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Thomson v. Westlake Chemical Corp.

United States District Court, W.D. Louisiana, Lake Charles Division

September 16, 2019





         Before the Court is a "Motion to Dismiss Pursuant to FRCP Rule 12(b)(6) and Alternative Motion for Summary Judgment" (Doc. 10) wherein defendant, Westlake Chemical Corporation ("Westlake Chemical"), moves to dismiss the instant lawsuit for failure to state a claim upon which relief may be granted, or in the alternative, pursuant to Rule 56 of the Federal Rules of Civil Procedure because there is no genuine issue of material fact for trial. For the reasons that follow, the motion will be denied.


         Plaintiff, George Michael Thomson, began working for Westlake Chemical in September 2017.[1] After one week, Thomson started a two (2) week training class for Basic Operator at the McNeese State University campus.[2] The class was taught by Associate Professor Richard Nyberg.[3] Thomson reported to Westlake Chemical on October 15 and 16, 2017 and on November 24, 2017, that he had been sexually harassed by Nyberg during the training.[4] Thomson reported Nyberg's conduct to the McNeese campus police on October 17, 2019.[5]Westlake Chemical terminated Thomson's employment on November 28, 2017.[6]

         Thomson filed an Administrative Charge with the Equal Employment Opportunity Commission alleging discrimination based on sex and retaliation;[7] it is disputed as to when the Administrative Charge was filed. The EEOC dismissed the Administrative Charge as untimely.[8] Thomson filed the instant suit on February 25, 2019, alleging that Westlake Chemical violated 42 U.S.C. § 2000e-5, et seq.

         RULE 12(bV6) STANDARD

         Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint when it fails to state a claim upon which relief can be granted. The test for determining the sufficiency of a complaint under Rule 12(b)(6) is that" 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curium) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, (1957)).

         Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiffs complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliot v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). The plaintiffs complaint is to be construed in a light most favorable to plaintiff, and the allegations contained therein are to be taken as true. Oppenheimer v. Prudential Securities, Inc., 94 F.3d 189, 194 (5th Cir. 1996). In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiffs rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992).

         "In order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations...." Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). "Legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995)."[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery ... or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995).

         Under Rule 8 of the Federal Rules of Civil Procedure, the pleading standard does not require a complaint to contain "detailed factual allegations," but it demands "more than an unadorned, the defendant-unlawfully-harmed-me accusation."Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). A complaint that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Id. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557, 127 S.Ct. 1955.

         To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face."Id., at 570, 127 S.Ct. 1955.

         The instant suit is not time-barred

         Westlake Chemical argues that the Administrative Charge filed with the EEOC was filed too late, and therefore the instant suit must be dismissed for failure to state a claim. A precondition to filing a civil action in federal court requires a plaintiff to file an administrative charge of discrimination within the prescribed time period after the alleged discriminatory employment action occurred. 42 U.S.C. § 2000e-5€(1); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127 (1982). A Title VII plaintiff must file a charge of discrimination with the EEOC no more than 180 days after the alleged discriminatory employment action occurred. 42 U.S.C.§§ 2000e-5(e)(1). In "deferral states" the filing period is extended to 300 days if there is also a discrimination claim based on state law. Louisiana is a deferral state, and therefore the 300-day filing period applies. Louisiana Revised Statute 23:303.

         The time begins to run "from the time the complainant knows or reasonably should have known that the challenged act has occurred." Mayes v. Office Depot, Inc., 292 F.Supp.2d 878, 888 (W.D. La. 2003). The employee is put on notice that a cause of action has accrued when a discrete and salient event such as termination of employment occurs. Id. Thomson was terminated on November 28, 2017. Westlake Chemical suggests that Thomson's Charge of Discrimination was filed on October 19, 2018. Westlake Chemical submits "EEOC Form 5- Charge of Discrimination, #461-2018-02879" which is dated October 19, 2018.[9]

         Thomson disputes this and argues that he initiated the Charge of Discrimination on September 4, 2018, by answering the online questionnaire. He was interviewed by an EEOC representative on September 10, 2018 and September 12, 2018, all within the 300-day time period. Thomson submits his affidavit to explain the time-line of events encompassing the filing of his Charge of Discrimination[10] which is truncated as follows:

September 4, 2018 - Thomson inquires through the EEOC's website and contacts the EEOC to make an appointment to file a complaint.[11]
September 10, 2018 - Thomson receives an email from Tania Reyes, an EEOC investigator. Thomson is interviewed by Reyes as to the allegations.[12]
September 12, 2018 - (1) Thomson completes an online inquiry and receives a charge number, (2) Thomson sends an email to Reyes with an attached Word document listing changes to be made to Formal Charge document, (3) Ms. Reyes requests that Thomson make the changes to the formal charge and a required signature through the EEOC online portal; due to technical difficulties he is unable to do so.[13]
September 17, 2018 - Reyes sends an email to Thomson requesting that he make the requested change to the Formal Charge through the EEOC portal noting that she could not edit the Formal Charge.
September 24, 2018 - Thomson emails Reyes requesting that she make specific changes to the Formal Charge and informing her that he was unable to make the changes through the EEOC portal.[14]
September 25, 2018 - Reyes responds to Thomson's email that he "should be able to log into the portal now;" Thomson responds that he will log in and make the changes.[15]
September 27, 2018 - Reyes emails Thomson that changes have been made to the Formal Charge and resent.[16]
October 2, 2018 - Thomson works with his attorney through the EEOC's online portal to make changes to the Formal Charge. Reyes returned the Formal Charge. After a review, both Thomson and attorney notice changes that need to be made. Those changes were made and sent to Reyes who responds that Reyes has "corrected and sent back to you."[17] Reyes emails Thomson's attorney that her "clients charge has not been received yet. He is already passed his 300 days for his allegations."[18]
October 3, 2018 - Thomson's attorney emails Reyes and states that Thomson has "signed the charge of discrimination."[19] Reyes emails the Formal Charge with the corrections to Thomson and Thomson returns the Formal Charge with his signature. Reyes responds that she cannot see the signed charge yet. "He did not digitally sign it and send it back via the portal."[20]
October 4, 2018 - Thomson's attorney emails Reyes stating that she attempted to call Reyes and left a voice mail.[21]
October 16, 2018 - Thomson attempts to log on to the online portal to view the Formal Charge and sign, but again is unsuccessful. Thomson's attorney attempts to view the Formal Charge but is unable to do so receiving "Server Error in '/Portal' Application." Thomson's attorney also informs Reyes that there must be a problem with the EEOC website because she has also repeatedly received this message when dealing with the website.[22] Reyes responds and informs that she will contact Thomson's attorney the next day.
October 17, 2018 - In the evening, Reyes sends Thomson and his attorney two emails. The first email is a PDF of the Formal Charge for Thomson to sign with a pen. The second email provides the password to open the PDF in the first email.
October 19, 2018 - Thomson signs the Formal Charge with a pen and emails it to Reyes. The Formal Charge is signed ...

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