United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR UNITED STATES DISTRICT JUDGE.
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.
George Michael Thomson, began working for Westlake Chemical
in September 2017. After one week, Thomson started a two (2)
week training class for Basic Operator at the McNeese State
University campus. The class was taught by Associate
Professor Richard Nyberg. 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. Thomson reported Nyberg's conduct to
the McNeese campus police on October 17, 2019.Westlake Chemical
terminated Thomson's employment on November 28,
filed an Administrative Charge with the Equal Employment
Opportunity Commission alleging discrimination based on sex
and retaliation; it is disputed as to when the
Administrative Charge was filed. The EEOC dismissed the
Administrative Charge as untimely. Thomson filed the instant
suit on February 25, 2019, alleging that Westlake Chemical
violated 42 U.S.C. § 2000e-5, et seq.
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)).
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).
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).
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
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.
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.
instant suit is not time-barred
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.
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,
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 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
September 10, 2018 - Thomson receives an email from Tania
Reyes, an EEOC investigator. Thomson is interviewed by Reyes
as to the allegations.
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.
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
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
September 27, 2018 - Reyes emails Thomson that changes have
been made to the Formal Charge and resent.
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." Reyes emails Thomson's attorney that
her "clients charge has not been received yet. He is
already passed his 300 days for his
October 3, 2018 - Thomson's attorney emails Reyes and
states that Thomson has "signed the charge of
discrimination." 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."
October 4, 2018 - Thomson's attorney emails Reyes stating
that she attempted to call Reyes and left a voice
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. 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
October 19, 2018 - Thomson signs the Formal Charge with a pen
and emails it to Reyes. The Formal Charge is signed ...