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Lewis v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

February 5, 2017

FREDERICK LEWIS, JR.
v.
CITY OF SHREVEPORT

          HORNSBY MAGISTRATE JUDGE.

          MEMORANDUM ORDER

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant City of Shreveport's Motion To Dismiss [Record Document 5]. Pro se Plaintiff Frederick Lewis ("Lewis") filed this action against the City of Shreveport ("the City"), alleging race and gender discrimination claims in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 1981, the Age Discrimination in Employment Act ("ADEA"), and Louisiana state law. Record Document 1, The City moved to dismiss Plaintiff's Title VII and ADEA claims as untimely, and his § 1981 and state law claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Record Document 5.

         For the reasons discussed below, the City's Motion To Dismiss [Record Document 5] is GRANTED IN PART and DENIED IN PART. The motion is denied with respect to Plaintiffs Title VII, ADEA, and § 1981 claims. The motion is granted with respect to Plaintiff's state law breach of contract claim. Plaintiff's breach of contract claim is dismissed with prejudice.

         I. Background

         Plaintiff, who is a "60-plus-year-old" black man, was hired by the City in 2006 and worked in the Shreveport Public Assembly & Recreation Department ("SPAR") until 2013, when he transferred to the City's Department of Community Development, where he is apparently still employed. Record Document 1, pp. 2-3. During his time at SPAR, Plaintiff worked in various positions, reporting to a Division Manager. In early 2012, Plaintiff inquired with Shelly Ragle ("Ragle"), the SPAR Department Director, about the possibility of promotion to Division Manager. Id., p. 5. Several months later, Ragle told Plaintiff that no Division Manager position was available, nor would such a position be available "in the foreseeable future." Id. She suggested a transfer to a different department for a better opportunity for promotion, and Plaintiff accepted, transferring from SPAR to the Department of Community Development. Id. A few months after Plaintiff's transfer, Ragle hired a young white woman as a Division Manager at SPAR. Id., p. 6. Plaintiff alleges that Ragle did not make the job posting public, nor did she alert Plaintiff to the opening or allow him to apply. Id. Plaintiff also alleges that he and other black employees have been systematically paid less than similarly situated white employees during his entire tenure with the City. Id., pp. 7-9.

         Based on these facts, Plaintiff alleges race and gender discrimination in violation of Title VII, racially discriminatory failure to promote in violation of § 1981, age discrimination in violation of the ADEA, and breach of contract for the City's failure to enforce its anti-discrimination policy.

         II. Discussion

         A. Standard of Review

         In order to survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must "state a claim to relief that is plausible on its face." Ashcroft v. lobal, 556 U.S. 662, 678 (2009).''A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 663. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. The court must accept as true all of the factual allegations in the complaint in determining whether plaintiff has stated a plausible claim. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Or. 2009). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Timeliness is a valid basis for dismissal under Rule 12(b)(6). Jones v. Alcoa, Inc., 339 F.3d .359, 366 (5th Cir. 2003) ("A statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiffs pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the like.").

         B. Title VII and ADEA Claims

         Plaintiff alleges a discriminatory failure to promote because of his race and gender (under Title VII) and because of his age (under the ADEA). Record Document 1, ¶s 31, 34, 36. He also alleges racial discrimination on the basis that he and other black employees were paid less than similarly situated white employees, in violation of Title VII. Id. ¶ 33. The City moved to dismiss Plaintiff's Title VII and ADEA failure to promote claims as untimely.[1]

         Both Title VII and the ADEA require that a charge of discrimination must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(i); 29 U.S.C. § 626(d). Plaintiff alleges that the unlawful employment practice was the City's failure to promote him or allow him to apply for a promotion to Division Manager, Record Document 1, p. 5-6. Plaintiff transferred out of SPAR in March of 2013, and the new Division Manager was hired in "May - June 2013." Record Document 5-3, p. 4. He filed his discrimination charge on May 26, 2015. Even assuming that the time clock began to run with the hiring of the Division Manager on the last day of June, 2013 - the latest possible date, based on these facts, on which the alleged unlawful employment practice could be said to have occurred - more than 300 days elapsed before Plaintiff filed his charge of discrimination with the EEOC. Plaintiff does not dispute that his claim exceeds the 300-day requirement, but argues that equitable tolling applies to his case.

         The 300-day filing requirement is not jurisdictional, but "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (Title VII); Coke v. Gen. Adjustment Bureau. Inc.,640 F.2d 584, 595 (5th Cir. 1981) (ADEA). The Fifth Circuit has identified three bases for equitable tolling: "(1) the pendency of a suit between the same parties in the wrong forum; (2) the plaintiffs lack of awareness of the facts supporting his claim because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about his ...


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