United States District Court, W.D. Louisiana, Shreveport Division
FREDERICK LEWIS, JR.
CITY OF SHREVEPORT
HORNSBY MAGISTRATE JUDGE.
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE.
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.
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
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.
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
Standard of Review
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.").
Title VII and ADEA Claims
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
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.
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 ...