Stevenson v. Delta Airlines, Inc.

RESPONSE/MEMORANDUM in Opposition

E.D. La.January 2, 2019

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISISANA JALEANA STEVENSON, ) CASE NO. 17-6003 PLAINTIFF ) ) SECTION: “R” (1) ) VERSUS ) DISTRICT JUDGE SARAH S. VANCE ) DELTA AIRLINES, INC., ) MAG. JUDGE JANIS VAN MEERVELD DEFENDANT ) DEFENDANT DELTA AIRLINES, INC.’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION NOW INTO COURT, through undersigned counsel, comes Defendant Delta Air Lines, Inc. (“Delta” or “Defendant”), and files this Memorandum in Opposition to Plaintiff’s Motion for New Trial and Motion for Reconsideration (Rec. Doc. 62.). I. INTRODUCTION On December 11, 2018, Plaintiff Jaleana Stevenson (“Plaintiff”) filed a Motion for New Trial and Motion for Reconsideration1 (hereinafter “Motion for Reconsideration”) pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure requesting that this Court reconsider its Judgment2 and its Order and Reasons3 (hereinafter collectively referred to as “November 13 Judgment”) which granted Delta’s Motion for Summary Judgment4 and dismissed Plaintiff’s Title VII and ADA discrimination claims. Plaintiff attached as an exhibit to her Motion for Reconsideration an undated and nonnotarized Affidavit of Jaleana Stevenson.5 Through this “affidavit,” Plaintiff presents new facts and evidence that she never previously made part of the record and that she did not file with Plaintiff’s Opposition6 to Delta’s Motion for Summary 1 (Rec. Doc. 62.) 2 (Rec. Doc. 61.) 3 (Rec. Doc. 60.) 4 (Rec. Doc. 50.) 5 (Rec. Doc. 62-3.) 6 (Rec. Doc. 54.) Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 1 of 19 2 Judgment.7 Plaintiff also attached as exhibits an Affidavit of Charlene Sukari Hardnett (her prior counsel/attorney/aunt),8 a photograph of an EEOC Intake Questionnaire,9 a letter to President Barack Obama,10 a photograph of her EEOC Charge of Discrimination and EEOC Dismissal and Notice of Rights letter,11 her Complaint,12 and Delta’s motion to dismiss and motion to transfer venue on remaining claims and memorandum in support thereof filed in the District of Columbia District Court.13 For the reasons provided in greater detail below, and those listed in Delta’s Motion to Strike being contemporaneously filed herewith, Plaintiff’s Motion for Reconsideration should be denied. II. DELTA’S GENERAL OBJECTIONS TO EVIDENCE PLAINTIFF SUBMITS IN SUPPORT OF HER MOTION FOR RECONSIDERATION Several of the documents filed by Plaintiff in support of her motion for new trial should be stricken from the record by this Court, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, because this evidence was not part of the summary judgment record, contains statements and/or portions that are, in whole or in part, inadmissible under the Federal Rules of Evidence, and has not been properly authenticated. Furthermore, with respect to Plaintiff’s submitted Affidavit of Jaleana Stevenson, this document fails to meet the requisite formalities of affidavits executed in the State of Louisiana, fails to meet the requisite requirements set under forth 28 U.S.C. § 1746 for Declarations under penalty of perjury. Plaintiff attempts to use the Affidavit of Jaleana Stevenson to inject material factual disputes into the record – after her opportunity to put forth all relevant evidence and testimony came and passed. Based on these and other grounds, 7 (Rec. Doc. 62-3.) 8 (Rec. Doc. 62-4.) 9 (Rec. Doc. 62-5.) 10 (Rec. Doc. 62-6.) 11 (Rec. Doc. 62-7.) 12 (Rec. Doc. 62-8.) 13 (Rec. Docs. 62-9 and 62-10.) Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 2 of 19 3 including those addressed herein below, Delta is filing a separate Motion to Strike contemporaneously herewith setting forth in greater detail the reasons why Plaintiff’s referenced submitted evidence is not only legally deficient and inadmissible but should also be stricken from the record. Delta therefore objects to the deficient evidence filed in support of Plaintiff’s Motion for Reconsideration, and requests that this Honorable Court not consider same. II. LAW AND ARGUMENT A. LEGAL STANDARDS 1. Post-Trial Motion Standards The Federal Rules of Civil Procedure do not provide or recognize a motion for reconsideration in haec verba.14 However, where a judgment in a nonjury case or a judgment without a trial, i.e., summary judgment, is entered, courts will treat post-trial motions for new trial and to reconsider a judgment as a motion to alter or amend the judgment pursuant to Rule 59(e), provided that the motion is filed within twenty-eight (28) days from the judgment.15 In this regard, “[t]he Fifth Circuit has explained that when a case is decided dispositively without a trial in the district court, a subsequent request for relief is more properly construed as a request for reconsideration.”16 Similarly, a motion for relief from a judgment filed pursuant to Fed. R. Civ. P. 14 Meyers Warehouse, Inc. v. Canal Ins. Co., No. CIV.A. 12-2948, 2014 WL 5113323, at *1 (E.D. La. Oct. 10, 2014), aff'd sub nom. Meyers Warehouse, Inc. v. Canal Indem. Co., 614 F. App'x 719 (5th Cir. 2015) (citing Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n. 14 (5th Cir. 1994); Anderson v. Red River Waterway Com'n, 16 F.Supp.2d 682 (W.D. La. 1998) (citing U.S. v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997)) (“The Federal Rules of Civil Procedure do not provide a mechanism with which a party may file a ‘motion to reconsider.’”)). 15 Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350 (5th Cir.1993); Lavespere, 910 F.2d at 173. 16 Shimon, 2007 WL 101038, at *1 (citing St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 338 (5th Cir.1997); Thomas v. Great Atlantic and Pacific Tea Co., Inc., 233 F.3d 326, 327 n. 1 (5th Cir.2000) (noting that the district court correctly treated the motion for reconsideration of entry of summary judgment as a motion to alter or amend under Fed. R. Civ. P. 59(e)); Patin v. Allied Signal Ins., 77 F.3d 782, 785 n. 1 (5th Cir. 1990) (motion to reconsider entry of summary judgment is properly styled as a Rule 59(e) Motion); Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998) (“The Federal Rules of Civil Procedure do not provide for a ‘Motion for Reconsideration’ but such motions may Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 3 of 19 4 60(b) will likewise be treated as a motion under Rule 59(e) if it is filed within the twenty-eight (28) day deadline set forth under Rule 59(e).17 Only when the post-trial motion is filed beyond the twenty-eight (28) day deadline will the motion be treated as a motion filed pursuant to Rule 60.18 In other words, if filed within the twenty-eight (28) day deadline, “[a]ny motion that draws into question the correctness of a judgment is functionally a motion under Civil Rule 59(e), whatever its label.”19 Plaintiff’s motion was filed within twenty-eight (28) days from the rendition of this Court’s November 13, 2018 Order and Reasons.20 Accordingly, Plaintiff’s respective motions are to be analyzed as a single motion pursuant to Rule 59(e).21 2. Rule 59(e) Motion Standards “A Rule 59(e) motion calls into question a judgment's correctness.”22 The Fifth Circuit has recognized that “a party may bring a motion under this section on three possible grounds: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice.”23 Relying on these legal grounds, Judge Vance of this Court succinctly set out a district court’s relevant considerations when addressing a Rule 59(e) motion: properly be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment.”)). 17 Lavespere, 910 F.2d at 173 (citing Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir. 1986) (en banc)). 18 Shimon v. Sewage & Water Bd. of New Orleans, No. CIV.A. 05-1392, 2007 WL 101038, at *1 (E.D. La. Jan. 9, 2007) (citing Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir.2000); Freeman v. County of Bexar, 142 F.3d 848, 852 n. 7 (5th Cir. 1998)). 19 Harcon Barge Co., 784 F.2d at 669. 20 (November 13, 2018 Order and Reasons, R. Doc. 60.) 21 See, e.g., Meyers Warehouse, Inc., 2014 WL 5113323, at *1; Lavespere, 910 F.2d at 173; Shimon, 2007 WL 101038, at *1 (E.D. La. Jan. 9, 2007). 22 Meyers Warehouse, Inc., 2014 WL 5113323, at *2 (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). 23 Id. (citing In re Benjamin Moore & Co., 318 F.3d 626, 629 (5th Cir. 2002)). Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 4 of 19 5 A district court has considerable discretion to grant or deny a Rule 59(e) motion for reconsideration. In exercising its discretion, the Court must strike the proper balance between the need for finality and the need to render just decisions on the basis of all the facts. Reconsideration, however, is an extraordinary remedy that should be used sparingly. Reconsideration serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.24 A Rule 59(e) motion for reconsideration “is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.”25 Therefore, to succeed on a Rule 59(e) motion, a party must “clearly establish either [1] a manifest error of law or fact or [2] must present newly discovered evidence.”26 As demonstrated below, Plaintiff fails to, and cannot, establish either of these requisite prongs, and, as such, this Honorable Court should deny her Motion for Reconsideration. B. PLAINTIFF’S MOTION FAILS TO PUT FORTH ANY REASON WARRANTING THIS COURT’S RECONSIDERATION OF ITS NOVEMBER 13 JUDGMENT. Plaintiff’s entire motion is based on self-serving and, in part, a deficient affidavit and documents and information that she admits were previously available and known to her and that “[she] did not previously submit” or rely upon.27 Plaintiff now belatedly submits this evidence and argues that she had not previously submitted or relied upon same in support of her claims because, she contends, Delta “waived any objections to the timeliness of Ms. Stevenson’s EEOC complaint by appearing, answering, transferring venue and participating in discovery.”28 Relying on this evidence, Plaintiff argues that she timely sought administrative relief and that, only because of 24 Warehouse, Inc., 2014 WL 5113323, at *2 (quoting Castrillo v. American Home Mortg. Servicing, Inc., 2010 WL 1838061 at * 1 (E.D. La. 2010) (quoting Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353, 355 (5th Cir.1993); Fields v. Pool Offshore, Inc., No. Civ. A. 97–3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998), aff'd, 182 F.3d 353 (5th Cir.1999); Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)) (internal quotations omitted). 25 Templet, 367 F.3d at 478–79 (5th Cir. 2004); Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990). 26 Castrillo, 2010 WL 1838061, at *1 (citing Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005)). 27 (Rec. Doc. 62-1.) 28 (Rec. Doc. 62-1, p. 4.) Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 5 of 19 6 misconduct from the EEOC, she was unable to properly exhaust her administrative remedies. Finally, based on this alleged EEOC misconduct, Plaintiff claims that the 300-day limitations period for her to have sought administrative relief for her claims, which she failed to meet, should be tolled so as to allow her claim to be considered timely.29 As demonstrated below, Plaintiff’s arguments are without merit and are insufficient to warrant this Court’s reconsideration of its November 13 Judgment. 1. Plaintiff’s Motion Fails to Meet the Requisite Standards for Reconsideration of this Court’s November 13 Judgment. Plaintiff’s grounds for requesting that this Court reconsider its November 13 Judgment30 are insufficient as a matter of law. In the Fifth Circuit, a movant seeking reconsideration is not permitted to advance new legal arguments, theories or submit and/or rehash evidence that could have been presented or raised earlier in the proceedings before entry of judgment.31 The Fifth Circuit has held that “an unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration.”32 Where the underlying facts and circumstances forming the bases for reconsideration of a summary judgment ruling were known and/or available to the party “prior to the district court's entry of judgment,” yet they were not included “in any form of opposition or response to the [defendant’s] motion for summary judgment,” reconsideration is not warranted and should be denied.33 Even assuming Plaintiff’s allegations about her EEOC 29 (Rec. Doc. 62-1, pp. 1-6.) 30 (Rec. Doc. 61.) 31 Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010); Templet, 367 F.3d at 478–79; Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990); Karim v. Finch Shipping Co., 111 F. Supp. 2d 783, 784 (E.D. La. 2000); Campbell v. St. Tammany Parish School Board, No. 98–2605, 1999 WL 777720, at *1 (E.D. La. Sept. 29, 1999); Stephens v. Witco Corp., 1998 WL 426214, at *1 (E.D. La. July 24, 1998). 32 Templet, 367 F.3d at 479 (citing Russ v. Int'l Paper Co., 943 F.2d 589, 593 (5th Cir.1991)). 33 Templet, 367 F.3d at 479. Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 6 of 19 7 questionnaire are true, these facts were at all relevant times known to Plaintiff. Indeed, Plaintiff admits this, but she attempts to excuse her failures by incorrectly arguing that Delta waived its right to argue that Plaintiff failed to timely seek administrative relief from the EEOC.34 Plaintiff’s cited authorities fail to support reconsideration of this Court’s November 13 Judgment. For example, in Thompson v. Dep't of the Interior United States,35 the plaintiff moved the court to reconsider its order granting summary judgment by allowing plaintiff the ability to file an opposition to the defendant’s motion for summary judgment. There, the plaintiff had not filed an opposition, including any evidence, to the summary judgment motion because of several deaths of family members of his counsel.36 Analyzing the four factors set forth by the Fifth Circuit in Lavespere, the district court held that because the evidence being offered in opposition to summary judgment was highly probative to the merits of plaintiff’s claims and known and available to the defendant well prior to the plaintiff’s filing of the motion for reconsideration, reconsideration of its judgment was warranted and granted the plaintiff’s motion. 37 Plaintiff, on the other hand, did file an opposition to Delta’s motion for summary judgment, and she concedes that the grounds she proffers now in support of her motion to reconsider have been, at all times, known to her. Further, the evidence she filed in support of her motion is not only deficient but is also not highly probative to the merits of her discrimination claim. In short, the circumstances in Thompson are dissimilar from those at issue before this Court. Plaintiff also cites to two other cases in her motion – Lavespere v. Niagara Machine & Tool Works, Inc.,38 and Ford v. Elsbury.39 Plaintiff cites Lavespere, an abrogated opinion that is 34 (Rec. Doc. 62-1, p. 4.) 35 No. CV 16-17542, 2018 WL 4909910 (E.D. La. Oct. 10, 2018). 36 Id. at *4. 37 Id. 38 910 F.2d 167 (5th Cir. 1990). 39 32 F. 3d 931 (5th Cir. 1994). Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 7 of 19 8 no longer good law, and quotes Ford, which quotes Lavespere, for the general proposition that this Court has considerable discretion to revisit its judgment and allow the plaintiff to present new allegations and/or evidence.40 As previously mentioned, the allegations and evidence at issue in this matter are not new. Even assuming that they would be, however, the circumstances at issue in Lavespere and Ford fail to support reconsideration of the Court’s November 13 Judgment. Because Plaintiff fails to carry her burden, based upon her articulated bases for obtaining reconsideration of this Court’s November 13, 2018 Judgment,41 her motion should be denied.42 2. Delta Did Not Waive Any Defense Regarding Plaintiff’s Failure to Timely Exhaust Administrative Remedies and/or Seek Administrative Relief.43 40 (Rec. Doc. 62-1, p. 3.) 41 While this Court only addressed Delta’s untimeliness argument in granting its motion for summary judgment, Delta asserted multiple grounds and legal arguments that, had they been addressed, would have also supported the Court’s granting of summary judgment in this case. (See Rec. Doc. 50-1.) 42 Motion for Reconsideration of Ruling, Generally, 3 MOTIONS IN FEDERAL COURT, CHAPTER 9 JUDGMENTS, § 9:94 (3d ed.) (citing Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36 (2d Cir. 2012), as amended, (July 13, 2012)) (“Rule governing motions for reconsideration is not a vehicle for re- litigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple;’ rather, the standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.”). 43 Plaintiff cites Hull v. Emerson Motors/Nidec, 532 Fed. Appx. 586 (5th Cir. 2013), an unpublished opinion from the Fifth Circuit, for the proposition that filing a timely charge of discrimination is not a jurisdictional prerequisite to filing suit for discrimination in federal court. Plaintiff’s reliance on Hull ignores a long line of Fifth Circuit and district court cases that have held that the administrative exhaustion requirement is indeed a jurisdictional prerequisite to filing suit in federal court. See, e.g., Filer v. Donley, 690 F.3d 643, 648 (5th Cir. 2012) (“The court correctly held that it lacked jurisdiction to consider the other [Title VII] allegations as to which [the plaintiff] failed to exhaust his administrative remedies.”); Randel v. U.S. Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (“If the claimant fails to comply with either of these [Title VII] requirements then the court is deprived of jurisdiction over the case.”); Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994) (“It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies.”); Tolbert v. U.S., 916 F.2d 245, 247 (5th Cir. 1990) (“Failure to comply with [Title VII's administrative exhaustion requirement] wholly deprives the district court of jurisdiction over the case.”); Stroy v. Dep't of Veterans Affairs, No. 13-2423, 2016 WL 7131851, at *5 (W.D. La. Dec. 5, 2016), aff'd, Stroy v. Gibson on behalf of Dep't of Veterans Affairs, 896 F.3d 693 (5th Cir. 2018); Hilliard v. Par., 991 F. Supp. 2d 769, 772 (E.D. La. 2014) (“Employment discrimination plaintiffs must exhaust administrative remedies before pursuing claims in federal court.”) (internal citations omitted); Wright v. U.S. Postal Servs., 344 F. Supp. 2d 956, 958 (M.D. La. 2004) (“It is clear that at the time Tolbert filed her action she had not exhausted her administrative remedies; thus, the court had no jurisdiction over the action, and was required to dismiss it.”) (internal citations omitted); Muoneke v. Prairie View A&M Univ., No. H-15-2212, 2016 WL 3017157, at *6 n.2 (S.D. Tex. May 26, 2016) (“[w]hat appears to be the most recent Fifth Circuit case Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 8 of 19 9 In her Complaint, under the heading “Exhaustion of Administrative Remedies,” Plaintiff alleged that she timely filed a charge of discrimination with the EEOC and is filing the Complaint “within 90 days after receiving a notice of the right to sue from the EEOC.”44 Specifically, Plaintiff alleged: EXHAUSTION OF ADMINISTRATIVE REMEDIES Plaintiff timely filed a charge of discrimination against Defendant with the Equal Employment Opportunity Commission (EEOC). Plaintiff files this complaint within 90 days after receiving a notice of the right to sue from the EEOC. A copy of the notice of the right to sue is attached as Exhibit A. See 42 U.S.C. §2000e- 5(f)(1). Plaintiff was not given proper intake assistance by the EEOC office in New Orleans and Hostile work environment was not included in her charge. Plaintiff requested that the EEOC amend her Charge to include Hostile work environment and to re-issue the Right to Suit letter after a complete investigation of that bases but EEOC refused and required Plaintiff to request an amendment of this charge. Plaintiff was forced to file this charge without the bases of Hostile Work Environment included in the Charge.45 In its July 6, 2017 Answer to Plaintiff’s Complaint, under the corresponding heading of “Exhaustion of Administrative Remedies,” Delta responded as follows: “Delta denies the allegations contained within the paragraph entitled Exhaustion of Administrative Remedies, except to admit that Plaintiff filed her Complaint within ninety (90) days after receiving notice of the right to sue from the EEOC.”46 Delta additionally included in its Answer the following defenses: For any of Plaintiff’s claims or causes of action which fall outside of the applicable statute of limitations, Plaintiff is barred from recovery on those claims or causes of action. To the extent Plaintiff has failed to exhaust her administrative remedies with respect to her claim under Title VII, the Americans with Disabilities Act and any other statute, such claim thereunder is barred as a matter of law.47 addressing this issue makes clear that the failure to administratively exhaust is viewed as a jurisdictional bar to suit”) (citing Simmons-Myers v. Caesars Entm't Corp., 515 F. App'x 269 (5th Cir. 2013)). 44 (Rec. Doc. 62-8, p. 2.) 45 (Rec. Doc. 62-8.) 46 (Rec. Doc. 23, p. 2.) 47 (Rec. Doc. 23, p. 6.) Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 9 of 19 10 Therefore, Plaintiff’s claim that Delta waived its timeliness defense concerning her failure to timely exhaust or seek relief of her administrative remedies is without merit and is contradicted by the record. 3. Plaintiff Waived Any Equitable Tolling and/or Timeliness Arguments by Failing to Respond to Delta’s Timeliness Arguments at Summary Judgment. In its motion for summary judgment, Delta specifically argued that Plaintiff’s claims should be dismissed as time barred or untimely.48 As the Court pointed out in its November 13 Judgment, Plaintiff failed to address Delta’s argument concerning her failure to timely seek administrative relief for her claims.49 Plaintiff likewise “failed to raise any issue of equitable tolling”.50 Plaintiff’s failure to address these arguments in response to Delta’s motion for summary judgment constitutes a waiver and, thus, precludes her from now attempting to make the argument.51 48 (Rec. Doc. 50-1, p. 22.) 49 (Rec. Doc. 60, p. 4, n. 4.) 50 (Id.; Rec. Doc. 54, passim.) 51 See, e.g., White v. Rouses Enterprises, LLC, No. CV 15-1384, 2016 WL 3127232, at *12 (E.D. La. June 3, 2016), appeal dismissed (July 27, 2016) (granting summary judgment on the plaintiff’s claim due to the plaintiff’s failure to adequately brief employer’s arguments supporting dismissal in opposition to employer’s motion for summary judgment and, as a result, waiving same); Knudsen v. Bd. of Supervisors of Univ. of La. Sys., No. 14-382, 2015 WL 1757695, at *1 (E.D. La. Apr. 16, 2015) (“A party’s failure to brief an argument in response to a summary judgment motion waives that argument.”); see also Williamson v. Watco Cos., Inc., No. 09-1255, 2010 WL 4117745, at *3 (W.D. La. Oct. 13, 2010) (“failure to brief an argument in the district court waives that argument in that court”); Hervey v. Miss. Dep't of Educ., No. 3:08cv180–DPJ–JCS, 2010 WL 88901, at *7 (S.D. Miss. Jan. 6, 2010); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d 653, 658 n.9 (S.D. Tex. 2008) (claim waived where party failed to brief the claim or assert the claim either directly or in response to employer's motion for summary judgment); Hill v. Sodexho Servs. of Tex., L.P., No. A–05–CA–732–LY, 2007 WL 4234261, at *2 n.1 (W.D. Tex. 2007) (finding that the plaintiff waived claims he failed to brief in his response to a motion for summary judgment) (citing Whitmire v. Terex Telelect, Inc., 390 F. Supp. 2d 540, 548 (E.D. Tex. 2005) (the plaintiff waived his claims when he did not raise or brief issues related to those claims in his response to motion for summary judgment)); United States v. Stallons, No. 3:16-CV-2730-L (BK), 2018 WL 3640201, at *3 (N.D. Tex. Apr. 23, 2018), report and recommendation adopted, 2018 WL 3631821 (N.D. Tex. July 31, 2018) (citing Roberts v. Overby-Seawell Co., No. 3:15-CV-1217-L, 2018 WL 1457306, at *11 (N.D. Tex. Mar. 23, 2018) (finding defendants abandoned or waived counterclaims where they failed to address or respond to plaintiff’s arguments in support of his motion for summary judgment on those counterclaims) (citing Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006))). Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 10 of 19 11 4. Even if Plaintiff Had Not Waived Any Equitable Tolling and/or Timeliness Arguments, the Evidence Fails To Show that Plaintiff Timely Sought Administrative Remedies. a. Plaintiff has failed to prove she faxed the referenced intake questionnaire on December 26, 2013, or that said document was actually ever filed with or received by the EEOC. Plaintiff provides no admissible evidence establishing she actually faxed or filed any intake questionnaire with the EEOC or that anyone at the EEOC acknowledged the receipt of same, other than her own self-serving testimony.52 Indeed, the photograph of the intake questionnaire Plaintiff attaches to her motion, which she claims she faxed to the EEOC, does not have any transmission stamp showing the document was faxed. Nor does Plaintiff submit a fax confirmation page showing transmission of the document to the EEOC was accomplished on December 26, 2013. She likewise provides no statement, affidavit or declaration from anyone at the EEOC confirming the receipt of any such facsimile from Plaintiff. Accordingly, Plaintiff’s self-serving testimony is insufficient as a matter of law to establish that she ever faxed any documentation to the EEOC on December 26, 2013.53 52 (Rec. Doc. 62-1; Rec. Doc. 62-3; Rec. Doc. 62-5.) 53 See generally Miller v. Raytheon Co., 716 F.3d 138, 147 (5th Cir. 2013) (“self-serving testimony is legally insufficient”); see also In re Fernandez, No. 09-32896-HCM, 2012 WL 5289916, at *8 (Bankr. W.D. Tex. Oct. 25, 2012)(a party’s testimony by itself is insufficient to establish that she filed her tax return when there are no IRS records of receipt of such tax return); Surwoka v. United States, 909 F.2d 148, 148– 49 (6th Cir.1990) (taxpayer's attempt to prove, by circumstantial evidence, that taxpayer timely filed a tax return will not defeat a summary judgment motion, when IRS had no record of receipt of such return and taxpayer failed to show that he sent the tax return by physical delivery or by certified or registered mail under 26 U.S.C. § 7502); Simms v. United States, 867 F. Supp. 451, 454 (W.D. La. 1994)(recognizing that such rule is harsh but objective, and granting summary judgment in favor of IRS when taxpayer failed to produce evidence of delivery of tax refund claim to IRS); In re O'Neill, 134 B.R. 48, 49–50 (Bankr. M.D. Fla. 1991) (citations omitted)(taxpayer-debtor's testimony by itself, was insufficient to overcome presumption that return was not filed when IRS had no record of receipt of such return); Pizzuto v. IRS, 384 B.R. 105, 111–12 (Bankr. N.J. 2008)(supporting citations omitted) (recognizing that no Circuit Court has allowed self-serving, non-corroborated testimony by a debtor-taxpayer that he filed a tax return to constitute proof of timely filing of tax return); In re Young, 230 B.R. 895, 897–98 (Bankr. S.D Ga. 1999)(stating that no matter how credible the debtor's testimony, it is “insufficient as a matter of law” to support a finding that a tax return was filed, absent a showing of a postmarked envelope or registered mail receipt); In re Grable, 188 B.R. 595, 596 (Bankr. W.D. Mo. 1995) (debtor's corroborated testimony of mailing tax return Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 11 of 19 12 b. Plaintiff’s referenced intake questionnaire is, as a matter of law, insufficient to begin the requisite administrative remedies for her discrimination claims. Assuming arguendo that Plaintiff could prove she faxed the referenced intake questionnaire to the EEOC on December 26, 2013, such a submission is insufficient to satisfy Plaintiff’s administrative exhaustion requirements. Plaintiff cites two cases – Fed. Exp. Corp. v. Holowecki,54 and Richard v. St. Tammany Par. Sheriff's Dep't,55 – for the proposition that her filing of the referenced intake questionnaire is sufficient to satisfy her requirement to seek administrative relief.56 Plaintiff is wrong. In Fed. Exp. Corp. v. Holowecki, the court specifically addressed two distinct questions: “What is a charge as the ADEA uses that term? And [whether] the documents” plaintiff filed constituted a charge under the ADEA?57 The documents at issue in Holowecki were a fully completed intake questionnaire that “was supplemented with a detailed six-page affidavit” from the plaintiff.58 Plaintiff’s timely filing of both documents was not in dispute, and their timely receipt had been acknowledged by the EEOC.59 In the intake questionnaire, the plaintiff checked the second box on the last page, providing the agency her consent and permission to disclose her identity to her employer.60 And, on the last page of the affidavit submitted therewith, the plaintiff specifically “asked the agency to [p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High–Velocity Culture Change.”61 Noting that not every without postmark, was not sufficient to overcome evidence produced by IRS as to the date of late receipt by IRS of tax return, and finding such taxes to be excepted from discharge). 54 552 U.S. 389 (2008). 55 No. CV 17-9703, 2018 WL 2065594 (E.D. La. May 3, 2018). 56 (Rec. Doc. 62-1, p. 4.) 57 Id. at 395. 58 Id. at 405. 59 Id. 60 Id. at 406. 61 Id. at 405 (internal quotation marks omitted). Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 12 of 19 13 completed Intake Questionnaire can be treated as a charge under the ADEA, the court in Holowecki explained that in order for a filing to constitute a charge, the document must not only comply with the relevant EEOC regulations but “must [also] be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle and dispute between the employer and the employee.”62 Applying this standard, the court held that the plaintiff’s express request that the agency act on its behalf, coupled with his checking-off the second box on the last page of the questionnaire allowing the disclosure of her identity to her employer, elevated the questionnaire into a charge.63 In Richard v. St. Tammany Par. Sheriff's Dep't,64 the plaintiff had timely submitted a completed questionnaire along with a detailed three-page statement containing the plaintiff’s detailed allegations of discrimination, but did not file a formal charge until after the expiration of the limitations period.65 The plaintiff argued that the filing of the formal charge of discrimination merely finalized the allegations he had already submitted and should relate back to the filing of the questionnaire.66 After analyzing the questionnaire and its accompanying three-page statement, the court held that the questionnaire was “sufficient to constitute a charge.”67 The court relied on the fact that, in the questionnaire, the plaintiff had checked the “box giving consent for the agency to look into his discrimination claims and disclose his identity to the employer, and confirmed that he intended to file a charge of discrimination.”68 And, the plaintiff’s “three-page statement details the facts that are the basis for all of [his] claims, and is nearly verbatim to the complaint.”69 62 Id. at 402. 63 Id. at 406. 64 No. CV 17-9703, 2018 WL 2065594 (E.D. La. May 3, 2018). 65 Id. at *4. 66 Id. 67 Id. at *5. 68 Id. at *4. 69 Id. at *5. Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 13 of 19 14 Through these two actions, the court reasoned, the plaintiff “authorized the EEOC to look into his claims and waived confidentiality.”70 Unlike the plaintiffs in Holowecki and Richard, the documents filed by Plaintiff include no affidavit that was submitted along with the questionnaire, much less was an affidavit that expressly requested that the EEOC take action on Plaintiff’s behalf and remedy any alleged discrimination submitted.71 Further, a review of the referenced questionnaire – the last page to be exact – demonstrates that Plaintiff never checked-off “Box 2.”72 “Box 2” on Plaintiff’s questionnaire states “I want to file a charge of discrimination,” “authorize[s] the EEOC to look into the discrimination [] described above,” and a waiver statement explaining that by checking the box the party understands that she is providing the EEOC with her consent to disclose her identity to the employer.73 That box was not checked on Plaintiff’s questionnaire. Plaintiff’s reliance on Holowecki and Richard is therefore misplaced, as neither supports her position. c. Equitable tolling is inapplicable. This Court should reject Plaintiff’s argument that equitable tolling is applicable to her claims.74 A review of the relevant legal standards reveals equitable tolling of Plaintiff’s 300-day limitations period is neither appropriate nor warranted in this matter. Equitable tolling should be applied sparingly and only in the most extreme circumstances.75 As explained in the case cited by 70 Id. at *5 (citing Becerra v. Ms. Ellie’s Kitchen, No. 11-1833, 2012 WL 5363793 (E.D. La. Oct. 31, 2012) (holding questionnaire constituted a charge because the claimant selected box 2 authorizing the EEOC to investigate his claims and the EEOC began investigating the claims after the claimant’s filing of the questionnaire)). 71 (Rec. Doc. 62-5.) 72 (Rec. Doc. 62-5, p. 4.) 73 (See Rec. Doc. 62-5, p. 4.) 74 As an initial matter, it should be noted that per Plaintiff’s Complaint, the sole allegation of EEOC misconduct with respect to her claim was the EEOC’s failure to amend her charge to include a hostile work environment claim. (Rec. Doc. 62-8.) Plaintiff’s Complaint at no point makes any reference to an intake questionnaire, much less to an intake questionnaire filed in December 2013, or misrepresentations communicated about same by any EEOC employee. (Id.) 75 (Id.) Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 14 of 19 15 Plaintiff, the Fifth Circuit has recognized the following three grounds as “possible bases” for equitable tolling: (1) the pendency of a suit between the same parties in the wrong forum; (2) plaintiff's unawareness of the facts giving rise to the claim because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her rights.76 The plaintiff bears the burden of proving sufficient justification for equitable tolling.77 One of the relevant considerations examined by the courts is whether a plaintiff can show that she took steps recognized as significant prior to the expiration of the limitations period, i.e., “when a claimant or her attorney has exercised due diligence in pursuing her rights.” 78 Here, Plaintiff’s bases for arguing for the application of equitable tolling is a purported misrepresentation from the EEOC regarding the referenced and attached photograph of the questionnaire via a telephone call.79 Per Plaintiff’s allegations, the alleged misrepresentation occurred via a single telephone call on or about January 16, 2014, and, thereafter, Plaintiff took no other affirmative steps nor sought to obtain any confirmation of her filing for months.80 After approximately four months, Plaintiff filed her Charge with the EEOC.81 These circumstances are insufficient to warrant the equitable tolling of Plaintiff’s 300-day filing deadline. In Granger v. Aaron's, Inc.,82 for example, the Fifth Circuit upheld the district court’s conclusion that the facts and circumstances warranted equitable tolling. There, the plaintiffs promptly secured counsel and had their counsel timely submit their executed complaints of 76 Granger v. Aaron's, Inc., 636 F.3d 708, 712 (5th Cir. 2011). 77 Id. 78 Id. (citing Prieto v. Quarterman, 456 F.3d 511, 514–15 (5th Cir. 2006); Perez v. United States, 167 F.3d 913, 918 (5th Cir. 1999)). 79 (Rec. Doc. 62-1, p. 4.) 80 (Rec. Doc. 62-1, p. 4.) 81 (Rec. Doc. 62-1, p. 5.) 82 636 F.3d 708 (5th Cir. 2011). Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 15 of 19 16 discrimination “to the government months before the 300–day period expired.”83 Their attorneys, however, submitted the executed complaint and documentation to the wrong government agency – OFCCP84 instead of EEOC.85 Following the submission their attorneys and “[t]heir attorneys’ staff made repeated contact with the OFCCP, which never communicated the filing error and maintained that the complaints were under investigation.”86 Further, once the OFCCP finally provided notice that the complaints had been filed with the wrong agency, it transferred the complaints to the EEOC, and after communicating what had transpired, “[t]he EEOC assured [the plaintiffs] that their complaints would be treated as timely.”87 Based on these facts, the Fifth Circuit concluded that “the circumstances favored permitting [the plaintiffs’] claims to proceed. They were diligent about pursuing their rights and their attorney diligently and repeatedly followed up on their claims within the 300–day period, notwithstanding his filing in the wrong forum.”88 Accordingly, the court held that the plaintiffs’ actions, coupled with the “the government's considerable errors and neglect,” constituted sufficiently rare circumstances “to support the district court's application of equitable tolling.”89 In Hull v. Emerson Motors/Nidec,90 the plaintiff appealed the district court’s grant of summary judgment in favor of the employer on the grounds that his discrimination claims were time-barred due to the plaintiff’s failure to timely file his charge with the EEOC.91 In particular, 83 Id. at 713. 84 “[T]he Office of Federal Contract Compliance Programs (“OFCCP”), an agency within the U.S. Department of Labor that enforces equal employment opportunities for employees of federal contractors.” Granger v. Aaron's, Inc., 636 F.3d 708, 709 (5th Cir. 2011). 85 Id. 86 Id. 87 Id. at 710. 88 Id. at 713. 89 Id. (citing Perez, 167 F.3d at 919 (holding plaintiff “clearly did not sleep on her rights, and her attorneys, skilled or not, made an error. Tolling is the only remedy for the regulatory violation, and it is a remedy that fits”)). 90 532 Fed. Appx. 586 (2013). 91 Hull, 532 F. App'x at 587. Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 16 of 19 17 the plaintiff appealed the district court’s decision not to exercise its discretion and apply the doctrine of equitable tolling.92 There, within the requisite time limitations, the plaintiff “filed an intake questionnaire” in February 2011 with the EEOC, alleging that he was discriminated against based on race, and “noted his intent to file a charge but did not file one.”93 Over three months later, in June 2011, after the passing of the relevant time limitations to pursue the administrative remedies to his discrimination claims, the plaintiff filed a charge with the EEOC.94 The plaintiff brought suit and, after the completion of discovery, the employer moved for, and obtained, summary judgment due to plaintiff’s claims being time-barred.95 Analyzing the plaintiff’s arguments that he had been diligent in filling out an intake questionnaire but “was misled about his rights” by the EEOC’s representations that the filing of the intake questionnaire had effectively filed a charge, the Fifth Circuit agreed with the district court’s holding that equitable tolling was not warranted.96 In doing so, the court noted that completing an intake questionnaire is simply an indication a claimant may wish to file a charge, that a questionnaire on its face does not state that completing same constitutes filing a charge with the agency,97 and that the plaintiff had failed to put forth any admissible evidence establishing that the EEOC had actually made any representations to him that he had filed a charge by the submission of the questionnaire, nor had he put forth any evidence that he ever filed or even filled- out a charge of discrimination at the time of filing the questionnaire. Additionally, the court pointed out that, even assuming that the plaintiff had been misled as claimed, he never took the affirmative step of seeking and obtaining confirmation that a charge 92 Id. 93 Id. 94 Id. 95 Id. 96 Id. at 587-88. 97 Id. at 588. Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 17 of 19 18 had indeed been filed after submission of the questionnaire. Instead, the court noted that the plaintiff had waited over three months until filing a charge.98 Based on these facts, the Fifth Circuit held that the district court had correctly concluded that equitable tolling was not warranted, ruling the circumstances were neither exceptional nor did they establish circumstances sufficient to allow this matter to rise to one of the rare cases “in which the equities demand tolling.”99 Accordingly, as evidenced by the foregoing authorities relied upon in the Motion for Reconsideration, Plaintiff has failed to demonstrate that equitable tolling is applicable to her claims. III. CONCLUSION For all of the foregoing reasons, Plaintiff’s Motion for Reconsideration should be denied, and the evidence submitted in support of the motion should not be considered by this Honorable Court. Respectfully submitted, /s/ Mark N. Mallery Mark N. Mallery, LA #17666 Atoyia S. Harris, LA #36012 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, Louisiana 70139 Telephone: 504.648.3840 Facsimile: 504.648.3859 Email: mark.mallery@ogletreedeakins.com atoyia.harris@ogletree.com ATTORNEYS FOR DELTA AIRLINES, INC. 98 Id. 99 Id. at 589. Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 18 of 19 19 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Memorandum in Opposition to Plaintiff’s Motion for New Trial and Motion for Reconsideration has been filed via the Court’s Electronic Case Filing System, which provides for service on all counsel of record. This 2nd day of January, 2019. /s/ Mark N. Mallery Mark N. Mallery 36882346.1 Case 2:17-cv-06003-JVM Document 64 Filed 01/02/19 Page 19 of 19