Opinion
Civil No. 00-1260 CC, Section "N".
March 7, 2001.
ORDER AND REASONS
Before the Court are defendant Overnite Transportation Company's Motion to Dismiss and Motion to Dismiss and Strike. For the following reasons, defendant's motions are DENIED.
A. BACKGROUND
On April 26, 2000, plaintiffs Winston Thomas, Reginald Gibbs and Jerome Kelly (the "Thomas plaintiffs") filed suit against defendants Overnite Transportation Company and Union Pacific Corporation. The Thomas plaintiffs allege that Overnite engaged in a pattern of racial discrimination and harassment against black employees in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000. On September 28, 2000, a group of eleven plaintiffs (the "Blair plaintiffs") also filed suit against Overnite, alleging that it engaged in a pattern of racial discrimination against black employees. On March 5, 2001, these two lawsuits were consolidated in the present proceeding.
Union Pacific was dismissed by the plaintiffs on November 22, 2000.
Defendant Overnite now moves the Court to dismiss the complaint of the Thomas plaintiffs and to dismiss and strike the complaint of the Blair plaintiffs.
B. STANDARD OF REVIEW
In a motion to dismiss for failure to state a claim upon which relief may be granted, the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiffs. See Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995). Dismissal is warranted if "it appears certain that the plaintiffi[s] cannot prove any set of facts in support of [their] claim that would entitle [them] to relief." Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
C. LAW AND ANALYSIS
Defendant Overnite contends that (1) the Thomas plaintiffs failed to timely serve their complaint, (2) the Thomas plaintiffs failed to file administrative complaints with the Equal Employment Opportunity Commission ("EEOC"), (3) the Blair plaintiffs included immaterial allegations in their complaint, and (4) both the Thomas and Blair plaintiffs failed to plead that some or all of the alleged acts of discrimination occurred within Title VII's 300-day limitation period.
1. Service of the Thomas Complaint.
Overnite contends that the Thomas plaintiffs' complaint should be dismissed because it was filed on April 26, 2000 but not served until September 27, 2000, well beyond the 120-day time period allotted by Fed.R.Civ.P. 4(m). However, Overnite fails to note that on September 27, 2000, after conducting a Rule to Show Cause, Magistrate Judge Alma Chasez granted the plaintiffs a 30 day extension of time within which to serve all defendants. See Rec. Doc. No. 4. Accordingly, Overnite's motion to dismiss the Thomas complaint for untimely service is DENIED.
2. Thomas Plaintiffs' EEOC Filings.
Before plaintiffs can file racial discrimination lawsuits in federal court, their complaints must be subjected to administrative review. See Gottlieb v. Tulane University, 809 F.2d 278, 284 n. 8 (5th Cir. 1987). Accordingly, a Title VII plaintiff must file a charge of discrimination with the EEOC before filing suit in federal court. Overnite asserts that the Thomas plaintiffs' lawsuit is inappropriate because they failed to file charges with the EEOC, but instead filed complaints of race discrimination with the Department of Justice. The Court finds Overnite's contention puzzling, however, because Overnite states in its memorandum that "the Plaintiffs filed the Complaint with the United States District Court for the Eastern District of Louisiana on April 26, 2000, exactly 90 days after the EEOC issued its dismissal and notice of right to sue to Plaintiffs on January 27, 2000." Mem. Supp. at 4. Since the Thomas plaintiffs did in fact file a complaint with the EEOC and obtain a notice of right to sue, Overnite's motion to dismiss for failure to file with the EEOC is DENIED.
3. Rule 12(f) Motion to Strike.
Defendant Overnite also moves to strike certain allegations from the Blair plaintiffs' complaint as redundant and immaterial under Rule 12(f) of the Federal Rules of Civil Procedure. Rule 12(f) provides that "the court may order stricken from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter." FED. R. Civ. P. 12(f). A motion to strike under Rule 12(f) "is a drastic remedy to be resorted to only when required for the purposes of justice. The motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." Augustus v. Board of Pub. Instruction of Escambia County, 306 F.2d 862, 868 (5th Cir. 1962) (quoting Brown Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)). In addition, such a motion should only be granted when "the allegations are prejudicial to the defendant or immaterial to the lawsuit." Johnson v. Harvey, 1998 WL 596745, at *7 (E.D.La. Sept. 8, 1998) (quoting Veazie v. Southern Greyhound Lines, 374 F. Supp. 811, 815 (E.D.La. 1994)).
In the instant case, Overnite moves to strike several allegations from the Blair plaintiffs' complaint. First, Overnite contends that the plaintiffs' allegations that they "and other black city drivers" were discriminated against are immaterial because the unnamed "other black city drivers" are not identified in the complaint. Compl. ¶¶ XXVIII, LIV. Second, Overnite argues that plaintiff Bobby E. James' allegation that he "and Plaintiff Kelvin Isaac" were disciplined for discriminatory reasons is immaterial because Isaac himself does not complain of this conduct. Id. at ¶ XLIX. Finally, Overnite complains that the plaintiffs' allegation that "[t]he conduct of the defendants . . . was in violation of Title VII of the Civil Rights Act of 1964 . . . as well as the Louisiana State statute which is its counterpart" is impermissible vague. Id. at ¶ LXXV.
After carefully reviewing those portions of the complaint that defendants move to strike, the Court denies defendants' Rule 12(f) motion in its entirety. The Blair plaintiffs allege that Overnite engaged "in a pattern of racial discrimination and/or racial harassment against plaintiffs and other similarly situated African American employees." Id. at ¶ XVI. Accordingly, the Court does not find that their allegations of discrimination against "other black city drivers" is unrelated to the instant case or prejudicial to the defendants. Likewise, because Isaac alleges that he was a victim of racial discrimination, the Court does not find the allegation that Isaac was disciplined for discriminatory reasons to be immaterial. With respect to Overnite's vagueness argument, the Court finds that the rules of "notice pleading" do not require the plaintiffs to specifically identify the Louisiana statute under which they are seeking relief. See Conley v. Gibson, 355 U.S. 41, 48 (1957) (holding that the "Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits"). Accordingly, Overnite's motion to strike' the Blair plaintiffs' allegations in ¶¶ XXVIII, XLIX, LIV, and LXXV is DENIED.
4. Timely Filing of Discrimination Charges.
Finally, Overnite moves to dismiss both the Thomas and Blair plaintiffs' complaints on the grounds that they were untimely filed. The filing of a timely administrative complaint with the EEOC is a prerequisite to commencing a civil suit pursuant to Title VII. According to 42 U.S.C. § 2000e-5 (e), a charge of employment discrimination under Title VII must be filed with the appropriate administrative agency within 300 days after the alleged unlawful employment practice occurred. See Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997) (citingWashington v. Paths, 868 F.2d 172, 175 (5th Cir. 1989)).
Under § 2000e-5, plaintiffs normally must file a charge of employment discrimination within 180 days of the alleged unlawful employment practice. If they instituted proceedings with a state agency authorized to grant relief, plaintiffs have up to 300 days. It is unclear from the facts before the Court whether the Blair or Thomas plaintiffs initially filed state proceedings. However, since the defendants agree that the 300-day period is proper, the Court will use the 300-day period.
In the instant case, all but two plaintiffs filed official complaints with the EEOC on November 27, 1999. Therefore, plaintiffs' 300-day period reaches back to January 29, 1999; and under the general rule, any actions that occurred before that date are time barred. However, the plaintiffs claim their complaint fits within the continuing violation exception, which may allow recovery for discrimination that occurred outside the limitations period.
Willie E. Blair filed his complaint on November 29, 1999, and Charles Scott filed on May 11, 2000.
Blair and Scott's limitation periods reach back to January 31, 1999 and July 11, 1999, respectively.
The continuing violation theory provides that a plaintiff may pursue claims for discriminatory conduct that occurred prior to the 300-day filing period where that conduct is part of an ongoing or continuing pattern or practice of discrimination. Overnite disputes that the plaintiffs have pled a continuing violation theory, and contends that the plaintiffs have merely alleged isolated incidents of discrimination. InBerry v. Board of Supervisors of L.S.U, 715 F.2d 971 (5th Cir. 1983), the Fifth Circuit set forth three non-exhaustive factors for determining whether alleged discriminatory acts are sufficiently related to constitute a continuing violation:
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?Id. at 981.
Considering the Berry factors and viewing the facts in the light most favorable to the plaintiffs, the Court finds that the Thomas and Blair plaintiffs have pled a continuing violation theory. The plaintiffs allege that Overnite discriminated against blacks in disciplining, promoting, and assigning work to employees. The Court finds that the series of allegedly discriminatory acts described in the plaintiffs' complaint are sufficiently related, frequent, and impermanent to form the basis for a continuing pattern of discrimination.
However, although pleading a continuing pattern of racial discrimination "relieves a plaintiff of establishing that all of the complained-of conduct occurred within the actionable period," the plaintiff must still show that one or more of the related acts of discrimination occurred during the limitations period. Messer, 130 F.3d at 135 (emphasis added). Accordingly, Overnite argues that even if the plaintiffs have alleged a continuing violation theory, their complaints are improper because they do not include at least one act that occurred within 300 days of filing their official EEOC complaints.
The plaintiffs contend that the 300-day countdown should not begin at the date their official EEOC complaints were filed. The Thomas plaintiffs argue that the countdown should begin when they filed their complaints with the Department of Justice ("DOJ"), and the Blair plaintiffs argue that the countdown should begin when they filed their intake questionnaires with the EEOC. If the plaintiffs prevail in their argument, their lawsuits are timely filed. If Overnite is correct, the plaintiffs' suits are untimely and must be dismissed. For the reasons stated below, the Court finds that the plaintiffs suits have been timely filed.
29 C.F.R. § 1601.12 (b) provides that an employment discrimination charge "is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." 29 C.F.R. § 1601.12 (b) (2001). In Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78 (5th Cir. 1982), the Fifth Circuit held that employment discrimination charges must be construed "with the 'utmost liberality,' bearing in mind that such charges are generally prepared by laymen untutored in the rules of pleading."
The plaintiff in Price failed to complete the proper EEOC form for filing a charge, but she did meet with an EEOC officer who recorded the factual basis of her complaint. Noting that "the crucial element of a charge of discrimination is the factual element contained therein,"Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970), and that "summary judgments should be granted only sparingly in Title VII cases," Jones v. Western Geophysical Co. of America, 669 F.2d 280, 283 (5th Cir. 1982), the Price court held that the district court erred in holding, at the summary judgment stage, that the conference between the plaintiff and the EEOC officer did not constitute a charge within the meaning of Title VII. Price, 687 F.2d at 78-79. The court further stated that "it would not be unreasonable for Price, unschooled in the law and without the aid of counsel, to take no further action during the limitation period in the belief that she had done what was required of her." Id.
In the case at bar, each of the Blair plaintiffs filled out EEOC intake questionnaires that detailed the alleged discriminatory conduct and set forth the identity of the parties involved. Each Blair plaintiff signed his questionnaire under penalty of perjury. Like the Price court, this Court is unable to hold at this early stage that the EEOC intake questionnaires are insufficient to constitute a charge for the purposes of Title VII, notwithstanding the fact that they may not have been in official form. See Greenwell v. Raytheon Aerospace, 1996 WL 495155 (E.D.La. Aug. 29, 1996) (Duval, J.) (holding that a document faxed to the EEOC was "sufficient to inform the EEOC of the identity of the parties as well as detailing the alleged discriminatory conduct enabling the EEOC to issue an official notice of charge"). Accordingly, the Court denies Overnite's motion to dismiss the claims of the Blair plaintiffs.
Each of the Thomas plaintiffs submitted a complaint against Overnite to the Civil Rights Division of the DOJ in January, 1999. These complaints were eventually transferred to the EEOC. However, since neither party describes the substance of these complaints or states when they were received by the EEOC, the Court cannot find that they are insufficient to serve as a "complaint" under 29 C.F.R. § 1601.12 (b) and Price. Like the plaintiff in Price, it would not be unreasonable for the Thomas plaintiffs to take no further action during the limitation period in the belief that they had done what was required of them. See Price, 687 F.2d at 79. Accordingly, the Court denies Overnite's motion to dismiss the claims of the Thomas plaintiffs.
CONCLUSION
IT IS ORDERED that defendant Overnite Transportation Company, Inc.'s Motion to Dismiss and Motion to Dismiss and Strike are DENIED.