Opinion
No. 01-2636, SECTION "K" (4)
November 12, 2002
ORDER AND REASONS
On September 27, 2002, the defendant, Sheriff Charles C. Foti, Jr., filed a Motion for Partial Summary Judgment (doc. # 17) seeking a partial dismissal of the plaintiff's claims for his failure to present a genuine issue of material fact for trial. The plaintiff, Ronald Joseph, opposes the motion.
This matter was referred to the undersigned United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of the parties.
Rec. Doc. No. 11.
I. Background
The plaintiff, Ronald L. Joseph, filed the instant suit against the defendants, Orleans Parish Criminal Sheriff's Office ("OPCS") and Sheriff Charles C. Foti, Jr., alleging that he was discriminated against because of his race, age, sex and retaliation. The plaintiff, who worked for the OPCS for twenty-two years, claims that the defendant's discriminatory conduct forced him to retire on June 7, 1999.
The defendant, Orleans Parish Criminal Sheriff's Office, was dismissed from this suit on January 29, 2002 at the request of the plaintiff. Rec. Doc. No 7.
Joseph, a black male, was hired by the OPCS on November 14, 1977 as a Deputy Sheriff in the Orleans Parish Prison. During his employment with OPCS, Joseph was promoted from Deputy to Sergeant and from Sergeant to Lieutenant.
In 1993, Joseph was employed by the OPCS as a Sergeant Watch Commander in the House of Detention at the Orleans Parish Prison. During that year, he filed a report with the OPCS complaining that a white deputy, Deputy Jack Bobb, acted inappropriately towards a black prisoner.
The plaintiff's compliant states that the incident occurred in 1994, however, the record documents indicate that the incident occurred in 1993.
Following an investigation of the incident, it was determined that Joseph's allegations were unsubstantiated. Captain John Lecour and Captain William Short determined that Joseph failed to inform his superiors of events that took place in the detention center and made false statements about a fellow officer. They thereafter suspended Joseph for thirty days for neglect of duty and actions unbecoming of a Deputy Sheriff. Joseph kept his rank as Sergeant but was transferred from the House of Detention to the Intake and Processing Center ("IPC") of the Orleans Parish Prison. However, later that same year, Joseph was promoted from Sergeant Watch Commander to Lieutenant Watch Commander of the IPC.
0n May 29, 1993, Joseph was suspended from May 29, 1993 until July 13, 1993. See Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit I, J.
The date of Joseph's promotion has not been provided.
While working as a Lieutenant Watch Commander in the IPC in 1997, Joseph was suspended for sixty-nine days due to a neglect of duty. Colonel Wilfred Washington found that Joseph accepted a hold on a prisoner issued by the Immigration and Naturalization Service ("INS"). However, during the release of the inmate, he failed to observe the hold and allowed the inmate to be released improperly.
It was also noted that Joseph had a pending recommendation of suspension in another matter at the time of this incident. See Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit W.
As a result of the incident, Colonel Washington suspended Joseph for actions unbecoming of a Deputy Sheriff and neglect of duty. Joseph was also demoted from his position as Lieutenant Watch Commander to the position of Sergeant Watch Commander. When he returned to work as Sergeant Watch Commander, he was placed on probation for a period of one year, during which time he was evaluated every 30 days. OPCS informed Joseph that any infraction of the Rules and Regulations would result in his termination.
Joseph was suspended from February 27, 1997 to June 4, 1997. See id. at Exhibits L, M, W.
See id. at Exhibit N.
On September 10, 1997, Joseph filed a report alleging that a female officer, Officer Stephanie Hudson, disobeyed his command. Joseph reported the incident to Chief Rudy and Colonel Wilfred Washington. Joseph also informed his supervisor, Captain William Hunter, Commander of the IPC, of the incident and indicated that he intended to suspend Officer Hudson. However, Captain Hunter told Joseph that he should not suspend Officer Hudson but should submit a written report of the incident instead. According to Joseph, Officer Hudson was never reprimanded for the incident.
One year later, on October 6, 1998, Joseph was suspended for violating OPCS Rules and Regulations by acting in a manner unbecoming of a Deputy Sheriff and neglect of duty where he again failed to spot an error in paperwork which led to the release of an inmate who should not have been released. The paperwork on the prisoner was compiled by the Record Room Clerk, Kaja Harrell. Joseph signed off on the paperwork and submitted it to Deputy Eve Frezel who effected the prisoner's release on October 3, 1998.
See id. at Exhibit F.
Id. at Exhibits G.
Colonel Washington suspended Joseph for forty days, from October 6, 1998 until November 20, 1998, and placed him on a ninety day probationary period. Joseph was also transferred from his position as Sergeant Watch Commander to a position as Sergeant Assistant Watch Commander and was informed that his off days would be assigned by the director of the facility. Captain Hunter also suspended Joseph's female co-workers, Deputy Frezel and Kaja Harrell, twenty days for their part in the incident. Their suspension, however, did not include a probationary period.
The three month probation period began when Joseph returned to work on December 1, 1998. Id. at Exhibits F, G, U.
Frezel and Harrell were suspended from October 6, 1998 to October 30, 1998. Id. at Exhibit F.
During his probationary period, Joseph missed work between December 29, 1998 and January 2, 1999, claiming that he suffered from a scratchy throat, coughing, body aches and headaches. During that time, the OPCS had a procedure in place for employees who were unable to report for duty due to an illness. The policy, in relevant part, required the employee to submit a "sick slip" and call the OPCS Communications Center at least two hours prior to the time his tour of duty was to commence. After five days of illness, a doctor's certificate and letterhead diagnosis was to be submitted to the Personnel Office. Also, if an employee reported ill during a holiday, he was to follow the normal notification requirements. Further, during a holiday schedule, the Watch Commander had the authority to circumvent the rule of presenting medical evidence by instructing the employee to submit medical documentation upon his return to duty.
Id. at Exhibit CC.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit Z.
On January 2, 1999, Joseph's treating physician faxed a letter to the OPCS indicating that Jospeh was seen on December 28, 1998. The physician noted that Joseph suffered from bronchitis and could not report to work until January 3, 1999. After missing five days of duty, Joseph submitted a Medical Sick Form on January 3, 1999.
Id. at Exhibit BB.
Id. at Exhibit CC.
Sergeant Henry Thompson conducted an investigation of Joseph's absence and issued a report on the same date. He noted that Joseph was ill for five consecutive days and would not be permitted to return without clearance from his physician and Department Medical Personnel. Sergeant Thompson also noted that due to personnel shortages within the IPC facility, Captain Hunter made it mandatory that all employees scheduled for duty during the holidays report for duty absent an emergency. It was also noted that Captain Hunter called Joseph to determine his expected return date but during their conversation, Joseph allegedly became discourteous towards Captain Hunter.
Id. at Exhibits DD.
Sergeant Thompson further noted that on January 6, 1999, Joseph was interviewed by Internal Affairs regarding his absence. During the interview, Joseph stated that he began feeling ill on December 28, 1998, and visited his doctor on that date. He stated that although his doctor diagnosed him with bronchitis (infected sinuses), he felt as if he had the flu and thus reported himself ill and unavailable for duty. Joseph also stated that the medication his physician prescribed made him feel drowsy and nauseated, rendering him unable to work for five days. Joseph further stated that he did not become discourteous with Captain Hunter during their conversation.
On January 7, 1999, Captain Hunter suspended Joseph for failing to report to work as scheduled. He noted that Joseph was aware of the holiday procedures regarding absenteeism and failed to adhere to the policies. Captain Hunter also noted that during a telephone inquiry regarding this matter, Joseph became discourteous towards a commanding officer.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit A.
Captain Hunter also informed Joseph that he was not to return to work until he appeared before the OPCS Board. Joseph contends that under the policy and procedure handbook, a suspended employee is granted a hearing before the board within 72 hours of the suspension. Joseph contends that his hearing was initially scheduled for January 11, 1999 but was tentatively rescheduled for January 14, 1999. He claims that he was to be informed as to whether the hearing was to proceed on January 14, 1999, but was never informed.
The hearing was held on January 20, 1999. During the hearing, Joseph was informed that he would be notified of the board's decision within 24 hours. Joseph contends, however, that he was never notified of a decision. He claims that he made several attempts to ascertain the status of his case but was unsuccessful. As a result, on June 7, 1999, Joseph resign from the OPCS.
To support this assertion, Joseph has submitted a June 1999 payroll summary which lists him as suspended. Id. at Exhibit S.
II. EEOC Complaint
A. EEOC Questionnaire
Joseph submitted a Charge Questionnaire to the Equal Employment Opportunity Commission("EEOC") on May 26, 1999. In the questionnaire, Joseph was asked to explain the basis of his discrimination claim and any harm he suffered as a result. Joseph responded by indicating that he was suspended on January 7, 1999 for reporting ill during the Christmas Holidays. He also stated that he had spoken with his employer on several occasions but had not been notified of his status.
Rec. Doc. No. 17, Defs Motion for Partial Summary Judgment, Exhibit A.
Joseph contends that he was ill and did not report to work from December 28, 1999 to January 2, 1999 as a result.
Joseph stated that he believed that he had been discriminated against because of his age, sex, and race as there were other employees who were ill on the same dates but were not suspended. He also stated that his position and duties were given to a younger female employee. He stated that his supervisor, Captain Hunter, told him that the Sheriff wanted to give him a hard time and was thinking about transferring him to another division.
Rec. Doc. No. 17, Defs Motion for Partial Summary Judgment, Exhibit A.
B. EEOC Charge of Discrimination
On November 6, 2000, Joseph's official Charge of Discrimination was filed with the EEOC. In the charge, Joseph indicated that he had been discriminated against on the basis of race, sex, retaliation, and age.
Rec. Doc. No. 17, Defs Motion for Partial Summary Judgment, Exhibit B; Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit C, D.
In describing the particulars of the alleged discrimination, Joseph noted the October 6, 1998 and January 7, 1999 suspensions. He noted that he was suspended from October 6, 1998 to December 1, 1998 and placed on a three month probationary period for failing to observe a mistake made by a Record Room Clerk. He stated that when he returned from his October 6, 1998 suspension, he was demoted from Lieutenant to Sergeant.
Joseph's suspension ran until November 29, 1998. However, he returned to work on December 1, 1998. See id. at Exhibits F and G.
Joseph claimed that on December 11, 1998, Captain Hunter verbally cautioned him about making mistakes when reviewing inmate releases processed by the Record Room Clerks. He stated that Captain Hunter stated that if he made the mistake again, he would be suspended or fired and not allowed to return to work. Joseph was also told that even though he is under a lot of pressure, he had better not make any more mistakes.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit D.
Joseph indicated that he and two deputies were involved in the release of the prisoner. However, their suspension was for a much shorter period than his. He also indicated that when he returned from his suspension, he was demoted and replaced by Corporal Rochelle Lee, Corporal Stephanie Hudson and Field Training Officer Audrey Ward. Joseph complained that he was treated unfairly because his suspension was much longer than the deputies who initiated the mistake. He also complained that there have been other employees who have made similar mistakes but did receive.
The Court notes that Joseph stated that his suspension was for 45 days while the deputies' suspension was for 25 days.
In support of this assertion, Joseph has provided disciplinary action taken against several other employees in 1993. Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibits JJ, KK, LL, MM.
Joseph also noted that on January 7, 1999, during his probationary period, he was suspended without pay for actions unbecoming of a Deputy Sheriff, i.e., failing to report for duty as scheduled during the Christmas Holidays. Joseph claimed that he should not have been suspended because he did not violate OPCS's sick leave policy. He stated that he reported to OPCS that he went to the doctor and had his doctor fill out the necessary medical documentation and forwarded it to his supervisors. Joseph further claimed that his wife was ill during the holidays and followed the same procedures but was not suspended.
Joseph has not provided any indication as to his wife's job title or supervisor.
Joseph also claimed that there was a "verbal policy" in the Sheriff's Office which provides that annual and sick leave cannot be used during the holidays. The "verbal policy" further provides that an employee who reports ill during the holidays must be admitted to a hospital. If the employee is not in the hospital, he should report for duty. Joseph contended that although the "verbal policy" did not exist in written form, there was a written policy for reporting illnesses to which he adhered. He claimed that the defendants enforced the verbal policy in a discriminatory manner as there were several of his female co-workers who were sick and allowed to use annual leave during the holidays.
The plaintiff has provided documentation to support this assertion. See Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibits X, Y, AA, EE, FF, GG.
Joseph further indicated that he believed that he was discriminated against because he reported Deputy Jack Bobb for an inappropriate act against a prisoner in 1994. He also indicated that he thought he was discriminated against because he was 56 years old. He further stated that he thought sex was a factor in his resignation because each time he was suspended, a female was placed in his position.
Joseph's date of birth is May 13, 1942. Thus, he was 58 years old at the time he resigned on June 7, 2000.
The plaintiff named several employees as those that were treated differently because of sex. He named Audrey Ward, Anella Joseph, Charlene Wiedert, Angela Newman, Stephanie Hudson, Ms. Buie, and Rochelle Lee. The plaintiff indicates that he served as supervisor to Weidert, Newman, Lee and Ward.
Joseph stated that race and retaliation were involved because his problems only began after he filed a complaint against Deputy Bobb, a white male. Joseph further stated that other employees who committed the same violations were not reprimanded to the extent that he was.
Joseph also complained that the OPCS did not comply with its disciplinary policy which requires that an employee who has been suspended for alleged misconduct be granted a fair and impartial hearing before the board within 72 hours of the infraction. He contended that following the January 7, 1999 suspension, he was not granted a Board Hearing until January 21, 1999. Despite finally receiving a hearing, Joseph complained that he was never officially informed of a decision on his status with the OPCS. He stated that, as a result, he was forced to resign from work on June 7, 1999 because he was never recalled by OPCS and was without a source of income.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit D.
On May 30, 2001, the EEOC issued a Dismissal and Notice of Rights. The EEOC indicated that it was closing its file on Joseph's case because after conducting an investigation, it was unable to conclude that the information obtained established violations of the relevant statutes. The EEOC also informed Joseph that he may file suit in federal or state court within 90 days of the date of the issuance of the dismissal. The plaintiff filed the instant suit on August 28, 2001.
Id. at Exhibit E.
Id.
Rec. Doc. No. 1.
III. Instant Motion
The defendant filed the instant motion seeking a partial dismissal of Joseph's claims contending that his claims of discrimination as to his 1993 suspension are outside the scope of the EEOC Charge and are time barred. The defendant further contends that Joseph's allegations of discrimination based on the October 6, 1998, suspension are time barred. Finally, the defendant contends that it is entitled to summary judgment as to Joseph's allegation that his January 7, 1999 suspension was in retaliation for the 1993 report filed against Deputy Bobb because Joseph has failed to present a prima facie case of retaliation.
Joseph opposes the motion contending that his claims of discrimination based on the 1993 and 1998 suspensions are not time barred. He contends that even if the Court finds that these claims are untimely, these claims may proceed pursuant to the "continuing violation" doctrine. Although the defendant does not seek their dismissal, Joseph also contends that he has presented prima facie claims of age discrimination, race discrimination, and gender discrimination.
Because the defendant has not sought summary dismissal of Joseph's allegations of race discrimination, gender discrimination and age discrimination, the Court's analysis will not address these claims.
IV. Legal Standard
The defendant seeks a partial dismissal of Joseph's claims for his failure to present a genuine issue of material fact for trial. Summary Judgment is proper if the evidence shows the existence of no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the District Court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A party is entitled to Summary Judgment only if the pleadings, depositions, answers to interrogatories, admissions and affidavits before the court at the time of Summary Judgment show that there is no genuine issue of material fact. See Fields v. City of Southern Houston, 922 F.2d 1183, 1187 (5th Cir. 1991).
Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that Summary Judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the Court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." See id.
The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions, on file, 'designate `specific facts showing that there is a genuine issue of fact for trial.'" Celotex Corp., 477 U.S. at 324. If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. See Szabo v. Errisson, 68 F.3d 940, 942 (5th Cir. 1995); Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1085 (5th Cir. 1994).
V. Joseph's 1993 and 1998 Suspensions
A. EEOC Filing Requirements
Joseph claims that he was discriminated against as a result of having filed a report in 1993 that involved the misconduct of a white deputy who acted inappropriately with a black prisoner. He also contends that he was discriminated against when he was suspended on October 6, 1998 for releasing an inmate in error. The defendant, however, claims that these claims are outside of Joseph's EEOC charge and are time barred.
Under Title VII of the Civil Rights Act, a plaintiff must file a claim with the EEOC within 180 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e). When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred. See Cruce v. Brazosport Ind. Sch. Dist., 703 F.2d 862, 864 (5th Cir. 1983). One exception to this rule allows a plaintiff to file a charge of discrimination with the EEOC within 300 days of the alleged discrimination in "deferral" states that have an agency with the authority to address charges of discriminatory employment practices. See 42 U.S.C. § 2000e-5(e) Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. 1994); Mennor v. Fort Hood Nat'l Bank, 829 F.2d 553, 554 (5th Cir. 1987). The 300-day filing period applies regardless of whether state proceedings are timely filed under state or local law. Urrutia v. Valero Energy Corp., 841 F.2d 123, 125 (5th Cir. 1988).
Title 42 U.S.C. § 2000e-5(e) states, in relevant part:
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . . except that in a case . . . with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief . . . . such charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred[.]
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 Louisiana Commission on Human Rights ("LCHR") has been funded and operating since April 1994, making Louisiana a deferral state since that time. See Laffort v. Russell, 1998 WL 12241 at *2 n. 2 (E.D.La. 1998) (citing La.Rev.Stat.Ann. § 51:2233 (West Supp. 1997)); see also 29 C.F.R. § 1601.74. Therefore, Joseph could qualify for the 300-day period instead of the 180-day period by instituting proceedings with the LCHR. Mennor, 829 F.2d at 554.
Joseph filed his EEOC Charge of Discrimination on November 6, 2000, listing the LCHR as the state agency. As such, the 300-day limitations period is imposed. McNeill v. Atchison, Topeka Santa Fe Railroad Company, 878 F. Supp. 986, 989 (S.D.Tex. 1995).
The Court notes that in the EEOC Charge Questionnaire, Joseph indicates that he has not sought assistance from any other State or Federal anti-discrimination agency. Nonetheless, because the record is unclear, the Court will proceed as if Joseph instituted proceedings before the LCHR.
In 1993, Joseph filed a report with the OPCS complaining that a white deputy, Deputy Jack Bobb, acted inappropriately towards a black prisoner. On May 29, 1993, following an investigation of the incident, it was determined that Joseph's allegations were unsubstantiated and Joseph was suspended for thirty days for neglect of duty and actions unbecoming of a Deputy Sheriff. Also, on October 6, 1998, Joseph was suspended and demoted for releasing an inmate who was not to be released.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit U.
Joseph contends that the 1993 suspension was in retaliation for his having filed the complaint and was the start of OPCS's discriminatory acts. He also alleges that the October 6, 1998 suspension was a result of sexual and racial discrimination. However, Joseph did not file his charge with the EEOC until he filled out the EEOC Charge Questionnaire on May 26, 1999, much more than 300 days after the 1993 incident. Further, although he did complete the EEOC Charge Questionnaire on May 26, 1999, he failed to assert the 1993 suspension in the Charge Questionnaire.
Id. at Exhibits B, C, and T. The Court notes that the formal EEOC Charge was executed on November 6, 2000. However, Joseph filled out the EEOC Questionnaire on May 26, 1999. There is authority for the proposition that a timely filed EEOC Questionnaire constitutes a charge for purposes of Title VII's 300-day Equal Employment Opportunity Commission filing period. Price v. Southwestern Bell Tel. Co., 687 F.2d 74, 78-79 (5th Cir. 1982) (plaintiffs completed "EEOC Form 283," though unsigned and unsworn, constituted charge because it "informed the EEOC of the identity of the parties and described the alleged discriminatory conduct in enough detail to enable it to issue an official notice of charge to [the employer], thus setting the administrative machinery in motion."); see Bordelon Sones v. Southern Farm Bureau Casualty Insurance Comp., 1999 WL 195542 (E.D.La. 1995).
The Court notes that Joseph points out that the EEOC Charge contained a typographical error in the section labeled "date discrimination took place." The Charge indicates that the earliest date was January 7, 1999 and the latest was June 7, 2000. Joseph contends that the dates should be October 6, 1998 and June 10, 1999. However, this error does not affect the Court's analysis as Joseph's charge based on the 1993 acts was untimely filed.
The Court notes further that Joseph did not reference the October 6, 1998 suspension in his EEOC Charge Questionnaire submitted on May 26, 1999. However, the EEOC Charge completed on November 6, 2000 states the particulars of Joseph's October 6, 1998 discrimination claim. As Joseph has submitted an undated Charging Party Terms and Conditions Questionnaire in which he referenced the events surrounding his October 6, 1998 suspension and the defendant has not established that this form was not completed on May 26, 1999, the Court finds that Joseph's claim of discrimination based on his October 6, 1998 suspension is timely filed.
Rec Doc. No. 23, Pl's Opposition Memorandum, Exhibit D.
Accordingly, Joseph's claims of discrimination based on the 1993 acts are time barred unless the continuing violation doctrine applies. Joseph's claims of discrimination based on the October 6, 1998 suspension may proceed forward.
The Court notes that Joseph did not include allegations of discrimination based on his 1993 suspension in his EEOC complaint. Thus, his claims of discrimination based on the 1993 suspension may also be dismissed for failure to exhaust administrative remedies. See Robinson v. Rubin, 77 F. Supp.2d 784, 790 n. 3 (S.D.Tex. 1999); see also National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir. 1994).
B. Continuing Violation Theory
Joseph argues that even if this Court finds that his claims are untimely, the "continuing violation" doctrine prevents his claims from being barred. The Fifth Circuit, has recognized an equitable exception "where the unlawful employment practice manifests itself over time, rather than as a series of discrete acts." Waltman v. International Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). In order to extend the statute of limitations period under this exception, known as a continuing violation, the plaintiff must file an EEOC charge within at least 300 days of one of the alleged acts of discrimination. Id.
"A continuing violation is one that could not reasonably have been expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period." Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983). The continuing violation theory relieves a plaintiff of establishing that all of the discriminatory conduct occurred within the limitations period if the plaintiff can show a series of related acts, at least one of which occurred within the limitations period. See Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997). However, not only must the plaintiff show a series of unrelated and isolated instances of discrimination, but he must also prove a series of continuous violations constituting an organized scheme leading to and including a present violation. Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (citing Berry, 715 F.2d at 981).
Nevertheless, the case law on the subject of continuing violations is inconsistent and confusing. Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1560 (5th Cir. 1985); Safford v. St. Tammany Parish Fire Protection District No. 1, 2002 WL 1379133 at *6 (E.D.La. 2002). The Fifth Circuit has cautioned that "[t]his theory of continuing violation has to be guardedly employed because within it are the seeds of destruction of the statute of limitation in Title VII cases." Abrams v. Baylor College of Medicine, 805 F.2d 528, 533 (5th Cir. 1986). Thus, only compelling circumstances seem to warrant the application of the exception to the statute of limitations.
The Fifth Circuit has adopted a multi-factor test to determine the existence of a continuing violation. See Berry, 715 F.2d at 981. In Berry, the Circuit Court stated:
Relevant to the determination are the following three factors, which we discuss, but by no means consider to be exhaustive. The first is subject matter. Do the' alleged facts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence which should trigger an employee's awareness and duty to assert his or 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.
"The focus is on what event, in fairness and logic, should have alerted the average lay person to act to protect his rights." See Messer, 130 F.3d at 135; Abrams, 805 F.2d at 534. A one-time employment event, including the failure to hire, promote, or train and dismissals or demotions, are the sort of discrete and salient events that should put the employee on notice that a cause of action has accrued. Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (holding that plaintiff's hostile environment claim constituted a continuing violation but that a demotion and a failure to promote were discrete isolated occurrences that put employee on notice that a cause of action had accrued and were therefore not continuing violations).
Here, Joseph has alleged a violation, the January 7, 1999 suspension, that occurred within the 300-day time limit and the alleged discriminatory conduct appears to be related in terms of subject matter. However, Joseph has failed to present any evidence of any discriminatory policy or scheme that extended from his report against Deputy Bobb in 1993 to his suspension in January 1999. Further, the nature and timing of the alleged discriminatory acts — suspension and transfer in 1993, suspension and demotion in 1998 and suspension in 1999 — weigh against the application of the continuing violation doctrine.
First, Joseph has failed to satisfy the permanence requirement. He contends that he did not become aware of the fact that he should protect his rights until he filed his EEOC Charge in 1999 after being suspended indefinitely and forced to retire because he was left without any income.
However, this Circuit has held that there is an element of permanence in discriminatory actions involving demotions, or a failure to hire or promote, that should alert a plaintiff that his. rights have been violated. See id.; see also Dupont-Lauren v. Schneider (USA) Inc., 994 F. Supp. 802, 816 (S.D.Tex. 1998). Thus, the actions taken against Joseph were sufficiently discrete and permanent so as to place Joseph on notice of the alleged discrimination at the time of occurrence. To allow Joseph to raise these claims now would render the statute of limitations meaningless. See Govia v. Century 21, Inc., 140 F. Supp.2d 323, 325 (S.D.N.Y. 2001) (declining to apply the continuing violation doctrine where plaintiff was on notice of the repeated failures to promote because it "would subvert the underlying purpose of the time limit, which is to ensure expedition in the filing and handling of claims of discrimination").
Moreover, the fact that the acts alleged occurred over a period of six years also militates against a finding of an organized scheme as required to apply the continuing violation theory. See Huckabay, 142 F.3d at 239. The acts alleged by Joseph were not sufficiently continuous in time with one another or with the timely allegation of discrimination based on his 1999 suspension.
The three incidents alleged by Joseph occurred over six years and were sufficiently isolated in time so as to break the asserted continuum of discrimination. Weeks v. New York State (Division of Parole), 273 F.3d 76, 84 (2d Cir. 2001) ("Absent unusual circumstances, a two-year gap between the timely and untimely allegations is a discontinuity that defeats use of the continuing violation exception."); Filipovic v. K R Express Systems, Inc., 176 F.3d 390 (7th Cir. 1999); Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (discriminatory acts separated by six-year gap cannot be joined as a continuing violation); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d. Cir. 1998) (rejecting a continuing violation argument because the alleged incidents — several occurring in 1985, two occurring in 1988, one occurring in 1989 and one occurring in 1990 — were sufficiently isolated in time so as to break the asserted continuum of discrimination); Roberts v. Gadsden Memorial Hospital, 835 F.2d 793 (11th Cir. 1988) (with regard to a three year gap between incidents, the court stated "[w]here . . . two incongruent discriminatory events are separated by a substantial time hiatus, the hiatus further supports the conclusion that the two incidents were discrete and unrelated."). This discontinuity is fatal to a continuing violation argument. See Quinn, 159 F.3d at 766. Thus, Joseph's claims of discrimination based on the 1993 suspension are time barred.
VI. 1999 Suspension
The defendant contends that Joseph's claim that he was suspended in 1999 in retaliation for having filed a report against a white deputy, Deputy Jack Bobb, in 1993 should be dismissed for failure to establish a prima facie case of retaliation. The plaintiff, in his opposition, does not address whether he has established a prima facie case of retaliation but states that this claim should not be dismissed because the continuing violation theory may be applied to the 1993 report against Deputy Bobb.
As discussed supra, the continuing violation theory does not apply to the 1993 report against Deputy Bobb.
To establish a prima facie retaliation claim, the plaintiff must show by a preponderance of the evidence that he 1) engaged in a protected activity, 2) suffered an adverse employment action, and 3) there was a causal link between the protected activity and the adverse employment action. Cain v. Blackwell, 246 F.3d 758, 760 (5th Cir. 2001).
An employee has engaged in activity protected by Title VII if she has either (1) "opposed any practice made an unlawful employment practice" by Title VII or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII. 42 U.S.C. § 2000e-3(a).
Although not necessarily a determinative factor, the timing of an adverse employment action can be a significant factor in establishing the required nexus between the protected activity and the termination. Chaney v. New Orleans Public Facility Management, Inc., 179 F.3d 164, 169 (5th Cir. 1999) (finding that two-year gap between protected activity and alleged retaliatory discharge made retaliation quite doubtful); Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 268 (5th Cir. 1994) (finding that ten month gap between protected activity and discharge made retaliation highly unlikely); Washington v. Park N' Fly, 2001 WL 1543494, *4 (E.D.La. 2001) (citing Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1090, 1092 (5th Cir. 1995)).
Here, the defendant does not dispute that Joseph has satisfied the first two elements of the prima facie case for retaliatory discharge. The defendant contends, however, that Joseph fails to establish a material fact issue on whether a causal connection exists between his protected activity, the filing of the report against Deputy Jack Bobb in 1993, and his January 7, 1999 suspension.
A long delay between the protected activity and the alleged retaliatory conduct is not "legally conclusive proof against retaliation." Shirley v. Chrsyler First, Inc., 970 F.2d 39, 43 (5th Cir. 1992). The causal connection between the protected activity and the adverse employment action can be established indirectly with circumstantial evidence, for example, by showing that the protected activity was followed by discriminatory treatment or through evidence of disparate treatment of employees who engaged in similar conduct, or directly through evidence of retaliatory animus. Shields v. Martin Marietta Technologies, Inc., 1997 WL 271329 at *3 (E.D.La. 1997). The connection required is causation-in-fact or "but for" causation. Id. at 4. However, a plaintiff's mere belief that he was retaliated against is not sufficient to defeat summary judgment. Id. The Court is not satisfied that Joseph met his burden.
Joseph has set forth no material facts to establish any causal relationship between the filing of the report in 1993 and his suspension in 1999. Additionally, the 1999 suspension occurred more than five years after he submitted the complaint against Deputy Bobb, making it doubtful that the discrimination charge was causally related to Joseph's suspension in 1999. See Chaney, 179 F.3d at 169. Further, the defendant took no action against Joseph until four years after the report was filed against Deputy Bobb and Joseph had released prisoners in error. Thus, Joseph is left with nothing more than his speculation and belief that he was discriminated against because of his 1993 complaint against Deputy Bobb. This type of evidence is insufficient to create a fact issue as to pretext. Britt v. Grocers Supply Co. Inc., 978 F.2d 1441, 1451 (5th Cir. 1992); Little v. Republic Refining Co., 924 F.2d 93 (5th Cir. 1991).
Therefore, the Court finds that as to his 1999 suspension, Joseph has failed to establish a prima facie case for a claim of retaliation. See Watts v. Kroger Co., 170 F.3d 505, 511 (5th Cir. 1999) (upholding the district court's summary dismissal of the plaintiff's retaliation claim where the causation element was not satisfied).
Accordingly,
IT IS ORDERED that the Motion for Partial Summary Judgment (doc. # 17) is GRANTED IN PART and DENIED IN PART as follows:
1) DENIED as to Joseph's claims of discrimination based on his October 6, 1998 suspension.
2) GRANTED as to Joseph's claims of discrimination based on the report filed against Deputy Jack Bobb in 1993.
3) GRANTED as to Joseph's claims of retaliation based on his 1999 suspension.IT IS FURTHER ORDERED that the plaintiffs claims of race discrimination, sex discrimination, age discrimination and hostile work environment may proceed forward.