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Walker v. Concordia Capital

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

February 27, 2019

JACINTA R. WALKER, Plaintiff
v.
CONCORDIA CAPITAL, Defendant

          DRELLJUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before the Court are Rule 12(b)(6) Motions to Dismiss (Docs. 20, 33), filed by Defendant Concordia Capital Corp. (“Concordia”). Pro se Plaintiff Jacinta R. Walker (“Walker”) filed an opposition. (Doc. 35). Because Walker fails to state plausible claims for relief for racial and national origin discrimination; because her claims arising prior to May 1, 2016 are untimely; and because she failed to administratively exhaust claims for discrimination and harassment prior to October 28, 2016, discriminatory denial of leave and medical benefits, and retaliation, Concordia's Motions to Dismiss (Docs. 20, 33) should be GRANTED.

         I. Background

         On May 25, 2018, Walker filed a Complaint, in forma pauperis, for employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). (Doc. 1). Walker named Concordia, doing business as Concordia Bank and Trust Company. (Doc. 1). Walker filed her Complaint on the Court's standard civil rights complaint form. (Doc. 1). Walker indicated she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Doc. 1). Walker also indicated she received a “right-to-sue” letter, dated March 2018, respecting her charges. (Doc. 1). Rather than respond to the form questions, Walker simply referred to her attached documents: (1) the EEOC letter dated February 23, 2018 with its determination regarding the charge of discrimination; (2) the “right-to-sue” letter, dated February 26, 2018; and (3) a three-paragraph unsigned document.[1] (Doc. 1-2).

         The EEOC determination letter and right-to-sue notice state the EEOC is unable to determine whether or not a violation of the law has occurred, and that the case should be closed. (Doc. 1-2). The attached three-paragraph document alleges discrimination by Concordia. (Doc. 1-2). Walker alleges Concordia has “never been compliant with laws since established in 1903.” (Doc. 1-2). Walker alleges Concordia has a long history of discriminating against minorities through termination, hiring, and promoting employees. (Doc. 1-2). Walker further alleges Concordia discriminates in their lending practices toward minorities. (Doc. 1-2). Walker claims minorities are scarce among Concordia's over 100 employees. (Doc. 1-2). Walker further claims minority Concordia employees never receive equal and fair salary for education and work experience. (Doc. 1-2).

         Walker alleges Concordia employees are never informed of all new job opportunities when available, and that outside Caucasian candidates are always sought and considered. (Doc. 1-2). Walker claims Concordia's minority employees receive disparate treatment. (Doc. 1-2). Walker further claims that, at Concordia, Caucasian employees are the majority in almost every department, and at all 8 branches. (Doc. 1-2).

         Walker states she disagrees with the EEOC's conclusion and that she was treated “with negligence including their investigation discrepancies.” (Doc. 1-2). She claims she also filed a retaliation charge against Concordia. (Doc. 1-2). Walker alleges she was harassed and intimidated by an EEOC employee to conduct a mediation against her will when she was recovering from medical surgery and off from work. (Doc. 1-2). She claims the EEOC employee pre-concluded that Concordia would be found “not guilty of charge.” (Doc. 1-2). She claims a “[m]ediation division had [her] charge filed January 9, 2017 and prolonged the investigation process until May 8, 2017.” (Doc. 1-2). Walker claims that two investigators, Ms. Reyes and Ms. Mitchem, conducted the investigation on her charge. (Doc. 1-2). Walker asserts Ms. Mitchem never replied to her email. (Doc. 1-2). Walker claims evidence was concealed by EEOC representatives to protect and benefit Concordia. (Doc. 1-2). Walker alleges the EEOC New Orleans Field Office claimed no knowledge of its employee's acts. (Doc. 1-2).

         Walker claims Concordia followed chain of command, and that the President/CEO refused to talk or resolve her problems. (Doc. 1-2). Walker claims she has past and present employee/customer statements about Concordia's discriminating actions, including her own experiences over the last 4 years. (Doc. 1-2). Walker claims she has worked without pay and used her personal vehicle to travel to another branch for work. (Doc. 1-2). She claims Concordia refused to reimburse her expenses. (Doc. 1-2). Walker asserts Concordia is biased and “does not comply with their own policies and procedures as minorities receive disparate treatment.” (Doc. 1-2).

         Concordia filed a Rule 12(b)(6) Motion to Dismiss (Doc. 20). Concordia seeks dismissal of Walker's claims on three bases: (1) that Walker's Title VII claims of discrimination and harassment based on race and/or national origin are so vague and conclusory that dismissal is appropriate; (2) that Walker's Title VII claims of discrimination and harassment based on race and/or national origin occurring prior to May 1, 2016 are time-barred; and (3) that Walker's Title VII claims of discrimination and harassment for any actions prior to October 28, 2016 and her claim for retaliation are premature as she failed to exhaust administrative remedies on these claims. (Doc. 20). Concordia attaches Walker's charge of discrimination (Doc. 20-2), in support of its motion.

         Walker sought leave to amend her Complaint, which was granted without opposition on October 1, 2018. (Doc. 31). Walker's Amended Complaint asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. for unlawful discriminatory practice based on race and national origin. (Doc. 32). Walker asserts she is an African American who was hired and employed by Concordia as a bank teller for the drive-through window department. (Doc. 32). She was employed at the Vidalia, Louisiana branch location. (Doc. 32). Walker's Amended Complaint asserts three counts against Concordia: (1) discrimination based on race and national origin in violation of 42 U.S.C. § 2000e-2(a)(1); (2) discrimination based on race and national origin in violation of 42 U.S.C. § 2000e-2(a)(2); and (3) retaliation in violation of 42 U.S.C. § 2000e-3(a). (Doc. 32). (Doc. 32).

         Walker asserts she submitted a charge of discrimination, EEOC Charge No. 461-2017-00369, to the EEOC against Concordia requesting an investigation based on race and national origin discrimination. (Doc. 32). Walker claims conciliation failed and the EEOC sent a Notice of Right to Sue on February 23, 2018. (Doc. 32). Walker states she fulfilled all conditions precedent to suit and has exhausted her administrative remedies. (Doc. 32).

         Walker has been employed with Concordia as a bank teller at the drive-through window since 2013. (Doc. 32). Upon her hire, she was provided with a Personnel Manual (revised 08/10/16) outlining Concordia's practices for EEOC Policy, Affirmative Action Plan, and Discrimination Policy. (Doc. 32). Walker claims Concordia's personnel, supervisors, and upper management breached organizational policies by denying her equal employment opportunities, with fair advancement potential, free from discrimination based on race and national origin. (Doc. 32). Walker asserts she has been subjected to racial and national origin discrimination during her tenure by various personnel, supervisors, and top management in violation of Title VII and Concordia's own policies. (Doc. 32). Walker states that over her several years of employment, she has been denied promotions, advancements, and other benefits afforded to employees of a nonprotected class in violation of Title VII. (Doc. 32).

         Walker contends she “experienced on several occasions when employees of a protected class are not informed of certain job positions which become available, are paid less than minority employees, and are not equally compensated for their work experience, skills, and education.” (Doc. 32). Walker claims a Caucasian with less education and experience was hired into an entry level bank teller position and compensated more than any non-Caucasian with similar experience in an entry-level position. (Doc. 32). Walker asserts this Caucasian was paid a higher entry bank teller salary than she was as a tenured bank teller with more experience and education. (Doc. 32).

         Walker further claims she applied for an advancement position for which she was well qualified but was never afforded an interview. (Doc. 32). She contends the position was filled by a less-qualified Caucasian from outside the organization. (Doc. 32).

         Walker alleges that, on another occasion, she received a disciplinary write-up for a cash drawer shortage on a day she was not scheduled for work. (Doc. 32). Walker claims Concordia's policy is to audit cash drawers only in the presence of an employee. (Doc. 32). On another occasion, she claims was not paid for her day's work when she refused to leave her branch location to work at another location. (Doc. 32). She also asserts she was the only teller asked to drive to the separate location despite other non-protected class employees with less tenure being present and available to work at the satellite location. (Doc. 32).

         Walker claims Concordia denied a request to leave her shift one hour early to attend her daughter's mandatory school orientation meeting. (Doc. 32). Yet, other similarly situated Caucasian employees were granted leave upon request with no adverse ramifications. (Doc. 32). Walker further claims that when she was involved in an auto accident and rendered disabled, her insurance benefits were cancelled without notification during her medical leave. (Doc. 32).

         Walker contends she was treated differently than Caucasian employees in violation of Title VII. (Doc. 32). Walker alleges Concordia has engaged in continuing violations of discriminatory policies and practices, and those unconstitutional acts were parts of a continuing violation amounting to a single wrong within the limitations period. (Doc. 32).

         Walker claims Concordia willfully engaged in illegal employment practices based on her race and national origin by compensating her less than other non-African American employees with similar education and experience. She further claims Concordia subjected her to unequal pay for the same duties worked as a drive-through bank teller than similarly situated Caucasian employees over the tenure of her employment due to her race and national origin. (Doc. 32). Walker alleges Concordia also failed to inform and promote her to advanced employment opportunities as non-African American employees with similar education and experience. (Doc. 32). Walker states Concordia retaliated against her for filing an EEOC complaint. (Doc. 32). Walker further claims Concordia denied her medical leave, medical insurance, and continued employment for filing a claim against their illegal employment practices with the EEOC. (Doc. 32).

         Walker asserts Concordia's conduct interfered with her health and work performance, creating an intimidating, hostile, and offensive working environment. (Doc. 32). Walker alleges she suffered loss of income, mental anguish, and humiliation. (Doc. 32). Walker seeks back pay, front pay, lost benefits, profits, and reinstatement to her former position; compensatory damages for emotional stress, mental duress, and loss of enjoyment of life; compensatory damages for acts of retaliation; and pre- and post-judgment interest. (Doc. 32).

         Concordia responded on October 11, 2018 with a second Rule 12(b)(6) Motion to Dismiss (Doc. 33), on the same grounds as its other pending motion to dismiss. (Doc. 20). Concordia asserts that despite the opportunity to amend her Complaint, Walker's claims remain facially deficient. (Doc. 33). Concordia further asserts Walker fails to allege any facts to support a continuing violation theory. (Doc. 33). In support, Concordia attaches Walker's charge of discrimination (Doc. 33-2) and Walker's EEOC intake questionnaire, dated December 16, 2016 (Doc. 33-3).[2]

         Walker opposes Concordia's motion to dismiss. (Doc. 35). Walker states the Court denied her request for appointed counsel giving her a disadvantage as to her representation in this matter. (Doc. 35). Walker argues she asserts her national origin as African American, and she does not understand Concordia's confusion. (Doc. 35). Walker contends her Complaint is sufficient on its face to put Concordia on fair and adequate notice of the nature of her claims of discrimination and unfair employment practices. (Doc. 35). Walker argues her claims for illegal employment practices beginning as early as 2014. (Doc. 35). Walker further asserts her claims prior to May 1, 2016 should be subject to equitable tolling under the “doctrine of continuing violations.” (Doc. 35).

         Concordia replied that Walker fails to provide any facts to support a “continuing violation” theory for claims prior to May 1, 2016. (Doc. 36). Concordia argues Walker also fails to provide an explanation for her failure to administratively exhaust claims of discrimination or harassment prior to October 28, 2016, retaliation, and denial of parental school leave and termination of medical benefits while on medical leave. (Doc. 36). Concordia further asserts Walker fails to

         (E.D. La. Apr. 12, 2017) (“An EEOC charge that is referenced in a plaintiff's Title VII complaint is central to her claim and may be considered in deciding a Rule 12(b)(6) motion.”). Additionally, “a sufficiently detailed intake questionnaire may be considered part of the EEOC charge, when it is verified and finalized via the formal charge.” Howard v. Sam's East, Inc., 2017 WL 5935839, at *4 (W.D. La. Oct. 26, 2017) (citing Patton v. Jacobs Eng'g Grp., Inc., 874 F.3d 437 (5th Cir. 2017)). Walker's allegations were finalized in the formal charge referenced in her Complaint. (Docs. 1, 32, 33-2). Thus, the Court considers the EEOC charge and intake questionnaire without converting Concordia's Rule 12(b)(6) motion into a motion for summary judgment. clarify her national origin claims, which are asserted synonymously with her racial origin. (Doc. 36).

         II. Law and Analysis

         A. Standards governing the Rule 12(b)(6) Motion to Dismiss.

         A court may grant a motion to dismiss for “failure to state a claim upon which relief can be granted” under Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief when, inter alia, it contains a “short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         To withstand a motion to dismiss, “a complaint must contain 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) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the ...


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