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Case 2:12-cv-01879-NJB-JCW Document 29 Filed 06/04/13 Page 1 of 11

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHEILA A. CLAYBORNE

VERSUS

RAINBOW APPAREL COMPANIES

CIVIL ACTION

NO. 12-1879

SECTION “G”(2)

ORDER AND REASONS

Before the Court is Defendant Rainbow Apparel Companies' ("Rainbow") Motion to

Dismiss,1 wherein Rainbow moves for dismissal of the complaint under Federal Rules of Civil

Procedure 12(b)(6) and 12(b)(1), claiming that Plaintiff Sheila A. Clayborne ("Plaintiff") failed to

exhaust her administrative remedies before filing suit under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, because she allegedly did not timely file a charge of discrimination with

the Equal Employment Opportunity Commission ("EEOC") prior to filing this claim. Having

considered the motion, the memorandum in support, the response, the reply, the sur-reply, and the

complaint, the Court will deny the motion.

I. Background

Plaintiff claims that she was wrongfully terminated by Rainbow in violation of Title VII of

the Civil Rights Act, 42 U.S.C. § 2000e. Plaintiff alleges that she was fired in retaliation for

complaining to District Manager Cindy Erwin about the decision to allow a manager, Dawn Costa,

to return to work after allegedly using profanities and racial slurs.2 According to Plaintiff, she left

work on a "surgery leave," but when she applied for unemployment benefits after her knee surgery,

1 Rec. Doc. 6

2 Rec. Doc. 1 ¶¶ 5-9.

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Plaintiff learned that she had been terminated for allegedly violating Rainbow's timeclock policy by

leaving the store for over two hours without clocking out.3

Plaintiff filed suit on July 18, 2012 in the Eastern District of Louisiana.4 Rainbow filed a

Motion to Dismiss5 on October 5, 2012, requesting dismissal of the action for Plaintiff's failure to

exhaust her administrative remedies. The motion was initially referred to Magistrate Judge

Wilkinson, and he granted Plaintiff leave to file an untimely opposition.6 On November 13, 2012,

the case referral to Magistrate Judge Wilkinson was vacated, because all parties did not consent to

proceed before the magistrate judge.7 Plaintiff filed an opposition on November 13, 2012,8 and

Rainbow filed a reply, with leave of court, on December 5, 2012.9 The Court granted Plaintiff leave

to file a sur-reply on December 10, 2012.10

II. Parties' Arguments

In support of the motion to dismiss, Rainbow argues that Plaintiff has failed to exhaust her

administrative remedies prior to filing suit in federal court, which requires Plaintiff to timely file a

charge of discrimination (the "charge") with the EEOC and receive a statutory notice of right to

3

Id. ¶¶ 11-15.

4 Rec. Doc. 1.

5 Rec. Doc. 6.

6 Rec. Doc. 14.

7 Rec. Doc. 16.

8 Rec. Doc. 17.

9 Rec. Doc. 21.

10 Rec. Doc. 24.

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Case 2:12-cv-01879-NJB-JCW Document 29 Filed 06/04/13 Page 3 of 11

sue.11 Rainbow contends that the Court may consider Plaintiff’s failure to exhaust her administrative

remedies under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Rainbow

contends that when deciding a 12(b)(6) motion to dismiss, the Court may consider additional

documents attached to Rainbow’s motion11 “if Plaintiff refers to them in her complaint and they are

central to the claims therein.”12 Here, Rainbow argues that the “right-to-sue” letter referenced in

Plaintiff’s complaint is part of the larger EEOC file, portions of which Rainbow attaches to its

motion. Rainbow asserts that documents from the EEOC file demonstrating when the charge of

discrimination was received are central to Plaintiff’s claims.13

Alternatively, Rainbow argues that the Court may consider the additional documents

attached to Rainbow’s motion in evaluating a motion to dismiss for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Rainbow states that it has made

a “factual attack” on Plaintiff’s complaint, which “challenges the existence of subject matter

jurisdiction in fact, irrespective of the pleadings,” and in such circumstances that Court may consider

matters outside of the pleadings.14 Therefore, Rainbow contends that consideration of the documents

contained in Plaintiff’s EEOC file is appropriate at this stage of the litigation on a motion to dismiss

pursuant to Rule 12(b)(1) and Rule 12(b)(6).

According to Rainbow, Plaintiff filed her EEOC charge of discrimination late, and is

11 Rec. Doc. 6-1 at p. 5.

11 Rainbow obtained a copy of the EEOC's file through a Freedom of Information Act request, and has

attached copies of some of the documents to the motion to dismiss. Id. at p. 1 n. 1.

12

13

14

Id. at p. 3 (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)).

Id. at p. 4.

Id. at pp. 4-5 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).

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Case 2:12-cv-01879-NJB-JCW Document 29 Filed 06/04/13 Page 4 of 11

therefore precluded from filing suit in this Court. Rainbow claims that Plaintiff was terminated on

May 7, 2011, and therefore the deadline for Plaintiff to timely file an EEOC charge was 300 days

after the day of her termination, or March 2, 2012.15 Rainbow argues that Plaintiff did not file an

EEOC charge until March 5, 2012, at the earliest.16 In support of this contention, Rainbow attaches

the declaration Plaintiff provided to the EEOC containing a date stamp of March 5, 2012.17

Rainbow further notes that the EEOC initially issued a dismissal of Plaintiff's claim explaining that

Plaintiff did not timely file a charge of discrimination, but at Plaintiff's request, the EEOC

reconsidered its position based on Plaintiff’s representation that she sent her declaration, which was

construed as an EEOC charge, on March 1, 2012.18 However, Rainbow emphasizes that the EEOC's

decision was in error, because Fifth Circuit precedent explains that a charge is "filed" when it is

received by the EEOC, not when it is sent by a plaintiff.19

In opposition to the pending motion, Plaintiff does not argue that consideration of the

additional documents attached to Rainbow’s motion is inappropriate. Instead, Plaintiff relies on the

documents submitted by Rainbow to show that Plaintiff’s declaration was received by the EEOC

on March 1, 2012, before Plaintiff's 300-day limitations period had expired.20 In support of this

contention, Plaintiff notes that the upper left corner of Plaintiff's declaration from the EEOC's file

15

16

17

Id. at p. 6.

Id. at p. 7.

Defendant contends "a court may consider documents a defendant attaches to the motion if the plaintiff
refers to them in her complaint and they are central to the claims therein." Rec. Doc. 6-1 at p. 3 (citing
Collins, 224 F.3d at 498.

18 Rec. Doc. 6-1 at p. 7.

19

Id. (citing Taylor v. General Tel. Co. of Sw., 759 F.2d 437 (5th Cir. 1985) (citing 29 C.F.R. § 1601.13)).

20 Rec. Doc. 17 at p. 1.

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contains a time stamp indicating that the faxed declaration was received on March 1, 2012.21

Additionally, Plaintiff submits her fax confirmation sheet indicating that the declaration was faxed

on March 1, 2012 to the EEOC.22

In reply, Rainbow asserts that the March 1, 2012 date on the faxed declaration from the

EEOC's file is not relevant, because the EEOC's date stamp on the declaration indicates it was

received by the commission on March 5, 2012.23 Additionally, Rainbow maintains that the fax

confirmation sheet attached to Plaintiff's opposition cannot be considered by the Court, because (1)

it was not contained in the EEOC's file; (2) Plaintiff does not provide any document attesting to the

authenticity of the document; and (3) even if an affidavit was provided, it should not be considered

because it is self-serving.24 Thus, Rainbow reasons that Plaintiff cannot rely on a self-serving

affidavit and an unauthenticated document to controvert the EEOC's date stamp on her declaration.

In the sur-reply, Plaintiff contends that even if the Court does not consider the fax

confirmation sheet, the EEOC fax time stamp on the document Rainbow submitted in support of its

motion to dismiss "ought to be sufficient to show when the document actually arrived at the

EEOC."25 Furthermore, Plaintiff argues that Rainbow does not dispute the accuracy of the digital

time stamp on the faxed declaration or "even raise this issue in its reply.26

21

22

Id.

Id. at p. 3.

23 Rec. Doc. 21 at p. 1.

24

Id. (citing Rizzuto v. Allstate Ins. Co., No. 07-4426, 2009 WL 1158677, at *1 (E.D. La. Apr. 27, 2009)
(Vance, C.J.); Kelly v. United States, 805 F. Supp. 14 (E.D. La. 1992) (Arceneaux, J.).

25 Rec. Doc. 24.

26

Id.

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A. Motion to Dismiss

III. Law and Analysis

Rainbow has moved for dismissal of Plaintiff’s complaint due to her alleged failure to

exhaust her administrative remedies pursuant to Rule 12(b)(6), for failure to state a claim, and Rule

12(b)(1), for a lack of subject matter jurisdiction. Federal Rule of Civil Procedure 12(b)(6) provides

that an action may be dismissed “for failure to state a claim upon which relief can be granted.”27 “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim for relief that is plausible on its face.’”28 “Factual allegations must be enough to raise

a right to relief above the speculative level,”29 and a claim is facially plausible when the plaintiff has

pled facts that allow the court to “draw a reasonable inference that the defendant is liable for the

misconduct alleged.”30 However, “[a] motion to dismiss on the basis of the pleadings alone should

rarely be granted.”31

On a motion to dismiss, asserted claims are liberally construed in favor of the claimant, and

all facts pleaded are taken as true.32 However, although required to accept all “well-pleaded facts”

as true, the court is not required to accept legal conclusions as true.33 “While legal conclusions can

27

28

29

30

Fed. R. Civ. P. 12(b)(6).

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2008)).

Twombly, 550 U.S. at 556.

Id. at 570.

31 Madison v. Purdy, 410 F.2d 99, 100 (5th Cir. 1969).

32

Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007).

33

Iqbal, 556 U.S. 662, 677-78.

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provide the framework of a complaint, they must be supported by factual allegations.”34 The

complaint need not contain detailed factual allegations, but it must offer more than mere labels, legal

conclusions, or formulaic recitations of the elements of a cause of action.35 If factual allegations are

insufficient to raise a right to relief above the speculative level, or if it is apparent from the face of

the complaint that there is an “insuperable” bar to relief, the claim must be dismissed.36

Generally, a district court is limited to the facts stated in the complaint in considering a Rule

12(b)(6) motion to dismiss.37 However, a court may also consider documents that a defendant

attaches to the motion that are referred to in the plaintiff's complaint and are central to the claims

asserted in the complaint.38

Alternatively, a motion to dismiss for failure to exhaust administrative remedies may be

evaluated under Federal Rule of Civil Procedure 12(b)(1), for a lack of subject matter jurisdiction.39

Under Rule 12(b)(1), the Fifth Circuit has clarified the difference between a “facial” and “factual”

attack on subject matter jurisdiction. A "'facial attack' on the complaint requires the court merely

to look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the

34

35

36

37

38

Id. at 679.

Id. at 678.

Moore v. Metropolitan Human Serv. Dep’t, No. 09-6470, 2010 WL 1462224, at * 2 (E.D. La. Apr. 8,
2010) (Vance, C.J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 &
n. 9 (5th Cir. 2007)).

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). See also In re Chinese
Manufactured Drywall Products Liab. Litig., 759 F. Supp. 2d 822, 828 (E.D. La. 2010) (Fallon, J.).

In re Katrina Canal Breaches Litig., 495 F.3d at 205 (citing Causey v. Sewell Cadillac-Chevrolet, Inc., 394
F.3d 285, 288 (5th Cir. 2004) (citing Collins, 224 F.3d at 498)).

39 See Pacheco v. Mineta, 448 F.3d 783, 788 (5th Cir. 2006); Shah v. Quinlin, 901 F.2d 1241, 1244 (5th Cir.

1990) (citing Miller v. Stanmore, 636 F.2d 986, 991 n. 5 (5th Cir. Unit A Feb. 1981)).

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allegations in his complaint are taken as true for purposes of the motion."40 In contrast, the Fifth

Circuit explained that a "factual attack" under Rule 12(b)(1), which may occur at any stage of the

proceedings, "challenges the existence of subject matter jurisdiction in fact, irrespective of the

pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered."41

Accordingly, when a defendant challenges the existence of subject matter jurisdiction in fact, a court

may consider documents attached to the defendant’s motion to evaluate the basis of subject matter

jurisdiction in federal court.

B. Applicable Law

Prior to filing suit in federal court for violations of Title VII, a plaintiff must comply with

Title VII's administrative prerequisites, including the timely filing of a charge of discrimination with

the EEOC.42 The plaintiff must file an EEOC charge within 300 days of the alleged discriminatory

employment action.43 In Taylor v. General Telephone Co. of Southwest,44 the United States Court

of Appeals for the Fifth Circuit held that a charge is not "filed" until it is received by the EEOC.45

This 300-day limitations period on an employment discrimination claim "begins to run from the time

the complainant knows or reasonably should have known that the challenged act has occurred."46

40 Menchaca, 613 F.2d at 511.

41

Id. at 511.

42 Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002); Dao v. Auchan Hypermarket, 96

F.3d 787, 788-89 (5th Cir. 1996).

43 42 U.S.C. 2000e-5(e)(1); Janmeja v. Bd. of Supervisors of La. State Univ., 96 F. App'x 212, 214 (5th Cir.

2004).

44 759 F.2d 437.

45

Id. at 440.

46 Vadie v. Miss. State Univ., 218 F.3d 365, 371 (5th Cir. 2000).

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The failure to exhaust administrative remedies, including failure to timely file a charge with the

EEOC, renders the case subject to dismissal.47

C. Analysis

Although Plaintiff does not object to consideration of the documents from the EEOC file

attached to Rainbow’s motion to dismiss, the Court nevertheless will evaluate whether consideration

of these documents is appropriate on a motion to dismiss. A court may consider documents that

Rainbow attaches to the motion to dismiss, pursuant to Rule 12(b)(6), if they are “referred to in the

plaintiff's complaint and are central to the claims asserted in the complaint."48 Here, Plaintiff’s

complaint referred to the "right-to-sue" letter,49 which was part of the larger EEOC file that Rainbow

has attached to the motion. Additionally, documents Rainbow attaches to the motion to dismiss are

central to the claims at issue because the exhaustion of administrative remedies is a precondition to

filing suit in federal court.50 Thus, the Court finds that it may consider the documents attached to

the motion to determine, under Rule 12(b)(6), whether Plaintiff has stated a claim upon which relief

can be granted.

Further, the Court may also dismiss the complaint under Rule 12(b)(1) if Plaintiff has failed

to exhaust her administrative remedies.51 Rainbow has made a “factual” attack on the existence of

subject matter jurisdiction in this case, pursuant to Rule 12(b)(1). Therefore, the Court may consider

evidence beyond the pleadings, including the documents Rainbow attaches to the motion to dismiss,

47 Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir. 1979).

48 See Collins, 224 F.3d at 498.

49 Rec. Doc. 1 ¶ 2.

50 See Dao, 96 F.3d at 789.

51 See Shah 901 F.2d at 1244 (citing Miller, 636 F.2d at 991 n. 5).

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to evaluate whether Plaintiff exhausted her administrative remedies prior to filing suit.52

The central issue before the Court is whether Plaintiff's declaration, which the EEOC

construed as a charge of discrimination, was received on March 1, 2012 or March 5, 2012. If the

declaration was not received by the EEOC until March 5, 2012, Rainbow contends that the charge

was untimely because Plaintiff's 300-day limitations period expired on March 2, 2012. The

declaration attached to the motion to dismiss contains a digital time stamp printed in the upper left

corner of the document indicating that the fax was sent to the EEOC on March 1, 2012. However,

the declaration also contains a date stamp that was physically stamped onto the document on March

5, 2012. Neither party has provided an explanation as to why one stamp is more reliable than the

other. Moreover, the document being challenged by Rainbow as not authentic, was in fact a

document submitted by Rainbow in support of its motion to dismiss. Considering that motions to

dismiss are rarely granted and the document submitted by Rainbow provides a plausible basis for

this Court to conclude that the charge was timely received by the EEOC, the Court will deny the

motion to dismiss.

The Court also notes, as an alternative basis for denying the motion to dismiss, that the

complaint states that Plaintiff "learned for the first time that she had been fired" between May 24

and May 27 of 2011.53 The law provides that the 300-day limitations period does not begin to run

until Plaintiff "knows or reasonably should have known that the challenged act has occurred."54

Therefore, reading the complaint in the light most favorable to Plaintiff, even if the discriminatory

52 See Menchaca, 613 F.2d at 511.

53 Rec. Doc. 1 at ¶¶ 13, 17.

54 Vadie, 218 F.3d at 371.

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act occurred on May 7, 2011, the complaint alleges that Plaintiff was not aware of the discrimination

until May 24, 2011, at the earliest. Indeed, the EEOC reached the same conclusion that the 300-day

limitations period began to run on Plaintiff's claim on May 24, 2011, when it revoked an earlier

notice of dismissal based on the untimeliness of the charge.55 Therefore, Plaintiff's EEOC charge,

for the purposes of the pending motion, was timely.

IV. Conclusion

For the foregoing reasons,

IT IS HEREBY ORDERED that the Motion to Dismiss filed by Rainbow Apparel

Companies56 is DENIED.

NEW ORLEANS, LOUISIANA, this _____ day of June, 2013.

________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

55 See Rec. Doc. 21-1 at p. 11.

56 Rec. Doc. 6.

11