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Adams v. United Association of Journeymen and Apprentices of Plumbing And Pipefitting Industry of United States and Canada, AFL-CIO

United States District Court, M.D. Louisiana

July 18, 2019

CHARLES ADAMS, ET AL.
v.
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, LOCAL 198, ET AL.

          RULING AND ORDER

          JOHN W. DEGRAVELLES, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, Local 198's (“Defendant” or “Local 198”) Motion for Summary Judgment. (Doc. 639). There are 99 total Plaintiffs (collectively “Plaintiffs”). The motion does not apply to 17 of the 99 Plaintiffs.[1]Pursuant to the Court's Notice Regarding Reasons for Judgment (Doc. 698) and Oral Reasons for Judgment issued on July 16, 2019, 42 of the 99 Plaintiffs have been dismissed, [2] and five of the 99 Plaintiffs have had their claims pursuant to Title VII only dismissed.[3] There are 35 Plaintiffs opposing Defendant's motion, whose claims are the subject of this Ruling. Plaintiffs submitted memoranda in opposition to the motion. (Doc. 646, 648, 660). Defendant replied. (Doc. 654, 668). At the request of the Court, the parties submitted a joint chart documenting the names of the 99 Plaintiffs, whether the motion pertained to him/her, who represents each Plaintiff, and whether the Plaintiff opposes Defendant's motion. (Doc. 685). After a status conference with the Court, the Court ordered supplemental briefing and the submission of a revised, joint chart prior to the Court's ruling on the motion. (Doc. 686). Plaintiffs supplemented their oppositions. (Doc. 687, 688). Defendant replied. (Doc. 693-1). A final, revised chart was jointly submitted. (Doc. 690-1). A brief telephone conference was conducted by the Court to address a few outstanding issues on May 31, 2019. A third chart was jointly submitted by counsel on June 24, 2019. (Doc. 696-1). Oral argument was previously referenced by this Court in its Minute Entry signed April 12, 2019, documenting the Court's status conference that took place on April 11, 2019, (Doc. 686); however, the Court finds that oral argument is not necessary. The Court has carefully considered the law, the facts in the record, and the arguments and submissions of the parties and is prepared to rule. For the following reasons, Defendant's motion is granted in part and denied in part.

         I. Relevant Factual Background

         A. Introduction

         This case arises out of Local 198's alleged violations of: (1) the Civil Rights Act of 1866 pursuant to 42 U.S.C. 1981; (2) Louisiana state law for acts of racial discrimination pursuant to La. Rev. Stat. 23:332(C)(1) and (2) and (D); (3) Louisiana state law for acts of negligence, gross negligence and/or willful and wanton negligence; and (4) Title VII of the Civil Rights Act of 1964 pursuant to 42 U.S.C. § 2000e. Defendant's motion for summary judgment is limited to the sole issue of the timeliness of Plaintiffs' claims. This ruling addresses 35 of the 99 Plaintiffs' claims.[4]

         B. Plaintiffs' Claims and Procedural Background

         Various Plaintiffs[5] filed a “Class Action Complaint” on May 1, 1998. (Doc. 1). The proposed class of Plaintiffs are all African Americans who: are or have been members of the Local 198; have sought and been denied membership in the Local 198; have been or are currently enrolled in the Local 198's apprenticeship program; or have sought admittance and been denied admission to the Local 198 apprenticeship training program. (Doc. 1 at p. 7). The sole remaining Defendant is Local 198. Plaintiffs allege that Local 198 discriminates based on race in the following ways: job assignments; job referrals; lay-offs; board leadership; maintaining a hostile work environment; using racial slurs and epithets; training; compensation; hiring; benefits; representation; recalls; job opportunities; retaliation; preventing work in supervisory positions; lack of assistance in disputes and providing defense; and admissions. (Doc. 1 at pp. 9-19).

         On July 28, 1998, Plaintiffs moved to certify the class. (Doc. 27). Magistrate Judge Dalby recommended that the action not be certified as a class action on August 31, 1999. (Doc. 185). The Court adopted this recommendation and denied the motion to certify the class on October 29, 1999. (Doc. 196).

         The Court ordered a discovery deadline of March 29, 2002. (Doc. 224).

         Plaintiffs amended their original complaint on July 27, 2001, adding additional Plaintiffs.[6](Doc. 227). Two additional amending complaints were filed on December 3, 2001, naming additional Plaintiffs.[7] (Doc. 274, 283). On February 14, 2002, Plaintiffs amended the complaint again, naming additional Plaintiffs.[8] (Doc. 335). Plaintiffs were added in the amended complaint filed on November 4, 2002, [9] (Doc. 493). A final amended complaint was filed on April 15, 2003, (Doc. 518); however, no new Plaintiffs were named in the final amendment.

         The Court conducted a status conference on April 26, 2018, at which time counsel for some Plaintiffs, Mr. Wilson, expressed a concern that many of the Plaintiffs' claims were untimely. At that time, all parties agreed to address the issue of timeliness. (Doc. 625). The Court also determined that it was appropriate for the parties to exchange information to assist the parties in evaluating the timeliness of certain Plaintiffs' claims. (Doc. 630). The Court did not extend the previously ordered discovery deadline and did not set a new discovery deadline associated with the briefing related to timeliness. The Court ordered deadlines for parties to brief the issue of timeliness. (Doc. 632).

         II. Relevant Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts … [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine issue for trial.'” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The non-mover's burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(citations and internal quotations omitted). The party opposing the motion for summary judgment may not sit on his hands, complacently relying on the pleadings. Weyant v. Acceptance Ins. Co., 917 F.2d 209 (5th Cir. 1990). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co., 475 U.S. at 587. General allegations that fail to reveal detailed and precise facts will not prevent the award of summary judgment. Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir. 1994). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of the witnesses, weigh the evidence, or resolve factual disputes; so long as the evidence in the record is such that a reasonable jury drawing all inferences in favor of the nonmoving party could arrive at a verdict in that party's favor, the court must deny the motion.

Int'l Shortstop, Inc. v. Rally's Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

         III. Discussion

         A. Parties' Arguments

         1. Defendant's Memorandum in Support (Doc. 639-2)

         Defendant's motion is limited in scope to the sole issue of timeliness of Plaintiffs' claims. Defendant argues that: the alleged discriminatory acts occurred outside of the relevant time period to render the Plaintiffs' filing timely; many of the allegations and complaints were not of Local 198's making or having anything to do with Local 198; and/or Plaintiffs were not members or applying to be members of Local 198 at the relevant time period of his/her complaints. (Doc. 639-2 at pp. 8-11).

         With respect to Plaintiffs' state law and Section 1981 claims of racial discrimination, Defendant argues that the one-year statute of limitations applies. As such, Plaintiffs' complaints must have arisen or occurred within the year preceding the complaint filing date in which that Plaintiff is named. (Doc. 639-2 at p. 13, citing Whatley v. Dept. of Education, 673 F.2d 873, 874 (5th Cir. 1982); Jones v. Orleans Parish School Bd., 679 F.2d 32, 35, 36, (5th Cir. 1982), on reh'g withdrawn in part, 688 F.2d 342 (5th Cir. 1982), cert. denied, 461 U.S. 951 (1983)).

         Additionally, Defendant argues that some of the Plaintiffs were not members of Local 198 or applying for membership to Local 198 during the relevant time period. Defendant further argues that the continuing violation exception does not apply because: (1) this exception cannot apply to give a claim to an individual who was not a member or applying to be a member of the union; and (2) if the alleged discriminatory acts did not occur within one year of filing suit, then the “continuing violation” did not “continue” into the relevant time period and the exception does not revive the stale claim. (Doc. 639-2 at p. 14, citing Glass v. Petrotecs Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985).

         Defendant also argues, with regard to the state law claims and Section 1981 claims, that some Plaintiffs did not respond to any discovery in any form and are simply named in a complaint. Therefore, Defendant argues, these Plaintiffs can not make a prima facie case, and their claims should be dismissed. (Doc. 639-2 at p. 15).

         As to the racial discrimination claims under Title VII, Defendant argues that Plaintiffs' action is time-barred because no alleged discrimination occurred in the 300 days before Plaintiffs filed the EEOC charge. Further, Defendant argues that only 17 of the Plaintiffs produced notices of EEOC charges and right to sue letters. Therefore, Defendant argues that all but the 17 charging Plaintiffs should be dismissed, and for those charging Plaintiffs, their claims should be dismissed because the alleged discrimination did not occur within 300 days of filing the charge. (Doc. 639-2 at pp. 15-16).

         2. Plaintiffs' Oppositions (Doc. 646, 648)

         Due to representation by varying counsel, Plaintiffs responded to Defendant's motion in groups. One group, represented by Mr. Wilson, responded by first providing a list of Plaintiffs who do not oppose the motion.[10] Plaintiffs represented by Mr. Wilson then argued that Defendant's motion is limited solely to timeliness; therefore, Defendant's argument that Plaintiffs cannot make a prima facie case at this stage of discovery and motion practice is mis-placed. (Doc. 646 at pp. 1-2). Finally, Plaintiffs represented by Mr. Wilson argue that “the few remaining Wilson plaintiffs” require more discovery before proceeding.[11]

         A second group of Plaintiffs, represented by Ms. Grodner, argues the continuing tort exception. (Doc. 648 at pp. 4-8). Plaintiffs argue that they alleged actions of the Defendant that was a part of its “custom, policy, pattern and practice” and was a series of actions that violated Plaintiffs' rights. (Doc. 648 at p. 5, citing Doc. 1 at p. 23, ¶ 94). Plaintiffs argue that the alleged discriminatory practice occurred before and through the time of filing suit as evidenced by the affidavits of James Miles (Doc. 648-1), Lee Fox (648-2), Charles Adams (648-3), and Rayfield Goings (648-4). (Doc. 648 at p. 6). Plaintiffs argue that “all putative class members joined this lawsuit and enjoy the interruptions of prescription through this suit.” (Doc. 648 at p. 8).

         The second group of Plaintiffs also argue the “single file” rule or “piggyback” exception. (Doc. 648 at pp. 8-13). Plaintiffs direct the Court to specific Plaintiffs who filed EEOC charges and/or received right to sue letters and the record evidence supporting application of the “piggyback” exception. (Doc. 648 at pp. 10-13).

         Neither group of Plaintiffs disputed the applicable statutes of limitations as argued by Defendant.

         3. Defendant's Reply (Doc. 654)

         In reply, Defendant summarizes Plaintiffs' arguments and argues that “plaintiffs never offered a shred of evidence that Local 198 applied the call-back provisions in a discriminatory manner; the affidavits offered do not meet the standards of Rule 56 and should be stricken; the continuous tort rule does not apply unless the plaintiff can point to an act that has taken place within the limitation period; and the piggyback rule is inapplicable here where class certification was denied.” (Doc. 654 at p. 2). Defendant also argues that discovery has closed, Plaintiffs have failed to meet their burden; and 42 Plaintiffs remain unaddressed by Plaintiffs. (Doc. 654 at p. 3).

         Specifically, Defendant argues that Plaintiffs do not adequately show how or why the continuing tort exception applies. Plaintiffs do not plead with specificity the discriminatory actions or practices of Local 198 or how these actions affected each individual Plaintiff. (Doc. 654 at p. 3). Defendant argues that Plaintiffs do not explain the cases to which they cite and provide no facts to describe what alleged discriminatory practices they are referring to and who is injured by the practices or when. (Doc. 654 at p. 5). Additionally, Defendant argues that the “piggyback” exception does not apply. Since the purported class was not certified, the cases relied upon by Plaintiffs do not apply; no union filed a charge on behalf of the Plaintiffs; and Plaintiffs' charges did not give timely notice of the alleged practice or nature of the grievance. (Doc. 654 at p. 8).

         All memoranda submitted by both Plaintiffs and Defendant individually discuss each Plaintiff, just as the Court does below.

         4. Charts (Doc. 685, 690-1, 696-1).

         Prior to the Court-ordered status conference, the Court requested that the parties jointly submit a chart listing all Plaintiffs by name, whether the Plaintiff was the subject of Defendant's motion, whether the Plaintiff opposed the motion or not, and the basis for same. In accordance with this request, the parties submitted the first chart. (Doc. 685). At the status conference with the Court, it was agreed that the parties would be allowed to amend the chart and submit supplemental briefing on the timeliness issue to the Court. A revised and final chart was submitted. (Doc. 690-1). The parties also supplemented their briefing as set forth below. The parties voluntarily submitted a third joint chart. (Doc. 696-1).

         5. Plaintiffs' Supplemental Oppositions (Doc. 687, 688, 692)

         Plaintiffs represented by Ms. Grodner supplemented their oppositions, many of whom changed his/her position from “opposing” the motion based on application of one or both of the exceptions to “not opposing” the motion. (Doc. 687, 688). All but two of these changes are reflected in the revised, final chart. (Doc. 690-1).[12]

         Plaintiffs represented by Mr. Wilson stand by their position on “no opposition” with the exception of two Plaintiffs, Vernon Ashford and Darryl Freeman, whose claims, Mr. Wilson argues, may be timely in relation to Plaintiff Fox's charge, which Mr. Wilson cannot locate or produce. These two Plaintiffs are the only two Plaintiffs who formerly did not oppose and now “potentially” oppose the motion. (Doc. 692).

         6. Defendant's Supplemental Reply (Doc. 693-1).

         Defendant argues in supplemental reply that despite all submissions, Plaintiffs have “utterly failed” to meet their burden of proof. (Doc. 693-1 at p. 1). Many Plaintiffs give a date of membership, but no dates of alleged discrimination; many Plaintiffs give dates of alleged discrimination but were not members of Local 198 or fail to make a showing of same. Therefore, Defendant argues, Plaintiffs do not meet their burden. It is insufficient to show membership but no alleged discriminatory acts within the relevant time period or to allege discriminatory acts but not show membership in Local 198, argues Defendant. (Doc. 693-1 at p. 2). Defendant re-iterates its previously-made arguments regarding the inapplicability of the argued exceptions since Plaintiffs were not certified as a class. (Doc. 693-1 at p. 5).

         B. Applicable Legal Authority

         1. State Law Claims of Racial Discrimination

          Louisiana Revised Statute 23:303 provides, in relevant part:

D. Any cause of action provided in this Chapter shall be subject to a prescriptive period of one year. However, this one-year period shall be suspended during the pendency of any administrative review or investigation of the claim conducted by the federal Equal Employment Opportunity Commission or the Louisiana Commission on Human Rights. No. suspension authorized pursuant to this Subsection of this one-year prescriptive period shall last longer than six months.

See Williams v. Otis Elevator Co., 557 Fed. App'x. 299, 302 (5th Cir. 2014).

         Thus, the Louisiana Employment Discrimination Law (“LEDL”) has a one-year prescriptive period. La. Rev. Stat. 23:303(D); Bellow v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll., 913 F.Supp.2d 279, 289 (E.D. La. 2012), aff'd in part sub nom. Bellow v. LeBlanc, 550 Fed. App'x. 181 (5th Cir. 2013); Nabors v. Metro. Life Ins. Co., No. 12-827, 2012 WL 2457694, at *3 (citing La. R.S. 23:303(D)). “Under Louisiana law, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished; thus, a construction that favors maintaining an action rather than barring it should usually be adopted.” Nabors, 2012 WL 2457694, at *4 (citations and quotations omitted). “Ordinarily, the burden of proof is on the party pleading prescription; however, when the plaintiff's petition has clearly prescribed on its face the burden shifts to the plaintiff to prove that prescription has been suspended or interrupted.” Id. (citations and quotations omitted).

         The prescriptive period “begins to run on the date that the discrimination occurs.” Nabors, 2012 WL 2457694, at *3; see also Bellow, 913 F.Supp. at 289 (“Prescription under the statute commences on the day that the termination occurred.”). “[T]his one-year period shall be suspended during the pendency of any administrative review or investigation of the claim conducted by the federal Equal Employment Opportunity Commission or the Louisiana Commission on Human Rights.” La. Rev. Stat. 23:303(D). “No suspension authorized pursuant to this Subsection of this one-year prescriptive period shall last longer than six months.” Id. “Therefore, the total amount of time that a plaintiff has to bring a claim under Louisiana Revised Statute 23:322 is eighteen months.” Bellow, 913 F.Supp.2d at 289; see also Nabors, 2012 WL 457694, at *3 (“Consequently, the LEDL requires a plaintiff to file suit on his discrimination claim no later than eighteen months after the occurrence forming the basis for the claim.” (citations omitted)).

         2. Negligence Claims

         “Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it; thus, of two possible constructions, that which favors maintaining, as opposed to barring an action, should be adopted.” Wells v. Zadeck, 2011-1232 (La. 3/30/12); 89 So.3d 1145, 1149 (citing Carter v. Haygood, 04-0646 (La. 1/19/05); 892 So.2d 1261, 1268; Bailey v. Khoury, 04-0620 (La. 1/20/05); 891 So.2d 1268). Further, ordinarily, the party raising the defense of prescription bears the burden of proof. Wells, 89 So.3d at 1149 (citing Campo v. Correa, 01-2707, p. 7 (La. 6/21/02); 828 So.2d 502, 508). “However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed.” Wells, 89 So.3d at 1149 (citing Campo, 01-2707 at p. 7; 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La. 1993)).

         Louisiana Civil Code article 3492 states that “[d]elictual actions are subject to a liberative prescription of one year, ” and “[t]his prescription commences to run from the day injury or damage is sustained.” La. Civ. Code art. 3492. Article 3467 further provides, “Prescription runs against all persons unless exception is established by legislation.” La. Civ. Code art. 3467.

         3. Claims pursuant to 42 U.S.C. § 1981

          Defendant argues that the applicable prescriptive time period to Plaintiffs' claims pursuant to 42 U.S.C. § 1981 is one year. Plaintiffs offer no argument or disagreement with this time period. However, this is incorrect.

         Section 1981 does not contain a statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 1839 (2004). When a federal statute does not contain a statute of limitations, courts should apply “the most appropriate or analogous state statute of limitations.” Id. Under Louisiana law, “[a] section 1981 claim is best characterized as a tort ... and is, therefore, governed by the one-year prescriptive period for delictual actions dictated by [Louisiana Civil Code article] 3492.” Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir.1985). However, for actions arising under federal statutes enacted after December 1, 1990, courts must apply a catchall four-year statute of limitations. See 28 U.S.C. § 1658 (“Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.”).

         Section 1981 was originally enacted as part of the Civil Rights Act of 1866 and covered “only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.” Patterson v. McLean Credit Union, 491 U.S. 164, 179, 109 S.Ct. 2363, 2374 (1989). Section 1981 “did not protect against harassing conduct that occurred after the formation of the contract.” Jones, 541 U.S. at 372, 124 S.Ct. at 1840 (citing Patterson, 491 U.S. 164, 109 S.Ct. 2363). Section 1981 was later amended by the Civil Rights Act of 1991 to create a cause of action for discriminatory and retaliatory conduct occurring after the formation of the contract. See Id. Thus, the applicable statute of limitations depends upon whether the claim was actionable under the older version of section 1981 or is only made possible by the 1991 amendments. See Id. at 382, 124 S.Ct. at 1845. Where the plaintiff's claim was available under the original section 1981, the court must apply the analogous state statute of limitations, which in Louisiana is one year. See Id. at 371, 124 S.Ct. at 1839; Taylor, 775 F.2d at 618. However, where the claim is only available under section 1981 as amended, the cause of action is said to “arise under” the Civil Rights Act of 1991 and the federal four-year statute of limitations provided by section 1658 applies. See Jones, 541 U.S. at 382, 124 S.Ct. at 1845.

         This Court has previously explained that:

Section 1981 does not contain a limitations period. Section 1981 employment discrimination claims that are based on conduct occurring after the formation of a contract have a four year statute of limitations under 28 U.S.C. § 1658(a). Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836 (2004); Johnson v. Crown Enterprises, Inc., 398 F.3d 339, 341 (5th Cir. 2005). Whereas, a claim cognizable under § 1981 before it was amended by the Civil Rights Act of 1991, such as a claim based on the failure to enter into a new contract, is governed by the relevant state personal injury limitations period[.] … Under the pre-1991 version of § 1981 a failure to promote claim was actionable if the promotion rose to the level of an opportunity for a new and distinct relation between the employee and the employer. Blanson v. Graphic Packaging International, Inc., 2007 WL 438193 (W.D. La. Jan. 9, 2007), citing Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 2377 (1989).

Hubert v. City of Baton Rouge/Parish of E. Baton Rouge, Dep't of Pub. Works, No. CIV.A. 08-515-SCR, 2009 WL 774343, at *1 (M.D. La. Mar. 20, 2009).

         Here, Plaintiffs are claiming racial discrimination based on alleged conduct that occurred during their apprenticeship or membership with Local 198; therefore, Plaintiffs' claims arose under the Civil Rights Act of 1991 and the federal four-year statute of limitations applies. See also, Balakrishnan v. Board of Sup'rs of Louisiana State Univ. and Agr. And Mech. College, 2009 WL 2175974, *6-7 (E.D. La. July 21, 2009) (where the four-year statute of limitations applied to claims of racial discrimination under Section 1981).

         4. Claims of Racial Discrimination under Title VII

         Under Title VII, “[a] private plaintiff must exhaust [his] administrative remedies by timely filing a charge with the EEOC and receiving a right-to-sue notice before seeking relief from the Court.” Williams v. Louisiana, CV 14-00154-BAJ-RLB, 2015 WL 5318945, at *3 (M.D. La. Sept. 11, 2015) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); 42 U.S.C. § 2000e-5(f)(1)). Generally, “[a] charge under [Title VII] shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred[.]” 42 U.S.C. § 2000e-5(e)(1). However, the “time period is extended to proceedings with a State or local agency with authority to grant or seek relief from such practice[, ]'” such as Louisiana. Conner v. Louisiana Dep't of Health & Hospitals, 247 Fed. App'x. 480, 481 (5th Cir. 2007).

         Under Title VII, “a plaintiff must file a charge of discrimination within 300 days of the alleged discriminatory act.” Harrison v. Estes Express Lines, 211 Fed.Appx. 261, 264 (5th Cir. 2006) (per curiam) (citing 42 U.S.C. § 2000e-5(e)(1)); see also Nabors v. Metro. Life Ins. Co., No. 12-827, 2012 WL 2457694, at *2-3 (W.D. La. May 30, 2012), report and recommendation adopted, No. 12-827, 2012 WL 2427169 (W.D. La. June 26, 2012).

         The United States Court of Appeals for the Fifth Circuit has observed that “[o]ne of the central purposes of the employment discrimination charge is to put employers on notice of ‘the existence and nature of the charges against them.' ” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 878 (5th Cir.2003) (quoting EEOC v. Shell Oil Co., 466 U.S. 54, 77 (1984)). A charge must be “in writing under oath or affirmation, ” must sufficiently identify the parties, and must generally describe the action or practices that are the basis of the complaint. 42 U.S.C. § 2000e- 5(b); 29 C.F.R. § 1601.12(b). Although the governing regulations list specific information that should be contained in each charge, the regulations also provide that “[a] charge may be amended to cure technical defects or omissions, ” and that such amendments “related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.” 29 C.F.R. § 1601.12(b).

         The Fifth Circuit has previously held that “an intake questionnaire that informs the EEOC of the identity of the parties and describes the alleged discriminatory conduct in enough detail to enable the EEOC to issue an official notice of charge to the respondent is sufficient to “ ‘set[ ] the administrative machinery in motion.' ” Conner, 247 Fed.Appx. at 481 (quoting Price v. Sw. Bell Tel. Co., 687 F.2d 74, 78 (5th Cir.1982)). In Price, the Fifth Circuit reversed and remanded a grant of summary judgment for the defendant in a Title VII sex discrimination action in which a pro se claimant timely filed an intake questionnaire with the EEOC that did not fulfill all of the technical regulatory requirements of a charge. Price, 687 F.2d at 78-79. Notwithstanding the deficiencies of the intake questionnaire relative to the requirements of a charge, the agency still deemed the information provided to be sufficient to take action and notify the defendant. See Id. at 76. In 2007, the Fifth Circuit reiterated its holding in Price. See Conner, 247 Fed.Appx. 480. The Conner Court reversed and remanded a race and disability discrimination and retaliation action that was dismissed by the district court on the ground that the plaintiff failed to timely file a verified EEOC charge. Id. at 481.

         5. Continuing Tort/Continuing Violation Exception

         “Under Louisiana law, ‘[w]hen tortious conduct and resulting damages are of a continuing nature, prescription does not begin until the conduct causing the damages is abated.' For the continuous tort doctrine to apply, ‘the operating cause of the injury [must] be a continuous one which results in continuous damages.' It does not apply if ‘the complained of actions by the defendant were simply the continued ill effects that arose from a single tortious act.'” Williams v. Otis Elevator Co., 557 Fed. App'x. 299, 301-02 (5th Cir. 2014) (quoting First Nat'l Bank v. Smith, 29-350, p. 4 (La.App. 2 Cir. 4/2//97); 691 So.2d 355, 358; Crump v. Sabine River Auth., 98-2326, p. 7 (La.6/29/99); 737 So.2d 720, 726; Cooper v. La. Dep't of Pub. Works, 03-1074, p. 6 (La.App. 3 Cir. 3/3/04); 870 So.2d 315, 323 (citing Crump, 737 So.2d at 728-29)).

         “The continuing violation theory typically applies to hostile work environment claims.” Notariano v. Tangipahoa Par. Sch. Bd., 266 F.Supp.3d 919, 924 (E.D. La. 2017), reconsideration denied, No. CV 16-17832, 2018 WL 117 2959 (E.D. La. Mar. 6, 2018) (citing Johnson v. Fluor Corp., 181 F.Supp.3d 325 (M.D. La. 2016)). “'Unlike in a case alleging discrete violations, a hostile environment plaintiff is not limited to filing suit on events that fall within this statutory time period because her claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice.'” Id. (quoting Johnson, 181 F.Supp.3d 325). “'A continuing violation involves repeated conduct and cannot be said to occur on any particular day. It instead occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.'” Id. (quoting Jurach v. Safety Vision, LLC, 72 F.Supp.3d 698, 707 (S.D. Tex. 2014), aff'd, 642 Fed. App'x. 313 (5th Cir. 2016) (internal quotations omitted)).

         The Fifth Circuit has explained the continuing violations doctrine this way:

[The Fifth Circuit] has consistently held that the continuing violations doctrine is equitable in nature and extends the limitations period on otherwise time barred claims only when the unlawful employment practice manifests itself over time, rather than as a series of discrete acts. Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003); see also Huckabay v. Moore, 142 F.3d 233, 238-39 (5th Cir. 1998). Under the continuing violations doctrine, a plaintiff is relieved of establishing that all of the alleged discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of related acts, one or more of which falls within the limitations period. Felton v. Polles, 315 F.3d 470, 487 (5th Cir. 2002) (citing Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997) (emphasis added)). The end goal of the continuing violation theory is to ‘accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all of the discriminated acts committed as part of this pattern or policy can be considered timely.' Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001) (emphasis added); see also Hardin v. S.C. Johnson & Son Inc., 167 F.3d 340, 344 (7th Cir. 1999).

Pegram v. Honeywell, Inc., 361 F.3d 272, 279 (5th Cir. 2004)(emphasis added).

         As the Eastern District has explained:

         There are several limits on the applicability of the continuing violations doctrine, including:

(1) the plaintiff must demonstrate that the separate acts are related; (2) the violation must be continuing; intervening action by the employer, among other things, will sever the acts that preceded it from those subsequent to it; and (3) the doctrine may be tempered by the court's equitable powers, which must be exercised to ‘honor Title VII's remedial purpose without negating the particular purpose of the filing requirement.'

Notariano, 266 F.Supp.3d at 924 (quoting Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850 F.3d 731, 738 (5th Cir. 2017), as revised (Mar. 13, 2017)).

         Moreover, as this Court has explained:

This ‘doctrine does not automatically attach in hostile work environment cases, and the burden remains on the employee to demonstrate an organized scheme led to and included the present violation.' Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 351 (5th Cir. 2001) (citing Messer v. Meno, 130 F.3d 130, 135 (5th Cir. 1997)) (emphasis added). Further, the doctrine ‘requires the same type of discriminatory acts to occur both inside and outside the limitations period,' such that a valid connection exists between them. Id. (quoting Martineau v. ARCO Chem. Co., 203 F.3d 904, 913 (5th Cir. 2000)).

Price v. PCS Nitrogen Fertilizer, L.P., Civ.A. 03-153-RET-DLD, 2010 WL 1005181, at *4 (M.D. La. Mar. 15, 2010).

         “Discrete adverse actions, although racially motivated, cannot be lumped together with the day-to-day pattern of racial harassment and therefore, if otherwise untimely, cannot be saved by the continuing violation doctrine.” Boyd v. Trinity Industries, Inc., CIV.A. 14-00469-SDD, 2015 WL 3969464, at *2 (M.D. La. June 30, 2015) (citing Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 888 (W.D. La. 2003)); see also Pegram, 361 F.3d at 280.

         The Fifth Circuit has held “that a ‘three-year break' will defeat any attempt to establish a continuing violation.” Butler v. MBNA Tech., Inc., 111 Fed. App'x. 230, 234 (5th Cir. 2004) (citing Felton, 315 F.3d at 486).

         6. “Single File” or “Piggyback” Rule/Exception[13]

         The Fifth Circuit Court of Appeals explained the “single file” or “piggybacking” rule as follows:

[The Fifth Circuit] ha[s] recognized that ‘[i]t would be wasteful, if not vain, for numerous employees, all with the same grievance, to have to process many identical complaints with the EEOC. If it is impossible to reach a settlement with one discriminatee, what reason would there be to assume the next one would be successful[?]' One such situation in which [the Fifth Circuit] ha[s] relaxed the Title VII filing requirement arises when a non-filing party wishes to piggyback his judicial action on the claim of a party who followed the administrative procedures. This Circuit has held that ‘in an action involving claims of several persons arising out of similar discriminatory treatment, not all of them need to have filed EEOC charges as long as one or more of the plaintiffs had satisfied the requirement.'[14] In Oatis v. Crown Zellerbach Corp., we held that it is not necessary for each member of a class to file an EEOC charge as a prerequisite to join a Title VII suit as long as at least one named plaintiff had filed such charges.[15] Wheeler v. American Home Products Corp. extended Oatis to non-class suits, holding that similarly situated intervenors who had not filed EEOC charges could maintain a Title VII claim if the original plaintiffs had filed timely charges.[16] In both Oatis and Wheeler, this Court held that certain eligible parties were excused from filing an EEOC charge when they were permitted to join or intervene in a lawsuit in which the original, similarly situated plaintiff had fully exhausted the administrative requirements.
This Circuit further explained the piggyback concept in Bettcher v. The Brown Schools, Inc., in which [the Fifth Circuit] stated that the ‘single filing rule' is a ‘carefully limited exception' that allows parties to ‘opt-in to a suit filed by any similarly situated plaintiff under certain conditions.'[17] In Bettcher, this Circuit would not allow a plaintiff to piggyback on the EEOC charge filed by a fellow employee who had received a right-to-sue notice from the EEOC but decided not to file suit. The Court explained that there are three conditions that must be satisfied before a plaintiff may invoke the single filing rule:
First, the plaintiff must be similarly situated to the person who actually filed the EEOC charge. Second, the charge must have provided some notice of the collective or class-wide nature of the charge. Finally, a prerequisite - implicit to be sure - for piggybacking under the single filing rule is the requirement that the individual who filed the EEOC charge must actually file a suit that the piggybacking plaintiff may join.[18]

Price v. Choctaw Glove & Safety Co., Inc., 459 F.3d 595, 598-99 (5th Cir. 2006).

         Moreover, in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), the Supreme Court held that “commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554. “Tolling, however, does not continue indefinitely. If the district court denies certification, or if it certifies the class but later decertifies it, tolling ceases.” Odle v. Wal-Mart Stores, Inc., 747 F.3d 315, 320 (5th Cir. 2014). “At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.” Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983).

         The single filing rule under Fifth Circuit caselaw operates to bar “piggybacking” on others' claims and allegations after filing an independent suit. In Nelson v. Shoney's Inc., Civ. A. No. 96-2199, 1997 WL 567957, at *5 (E.D. La. Sept. 10, 1997), the court held that Ms. Nelson could not raise a federal claim for race discrimination or retaliation because she failed to raise these claims in her EEOC charge. Id. The court stated, “Because Ms. Nelson had filed her own EEOC charge, she cannot take advantage of the ‘single filing rule'”. Id. See also Wesley v. Yellow Transp., Inc., 3:05-CV-2266-D, 2008 WL 294526, at *5 (N.D. Tex. 2008) (finding the single filing rule “does not apply where the respective plaintiffs filed separate EEOC charges and separate lawsuits”). Indeed, the Fifth Circuit has stated:

Once the charge is filed, unless it is permissibly modified, the EEOC and the employer are entitled to rely on the allegations contained therein. To allow a plaintiff to file an EEOC charge, file suit upon that charge and then, at the eleventh hour, when the statute of limitations has run, to amend his complaint in reliance on the charge of another belies the policies behind the single filing rule and controverts congressional intent. The employee, by failing to assert a particular allegation in his charge, has necessarily excluded himself from the class of persons purportedly covered by the charge of another. As a result, the EEOC and the employer are given no notice and no opportunity to remedy his complaint. He is bound by the parameters of his own EEOC charge and cannot subsequently utilize the single filing rule to avoid the statute of limitations.

Mooney v. Aramco Services Co., 54 F.3d 1207, 1223 (5th Cir. 1995), reversed on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Because the single filing rule does not allow a plaintiff to amend his complaint to allege the claims of other plaintiffs in unrelated lawsuits, the plaintiff is subject to the general rule, which requires exhaustion of administrative remedies. See Price, 459 F.3d at 598 (stating that the piggyback concept is a “carefully limited exception” that allows parties to opt-in to a suit filed by any similarly situated plaintiff under certain conditions). This is also consistent with Bettcher, 262 F.3d at 495. There, the court refused to expand the single filing rule to allow a non-charging plaintiff to file a suit based upon the charge of a party that had not filed suit. Id. According to the court, such “a reading would allow the single filing exception to consume the statutory rule.” Id.

         C. Defendant's Motion to Strike Affidavits

         Plaintiffs rely upon four affidavits in support of their argument that the pattern and practice of alleged racial discrimination was continuous and ongoing from the time before suit was filed and after suit was filed. The affidavits are by Plaintiffs James Miles, (Doc. 648-1); Lee Fox, (Doc. 648-2); Charles Adams, (Doc. 648-3); and Rayfield Goings, (Doc. 648-4). All four affidavits are signed, notarized, and dated January 11, 2019. All four affidavits are identical in content with the exception of the name of the affiant. (Doc. 648-1 through 4).

         Defendant seeks to strike Plaintiffs' affidavits on the grounds that the affidavits “contain conclusory statements that would be inadmissible at trial”. (Doc. 653 at p. 1). Defendant argues that the affidavits simply recite that various paragraphs of the complaint are “true” and that the affiant has personal knowledge of the allegations. Defendant argues that these attestations are inadmissible “because they present conclusory information unsupported by facts; they offer no factual basis for their conclusions” and Defendant questions whether the affiants are competent to testify to the matters stated in their affidavits. (Doc. 653-1 at p. 3).[19]

         Plaintiffs oppose Defendant's motion and argue that the only requirement of the affidavits is that they are based on personal knowledge. (Doc. 658 at p. 2). Further, Plaintiffs argue that there is no requirement that affidavits be admissible at trial and “Local 198 is not in a position to speculate as to what testimony this court will or will not admit at trial.” (Doc. 658 at p. 2).

         The party opposing summary judgment is obliged to set forth specific facts which demonstrate a genuine issue for trial. FRCP 56; Local Rule 56.2. When the nonmovant “fails to direct the Court to specific evidence in the record to controvert the supporting evidence set forth by the [movant] … the fact is deemed admitted pursuant to Local Rule 56.2.” Antoon v. Woman's Hospital Foundation d/b/a Woman's Hospital, 2012 WL 1094715, *2 (M.D. La. May 30, 2012).

         Conclusory statements without proper support do not meet the requirements of Rule 56(e). See Goodman v. Life Ins. Co. of North America, 244 F.3d 138 (5th Cir. Dec. 15, 2000)(citing Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998); Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995)(“Although we consider the evidence in the light most favorable to the nonmoving party, … conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment.”)(internal citations omitted); and Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)); See also Miller Exploration Co. v. Energy Drilling Co., 130 F.Supp.2d 781, 785 (W.D. La. Jan. 3, 2001).

         “Rule 56(e) requires declarations offered in support of summary judgment to be based on personal knowledge.” Bright v. Ashcroft, 259 F.Supp.2d 494, 498 (E.D. La. Feb. 11, 2003)(citing Fed.R.Civ.P. 56(e); Akin v. Q-L Invs., Inc., 959 F.2d 521, 530 (5th Cir. 1992)). Rule 602 of the Federal Rules of Evidence further requires a submitting party to lay proper foundation that witnesses have personal knowledge of the matter about which they will testify. “[A] court may strike any affidavit that is not based on personal knowledge.” Bright, 259 F.Supp.2d 494, 498 (5th Cir. 2003)(citing Akin, 959 F.2d at 530; CMS Indus., Inc. v. L.P.S. Int'l, Ltd., 643 F.2d 289, 295 (5th Cir. 1981)). To demonstrate personal knowledge, an affidavit “must include enough factual support to show that the affiant possesses that knowledge.” Thomas v. Atmos Energy Corp., 223 Fed.Appx. 369, 374 (5th Cir. 2007).

         Here, the affiants attest that they have personal knowledge of each of the specific enumerated paragraphs contained in the complaint. The Court's impression is that Plaintiffs are offering the affidavit testimony of these four Plaintiffs as purported testimonial, evidentiary support for the specific facts set forth in the complaint. While Plaintiffs do not specifically explain how or why they have personal knowledge, one is able to glean from the affidavits that it is knowledge based on their work, experience and/or membership with Local 198. Also, the affidavits largely, generally attest to the purported truthfulness of specific paragraphs in the complaint; however, the affiants elaborate somewhat and provide additional specific information to further support the allegations. For example, each affidavit states: “he has personal experience of discrimination”; “discrimination was frequent and occurred almost every day”; “the most strenuous jobs were given to African Americans”; “Local 198 caused many African Americans to be unemployed”; and “the work environment was hostile”; many Plaintiff[s] were called ‘niggers' on multiple occasions”. The affidavits continue in this fashion throughout. (Doc. 648-1 through 4).

         While the Court finds that the affidavits could be more specific and detailed factually and could contain a stronger foundation of the affiants' personal knowledge and ability to attest to same at trial, the form of the affidavits is proper, and the substance attempts to provide evidentiary support for allegations in the complaint. The Court notes that the affidavits lend scant support to the issue of timeliness. For example, there are no specific dates, temporal scope or range contained in the affidavits. There is at least one reference to “every day” which assists with the span and reach of the allegations. Also, the consideration of the affidavits in conjunction with the offered evidence as a whole will provide some assistance to the Court in evaluating the timeliness of these 35 Plaintiffs.

         For these reasons, the Court denies Defendant's motion to strike the affidavits. The Court will consider the affidavits but only for the limited purpose to assess the timeliness of Plaintiffs' claims. Defendant may re-urge its motion to strike these affidavits, if necessary, if and/or when the issue before the Court is one based on the merits and substance of Plaintiffs' claims.

         D. Analysis

         The sole question presented by Defendant's motion is whether Plaintiffs' claims of racial discrimination under state and federal law are timely. Before addressing each Plaintiff individually, the Court acknowledges that Plaintiffs have argued a need for additional discovery prior to any claims being dismissed based on timeliness. The Court rejects this argument. This matter has been pending since May 1, 1998. (Doc. 1). On June 13, 2001, this Court ordered a discovery deadline of March 29, 2002. (Doc. 224). After that date passed, the Court conducted two status conferences at which time the issue of timeliness and discovery was discussed. The Court noted that a significant amount of time for discovery had already taken place. (Doc. 625). The Court allowed time for the exchange of limited information to facilitate briefing on the timeliness issue. (Doc. 630). The Court stated that discovery would not be discussed again. (Doc. 632). The Court finds that a sufficient amount of time has been extended to the parties for discovery, especially discovery related to the issue of timeliness, which is the sole issue before the Court on this motion.

         Based upon the foregoing:

         1. Vernon Ashford

         Ashford is named in the original complaint filed on May 1, 1998. (Doc. 1). Ashford did not oppose this motion in Plaintiffs' first opposition and is listed on Mr. Wilson's statement of Plaintiffs with no opposition to the motion. (Doc. 646 at p. 9). In the revised chart, Ashford is listed as not opposing the motion. (Doc. 690-1). However, in Wilson's supplemental opposition to the motion, he argues that Plaintiff Lee Fox was the earliest filed EEOC charge, filed in February 1997, and Ashford can “piggyback” on Fox's charge. (Doc. 692 at p. 2). Ashford refers the Court to Fox's Notice of Charge of Discrimination made a part of the record in support of Defendant's motion. (Doc. 639-23). Fox's Charge of Discrimination is dated March 5, 2001, is filed adverse to Local 198, complains of racial discrimination, and provides a date range of alleged discrimination from January 1, 1998 to November 8, 2000. (Id. at p. 1).

         Defendant, in support of its motion, directs the Court to summary judgment evidence reflecting that Ashford was enrolled in the Local 198 apprenticeship program in 1976; he testified that he had not been a member for eight to ten years prior to his 2002 deposition, which computes to 1992-1994; he testified that he filed an EEOC charge, yet one has not been produced or located; his last job referral by Local 198 was in 1996; Ashford last paid dues in February 1997, which was effective until August 1997. (Doc. 639-2 at p. 17, citing Doc. 639-12, deposition of Ashford, at pp. 11-13, and Doc. 639-6 at ¶ 25).

         In order for Ashford's state law claims to be timely, he must show through competent summary judgment evidence that some allegedly discriminatory act occurred within one year of May 1, 1998. See Pegram, 361 F.3d at 279. Ashford attempts to do this by “piggy backing” on Fox's allegations in his Charge of Discrimination, which alleges racial discrimination beginning as early as January of 1998, specifically described as being denied recall due to his race. This time period is within one year of Ashford filing suit.

         Ashford must also make some showing of his relationship with Local 198 within the relevant time period. Again, Ashford simply relies upon Fox's Charge of Discrimination which is directed to Local 198. Defendant offered evidence that Ashford's membership lasted until August 1997. (Doc. 639-2 at p. 17, citing Doc. 639-12, deposition of Ashford, at pp. 11-13, and Doc. 639-6 at ¶ 25). In the supplemental opposition filed by Mr. Wilson, he states that Ashford's membership continued to 1996. (Doc. 692 at p. 2). There is no reference to any evidence to support this date. Assuming August 1997 to be correct and the latest date, this means that Ashford was not a member of Local 198 in January 1998, when the alleged racial discrimination began. Therefore, one can assume that even if racial discrimination was taking place by Local 198 beginning in January 1998, Ashford was not a member of Local 198 and was, therefore, not susceptible to being subjected to this alleged behavior.

         Ashford's claims under Section 1981 are subject to a four-year prescriptive period. Since Ashford filed suit on May 1, 1998, the evidence must show that the last alleged act of discrimination occurred between May 1, 1994 and May 1, 1998. Based upon Fox's EEOC charge, January 1, 1998 falls within this time period; however, it does not appear that Ashford was a member of Local 198 at this time.

         Regarding Ashford's claims of racial discrimination under Title VII, there is no evidence that Ashford filed an EEOC charge. Rather, Ashford attempts to prove exhaustion of administrative remedies and timely filing of suit by “piggybacking” upon Fox's Charge of Discrimination. (Doc. 692). Ashford has not made a showing that he is “similarly situated” to Fox. See Price, 459 F.3d at 598-99. Ashford makes general claims of racial discrimination, (Doc. 1), but there is no evidence of specifically being denied recall as Fox complained or of being a member of Local 198 from January 1, 1998 - November 8, 2000. While Fox's charge may be interpreted to include notice of a collective or class-wide nature (i.e., “No Blacks have been recalled in the past 300 days, ” Doc. 639-23 at p. 1 (emphasis added)), and Fox filed suit as a plaintiff named in the original complaint, (Doc. 1), there is no evidence that Ashford meets the first condition to invoke the single filing rule. See Price, 459 F.3d at 598-99.

         Based on the foregoing, all claims by Vernon Ashford are dismissed with prejudice based on untimeliness.

         2. ...


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