Opinion
CIVIL ACTION NO: 03-2313, SECTION: "K" (4)
March 25, 2004
ORDER AND REASONS
Before the Court is a Motion to Dismiss Cause of Action (doc. #13) filed by the defendant, The City of New Orleans ("City") seeking dismissal of the plaintiff, Carlos Palma's ("Palma"), complaint as time-barred. Further, the City seeks dismissal arguing that Palma cannot demonstrate that he suffered an adverse employment decision. A hearing on the motion was held on February' 11, 2004.
During the hearing, the City argued that because Palma waited more than two years after the alleged discriminatory acts, his Complaint is time-barred for failure to file with the Equal Employment Opportunity Commission ("EEOC") within 180 days. Further, the City contended that Palma's argument that he suffered an adverse employment decision is tenuous at best because the City's refusal to re-hire Palma after he voluntarily retired is not an adverse employment decision.
Palma argued that the Court should not dismiss his cause of action as time-barred because he did not learn of the discriminatory behavior until May 12, 2003. Palma further contended that filing period does not begin to run until the facts that support a charge of discrimination are apparent or should be apparent.
I. Factual Summary
Palma filed suit against defendant, The City of New Orleans ("defendant"), alleging that he was discriminated against based on his race and/or national origin. Palma further alleges that the City failed to follow federal regulatory record-keeping requirements and failed to post the required poster notifying employees and applicants of their rights under federal laws prohibiting discrimination. A. The Complaint
Rec. Doc. No. 2.
In his complaint, Palma asserts that in January of 2000, the City refused to rehire him after he submitted his retirement application in 1999, to become effective in January of 2000. And, at the time of this denial, there was a position open in Property' Management, and he was the only employee who had worked in that department who was qualified to fill this position. He further asserts that the department head appointed a less qualified black male after interviewing only black males within the department.
Rec. Doc. No. 2.
Palma is Hispanic and his country of origin is El Salvador. On May 12, 2003, Palma spoke with a former employee of the City, Louis Broussard, a black male. Broussard informed Palma that although he applied for retirement at the same time as Palma, he did not satisfy the age requirements for retirement just as Palma, but he was allowed to return to work.
Further in his Complaint of discrimination, Palma alleges that the City discriminated against him because the City denied him the right to return to work and denied him proper and fair retirement benefits. The instances of discrimination Palma complains of occurred in the year of 2000. Palma was denied the right to return to work in January of 2000, and although Palma met the age requirements for retirement in March of 2000, he reported that he did not start receiving the benefits until December of the same year.
Rec. Doc. No. 2.
Palma asserts that he was not aware of the discrimination until he spoke with Louis Broussard and became aware that Broussard was rehired but Palma was not. He further asserts that under Title VII, he has 180 days after he "discovered" or "suspected" the discrimination to file his claim with the EEOC.
Palma was sworn prior to testifying at the hearing.
During a hearing on Palma's Motion for Appointment of Counsel, Palma explained that he was a plant engineer for the City and he supervised second and third class engineers. Palma testified that overall, he ran the engine room and handled other electrical problems. Palma further explained to the Court that he felt like he had been discriminated against by the City of New Orleans when they did not rehire him in January of 2000. He further represented that he could not afford an attorney to assist him in pursuing his discrimination claim.
Palma was separated from employment with the City on January 20, 2000, when his retirement status became effective. He applied for retirement in 1999, and he stated that he received a letter from the retirement system on January 20, 2000, informing him that he had not yet reached the age of retirement to begin receiving any benefits. Palma alleges that although he reached the age requirement for retirement on March 26, 2000, he still did not start receiving his benefits. His retirement was not approved by the Civil Service until October of 2000, and Palma started receiving his benefits in December of 2000, and continues to do so through the present.
The City told him that he would not meet the age requirements until his next birthday on March 26, 2000.
He stated that after the City informed him that he had not reached the age requirement for retirement and would not do so until March, he attempted to get his job back. On January 28, 2000, Palma alleges that he went to talk with Pernell Denet and Kerry DeCay about getting his job back, and the City denied this request.
II. Analysis
The City has moved to dismiss Palma's Complaint on the ground that it is time-barred. However, the City does not indicate whether its motion is based upon Rule 12(b)(1) or 12(b)(6) of the Federal Rules of Civil Procedure. It is proper for the Court to consider the motion under the 12(b)(6) standard. See Boone v. Union Carbide Corp., 205 F. Supp.2d 689, 693 (S.D. Tex. 2002) (citing Piraino v. United States Postal Service, 69 F. Supp.2d 889, 893 (E.D. Tex. 1999) (finding that "time limits for filing an administrative claim or a civil action are not jurisdictional, but rather operate as a statute of limitations, and are subject to waiver, estoppel and equitable tolling")).
The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint based on the "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). However, Rule 12(b)(6) motions are viewed with disfavor and are rarely granted. See Leleux v. United States, 178 F.3d 750, 754 (5th Cir. 1999). When considering a motion to dismiss under Rule 12(b)(6), a district court should construe the complaint liberally in favor of the plaintiff, assuming all factual allegations to be true. See id. A complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle him to relief." Id. (quoting Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).
Title VII of the Civil Rights Act of 1964, as amended, prohibits an employer from discriminating against an employee on the basis of "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). However, a charge filed under this section must be filed within one hundred and eighty (180) days after the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1). Any incidents that occurred outside the limitations period are not a basis for recovery. See Williams v. E.I. Du Pont De Nemours Company, 955 F. Supp. 711, 719 (S.D. Texas 1996).
In his Complaint of discrimination, Palma alleges that the City discriminated against him because it denied him the right to return to work and denied him proper and fair retirement benefits. The instances of discrimination Palma complains of occurred in the year of 2000. Palma was denied the right to return to work in January of 2000, and although Palma met the age requirements for retirement in March of 2000, he reported that he did not start receiving the benefits until December of the same year.
Rec. Doc. No. 2.
Even assuming that the last discriminatory act suffered by Palma occurred at the end of November of 2000, because he finally started receiving his retirement benefits in December, his claim should have been filed no later than the beginning of May of 2001. However, Palma did not file his claim with the EEOC until June 24, 2003, two years past the 180-day time limit. Thus, Palma's discrimination claim is time-barred on its face unless he is entitled to equitable relief from the statute of limitations.
Palma asserts that he was not aware of the discrimination until he spoke with Louis Broussard and became aware that Broussard was rehired but Palma was not. He further asserts that under Title VII, he has 180 days after he "discovered" or "suspected" the discrimination to file his claim with the EEOC. The Court construes Palma's statements as is essentially arguing that the limitations period should be tolled because he did not know about Broussard's rehire until May 12, 2003, and therefore, he did not know that the City had discriminated against him.
"The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable." U.S. v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). However, equitable tolling provides for tolling of the limitations period "when a plaintiff's unawareness of his ability to bring a claim — either unawareness of the facts necessary to support a discrimination charge or unawareness of his legal rights — is due to defendant's misconduct" See Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1215 (5th Cir. 1992) The doctrine of equitable tolling does not, however, permit plaintiffs to suspend the time for filing discrimination complaints indefinitely when they discover instances of disparate treatment of other employees months, or even years" after an adverse employment action. See Hogan v. United States of America, 1999 WL 1138529 *4(E.D. La. 1999).
Palma does not allege that due to City's misconduct, he remained unaware of any facts that may have given rise to the present discrimination suit. He just asserts that his claim is timely because he was recently made aware of the factual circumstances surrounding Broussard's rehire. In addition, the date the City denied Palma's request to return to employment, January 28, 2000, should have been sufficient to put him on notice of a discriminatory incident if any occurred. However, Palma waited over two years to file a claim of discrimination with the EEOC.
For the foregoing reasons, the Court finds that there is no legal theory that can support a claim which would entitle Palma to relief. Further, because Palma's complaint is time-barred, the Court finds that it is unnecessary to analyze whether Palma can establish a prima facie case of national origin and/or race discrimination.
Accordingly,
IT IS ORDERED that the Motion to Dismiss Cause of Action (doc. #13) is GRANTED.
To obtain a transcript of the proceedings for the Court's findings, the parties should contact Gaynell Banta, Court Recorder Supervisor, at 589-7720.