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Abbiw v. Franks International LLC

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

March 7, 2018


          HANNA MAG. JUDGE.



         Before the Court in this discrimination suit is an unopposed Motion for Reconsideration, or Alternatively, Motion for Summary Judgment (Doc. 51), filed by Defendant Frank's International, LLC.[1] Pursuant to the motion, Defendant seeks reconsideration of the Court's September 6, 2016 Judgment finding Defendant had failed to show Plaintiff s suit was untimely filed as a matter of law. Doc. 40. Alternatively, Defendant moves for summary judgment, dismissing Plaintiffs suit with prejudice. Id. For the reasons that follow, Defendant's Motion for Reconsideration is DENIED, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiffs suit is DISMISSED WITH PREJUDICE.

         I. Factual and Procedural Background

         On September 23, 2016, Plaintiff Raymond K. Abbiw, a black man who is a native of Ghana, filed this suit against his former employer, Frank's International, alleging Defendant subjected him to discrimination on the basis of his race and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Doc. 1. Specifically, Plaintiff contends Defendant discriminated against him in the form of disparate treatment, subjected him to a hostile working environment, and terminated his employment in retaliation for his complaints about the hostile working environment. Id. at ¶¶ 1, 18, 33, 44 and 45. Plaintiff additionally asserts a claim of "negligent hiring" pursuant to Louisiana state law. Id. at ¶¶ 13-14, 46.

         On April 25, 2016, Defendant filed a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6), arguing Plaintiffs suit was not timely filed and should therefore be dismissed. Doc. 21. According to Defendant, the Equal Employment Opportunity Commission ("EEOC") issued Plaintiff a right-to-sue letter on September 29, 2015, and because Plaintiffs suit was not filed until January 23, 2016 (i.e., more than ninety days after a right-to-sue letter was issued and presumptively received by Plaintiff), Plaintiffs suit is untimely. Doc. 21-1 at pp. 2-5. On May 5, 2016, the Motion to Dismiss was referred to the Magistrate Judge for Report and Recommendation. Doc. 24. Thereafter, Plaintiff responded to the motion by arguing he did not receive the right-to-sue letter until November 6, 2015, and therefore his suit was timely filed. Doc. 28. In the alternative, Plaintiff argued the ninety-day deadline for filing suit should be equitably tolled. Id. Because both parties submitted evidence with their briefing, the Magistrate Judge converted the motion to dismiss into a motion for summary judgment and allowed the parties to supplement the record with any additional summary judgment evidence. Doc. 33; see also Docs. 34 and 35. On July 8, 2018, the Magistrate Judge issued his Report and Recommendation, wherein he recommended Defendant's motion for summary judgment be denied, finding Plaintiffs suit was timely filed.[2] Doc. 36 at 12-13. The Magistrate Judge reasoned that although the EEOC issued a right-to-sue letter to Plaintiff on September 29, 2015, "defendant did not submit any evidence proving when the plaintiff received the right-to-sue letter." Doc. 36 at 10. Because Plaintiff submitted evidence supporting his position that he did not receive the right-to-sue letter until November 6, 2015, and because Defendant submitted no evidence "establishing that the letter was received on any other date, " the Magistrate Judge ultimately recommended Defendant's motion be denied for failure to show suit was untimely filed as a matter of law. Id. at 11. On August 31, 2016, over the objection of Defendant, the Court adopted the findings and conclusions of the Magistrate Judge and denied Defendant's motion. Doc. 40.

         Defendant now seeks reconsideration of the foregoing Judgment. Doc. 51. Defendant argues the Court should reconsider and reverse its prior Ruling, because: (1) the Court's Ruling is "directly contrary" to the Fifth Circuit's decision in Gamel v. Grant Prideco, L.P., 625 Fed.Appx. 690 (5th Cir. 2015); and (2) "Defendant has newly discovered evidence that it could not have discovered with due diligence at the time of filing its motion to dismiss." Doc. 51-1 at 8. Alternatively, Defendant seeks summary judgment in its favor as to all claims asserted by Plaintiff, arguing Plaintiff cannot satisfy his prima facie burdens, and therefore Defendant is entitled to judgment as a matter of law. The Court first addresses Defendant's Motion for Reconsideration.

         II. Motion for Reconsideration

         A. Standard of Review

         Reconsideration of interlocutory orders is governed by Fed.R.Civ.P. 54(b). Austin v. Kroger Texas. L.P.. 864 F.3d 326, 336 (5th Cir.2017). Rule 54(b) states in pertinent part, "[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). "Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law." Austin, 864 F.3d at 336 (internal quotation marks omitted). "Although the district court's discretion in this regard is broad, it is exercised sparingly in order to forestall the perpetual reexamination of orders and the resulting burdens and delays." Castrillo v. American Home Mortg. Servicing, Inc., 2010 WL 1424398, *3 (E.D.La.) (citing Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1414-15 (5thCir.1993); 18B Charles A. Wright et al., Federal Practice & Procedure § 4478.1 (2d ed. 2002)). "[A] successor judge has the same discretion to reconsider an order as would the first judge, but should not overrule the earlier judge's order or judgment merely because the later judge might have decided matters differently." U.S. v. O'Keefe, 128 F.3d 885, 891 (5th Cir. 1997).

         B. Applicable Law

         Prior to pursuing claims in federal court, a plaintiff alleging employment discrimination must exhaust his administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-89 (5th Cir. 2002). Exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right-to-sue. Id. at 389. Title VII provides that claimants have ninety days to file a civil action "after the giving of such notice." 42 U.S.C. § 2000e-5(f)(1).[3]The jurisprudence in this circuit interprets the foregoing provision as requiring a plaintiff to file a civil action no more than ninety days after receipt of such notice. Duron v. Albertson's LLC, 560 F.3d 288, 290 (5th Cir. 2009) (per curiam); Taylor at 379. The requirement that suit be filed within ninety days of receipt of notice of the right-to-sue is "strictly construed."[4] Taylor at 379. Thus, in this matter, whether Plaintiffs suit was timely filed depends upon whether Plaintiff received notice of the right-to-sue from the letter issued on September 29, 2015, or from the letter received by Plaintiff on November 6, 2015.

         The Fifth Circuit holds "the giving of notice to the claimant at the address designated by him suffices to start the ninety-day period unless the claimant, through no fault of his own, failed to receive the right-to-sue letter or unless, for some other equitable reason, the statute should be tolled until he actually receives notice." Espinoza v. Missouri Pacific R. Co., 754 F.2d 1247, 1250 (5th Cir. 1985). "[T]he 90-day period of limitation established by 42 U.S.C. § 2000e-5(f)(1) begins to run on the date that the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant." Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5th Cir. 1986). "[W]here the date of receipt is not known, courts should apply a presumption that the plaintiff received the notice in three days." Jenkins v. City of San Antonio Fire Dept, 784 F.3d 263, 267 (5th Cir. 2015). "Such a presumption is unnecessary and inappropriate, of course, if there is other evidence showing a date of receipt earlier or later, such as postal evidence or testimony from the plaintiff or other persons with personal knowledge." Id. at 267 n.3. For the presumption to apply, there must be "sufficient evidence that the letter was actually mailed." Duron, 560 F.3d at 290 (quoting Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 419 (5th Cir. 2007)). The Fifth Circuit has found the following evidence sufficient to trigger the presumption: a sworn statement regarding normal mailing procedures; deposition testimony showing customary mailing practices used in the sender's business; a sworn statement attesting that the letter was properly directed and placed in a post office mail receptacle. Duron at 290-91; United Student Aid Funds Inc. v. Muracombi Enterprises Inc., 330 Fed.Appx. 453, 455-56 (5th Cir. 2009).

         C. Analysis

         Defendant asserts reconsideration of the Court's Judgment is warranted, arguing first that the Court's Ruling is "directly contrary" to the Fifth Circuit's decision in Gamel v. Grant Prideco. L.P., 625 Fed.Appx. 690 (5th Cir. 2015). Doc. 51-1 at 8. The Court disagrees as it finds Gamel is distinguishable on its facts. In Gamel, in support of its position that plaintiffs Title VII suit was untimely filed, defendant submitted: (1) plaintiffs right-to-sue letter reflecting May 20, 2014 as the "Date Mailed"; (2) the EEOC's internal case log indicating the letter was mailed on May 2, 2014; and (3) the affidavit of "an EEOC employee whose job include[d] mailing right-to-sue letters, " wherein the EEOC employee attested "her records show[ed] she mailed the right-to-sue letter on May 20, 2014." Id. at 692.

         In this matter, Defendant has submitted only the right-to-sue letter, stamped "September 29, 2015" in the "Date Mailed" field, and an internal EEOC case log noting the right-to-sue letter was mailed on September 29, 2015. Doc. 21-3; Doc. 35-1 at 4. Unlike cases where the three-day presumption of receipt has been applied, here Defendant has produced no direct testimony showing the date on which the EEOC sent notice of the right-to-sue, nor any evidence of the EEOC's customary mailing practices. This Court has located no Fifth Circuit opinion where the presumption of receipt was triggered by the foregoing evidence, without accompanying evidence of the sender's customary mailing practices or direct testimony that a particular letter was properly mailed. See Custer at 422 ("[W]here the employee's assertion of non-receipt is supported by circumstantial evidence, and the employer provides an equally weak assertion that notice was mailed, the issue of mailing should not be decided at summary judgment."); Duron at 291 (summary judgment was improper where the only evidence of mailing was a copy of the right-to-sue letter); Zamora v. GC Services. L.P.. 647 Fed.Appx. 330, 332 (5th Cir. 2016).

         Defendant's second argument in support of reconsideration is that it has obtained "newly discovered evidence that it could not have discovered with due diligence at the time of filing its motion to dismiss." Doc. 51 -1 at 8. In an affidavit previously submitted by Plaintiff, Plaintiff stated he moved during the period of time the EEOC was investigating his claim. Doc. 28-1 at ¶ 6. According to Defendant, it recently learned during discovery that Plaintiff actually moved three times while the EEOC was investigating his claim. Doc. 51-1 at 14. Defendant contends this information shows Plaintiff "attempt[ed] to mislead this Court by suggesting that Plaintiff was without fault in his alleged failure to receive the original right-to-sue letter that was mailed in September . ..." Id. Defendant continues, "Because the undisputed facts now demonstrate that Plaintiff egregiously failed to comply with 29 C.F.R. § 1601.17(b) [sic] by 'provid[ing] the [EEOC] with notice of any change in address ... during the Commission's consideration of the charge, ' . . . Plaintiffs Title VII claims should be dismissed as a matter of law due to their untimeliness."[5]Id. (quoting 29 C.F.R. § 1601.7(b)). The Court finds Defendant's argument unpersuasive, as it does not alter the reasoning underlying the Court's Judgment.[6] Defendant has still failed to show Plaintiffs suit was untimely filed as a matter of law. Accordingly, Defendant's motion is denied to the extent it seeks reversal of this Court's prior Judgment.

         III. Motion for Summary Judgment

         A. ...

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