADEA, or Equal Pay Act claims. Plaintiff's instant lawsuit was filed beyond the prescribed limitations period for Title VII, ADEA, and Equal Pay Act causes of action. Because Plaintiff failed to respond to Defendant's motion, the Court has not been presented with any grounds supporting the equitable tolling of the statute of limitations. The Court finds Plaintiff's Title VII, ADEA, and Equal Pay Act claims are time-barred as a matter of law. Defendant's motion to dismiss (docket no. 7) is GRANTED. All costs are to be borne by the party incurring the same.