Richard v. G E Oil & Gas Inc

REPLY to Response to Motion re MOTION to Dismiss For Failure to State a Claim Plaintiff's Claims MOTION to Dismiss Plaintiff's Claims

W.D. La.June 15, 2018

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION JAMES W. RICHARD, * Plaintiff * Civil Action * File No. 6:16-CV-1765 * versus * Unassigned District Judge * GE OIL & GAS, INC. * Magistrate Judge Defendant * Carol B. Whitehurst * * * ******************************************* REPLY MEMORANDUM IN SUPPORT OF RULE 12(b)(6) PARTIAL MOTION TO DISMISS May it please the court: Plaintiff, James Richard (“Richard”), has conceded that he failed to state a claim for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq., and that prescription has barred his state law claims. (Rec. Doc. 53, pp. 7-8). The only issues remaining on GE Oil & Gas, Inc.’s (“GE”) motion to dismiss are whether Richard stated a claim under 42 U.S.C. §1981 and whether his Title VII race discrimination and retaliation claims arising before January 29, 2009, under 42 U.S.C. §2000e, et seq., are similarly barred. I. Richard failed to plead facts sufficient to state a claim under 42 U.S.C. §1981. Both the 1-year period, advanced by GE, and 4-year period, advanced by Richard, applies to this case. The determination of which period applies depends upon whether the specific claim were made possible under the pre-1990 or post-1990 version of 42 U.S.C. §1981. Richard has asserted claims of discrimination in his pay, a hostile work environment claim, retaliation and constructive discharge. However, in his recent response to GE’s motion for summary judgment, Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 1 of 11 PageID #: 2089 2 Richard concedes that he was not constructively discharged. (Rec. Doc. 57, p.20). Thus, GE only addresses the remaining claims. A. One-year statute of limitations applies to Richard’s claim for discriminatory pay practices. Claims actionable under Section 1981, prior to the 1991 amendment, are subject to Louisiana’s 1-year statute of limitations, as held by Smith v. Cleco Corp., 927 F.Supp. 382, 386 (W.D. La. 2013), which court reasoned as follows: Section 1981 does not contain a statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 1839, 158 L.Ed.2d 645 (2004). When a federal statute does not contain a statute of limitations, courts should apply “the most appropriate or analogous state statute of limitations.” Id. Under Louisiana law, “[a] section 1981 claim is best characterized as a tort ... and is, therefore, governed by the one-year prescriptive period for delictual actions dictated by [Louisiana Civil Code article] 3492.” Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir.1985). However, for actions *386 arising under federal statutes enacted after December 1, 1990, courts must apply a catchall four-year statute of limitations. See 28 U.S.C. § 1658 (“Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.”). Section 1981 was originally enacted as part of the Civil Rights Act of 1866 and covered “only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.” Patterson v. McLean Credit Union, 491 U.S. 164, 179, 109 S.Ct. 2363, 2374, 105 L.Ed.2d 132 (1989). Section 1981 “did not protect against harassing conduct that occurred after the formation of the contract.” Jones, 541 U.S. at 372, 124 S.Ct. at 1840 (citing Patterson, 491 U.S. 164, 109 S.Ct. 2363). Section 1981 was later amended by the Civil Rights Act of 1991 to create a cause of action for discriminatory and retaliatory conduct occurring after the formation of the contract. See id. Thus, the applicable statute of limitations depends upon whether the claim was actionable under the older version of section 1981 or is only made possible by the 1991 amendments. See id. at 382, 124 S.Ct. at 1845. Where the plaintiff's claim was available under the original section 1981, the court must apply the analogous state statute of limitations, which in Louisiana is one year. See id. at 371, 124 S.Ct. at 1839; Taylor, 775 F.2d at 618. However, where the claim is only available under section 1981 as amended, the cause of action is said to “arise under” the Civil Rights Act of 1991 and the federal four-year statute of limitations provided by section 1658 applies. See Jones, 541 U.S. at 382, 124 S.Ct. at 1845. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 2 of 11 PageID #: 2090 3 Richard has not disputed GE’s argument that pay discrimination claims are actionable under the version of Section 1981 prior to the 1991 amendments. Certainly, they are. See Fisher v. Dillard University, 499 F. Supp. 525 (E.D. La. 1980)(Plaintiff who alleged wage discrimination in employment in violation of Section 1981 was entitled to relief for one year preceding filing of suit, when suit was filed within one year of notice of termination and within one year of last date of employment). Thus, Richard’s Section 1981 claim as it concerns GE’s pay practices and his wages are subject to a one-year statute of limitations. Richard has likewise not challenged, nor could he challenge, GE’s argument that filing a charge with the EEOC does not toll the statute of limitations for Section 1981 claims. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) Richard’s employment with GE formally ended on January 31, 2015, so that his claim under 42 U.S.C. §1981 regarding discrimination in the setting or paying wages prescribed one year later on January 31, 2016. GE prays that this Court dismisses Richard’s Section 1981 claims based upon unequal treatment in his pay. B. Four-year statute of limitations applies to Richard’s claims of hostile work environment and retaliation, but even then Richard still fails to state a claim. Hostile work environment claims brought under 42 U.S.C. §1981 were made possible only by the 1991 amendment. Jones v. RR Donnelly, 541 U.S. 369, 124 S.Ct. 1836 (2004). Similarly, Section 1981 retaliation claims could only be brought under by the 1991 amendment thereto. CBOCS West, Inc. v. Humphries, 553 US 442, 128 S.Ct. 1951 (2008). Accordingly, the four-year statute of limitations applies to those claims. 28 U.S.C. §1658(a). Again, filing a charge with the EEOC does not toll the statute of limitations for Section 1981 claims. Johnson, 421 U.S. 454. With Richard’s complaint filed on December 28, 2016, Richard must allege facts to support the claim that a hostile work environment existed and that he endured actionable retaliation after December 28, 2012. He failed in both respects. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 3 of 11 PageID #: 2091 4 1. Richard failed to state a Section 1981 hostile work environment claim. In racial discrimination suits brought under Section 1981 or Title VII, the elements of a plaintiff’s case are the same. They will be treated the same, absent pertinent factors, like statute of limitations. Jones v. Robinson Property Group, LP, 427 F.3d 987 (5 th Cir. 2005). Statute of limitation is a pertinent factor in this case, as Richard’s allegations of hostile work environment extend as far back as his joining GE in 2008. However, because the filing of an EEOC charge does not toll the running of the limitations period, only those factual allegations occurring after December 28, 2012, can be the subject of Richard’s claim for hostile work environment. In his response to GE’s Rule 12(b) motion, Richard relies upon his allegations in Paragraphs 5-19, 26-34, 39, 40, 43-46, 52-56, and 65 of his Complaint (Rec. Doc. 2) as support for his stating a claim for relief. However, of those allegations, the only allegations that Richard relies upon to support his harassment claim are Paragraphs 26, 40, 44, 45, and 46, and those are the only ones that could be construed as occurring after December 28, 2012. A hostile work environment is a workplace that is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of an employee’s employment. Harris v. Forklift Systems, Inc. 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). A hostile work environment claim requires (1) membership in a protected group; (2) harassment (3) based on a factor rendered impermissible by Title VII; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment yet failed to address it promptly. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 654 (5 th Cir. 2012). Richard fails to sufficiently plead the second and fourth prongs for a hostile work environment claim. The alleged harassment must be sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment,” in order of it to affect Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 4 of 11 PageID #: 2092 5 an employee’s term condition, or privilege of employment. Johnson v. LASHIP, LLC, et al. __ F.3d __, 2018 WL 2735486 (5 th Cir. 6/7/2018) (citing Aryain v. Wal-Mart Stores Tex., LP, 534 F.3d 473, 479 (5 th Cir. 2008)). To be actionable, the behavior alleged must result in a work environment that the plaintiff subjectively perceives as abusive and that a reasonable person would deem abusive. Peterson v. Linear Controls, Inc., 2017 WL 3907299 (W.D. La. 2017)(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). The following factors are analyzed to determine whether a work environment is objectively abusive or hostile: (i) the frequency of the discriminatory conduct; (ii) its severity; (iii) whether it is physically threatening or humiliating, or a mere offensive utterance; and (iv) whether it unreasonably interferes with an employee's work performance. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Ramsey v. Henderson, 286 F.3f 264, 268 (5 th Cir. 2002)). GE starts by noting that Richard’s allegation in Paragraph 26 does not contain any indication that he heard David Conques make racist statements, but rather that a fellow employee supposedly told him that. Such hearsay cannot support a hostile work environment claim. See Casey v. Coca-Cola Enterprises, 2006 WL 3862005, p. (W.D. La. 2006) (“at least three allegations are based upon hearsay and not [plaintiff’s] personal observations.”). The hearsay allegation at minimum calls into question Richard’s subjective belief that he endured a hostile work environment. Clearly, with Richard having worked at GE for over six years, if Richard had to be told of racist remarks, GE’s workplace certainly did not permeate with discriminatory, intimidation, ridicule or insult. The hearsay allegation reveals that Richard did not endure or have first-hand experience with any alleged racist statements, i.e. Richard was never harassed. Such further speaks to whether Richard objectively endured a hostile environment and whether David Conques’ alleged remarks interfered with Richard’s work, which GE submits it did not and there is no allegation by Richard that it did. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 5 of 11 PageID #: 2093 6 As to the allegations in Paragraphs 40, again Richard does not allege anything more than David Conques saying that “it’s going to get worst [sic] for you before it gets better.” Specifically, Richard does not allege whether things got worse or how they got worse. Rather, the totality of his Complaint only suggests that things remained the same. While maintaining the status quo was not to Richard’s liking, objectively Richard has not alleged whether or how David Conques’ remark is to be interpreted as a physical threat or humiliating, and Richard does not allege that David Conques’ remark interfered, unreasonable or otherwise, with his work performance. Finally, the allegations in Paragraphs 44, 45, and 46 concern Richard purportedly signing a class-action waiver. Richard alleges that such waiver was presented in retaliation, and he has not discussed how Paragraphs 44-46 support a hostile work environment claim. Clearly, the allegations in Paragraphs 44-46 contain no humiliating remark or remark that threatens physical violence against Richard. Further, Richard’s failure in Paragraphs 26, 40, 44, 45 and 46 to allege anything regarding physical threats or threats of humiliation, and failure to allege how the complained-of conduct interfered with his work, results in his failure to allege that GE’s work environment was objectively hostile. Ergo, Richard has failed to state a hostile work environment claim. See Brooks v. Firestone Polymers, LLC, 640 Fed.Appx. 393, 399 (5 th Cir. 2016)(citing Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839 (8 th Cir. 2002) (failing to allege that remarks interfered with his work and did not involve physical threats, so that such fail to support a hostile work environment claim.)) GE prays that Richard’s claim under 42 U.S.C. §1981 for hostile work environment be dismissed. 2. Richard failed to state a Section 1981 retaliation claim. To state a claim for retaliation the plaintiff must show that (i) he engaged in protected activity, (ii) an adverse employment action occurred, and (iii) there was a causal link between the Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 6 of 11 PageID #: 2094 7 protected activity and the adverse employment action. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 657 (5 th Cir. 2012). Again, Richard relies upon his allegations in Paragraphs 5-19, 26- 34, 39, 40, 43-46, 52-56, and 65 of his Complaint (Rec. Doc. 2) as support for his stating a claim for relief, but of those, the only non-conclusory allegations that relate to his retaliation claim that plausibly occurred after December 28, 2012, are those in Paragraphs 26, 34, 40, 43-46 and 52. Richard fails to satisfy the first prong for Paragraphs 44-46 and 52, fails to satisfy the second prong as to Paragraphs 26 and 34, and fails to satisfy the third prong as to Paragraphs 40, 43-46 and 52. As to Paragraphs 44-46 and 52 of the Complaint, such fail to satisfy the first prong. An employee engages in a protected activity if he opposes any unlawful employment practice, or makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing. Carrera v. Commercial Coating Svcs. Intern., Ltd., 422 Fed.Appx. 334, 339 (5 th Cir. 2011)(citing Byers v. Dallas Morning News, Inc., 209 F.3d 419,427-28)(5 th Cir. 2000)), The retaliation that Richard complains of in Paragraphs 44-46 and 52 is that he had to supposedly sign a class-action waiver. However, Richard makes clear that GE advised him of the last date to file a class action suit. Additionally, Richard does not assert that his signing of the alleged class-action waiver was the result of him making a charge of discrimination. To satisfy the second prong for “adverse employment action”, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006). In Paragraph 25, Richard alleges that, after he made a complaint to Reggie Palmer on August 7, 2012, David Conques assigned him to perform menial tasks; yet, that did not dissuade Richard from filing subsequent reports to human resources at the end of 2012 or in 2013. (Rec. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 7 of 11 PageID #: 2095 8 Doc. 2, ¶¶7, 27-31, 38). Thus, the menial tasks were insufficient to cause a reasonable person to be dissuaded from making charges of discrimination. Then, in Paragraph 34, Richard alleges that he was not on a training list for welders; however, he alleges in Paragraphs 5, 7 and 13 that he worked at all times as a welder. Richard makes no allegation that not being on the training list impacted his employment in any way, adverse or otherwise, so that Richard fails to show how not being on the training list would dissuade a reasonable worker from complaining about discrimination. Finally, Paragraphs 34, 40, 43-46 and 52 fail to satisfy the third prong of a causal link. “Close timing between an employee's protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” Jackson v. Wilson Welding Svc., Inc., 2012 WL 12807 (E.D. La. 2012) (citing Cooper v. United Parcel Serv., Inc., 368 Fed. Appx. 469 (5th Cir.2010) (quoting McCoy v. City of Shreveport, 492 F.3d 55, 562 (5th Cir.2007))). However, “temporal proximity can only establish a causal link when it is connected to the decision maker's knowledge of the protected activity.” Id. (citing Thompson v. Sumervell Cnty., Tx., 2011 WL 262357 (5th Cir.7/1/2011) (citing Clark Cnty. Sch. Dist. v. Breeden, 121 S.Ct. 1508, 1511 (2001) (“The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.”)) (emphasis added) Richard’s complaints of discrimination to GE’s human resources department was on August 14, 2012, and the allegations in Paragraphs 34, 40, 43-46 and 52 occurred in March and August of 2013. The “temporal proximity” between the allegations was not close at all to his August 2012 complaint, so that such allegations fail to satisfy the third prong of a retaliation claim. GE prays that Richard’s retaliation claim under 42 U.S.C. §1981 is dismissed. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 8 of 11 PageID #: 2096 9 II. No acts prior to January 29, 2009 can be used to support Richard’s Title VII claim. In regards to GE’s Ledbetter argument, Richard advances that his back wage claim is limited to February 6, 2011 but that his Title VII “retaliatory harassment / hostile work environment” claim is not affected. 1 Taking the latter contention first, concerning the “retaliatory harassment / hostile work environment” claim,” this Rule 12(b)(6) motion only concerns activities prior to January 29, 2009. The allegations that Richard relies upon, namely Paragraphs 26, 40, 44-46, all occurred after January 29, 2009, and so such Title VII claim is seemingly unaffected by GE’s Rule 12(b)(6) motion. However, as discussed below, GE submits that any acts that occurred prior to January 29, 2009, cannot form the basis for Richard’s retaliation claim or a hostile work environment claim, should he attempt to do so in response to GE’s motion for summary judgment (Rec. Doc. 44) or at the trial on the matter. As to the back pay claim, and all other of Richard’s claims, GE agrees that the ultimate result is that back pay is limited to February 6, 2011, since Richard did not file a charge with the EEOC under February 2, 2013. However, GE’s motion and argument are more than just limiting the damages period. The thrust of GE’s argument is that the acts that occurred before January 29, 2009, cannot form the basis of Richard’s Title VII claims. The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., Inc., denied relief under Title VII for acts occurring outside of the charging period, even though their effects continued to be felt within the charging period. In essence, the charge must be timely made upon a discrete act of discrimination, e.g. the decision to deny a raise, even though the impact of not getting a raise continues to be felt each paycheck. 1 GE contends that there is no such claim as a “retaliatory harassment” claim. GE submits that Richard may have conflated a retaliation claim with a harassment claim. The elements of each claim are different. Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 9 of 11 PageID #: 2097 10 Without a new act of discrimination, the charging period is not renewed and is not measured by the issuance of the paycheck. 550 U.S. 618, 624-36, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007). Of particular note and importance to this motion is Richard’s claim that GE set his initial starting wage discriminatorily low. GE’s decision in that regard certainly would be felt for the six years that Richard remained an employee. However, because Richard started working for GE in 2008 and did not file a charge with the EEOC until 2013, under Ledbetter, Richard’s Title VII claim that GE impermissibly discriminated against him in setting his wages is barred. In his complaint, Richard raised other issues concerning his pay, like not receiving raises and receiving less in raises than other Caucasian welders. (Rec. Doc. 2, ¶¶14) Richard did not allege a date with any of those allegations, but in that regard Ledbetter is on point, since such case involved the employer’s decision not to give a raise to the plaintiff. Such claims by Richard, where the decision to not give him a raise occurred prior to January 29, 2009, would likewise be barred. III. Conclusion GE prays that this court grants its motion and dismisses the following of Richard’s claims: state law race and age discrimination claims under La. R.S. 23:301, et seq., race discrimination claim under 42 U.S.C. §1981; Title VII race discrimination and retaliation claims arising before January 29, 2009, under 42 U.S.C. §2000e, et seq., and Richard’s alternative a claim of age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §621, et seq. Respectfully submitted: OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Andrew J. Halverson Gregory Guidry, T.A., La. Bar No. 06489 Andrew J. Halverson, La. Bar. No. 31184 603 Silverstone Road, Suite 102A Lafayette, LA 70508 Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 10 of 11 PageID #: 2098 11 Telephone: (337) 769-6582 Facsimile: (337) 989-0441 Email: greg.guidry@ogletree.com andrew.halverson@ogletree.com CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing GE’s Motion for Summary Judgment has been served on all counsel of record via the Court’s Electronic Filing System. This 14th day of June, 2018. /s/ Andrew J. Halverson Andrew J. Halverson Case 6:16-cv-01765-UDJ-CBW Document 61 Filed 06/15/18 Page 11 of 11 PageID #: 2099