Pena v. Anatole

Full title: MARTHA X. PENA v. WYNDHAM ANATOLE

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Jul 29, 2004

3-03-CV-1814-AH (N.D. Tex. Jul. 29, 2004)

Opinion

3-03-CV-1814-AH.

July 29, 2004

MEMORANDUM OPINION AND ORDER

WILLIAM SANDERSON, Magistrate Judge

Pursuant to the written consents of the parties and the District Court's order of transfer filed on February 24, 2004, in accordance with the provisions of 28 U.S.C. § 636(c), came on to be considered Defendant HEPC Anatole, Inc. (Wyndham)'s Motion for Summary Judgment filed on June 22, 2003, and the court finds and orders as follows:

This action was filed by Plaintiff on August 13, 2003,¹ alleging that Defendant had terminated her in violation of the Age Discrimination in Employment Act (ADEA).

1 Plaintiff filed her original pro se complaint in Spanish. On August 19, 2003, the court ordered her to file an amended complaint in English in compliance with Rule 8(a), Federal Rules of Civil Procedure. On October 16, 2003, Pena filed her amended complaint in English which related back to her initial filing on August 13, 2003. She filed a letter on November 17, 2003, which the court has construed as a second amended complaint.

In its motion for summary judgment Defendant moves for dismissal on the basis that Plaintiff's federal complaint was not filed within the statutory period, thus divesting the court of jurisdiction to adjudicate her claim of employment discrimination. In support of its motion Wyndham has submitted an appendix which includes Plaintiff's charge with the EEOC on October 7, 2002 (App. 1), the EEOC's right-to-sue letter (App. 10), and Plaintiff's answers to Defendant's First Request for Admissions (App. 2-9). In response to the requests Plaintiff admitted that she received Exhibit 7 (App. 10 — the right-to-sue letter) no later than May 12, 2003. See Plaintiff's response to Request No. 26 (App. at 7). She further admitted that Exhibit 9 (App. 13) is a copy of the complaint which was filed on August 13, 2003. See Plaintiff's response to Request No. 28 (App. at 8). She further admitted that her complaint, Exhibit 9 (App. 13) and her request to proceed in forma pauperis, Exhibit 10 (App. 14) were the first pleadings which she filed in the action. See Plaintiff's response to Request No. 31.

Summary judgment is proper when pleadings and the evidence on file, along with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Federal Rule of Civil Procedure 56(c). The party moving for summary judgment bears the burden of producing evidence to establish that there is no genuine issue of material fact with regard to an essential element of the nonmovant's case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). Once the movant produces such evidence, the burden shifts to the nonmovant to produce evidence establishing each of the challenged elements of his case for which he will have the burden of proof at trial. Celotex Corp. v. Catreet, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). To meet this burden, the nonmovant must set forth specific facts which demonstrate that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). It the nonmovant fails to meet its burden, summary judgment in favor of the movant is appropriate. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5^th Cir.), cert. denied 506 U.S. 825, 113 S.Ct. 82 (1992).

Under the evidence presented it is clear that Ms. Pena's complaint was filed two days after the 90-day period, following her receipt of the EEOC's right-to-sue letter had expired. 29 U.S.C. § 626(e) imposes a 90-day limit within which a person alleging a violation under the Age Discrimination in Employment Act (ADEA) must file a complaint in federal court. See St. Louis v. Texas Worker's Compensation Commission, 65 F.3d 43, 47-48 (5^th Cir. 1995), cert. denied 518 U.S. 1024, 116 S.Ct. 2563 (1996). Because Plaintiff has failed to comply with this requirement, she has lost her right to maintain an ADEA action against Wyndham,² and

2 In response to Request No. 30 of Defendant's Request for Admissions Plaintiff stated that she filed her complaint and motion to proceed in forma pauperis on August 8, 2003. However, she filed no response or other competent evidence in response to Defendant's motion for summary judgment. While it is true that she dated both the documents August 8, 2003, such execution date does not constitute filings. Both the file stamps and the official docket sheet reflect a filing date of August 13, 2003. The facts in this case are also distinguishable from those set out in Hernandez v. Aldridge, 866 F.2d 800 (5^th Cir. 1989) since Plaintiff's pleadings contain no other stamp affixed by the district clerk prior to August 13, 2003.
In St. Louis v. Texas Worker's Compensation Commission, 65 F.3d at 47, the court arguably left open the issue of whether equitable tolling should apply. However, this issue need not be addressed since Plaintiff has not even asserted it. Moreover, none of the facts reiterated in St. Louis apply here. The language in the EEOC's right-to-sue letter (App. 10) was even more emphatic than that described in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148, 104 S.Ct. 1723, 1724 (1984), including the statement that if her lawsuit was not timely filed . . . "your right to sue on this charge will be lost." Further, Ms. Pena's request for appointed counsel was not filed until October 16, 2003. Finally, nothing from the court or from Defendant could have misled her to believe that the statements in the right-to-sue letter were incorrect or need not be followed.

IT IS, THEREFORE, ORDERED that Defendant's motion for summary judgment is granted.

A copy of this memorandum opinion and order shall be transmitted to Plaintiff and counsel for the Defendant.