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Bennett v. Consolidated Gravity Drainage District No. 1

United States District Court, E.D. Louisiana

May 27, 2015



SALLY SHUSHAN, Magistrate Judge.






On January 28, 2014, Shirley Bennett ("Bennett"), an African-American, filed a complaint against Consolidated Gravity Drainage District No. 1 ("Consolidated") under Title VII for employment discrimination. Rec. doc. 1. Consolidated answered the complaint. Rec. doc. 5. The parties consented to proceed before the assigned Magistrate Judge. Rec. doc. 7. The trial is set for July 20, 2015 with a jury. Rec. doc. 9. On April 20, 2015, Consolidated filed a motion for summary judgment. Rec. doc. 12. Bennett filed an opposition which includes a request for leave to amend her complaint. Rec. doc. 15. Consolidated filed a reply which includes a response to Bennett's request for leave to amend. Rec. doc. 16.


In her opposition, Bennett contends that she must be granted leave to amend her complaint under Fed.R.Civ.P. 15(b)(2) to allege claims pursuant to Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487 (1985), and the Louisiana Whistleblower Law, La. R.S. §23:967. Bennett argues that: (1) evidence is presented by Consolidated in its motion for summary judgment for the first time; (2) this evidence is totally inconsistent with its explanation to the EEOC; and (3) the evidence is an admission of per se violations of Loudermill and the Whistleblower law. Rec. doc. 15 at 6-7.

Consolidated replies that: (1) it did not impliedly consent to new claims; and (2) the amendment sought by Bennett is futile because: (a) the Loudermill and Whistleblower claims are time-barred; (b) Bennett has no property interest in her job as required by Loudermill; and (c) Bennett cannot demonstrate an actual violation of law as required by the Whistleblower law.

"Generally speaking, motions to amend under Rule 15(b) are made at trial or in the immediate aftermath of a trial." Baicker-McKee, Janssen and Corr, Federal Civil Rules Handbook Rule 15(b) at 544 (2011). If Bennett seeks leave to amend, she must do so under Rule 15(a). If Bennett proceeds with a motion under Rule 15(a), she must demonstrate good cause to modify the scheduling order. In S&W Enterprises, L.L.C. v. Southtrust Bank of Alabama, NA, 315 F.3d 533 (5th Cir. 2003), the Fifth Circuit held that Fed.R.Civ.P. 16(b) governs the amendment of pleadings after a deadline in a scheduling order has expired.

Only upon the movant's demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) apply to the district court's decision to grant or deny leave.

Id. at 536. The Fifth Circuit applied a four-part test to determine whether the district court's refusal to modify its scheduling order was an abuse of discretion: (1) the explanation for the failure to move timely for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. Id. at 536.

The deadline for amendment of pleadings was October 6, 2014. Rec. doc. 9. In support of its motion for summary judgment, Consolidated presented the deposition of Bennett and declarations from Clyde Martin, Nancy Galofaro and Carlo Bruno. Rec. doc. 12. Bennett did not depose these persons. There is no evidence that Bennett sought any other discovery from Consolidated except for the interview of Lionel Wells, a member of the Personnel Committee of the Board of Commissioners of Consolidated, who voted against terminating Bennett. Consolidated submitted a declaration from Wells with its reply. If Martin, Galofaro and Bruno had been deposed, Bennett would have learned of their testimony at any earlier stage in the proceeding and sought leave to amend. Bennett cannot demonstrate good cause to modify the scheduling order.

Assuming arguendo that Bennett has demonstrated good cause to modify the scheduling order, the standard under Rule 15(a) would be applicable. Futility of the amendment is grounds for denial of a Rule 15(a) motion. Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). A Loudermill claim requires a pre-termination opportunity to respond. Such a claim is subject to a one year statute of limitation. Jones v. Orleans Parish School Board, 688 F.2d 343, 344 (5th Cir. 1982). A Louisiana Whistleblower claim is also subject to a one year statute of limitation. Johnson v. Harrah's Entertainment, Inc., 2005 WL 3541139, *5-6 (E.D.La.) (Knowles, M.J.). Bennett was terminated on July 11, 2012. She did not file her complaint until January 28, 2014. Rec. doc. 1. Bennett's Loudermill and Louisiana Whistleblower claims are time-barred. Her proposed amendment is futile.

Bennet's Rule 15(b) request for leave to amend is denied.


Fed. R. Civ. P. 56 provides in pertinent part that summary judgment will be granted when "... the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Wyatt v. Hunt Plywood, 297 F.3d 405, 409 (5th Cir. 2002). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).

Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact, " but need not negate the elements of the nonmovant's case. Celotex, 106 S.Ct. at 2553; see Lujan, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 106 S.Ct. at 2553-54. A dispute over a material fact is genuine, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Kee v. City of Rowlett Texas, 247 F.3d 206, 210 (5th Cir. 2001).

This burden is not satisfied with "some metaphysical doubt as to the material facts, " Matsushita, 106 S.Ct. at 1356, by "conclusory allegations, " Lujan, 110 S.Ct. at 3180, or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir.1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 110 S.Ct. at 3188. Summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir.1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted. Evans v. City of Bishop, 238 F.3d 586, 588-89 (5th Cir. 2000).

In Fierros v. Texas Dept. of Health, 274 F.3d 187 (5th Cir. 2001), the Fifth Circuit cautioned that summary judgment is not favored in claims of employment discrimination and that the Supreme Court in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000), emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge. Fierros, 274 F.3d at 190-91.


Bennett filed an EEOC complaint on May 2, 2013. Consolidated urges that incidents alleged to have occurred more than 300 days earlier or prior to July 6, 2012 are time-barred. Louisiana is a deferral state. Any Title VII discrimination claim that is not filed within 300 days of occurrence is dismissed as untimely absent a demonstration of a continuing violation. Kimble v. Georgia Pacific Corporation, 245 F.Supp.2d 862, 870 (M.D.La. 2002) (citing 42 U.S.C. § 2000e-5(e)(1), and Celestine v. Pertoleos de Venezuella, SA, 266 F.3d 343, 351 (5th Cir. 2001)). Bennett's complaint alleges that she "was ...

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