Opinion
NO. 4:99CV222-P-B.
September 28, 2000.
MEMORANDUM OPINION
Presently before the Court are four motions: (1) Defendant First Tower Corporation's Motion for Summary Judgment [6-1]; (2) Defendants Lingenfelder, Burrell, and First Tower's Motion for Partial Summary Judgment [7-1]; (3) Defendant Lingenfelder's Motion to Dismiss [8-1]; and (4) Defendant Burrell's Motion to Dismiss [9-1]. The facts of the case are as follows:
FACTUAL BACKGROUND
Plaintiff Andre Dupree, a black male, began working for First Tower as a manager trainee on August 28, 1992. On March 28, 1994, he was promoted to office manager in First Tower's branch office in Indianola, Mississippi. Around December 13, 1997, Defendant J.W. Burrell, a white male, allegedly told Dupree that he must transfer to First Tower's Hollandale, Mississippi, branch or else he would be terminated. Despite his desire to remain in Indianola, Dupree accepted the transfer to Hollandale. According to his complaint, Dupree was transferred to Hollandale because Amber Young, a white female, wanted the Indianola office manager position.
While manager of the Indianola office, Dupree claims that he was a good employee and satisfactorily performed all of his duties. However, Dupree inherited an unacceptable loan delinquency rate at the Hollandale office. In September of 1998, Dupree was fired by Dennis Lingenfelder, a white male, because of his unacceptable delinquency rate and because he did not work on Saturday, September 26, 1998. He was replaced in the Hollandale office by Ronnie Young, a white male and Amber Young's husband. Eventually Ronnie Young was transferred to the Belzoni office, which also had an unacceptable loan delinquency rate; however, Dupree alleges that Young was not fired for the high delinquency rate, nor was he required to work every Saturday.
After Dupree filed a charge with the Equal Employment Opportunity Commission and obtained a right to sue letter from the EEOC, he filed this lawsuit against J.W. Burrell and Dennis Lingenfelder, in their individual and official capacities, First Tower Corporation, and John Doe agents and employees of First Tower Corporation, alleging racial discrimination. First Tower Corporation has filed a motion for summary judgment, claiming that it is a holding company and does not meet the statutory definition of "employer" because it has no employees. Burrell, Lingenfelder, and First Tower Corporation have also filed a motion for partial summary judgment based on the statute of limitations and failure to exhaust administrative remedies. Finally, Lingenfelder and Burrell have each filed a motion to dismiss for ineffective service of process. Additionally, these two motions to dismiss also assert that neither Lingenfelder nor Burrell can be sued under Title VII in their official capacity.
LEGAL ANALYSIS
First Tower Corporation's Motion to Dismiss for Failure to Satisfy Title VII Prerequisites
Title VII defines an employer as "a person . . . who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 2000e(b). Determining whether a defendant is an "employer" under Title VII involves a two-step process. First, the defendant must fall within the statutory definition. Second, there must be an employment relationship between the plaintiff and the defendant. See Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017, 1019 (5th Cir. 1990), cert. denied, 498 U.S. 1026, 11 S.Ct. 676, 112 L.Ed.2d 668 (1991).
In determining whether an employment relationship exists, the Fifth Circuit has held that the "hybrid economic realities / common law control test" applies. Fields, 906 F.2d at 1019 (citing Mares v. Marsh, 777 F.2d 1066 (5th Cir. 1985). When examining the control component, this Court must focus on whether the alleged employer has the right to hire and fire the employee, the right to supervise the employee, and the right to set the employee's work schedule. Id. at 1020; Mares, 777 F.2d at 1068. The economic realities component requires the Court to focus on whether the alleged employer paid the employee's salary, withheld taxes, provided benefits, and set the terms and conditions of employment. See Mares, 777 F.2d at 1068.
First Tower has filed a motion for summary judgment asserting that it cannot be held liable under Title VII it does not meet the statutory definition of "employer." In support of the motion, First Tower has submitted to the Court an affidavit of Francis C. Lee, President of First Tower Corporation, wherein she stated that as a holding company, First Tower has no employees whatsoever. This Court is of the opinion that First Tower's motion for summary judgment should be granted since it cannot be considered an employer for Title VII purposes. However, the Court is also of the opinion that First Tower is obligated to inform the plaintiff of his proper employer. Therefore, in accordance with a separate order that will be issued this day, First Tower is ordered to advise Dupree of his employer within ten days of the date of the order. Dupree will subsequently be allowed ten days to amend his complaint to add the proper defendant. Thereafter, Dupree will be allowed thirty days within which to effect service of process against his employer.
Defendants' Motion for Partial Summary Judgment Based on the Statute of Limitations and Failure to Exhaust Administrative Remedies Dupree's complaint alleges a violation of his rights under 42 U.S.C. § 1981 and § 2000e(a) on the grounds that he was transferred and terminated on the basis of his race. He filed a charge of discrimination on or about March 25, 1999, with the EEOC. In this charge, he complained of the alleged racially motivated transfer and termination. On June 15, 1999, the EEOC informed Dupree that his transfer issue was untimely filed with the agency. However, his termination issue was timely filed.
He was transferred on December 16, 1997, yet did not file his charge with the EEOC until March 25, 1999, well after the 180 days allowed by law.
He was terminated on September 26, 1998; thus, his charged filed with the EEOC was filed at the end of the 180 day time frame.
Title VII requires that the plaintiff file a complaint with the EEOC within 180 days after the alleged unlawful employment practice occurred. Delaware State College v. Wicks, 449 U.S. 250, 258 (1980). As is evidenced by the EEOC's June 15, 1999, letter, Dupree did not timely file his complaint regarding his unlawful transfer to the Hollandale office. The defendants claim that since Dupree did not exhaust his administrative remedies with the EEOC on the issue of his transfer, he should now be barred from trying that issue before this Court.
Dupree maintains that the issue of his transfer can be determined by this Court, because his EEOC complaint alleged "continuing violations" of discrimination. The continuing violation theory allows a plaintiff to establish discrimination through a series of related acts, even if one or more of the acts falls outside the limitations period. Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). The Fifth Circuit has held that "[t]he focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." Id., citing Berry v. Board of Supervisors of LSU, 715 F.2d 971, 979 (5th Cir. 1983).
This Court is of the opinion that Dupree's transfer to the Hollandale office should have alerted him to the possible discrimination, especially considering his representations to the Court that he managed the Indianola office in a satisfactory and efficient manner. Unfortunately, Dupree filed his EEOC complaint well outside the 180 days time limit with regard to his transfer. Therefore, with regard to Dupree's charge against the defendants alleging a racially motivated transfer, partial summary judgment should be granted in favor of the defendants.
Defendant Lingenfelder's and Defendant Burrell's Motions to Dismiss
1. Ineffective service of process
Lingenfelder and Burrell have both filed similar motions to dismiss. Both defendants claim that they are entitled to be dismissed from the suit pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. That rule reads:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specific time.
The Fifth Circuit has held that a lengthy delay in service, when the complaint is filed immediately prior to the running of the 90-day Title VII statute of limitations, "undercuts the purposes served by the statute." Porter v. Beaumont Enter. and Journal, 743 F.2d 269, 272 (5th Cir. 1984). However, the plaintiff is entitled to show good cause for failing to effect service within the appropriate time period. See Hunt v. Smith, 670 F.2d 675 (E.D.Tex. 1999).
Dupree filed a charge of discrimination with the EEOC on March 25, 1999. The EEOC issued a right to sue letter on June 21, 1999. Dupree then had ninety days to file his lawsuit, which he did on September 20, 1999.
Lingenfelder and Burrell claim that they were never properly served. Dupree maintains that he attempted to serve these defendants by mail on two separate occasions. Burrell's request for waiver of process was returned to Dupree both times as undeliverable. The second request for waiver of process was mailed to Lingenfelder on November 29, 1999, but it was never returned to Dupree. Thus, Dupree argues, he did not know whether Lingenfelder received and consented to the waiver of process. The second request for waiver of process was sent to the Burrell's and Lingenfelder's home address, based on the information that Dupree had while employed at First Tower.
Burrell claims that while a process server did attempt to leave a summons with his sixteen-year old daughter (who is under age and not a willing participant under Mississippi law), he has also never received a copy of the summons and complaint by first class mail.
Under Mississippi law, service of process shall be made:
(1) Upon an individual . . . (A) by delivering a copy of the summons and of the complaint to him personally . . . or (B) if service under subparagraph (1)(A) of this subdivision cannot be made with reasonable diligence, by leaving a copy of the summons and complaint at the defendant's usual place of abode with the defendant's spouse or some other person of the defendant's family above the age of sixteen who is willing to receive service, and by thereafter mailing a copy of the summons and complaint (by first class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left.
Mississippi Rule of Civil Procedure 4(d)(1)(A) and (B).
Dupree asserts that Burrell was served with the summons and complaint by the process server serving his stepdaughter at his house. However, Burrell claims that he was never mailed a copy of the summons and complaint by first class mail, as is required by Mississippi law. Thus, he was not properly served, and he should be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
Additionally, Attorney John Tucker was served on behalf of the two defendants on January 10, 2000, and he accepted service of process on behalf of Lingenfelder. Rule 4(e)(2) of the Federal Rules of Civil Procedure reads:
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed . . . may be effected in any judicial district of the United States . . . by delivering a copy of the summons and of the complaint to an agent authorized by appointment . . . to receive service of process.
This Court has before it no evidence to imply that Attorney Tucker is "an agent authorized by appointment . . . to receive service of process." Therefore, the Court is of the opinion that Lingenfelder, too, was not properly served.
However, the plaintiff has demonstrated good cause for his failure to properly serve these two defendants, and in accordance with a separate order that will be issued this day, the Court will allow him an additional thirty days within which to effect proper service.
Rule 4(m) of the Federal Rules of Civil Procedure allow that "if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period."
Claims against Lingenfelder and Burrell in their individual and official capacities
Dupree has filed this lawsuit against Lingenfelder and Burrell in their individual and official capacities. The Fifth Circuit does not interpret Title VII as imposing individual liability on employees, since a Title VII lawsuit is actually a suit against the corporation. Indest v. Freeman Decorating Inc., 164 F.3d 258, 262 (5th Cir. 1999); See also Pfau v. Reed, 125 F.3d 927, 935-36 (5th Cir. 1997). Under Fifth Circuit law, Title VII does not impose individual liability for Title VII claims. Indest, 164 F.3d at 262. Additionally, a plaintiff cannot maintain an action against both a corporation and its agent or officer in an official capacity under Title VII, because essentially, the corporation could be held liable twice for the same act. Id.
In his response to the Lingenfelder's and Burrell's motions to dismiss, Dupree concedes that both of these defendants should be dismissed from his cause of action alleging a violation of Title VII. As such, their motions to dismiss them from the Title VII claim should be granted. (This does not, however, dismiss these defendants from Dupree's 42 U.S.C. § 1981 claims.)
CONCLUSION
Based on the foregoing analysis, the Court finds that Defendant First Tower Corporation's Motion for Summary Judgment [6-1] should be granted; Defendants First Tower, Burrell, and Lingenfelder's Motion for Partial Summary Judgment [7-1] with regard to Dupree's transfer from Indianola to Hollandale should be granted; Defendant Lingenfelder's Motion to Dismiss [8-1] should be granted in part and denied in part; and Defendant Burrell's Motion to Dismiss [9-1] should be granted in part and denied in part.
An order will issue accordingly.
THIS, the 27th day of September, 2000.