United States District Court, W.D. Louisiana, Lafayette Division
RAYMOND K. ABBIW
FRANKS INTERNATIONAL, LLC
DRELL, UNITED STATES DISTRICT JUDGE.
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. 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.
Factual and Procedural Background
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.
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. 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.
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.
Motion for Reconsideration
Standard of Review
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.
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).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." 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.
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).
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.
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).
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."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. 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.
Motion for Summary Judgment