Reyes v. Tidewater Inc et al, No. 2:2017cv17739 - Document 33 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 26 Partial Motion to Dismiss claims. For the foregoing reasons, defendants' partial motion to dismiss is GRANTED. Plaintiff's retaliation claims under the ADA and the ADEA are DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 10/2/2018. (cg)
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Reyes v. Tidewater Inc et al Doc. 33 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J UAN REYES, J R. CIVIL ACTION VERSUS NO. 17-17739 TIDEWATER INC. AND TIDEWATER MARINE, LLC SECTION “R” (5) ORD ER AN D REASON S Before the Court is defendants’ partial m otion to dism iss plaintiff’s retaliation claim s. 1 Because the Court finds that plaintiff failed to exhaust his adm inistrative remedies for his retaliation claim s before filing suit in federal court, it grants the m otion. I. BACKGROU N D This case arises out of claim s of age and disability discrim ination in em ploym ent and unlawful retaliation. 2 Plaintiff J uan Reyes, J r. alleges that he worked for Defendants Tidewater, Inc. and Tidewater Marine, LLC as a m aritim e engineer. 3 In J anuary 20 13, defendants allegedly required plaintiff to undergo a physical exam ination. 4 According to the amended complaint, 1 2 3 4 R. Doc. 26. R. Doc. 25. Id. at 3 ¶¶ 18-19. Id. ¶ 21. Dockets.Justia.com the exam ining physician cleared plaintiff to work but stated that he could not take prescription pain m edication while working offshore. 5 Plaintiff asserts that he was willing to com ply with this condition. 6 Plaintiff further alleges that he provided defendants with notes from his treating physicians stating that he was no longer being prescribed pain medication. 7 But defendants allegedly refused to perm it plaintiff to return to work under any terms. 8 Plaintiff was born in 1955. 9 He alleges that defendants perm itted engineers under the age of 40 to continue working despite m edical problems that were as or m ore severe than his condition. 10 On November 1, 20 13, plaintiff filed a charge of age and disability discrim ination with the Equal Em ploym ent Opportunity Com m ission (EEOC). 11 According to the am ended com plaint, plaintiff called the Tidewater Marine personnel department in March 20 14 to inquire about returning to work, and he was told that he could not return to work because he had filed an EEOC charge. 12 This decision was allegedly m ade at Tidewater, Inc.’s New Orleans headquarters. 13 On March 5 6 7 8 9 10 11 12 13 Id. ¶ 22. Id. ¶ 24. Id. ¶ 26. Id. ¶ 27. Id. at 1 ¶ 2. Id. at 3-4 ¶ 28. Id. at 2 ¶ 10 ; R. Doc. 10 -2 at 4. R. Doc. 25 at 4 ¶ 30 . Id. 2 26, 20 14, plaintiff m ailed a handwritten letter to Madeline Bealer of the EEOC, m entioning what Tidewater had told him earlier that m onth. 14 The EEOC issued plaintiff a notice of his right to sue on September 29, 20 17. 15 On December 22, 20 17, plaintiff filed a com plaint alleging em ploym ent discrim ination in violation of the Am ericans with Disabilities Act (ADA) and the Age Discrim ination in Em ploym ent Act (ADEA). 16 The com plaint alleged that defendants refused to allow plaintiff to return to work and later term inated his employm ent because of his age and perceived disability. 17 Plaintiff further alleged unlawful retaliation under the ADA and the ADEA. 18 On April 12, 20 18, the Court granted defendants’ partial m otion to dism iss plaintiff’s retaliation claim s, on the ground that plaintiff failed to allege that he exhausted his adm inistrative rem edies. 19 The Court also granted plaintiff leave to am end his com plaint. 20 Plaintiff filed his am ended com plaint on May 3, 20 18. 21 The only substantive change from the original com plaint is plaintiff’s inclusion of the March 26, 20 14 letter to the EEOC explaining 14 15 16 17 18 19 20 21 Id. ¶ 31. R. Doc. 25 at 2 ¶ 14. R. Doc. 1. Id. at 4 ¶ 32, 5 ¶¶ 46-47. Id. at 5 ¶ 39, 6 ¶ 52. R. Doc. 22 at 4-7. Id. at 7-8. R. Doc. 25. 3 plaintiff’s conversation with a m em ber of the Tidewater Marine personnel department. 22 Defendant m oves again to dism iss plaintiff’s retaliation claim s under Federal Rule of Civil Procedure 12(b)(6). 23 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. 22 23 See id. at 2 ¶ 11; 4 ¶¶ 31-32. R. Doc. 26. 4 In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim. Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION A. Plain tiff D id N o t Exh au s t H is Ad m in is trative Re m e d ie s Fo r H is Re taliatio n Claim s Defendants assert that plaintiff’s retaliation claim s m ust be dism issed because he failed to exhaust his adm inistrative rem edies. 24 Before proceeding with a civil action under the ADA or the ADEA, a plaintiff m ust tim ely file an adm inistrative charge with the EEOC. See Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 20 17); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). The am ount of tim e that a plaintiff has to file a charge with the EEOC depends on whether the unlawful practice occurred in a “nondeferral” state or a “deferral” state. Clark, 854 F.2d at 765. 24 R. Doc. 26. 5 Louisiana is a deferral state for purposes of the ADA and the ADEA, and plaintiff was thus required to file his charge within 30 0 days of the alleged unlawful em ploym ent act. See Patton, 874 F.3d at 443; W alton-Lentz v. Innophos, Inc., 476 F. App’x 566, 570 (5th Cir. 20 12); Conner v. La. Dep’t of Health and Hosps., 247 F. App’x 480 , 481 (5th Cir. 20 0 7) (citing La. R.S. 51:2231 et seq.). Defendants assert that plaintiff did not file an adm inistrative charge with the EEOC for his retaliation claim s within this tim e period. 25 The critical question before the Court is whether plaintiff’s letter to Madeline Bealer at the EEOC on March 26, 20 14 constituted a charge that exhausted his retaliation claim s. The letter states in pertinent part: I received a letter from Tidewater on 3-14-14, which I copied for you on 3-18-14, I called Tidewater about returning to work. J oAnn Falcon Singer[’s] reply was m y returning, getting release by their doctor was out of their hands due to m y com plaint to EEOC. Told m e to gather m y thoughts on paper and send to Mary Torrens, Tidewater, New Orleans, LA. 26 25 R. Doc. 26-1. R. Doc. 26-2 at 1. The Court m ay consider the entirety of plaintiff’s March 20 14 letter without converting defendants’ motion into a m otion for sum m ary judgm ent because defendants attached the letter to their m otion, plaintiff refers to the letter in his am ended com plaint, and the docum ent is central to plaintiff’s claim s. Causey v. Sew ell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 20 0 4); R. Doc. 29 at 2. 6 26 For plaintiff’s letter to be deemed a charge, it m ust (1) com ply with EEOC regulations and (2) “be reasonably construed as a request for the agency to take remedial action to protect the em ployee’s rights or otherwise settle a dispute between the employer and the em ployee.” Fed. Express Corp. v. Holow ecki, 552 U.S. 389, 40 2 (20 0 8). The filer’s state of m ind when drafting the document is not the determ inative question; rather, the court m ust exam ine the docum ent “from the standpoint of an objective observer to determ ine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes.” Id. The Holow ecki decision perm its “a wide range of documents” to be classified as charges. Id. The standard is consistent with the statutory purpose of the ADA and ADEA, which “set[] up a ‘rem edial scheme in which laypersons, rather than lawyers, are expected to initiate the process[es].’” Id. at 40 2-0 3 (quoting EEOC v. Com m ercial Prods. Co., 486 U.S. 10 7, 124 (1988)). A charge can thus be “a form , easy to com plete, or an inform al docum ent, easy to draft.” Id. at 40 3. The Court now determ ines whether plaintiff’s letter constitutes a charge exhausting his retaliation claim s brought under the ADA (Count Two) and ADEA (Count Four). 7 i. Co u n t Tw o – R e t a lia t io n U n d e r t h e AD A The EEOC regulations pertaining to claim s brought under the ADA require that adm inistrative charges be “in writing and signed and . . . verified.” 29 C.F.R. § 160 1.9 (emphasis added). Plaintiff’s letter does not contain a sworn verification, and thus does not comply with the EEOC regulations and cannot constitute a charge under the ADA. 27 See Patton, 874 F.3d at 443 (finding that an unverified intake questionnaire subm itted alongside a form al charge did not constitute a charge under the ADA); Holow ecki, 552 U.S. at 40 2. Plaintiff’s retaliation claim under the ADA therefore m ust be dism issed. ii. Co u n t Fo u r – R e t a lia t io n U n d e r t h e AD EA Unlike the ADA, regulations for the ADEA do not require adm inistrative charges to be verified. 29 C.F.R. §§ 1626.6, 1626.8. Instead, the EEOC’s regulations sim ply require that the filing nam e “the prospective respondent and . . . generally allege the discrim inatory act(s).” 29 C.F.R. §§ 1626.6, 1626.8(b); see also Holow ecki, 552 U.S. at 40 2. Plaintiff sufficiently nam ed the prospective respondent in his letter. 28 The relevant questions are therefore (1) whether plaintiff’s letter includes an allegation that defendants 27 28 See R. Doc. 26-2. Id. at 1. 8 retaliated against him for his discrim ination charge filed with the EEOC, and (2) whether the letter satisfies the requirem ent in Holow ecki that it can be “reasonably construed as a request for the agency to take rem edial action.” Holow ecki, 552 U.S. at 40 2. The Court finds that plaintiff’s March 20 14 letter is legally insufficient to satisfy the standard for adm inistrative exhaustion set forth in Holow ecki. This question turns on plaintiff’s statem ent in the letter that a Tidewater em ployee told him that “getting release by [Tidewater’s] doctor was out of their hands due to [plaintiff’s] complaint to [the] EEOC.”29 To the extent this lone statement constitutes an allegation that defendants retaliated against plaintiff for his discrim ination charge, it cannot by itself be reasonably construed as a request for the EEOC to take remedial action. Nowhere in the letter does plaintiff state or im ply that he would like the EEOC to investigate whether Tidewater was retaliating against him . Cf. Holow ecki, 552 U.S. at 40 5 (plaintiff’s request that the EEOC “force Federal Express to end their age discrim ination plan” constitutes a request for remedial action); Becerra v. Ms. Ellie’s Kitchen, No. 11-1833, 20 12 WL 5363793, at *4 (E.D. La. Oct. 31, 20 12) (construing an intake questionnaire as a request for remedial action when the plaintiff checked the box that explicitly authorized the EEOC to 29 Id. at 1. 9 “look into the discrim ination” described in the questionnaire); see also Featherston v. District of Colum bia, 910 F. Supp. 2d 1, 6 (D.D.C. 20 12) (an intake questionnaire that sim ply “provide[s] inform ation about the alleged discrim ination . . . suffered and nothing m ore” does not constitute a charge under the Holow ecki standard). Holow ecki notes that the discrim inatory or retaliatory acts recounted in a docum ent m ay be “so clear or pervasive that the agency could infer from the allegations them selves that action is requested and required.” Holow ecki, 552 U.S. at 40 5. But the alleged retaliatory act described in plaintiff’s letter is neither clear nor pervasive. Instead, the letter is largely a reiteration of his previous discrim ination claim s. 30 Then in one sentence plaintiff alludes to a single vague comm ent by a Tidewater em ployee that plaintiff now construes as Tidewater retaliating against him for his discrim ination charge. 31 When viewing the letter as a whole, this one sentence cannot be reasonably construed as a request for the EEOC to “activate its m achinery and remedial processes” to investigate a retaliation claim . Holow ecki, 552 U.S. at 40 2. 30 See id. at 1-2 (“I felt I was discrim inated because I’ve worked with younger engineers with back surgeries com plaining about heavy lift work at Tidewater.”); id. at 2 (“All this has occurred due to the com pany physical in J anuary 20 13.”). 31 Id. at 1. 10 Because plaintiff’s letter does not satisfy the standard set forth in Holow ecki, plaintiff has not exhausted his retaliation claim under the ADEA, and that claim m ust also be dism issed. B. Gu p t a Exce ptio n Plaintiff also renews his argum ent that he was not required to am end or refile his EEOC charge to add retaliation claim s because the retaliation grew out of his initial charge. 32 Plaintiff relies on the Fifth Circuit’s decision in Gupta v. E. Tex. State Univ., 654 F.2d 411 (5th Cir. 1981). The Gupta Court held that “it is unnecessary for a plaintiff to exhaust adm inistrative rem edies prior to urging a retaliation claim growing out of an earlier charge.” Id. at 414. The Fifth Circuit reasoned that “[i]t is the nature of retaliation claim s that they arise after the filing of the EEOC charge.” Id. But as the Court explained in its Order on defendants’ first partial m otion to dism iss, the Fifth Circuit has held that the Gupta exception does not apply when a plaintiff alleges that the same adverse em ployment action was the result of both discrim ination and retaliation. 33 Sim m ons-My ers v. Caesars Entm ’t Corp., 515 F. App’x 269, 273-74 (5th Cir. 20 13); Sapp v. Potter, 413 F. App’x 750 , 752-53 (5th Cir. 20 11); see also Phipps v. Hous. 32 33 R. Doc. 29 at 4. See R. Doc. 22 at 6. 11 Auth. of N ew Orleans, No. 15-3296, 20 16 WL 164916, at *4 (E.D. La. 20 16). Here, plaintiff’s discrim ination and retaliation allegations are identical. Plaintiff alleges that “[d]efendants refused to allow [him ] to return to work, and later term inated his em ployment,” both because they “believed that he was disabled” and “because he had filed an EEOC charge.”34 Because plaintiff asserts claim s of discrim ination and retaliation arising out of the same adverse em ployment actions, his claim s do not fall within the Gupta exception. C. D is m is s al W ith o u t Pre ju d ice Defendants ask the Court to dism iss plaintiff’s claim s with prejudice because plaintiff has already had one opportunity to amend his com plaint. 35 But the “adm inistrative exhaustion requirement is not a jurisdictional requirement;” rather, it is a “precondition to filing suit, subject to waiver or estoppel defenses.” Stroy v. Gibson, 896 F.3d 693, 698 (5th Cir. 20 18). Accordingly, the Fifth Circuit has instructed district courts that when dism issing a claim for failure to exhaust under Federal Rule of Civil Procedure 12(b)(6), the dism issal should be without prejudice so that 34 35 R. Doc. 25 at 4 ¶ 36, 5 ¶ 43, 6 ¶¶ 51, 57. R. Doc. 26-1 at 12-13. 12 plaintiff m ay refile his com plaint after he has exhausted his adm inistrative remedies. Id. at 698 n.2. IV. CON CLU SION For the foregoing reasons, defendants’ partial m otion to dism iss is GRANTED. Plaintiff’s retaliation claim s under the ADA and the ADEA are DISMISSED WITHOUT PREJ UDICE. New Orleans, Louisiana, this _2nd _ _ _ _ day of October, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 13
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