United States District Court, W.D. Louisiana, Alexandria Division
JACINTA R. WALKER, Plaintiff
CONCORDIA CAPITAL, Defendant
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
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
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. (Doc. 1-2).
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.
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).
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).
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).
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.
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).
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).
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).
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).
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.
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).
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).
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.
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).
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).
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).
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).
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
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).
Law and Analysis
Standards governing the Rule 12(b)(6) Motion to
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).
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