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Reyes v. Tidewater Inc.

United States District Court, E.D. Louisiana

October 2, 2018


         SECTION “R” (5)



         Before the Court is defendants' partial motion to dismiss plaintiff's retaliation claims.[1] Because the Court finds that plaintiff failed to exhaust his administrative remedies for his retaliation claims before filing suit in federal court, it grants the motion.

         I. BACKGROUND

         This case arises out of claims of age and disability discrimination in employment and unlawful retaliation.[2] Plaintiff Juan Reyes, Jr. alleges that he worked for Defendants Tidewater, Inc. and Tidewater Marine, LLC as a maritime engineer.[3] In January 2013, defendants allegedly required plaintiff to undergo a physical examination.[4] According to the amended complaint, the examining physician cleared plaintiff to work but stated that he could not take prescription pain medication while working offshore.[5] Plaintiff asserts that he was willing to comply with this condition.[6] Plaintiff further alleges that he provided defendants with notes from his treating physicians stating that he was no longer being prescribed pain medication.[7] But defendants allegedly refused to permit plaintiff to return to work under any terms.[8]

         Plaintiff was born in 1955.[9] He alleges that defendants permitted engineers under the age of 40 to continue working despite medical problems that were as or more severe than his condition.[10] On November 1, 2013, plaintiff filed a charge of age and disability discrimination with the Equal Employment Opportunity Commission (EEOC).[11] According to the amended complaint, plaintiff called the Tidewater Marine personnel department in March 2014 to inquire about returning to work, and he was told that he could not return to work because he had filed an EEOC charge.[12] This decision was allegedly made at Tidewater, Inc.'s New Orleans headquarters.[13] On March 26, 2014, plaintiff mailed a handwritten letter to Madeline Bealer of the EEOC, mentioning what Tidewater had told him earlier that month.[14] The EEOC issued plaintiff a notice of his right to sue on September 29, 2017.[15]

         On December 22, 2017, plaintiff filed a complaint alleging employment discrimination in violation of the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).[16] The complaint alleged that defendants refused to allow plaintiff to return to work and later terminated his employment because of his age and perceived disability.[17]Plaintiff further alleged unlawful retaliation under the ADA and the ADEA.[18]On April 12, 2018, the Court granted defendants' partial motion to dismiss plaintiff's retaliation claims, on the ground that plaintiff failed to allege that he exhausted his administrative remedies.[19] The Court also granted plaintiff leave to amend his complaint.[20] Plaintiff filed his amended complaint on May 3, 2018.[21] The only substantive change from the original complaint is plaintiff's inclusion of the March 26, 2014 letter to the EEOC explaining plaintiff's conversation with a member of the Tidewater Marine personnel department.[22] Defendant moves again to dismiss plaintiff's retaliation claims under Federal Rule of Civil Procedure 12(b)(6).[23]


         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).


         A. Plaintiff Did Not Exhaust His Administrative Remedies For His Retaliation Claims

         Defendants assert that plaintiff's retaliation claims must be dismissed because he failed to exhaust his administrative remedies.[24] Before proceeding with a civil action under the ADA or the ADEA, a plaintiff must timely file an administrative charge with the EEOC. See Patton v. Jacobs Eng'g Grp., Inc., 874 F.3d 437, 443 (5th Cir. 2017); Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988). The amount of time that a plaintiff has to file a charge with the EEOC depends on whether the unlawful practice occurred in a “nondeferral” state or a “deferral” state. Clark, 854 F.2d at 765. Louisiana is a deferral state for purposes of the ADA and the ADEA, and plaintiff was thus required to file his charge within 300 days of the alleged unlawful employment act. See Patton, 874 F.3d at 443; Walton-Lentz v. Innophos, Inc., 476 Fed.Appx. 566, 570 (5th Cir. 2012); Conner v. La. Dep't of Health and Hosps., 247 Fed.Appx. 480, 481 (5th Cir. 2007) (citing La. R.S. 51:2231 et seq.). Defendants assert that plaintiff did not file an administrative charge with the EEOC for his retaliation claims within this time period.[25]

         The critical question before the Court is whether plaintiff's letter to Madeline Bealer at the EEOC on March 26, 2014 constituted a charge that exhausted his retaliation claims. The letter states in pertinent part:

I received a letter from Tidewater on 3-14-14, which I copied for you on 3-18-14, I called Tidewater about returning to work. JoAnn Falcon Singer['s] reply was my returning, getting release by their doctor was out of their hands due to my complaint to EEOC. Told me to gather my thoughts on paper and send to Mary Torrens, Tidewater, New Orleans, LA.[26]

         For plaintiff's letter to be deemed a charge, it must (1) comply with EEOC regulations and (2) “be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008). The filer's state of mind when drafting the document is not the determinative question; rather, the court must examine the document “from the standpoint of an objective observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its machinery and remedial processes.” Id. The Holowecki decision permits “a wide range of documents” to be classified as charges. Id. The standard is consistent with the statutory purpose of the ADA and ADEA, which “set[] up a ‘remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process[es].'” Id. at 402-03 (quoting EEOC v. Commercial Prods. Co., 486 U.S. 107, 124 (1988)). A charge can thus be “a form, easy to complete, or an informal document, easy to draft.” Id. at 403.

         The Court now determines whether plaintiff's letter constitutes a charge exhausting his retaliation claims brought under the ADA (Count Two) and ADEA (Count Four).

         i. Count Two - Retaliation Under the ADA

          The EEOC regulations pertaining to claims brought under the ADA require that administrative charges be “in writing and signed and . . . verified.” 29 C.F.R. § 1601.9 (emphasis added). Plaintiff's letter does not contain a sworn verification, and thus does not comply with the EEOC regulations and cannot constitute a charge under the ADA.[27] See Patton, 874 F.3d at 443 (finding that an unverified intake questionnaire submitted alongside a formal charge did not constitute a charge under the ADA); Holowecki, 552 U.S. at 402. Plaintiff's retaliation claim under the ADA therefore must be dismissed.

         ii. Count Four - ...

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