Opinion
Civil Action No: 00-994, Section: "T" (3)
June 27, 2000
MINUTE ENTRY
On March 31, 2000, plaintiff, Edgar Peters, filed this lawsuit against Transocean Offshore, Inc., pursuant to "Title VII of the Civil Rights Act of 1964, amended by the Equal Employment Opportunity Act of 1972, as amended by the Civil Rights Act of 1991." Peters contends that he was subjected to racially discriminatory conduct, including verbal abuse, harassment and that he was retaliated against by the defendant. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) and upon the written consent of all parties.
Rec. Doc. No. 1, ¶ 1.
Rec. Doc. No. 1, ¶¶ 4, 9-14.
Record Doc. No. 7.
Relying on Fed.R.Civ.P. 12(b)(1), defendant argues that this Court is without subject matter jurisdiction in this case because of Peters' failure to file an EEOC charge within the 180 days required by 42 U.S.C. § 2000e-5 (e) and because of plaintiff's failure to file this lawsuit within 90 days of receiving his right to sue letter as required by 42 U.S.C. § 2000e-5 (f)(1) Alternatively, defendant requests judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
"The Supreme Court and the Fifth Circuit have long held, however, that the Title VII filing requirements here at issue are more akin to statutes of limitation than they are to jurisdictional prerequisites."
The distinction is critical because it determines how the court will resolve the fact question of whether [plaintiff] filed an EEOC charge within the required time limit. See Espinoza, 754 F.2d at 1248 n. 1. Because the issue is not one of subject matter jurisdiction, the court cannot apply the standard under Rule 12(b)(1), which permits the court to resolve factual disputes. Instead, the court must apply the more deferential standard under Rule 12 (b)(6), which requires the court to "accept the truth of plaintiff's allegations . . ." Espinoza, 754 F.2d at 1248 n. 1; see also Norman v. Apache Corporation, 19 F.3d 1017, 1021 (5th Cir. 1994). Therefore, the court may not reject, in favor of [defendant's] contrary assertions, [plaintiff's] allegation that he satisfied all the prerequisites for filing a Title VII suit.
Maturi v. Harvey Hotels, 1997 WL 75238, *1 (N.D.Tex.)( citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), Cruce v. Brazosport Independent School District, 703 F.2d 862, 863-64 (5th Cir. 1983)("Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit; the 180-day filing requirement is in the statute of a statute of limitations and is subject to waiver, estoppel, and equitable tolling."), and Espinoza v. Missouri Pacific Railroad Company, 754 F.2d 1247, 1248 n. 1 (5th Cir. 1985)).
Id.
The Court must, therefore, analyze the instant motion pursuant to Fed.R.Civ.P. 12(b)(6). "When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must take the factual allegations of the complaint as true and resolve any ambiguities regarding the sufficiency of the claim in plaintiff's favor." "Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." "The complaint should not be dismissed unless it appears beyond a doubt that the plaintiff can prove o set of facts in support of her claim that would entitle her to relief." "Motions to dismiss for failure to state a claim are viewed with disfavor."
Broadway v. Slater, 2000 WL 235238, *1 (E.D.La.).
Id.
Id. ( citing Jefferson v. Lead Indus. Ass'n, Inc., 106 F.3d 1245, 1250 (5th Cir. 1997) and Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284-85 (5th Cir. 1993)).
Id. ( citing Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997)).
Defendant first argues that Peters failed to file charges with the EEOC within 180 days after the alleged illegal conduct occurred as required by 42 U.S.C. § 2000e-5 (e)(1) However, the Court notes that pursuant to 42 U.S.C. § 2000e-5 (e)(1), if the plaintiff has "instituted proceedings with a State or local agency with authority to grant or seek relief from such practice," the limitations period for filing a charge with the EEOC extends to 300 days. Because plaintiff instituted proceedings with the Louisiana Commission on Human Rights, the relevant period of limitations with respect to his claim is 300 days.
42 U.S.C. § 2000e-5 (e)(1) Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency; seniority system
(1) A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.
See Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied sub nom Texas Educ. Agency v. Messer, 525 U.S. 1067, 119 S.Ct. 794, 142 L.Ed.2d 657 (1999). In Webber v. University of New Orleans, 1999 WL 350095 *2 (E.D.La.) the Court explained:
In a "deferral" state like Louisiana, an aggrieved employee has 300 days from the date of the last act of discrimination to file an EEOC charge. 42 U.S.C. § 2000e-5 (e)(1); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997). A deferral state is one in which state law prohibits discrimination in employment and a state agency has been established to grant or seek relief for such discriminatory practice. Clark v. Resistoflex Co., 854 F.2d 762, 765 n. 1 (5th Cir. 1988). The LCHR has been operating since April 1994, making Louisiana a deferral state since that time. La.Rev.Stat. Ann. § 51:2233. Nelson v. Shoney's, Inc., 1997 WL567957, at *7 (E.D.La. 1997) (applying 300-day statute of limitations to complaint of race discrimination in Louisiana); Jackson v. Entergy Operations, Inc., 1998 WL101690 (E.D.La. 1998), aff'd 159 F.3d 1356 (5th Cir. 1998)."
See Motion to dismiss, Exh. B.
Peters' complaint and opposition are silent with respect to the date Peters filed his charge with the EEOC. Because the Court may consider matters of which judicial notice may be taken without converting a motion to dismiss into a motion for summary judgment, the Court will look to Peters' EEOC charge, attached to defendants' motion as Exhibit B, to determine whether the charge was timely filed.
Niroomand v. Erie County Medical Center, 1996 WL 328183, *7 n. 1 (W.D.N.Y.)( citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2nd Cir. 1991 ) (court may "consider matters of which judicial notice may be taken" without converting a motion to dismiss into a motion for summary judgment).
See Maldonado-Cordero, 73 F. Supp.2d 177, 185 (D. Puerto Rico 1999) (EEOC charges may be considered either as a matter referenced in the complaint or as a public record subject to judicial notice) and the cases cited therein.
The EEOC charge indicates that on September 19, 1999, Peters filed a charge alleging discrimination on the basis of race and retaliation. Therefore, those discriminatory acts that occurred after November 24, 1998, 300 days before the date Peters filed his EEOC charge on September 19, 1999, would be actionable.
Memorandum in support of motion to dismiss, p. 1 and Exh. B.
See Ferrell v. Shell Oil Company, 1995 WL 739878 n. 4 (E.D.La.)("The charge must be filed within 180 days after the alleged unlawful employment practice occurred, unless the aggrieved person first institutes a charge with a State or local agency with authority to grant relief from such practice, in which case the charge must be filed within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5 (e)(1)").
In his complaint, Peters stated, "[o]n or about November 1998, Plaintiff was a victim of verbal abuse and harassment by the Defendant and it's agents. In his EEOC complaint, he stated, "[i]n November 1998 and most recently February 25, 1999 I have been subjected to racial slurs by being referred to as nigger and 'Nig' 'Boy.'" In the box requesting information about the date that the discrimination took place, Peters stated that the earliest date was "11/30/98" and that the latest date was "02/26/1999." Therefore, all of the alleged acts of discrimination about which Peters complains fall within the 300 day limitation period.
Rec. Doc. No. 1, ¶ 10.
Motion to dismiss, Exh. B.
Motion to dismiss, Exh. B.
Defendant's second argument is that because Peters did not file the captioned lawsuit within 90 days of receipt of the right to sue letter, his right to sue was lost. 42 U.S.C. § 2000e-5 (f)(1) provides that a civil action must be commenced within ninety days after the charging party has received a right-to-sue letter from the EEOC or state or local agency. "A Title VII claimant must file suit within 90 days of receipt of the right-to-sue letter or that right to sue will be lost." "The ninety-day limitations period begins to run 'on the date the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant.'" "Failure to file the suit timely can be grounds for its dismissal and has been strictly enforced." "The Fifth Circuit has interpreted this ninety-day limitations requirement as akin to a statute of limitations rather than as a jurisdictional prerequisite."
Keller v. State of Louisiana Through the Department of Transportation and Development, 2000 WL 64311 (E.D.La.).
Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996)( citing 42 U.S.C. § 2000e-5 (f)(1) and Nilsen v. City of Moss Point, Miss., 621 F.2d 117, 120 (5th Cir. 1980)).
Keller v. State of Louisiana Through the Department of Transportation and Development, 2000 WL 64311, *2 ( citing "Notice of Suit Rights," EEOC Form 161); see 42 U.S.C. § 2000e-16.
Avie v. Marley Cooling Tower, 952 F. Supp.2d 492, 493-94 (S.D. Tex. 1997)( quoting Ringgold v. National Maintenance Corp., 796 F.2d 769, 770 (5th Cir. 1986)).
Id.
Lowery v. University of Houston-Clear Lake, 82 F. Supp.2d 689, 693 (S.D.Tex. 2000)( citing Espinoza v. Missouri Pac. R. Co., 754 F.2d 1247, 1248 n. 1 (5th Cir. 1985); see Hood v. Sears, Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999); see Mercadel v. Louisiana Health Care Authority, 1999 WL 236618 (E.D.La.) ( citations omitted).
Plaintiff filed this lawsuit on March 31, 2000. Defendant argues that "[a]ccording to the facts as alleged in Plaintiff's Complaint, Plaintiff received notice of his right to sue herein on December 31, 1999." Defendant contends that the day on which Peters filed this lawsuit, March 31, 2000, was ninety-one days after Peters received his right to sue letter and, therefore, that plaintiff's lawsuit was untimely filed.
Memorandum in support of motion to dismiss, p. 3.
The notice of right to sue was mailed on December 23, 1999. In his complaint, Peters stated that his right to sue notice was received"on or about" December 31, 1999.
Motion to dismiss, exh. A.
Rec. Doc. No. 1, ¶ 2. (emphasis added). In his opposition, plaintiff argues that "he reasonably believed he received his right to sue notice sometime in late December or possibly January of 2000." Memorandum in opposition, p. 2.
An employee is presumed to have received a right-to-sue letter within a reasonable time period after it was mailed by the EEOC. The Court finds that in light of the Christmas holidays and in view of the fact that the Court must decide this motion pursuant to Fed.R.Civ.P. 12 (b)(6), the Court is unable to conclude that this lawsuit was not filed within 90 days of receipt of the right to sue letter.
See McNeill v. The Atchison, Topeka Santa Fe Railway Company, 878 F. Supp. 986, 990 (S.D.Tex. 1995) (seven days considered reasonable).
If Peters received the notice on December 31, 1999, as he stated in his complaint, it would have been received eight days after it was mailed. If he received it on January 3 or 4, 2000, as he stated in his opposition, it would have been received eleven or twelve days after it was mailed. "Liberal interpretation of a plaintiff's pro se pleadings is consistent with case law, especially in the context of a motion to dismiss." Martin v. U.S. Post Office, 752 F. Supp. 213, 218 (N.D.Tex. 1990) (citing Miller v. Stanmore, 636 F.2d 986 (5th Cir. 1981)), cert. denied, 500 U.S. 936, 111 S.Ct. 2063, 114 L.Ed.2d 468 (1991).
Defendant also urges dismissal of this lawsuit pursuant to Fed.R.Civ.P. 12(c). Because defendant filed its motion pursuant to Fed.R.Civ.P. 12(b) prior to filing a responsive pleading, the motion would not properly be construed as a Rule 12(c) motion.
Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)("Rule 12 (c) motions, however, may be filed after the pleadings are closed. Such motions will be treated as a motion for judgment on the pleadings based on a failure to state a claim on which relief may be granted.").
Accordingly,
IT IS ORDERED that the motion to dismiss is DENIED.
IT IS FURTHER ORDERED that the motion filed pursuant to Fed.R.Civ.P. 12(c) is DENIED.