United States District Court, M.D. Louisiana
CHARLES ADAMS, ET AL.
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
W. DEGRAVELLES, UNITED STATES DISTRICT JUDGE
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.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,  and five of the 99
Plaintiffs have had their claims pursuant to Title VII only
dismissed. 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.
Relevant Factual Background
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'
Plaintiffs' Claims and Procedural Background
Plaintiffs 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
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).
Court ordered a discovery deadline of March 29, 2002. (Doc.
amended their original complaint on July 27, 2001, adding
additional Plaintiffs.(Doc. 227). Two additional amending
complaints were filed on December 3, 2001, naming additional
Plaintiffs. (Doc. 274, 283). On February 14, 2002,
Plaintiffs amended the complaint again, naming additional
Plaintiffs. (Doc. 335). Plaintiffs were added in the
amended complaint filed on November 4, 2002,  (Doc. 493). A
final amended complaint was filed on April 15, 2003, (Doc.
518); however, no new Plaintiffs were named in the final
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.
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.
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
Int'l Shortstop, Inc. v. Rally's Inc., 939
F.2d 1257, 1263 (5th Cir. 1991).
Defendant's Memorandum in Support (Doc. 639-2)
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).
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.
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.
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).
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.
Plaintiffs' Oppositions (Doc. 646, 648)
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. 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
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).
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.
group of Plaintiffs disputed the applicable statutes of
limitations as argued by Defendant.
Defendant's Reply (Doc. 654)
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).
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.
memoranda submitted by both Plaintiffs and Defendant
individually discuss each Plaintiff, just as the Court does
Charts (Doc. 685, 690-1, 696-1).
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.
Plaintiffs' Supplemental Oppositions (Doc. 687, 688,
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.
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).
Defendant's Supplemental Reply (Doc. 693-1).
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).
Applicable Legal Authority
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).
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
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
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)).
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.
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.
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.”).
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
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).
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
Claims of Racial Discrimination under Title VII
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).
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,
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. §
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.
Continuing Tort/Continuing Violation Exception
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)).
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
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).
Eastern District has explained:
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)).
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,
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.
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).
“Single File” or “Piggyback”
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.' 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. 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. 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.' 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
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
Price v. Choctaw Glove & Safety Co., Inc., 459
F.3d 595, 598-99 (5th Cir. 2006).
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
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.
Defendant's Motion to Strike Affidavits
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).
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).
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).
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).
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).
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).
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
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
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.
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.
upon the foregoing:
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).
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 ¶
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
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.
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.
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.
on the foregoing, all claims by Vernon Ashford are
dismissed with prejudice based on untimeliness.