Opinion
CIVIL ACTION NO: 00-2488 SECTION: "D"(5).
February 28, 2001.
Before the court are:
(1) Motion To Dismiss For Lack of Personal Jurisdiction, filed by defendant Michael McCoy,
(2) Motion To Dismiss For Lack of Personal Jurisdiction, filed by defendant Kevin Cherry,
(3) Motion To Dismiss Under Fed.R.Civ.Pro. 12(b)(6) , filed by defendant The Coca-Cola Company,
(4) Motion To Dismiss Under Fed.R.Civ.Pro. 12(b)(6) , filed by defendant Norrell Corporation, and
(5) Motion For Partial Dismissal of Claims, filed by plaintiff Nathaniel Taylor.
Plaintiff Nathaniel D. Taylor has not opposed the motions filed by defendants Michael McCoy and Kevin Cherry. However, plaintiff does oppose the motions filed by defendants Norrell Corporation and The Coca-Cola Company. Defendant The Norrell Corporation has opposed plaintiff's motion for partial dismissal of claims. These motions are before the court on briefs without oral argument.
Background
The allegations of the complaint are as follows:
Plaintiff, an African-American male, was employed by defendant Norrell, a temporary staffing agency which provides temporary workers to its corporate clients. He began work in the state of Georgia for Norrell on April 1, 1999 and was immediately assigned in that state to the Coca-Cola Company in various administrative positions. On July 14, 1999 plaintiff, by telephone, informed the Norrell on-site office at 7:25 and again at 7:28 that he could not report to work until 12:00 p.m. that afternoon. Additionally, plaintiff contacted the Norrell branch manager at 7:32 the same morning. Upon arrival that day, he was confronted by his Coca-Cola supervisor regarding his tardiness. Plaintiff explained that he had contacted the Norrell on-site office twice that morning to inform them of his late arrival. His supervisor later informed plaintiff that Norrell confirmed his early morning call and stated that there must have been a "communications breakdown" in the Norrell office.
See complaint #1.
Id at #31
Id at #33
Plaintiff alleges that on July 26, 1999, he was informed by Norrell that he was no longer needed at the Coca-Cola assignment. The stated reason was that he was "not a good match".
Id at #36 Plaintiff was assigned to a three week term beginning July 12, 1999 through July 16, 1999 and then from July 26, 1999 through August 6, 1999. Plaintiffs complaint alleges that a Norrell employee tried to contact him during the interim week to inform him of his termination, but was unsuccessful.
The following day, July 27, 1999, plaintiff was told by Norrell that his contract for employment had been terminated and he was "no longer eligible for employment with the Coca-Cola Company". The reason given by Norrell was that plaintiff had violated Norrell's policy prohibiting communication with Coca-Cola associates when he spoke with his Coca-Cola supervisor regarding his July 14, 1999 tardiness. Plaintiff had no contact with Coca-Cola after July 27, 1999, at the latest.
Id at #37
Id at #38-39 Plaintiff was aware of this policy which stated "It is not acceptable for you to contact client personnel or Norrell personnel other than the on-site staff at Coca-Cola Company to report your tardiness or absence."
Plaintiff asserts that after numerous contacts with human resources at Norrell following his July 27, 1999 termination, "reinstatement was still possible", and that a final decision of termination was not rendered by Norrell until September 27, 1999. Plaintiff claims that he communicated with Norrell regarding the July 27, 1999 termination on August 6, 1999, August 10, 1999, and September 10, 1999. On September 10, plaintiff was told that Norrell's human resources would "speak with all parties concerned, and reinstatement was still possible." On September 27, 1999 plaintiff was contacted and informed that the investigation was complete and his termination was final.
Id at #55
Id at #56
Id at #55
Id at #56
Plaintiff also claims that he submitted his resume to Coca-Cola on three occasions while employed there, and that he was not hired. He alleges that he interviewed for a legal assistant position on or about June 30, 1999 and was told that there were no legal positions available. Plaintiff also alleges that he interviewed for a position in the department of Organization and People Development, which was posted from June 17, 1999 through June 24, 1999. He states that the interview was conducted on or about July 8, 1999, and that he was not hired. Lastly, plaintiff claims that he applied for a job as a Trademark Analyst, which job was posted from July 5, 1999, until July 10, 1999. He was rejected for this position as well.
Id at #85
Id at #61-66
Id at #91-93
The plaintiff alleges that he was discriminated against because of his race, sex, and nationality. Plaintiff's basic allegations are that he was denied permanent employment, passed over for promotions, and finally terminated because he is an African-American male.
Plaintiff filed his 42 page complaint on August 30, 2000 against the named defendants. He asserted numerous allegations including violations under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and various state law claims. Plaintiff's complaint also alleges that he filed his charge of discrimination with the EEOC on January 27, 2000.
Plaintiffs state law claims include invasion of privacy, breach of contract and/or promissory estoppel, intentional interference with employer-employee relationship, intentional infliction of emotional distress, negligence, defamation, and violation of Georgia Employment Security Law O.C.G.A. § 34-8-190.
Id at #12.A.
Each of the named defendants has filed a motion to dismiss. In response to these motions, plaintiff has asked the court to voluntarily dismiss several of his claims under Fed.R.Civ.P. Rule 41(a)(2) and does not oppose the dismissal of two named defendants.
Defendant Michael McCoy's and Kevin Cherry's Motions to Dismiss for Lack of Personal Jurisdiction
Plaintiff has elected not to oppose the Motions to Dismiss for Lack of Personal Jurisdiction filed by defendants Michael McCoy and Kevin Cherry. Accordingly, defendant Michael McCoy's and Kevin Cherry's Motions To Dismiss For Lack of Personal Jurisdiction are hereby granted as without opposition.
See Plaintiff Nathaniel Taylor's Motion for Partial Dismissal of Claims #5
Defendant Norrell Corporation's Motion To Dismiss
Norrell filed a motion to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(6) for failure to state a claim upon which relief can be granted. Norrell asserts that plaintiff's claims, on there face, are barred by the applicable statutes of limitations and/or are insufficient to support the relief plaintiff seeks.
Specifically, Norrell argues that: 1) plaintiff's § 1981 claims are appropriately dismissed as untimely, 2) plaintiff's Title VII claims are appropriately dismissed as untimely and his Title VII retaliation claim fails to state a claim upon which relief may be granted, and 3) plaintiff's pendent state law claims are untimely and/or fail to state a claim upon which relief may be granted.
1. Timeliness of Claims
It is Norrell's assertion that prescription began to run on July 27, 1999. Plaintiff was informed by Norrell, on July 26, 1999, that he was not to report back to Coca-Cola. He was terminated by Torrell the next day. Thus, plaintiff had actual notice that any alleged discriminatory action taken by Norrell occurred on July 27, 1999 when Norrell notified him of his termination.
Further, Norrell relies upon plaintiff's complaint wherein plaintiff admits in several paragraphs that he was discharged from his employment on July 27, 1999. In addition, Norrell refers to plaintiff's EEOC Charge of Discrimination wherein, plaintiff asserts that he worked for Norrell from April 1 until July 27, 1999 and that the last date of any alleged discriminatory action was July 27, 1999. Therefore, Norrell asserts that prescription began to run on July 27, 1999.
See supra note 1 at #'s 1, 37, 39
Id and attached exhibit B "Charge of Discrimination"
Norrell asserts that plaintiff's § 1981 claims and pendent tort based claims should be dismissed as untimely. Norrell argues that these claims are controlled by Louisiana's one year prescriptive period. Thus, the complaint should have been filed by July 27, 2000. The complaint was not filed until August 30, 2000. Accordingly, these claims should be dismissed as untimely.
Norrell also asserts that plaintiff's Title VII claims are appropriately dismissed as untimely. Norrell contends that Title VII requires that a charge of discrimination be filed within 180 days after the alleged unlawful employment action has occurred. Because plaintiff had knowledge of the act by July 27, 1999, the complaint should have been filed by Monday January 24, 2000. (The 180 day deadline fell on Sunday January 23, 2000, thus allowing plaintiff to file his claim the next day.) Plaintiff asserts in his complaint that the Charge was filed on January 27, 2000, which is 3 days late. Accordingly, Norrell argues that plaintiff's Title VII claim is untimely and should be dismissed.
See supra note 1 at #12(A)
2. Failure To State A Claim Upon Which Relief Can Be Granted
Norrell asserts that each of plaintiff's state law claims fails to state a claim upon which relief can be granted. Norrell argues that although Louisiana's prescriptive period applies to these claims, it is Georgia substantive law which must be applied to determine whether the remaining claims present a viable cause of action. Norrell contends that for each of these claims Georgia law does not support a cause of action and/or provides no remedy to plaintiff. Accordingly, each state law claim should be dismissed for this reason as well.
Defendant Coca-Coca Company's Motion to Dismiss
Coca-Cola filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Coca-Cola asserts that plaintiff's claims, on their face, are barred by the applicable statutes of limitations and/or are insufficient to support the relief plaintiff seeks.
See Defendant The Coca-Cola Company's Motion To Dismiss p. 1
Specifically, Coca-Cola argues that: 1) plaintiff's claims arising under § 1981 and for invasion of privacy, intentional interference with employer-employee relationship, intentional infliction of emotional distress, negligence, and defamation are barred by Louisiana's one year prescriptive period, 2) plaintiff's Title VII claims are time barred because plaintiff failed to file a charge of discrimination within 180 days of the alleged discriminatory act, 3) plaintiff's tort claims fail to state a claim upon which relief can be granted, and 4) plaintiff's claims under Title VII and § 1981 must be dismissed because plaintiff admits that he does not have sufficient facts on which to base his claim.
1. Timeliness of Claims
It is Coca-Cola's assertion that prescription of plaintiff's claims began to run on July 26, 1999, or at the very latest, July 27, 1999. Plaintiff was informed by Norrell, on July 26, 1999, that he was not to report back to Coca-Cola. According to the plaintiff's complaint, he had no contact with any Coca-Cola employee after this date. He was terminated by Norrell the next day. Therefore, plaintiff had no material employment related contact with Coca-Cola after July 26, 1999. Any alleged review of plaintiff's employment status conducted by Norrell would therefore have no impact on Coca-Cola's assertion that July 26 or 27, 1999 is the applicable date. Accordingly, plaintiff had actual notice that any alleged discriminatory action taken by Coca-Cola occurred on July 26, 1999, or at the very latest on July 27, 1999 when he was notified of his termination.
Further, Coca-Cola argues that any claims based upon their failure to hire plaintiff occurred prior to July 27, 1999 as evidenced by plaintiff's complaint. Thus, there is no evidence nor allegation that plaintiff had any material employment related contact with Coca-Cola after July 27, 1999.
Accordingly, Coca-Cola asserts that plaintiff's § 1981 claims, tort claims and Title VII claims should be dismissed as untimely for the same reasons asserted by Norrell above.
2. Failure To State A Claim Upon Which Relief Can Be Granted
Just as Norrell argues above, Coca-Cola asserts that each of plaintiff's state law claims fails to state a claim upon which relief can be granted. Coca-Cola argues that although Louisiana's prescriptive period applies to these claims, it is Georgia substantive law which must be applied to determine whether the remaining claims present a viable cause of action. Likewise, Coca-Cola contends that for each of these claims Georgia law does not support a cause of action and/or provides no remedy to plaintiff. Accordingly, each claim should be dismissed.
In addition, Coca-Cola asserts that plaintiff's claims for race discrimination under Title VII and § 1981 must be dismissed because plaintiff admits that he does not have sufficient facts on which to base his claim. In support of this assertion Coca-Cola relies on plaintiff's complaint paragraph 189 which states that plaintiff "does not currently have sufficient information to determine whether or not his termination or reason for not being hired by Coca-Cola was the result of intentional racial discrimination." Defendant argues that this statement illustrates that plaintiff's allegations are without factual basis and should be dismissed as a matter of law.
Plaintiff's Motion For Partial Dismissal of Claims
In response to defendants' 12(b)(6) motions to dismiss, on January 16, 2001, plaintiff filed a motion to withdraw the following claims under Fed.R.Civ.Proc. Rule 41(a)(2):
1. Invasion of privacy,
2. Title VII Retaliation,
3. Breach of Contract and/or Promissory Estoppel,
4. Intentional Interference with Employer-Employee Relationship,
5. Negligence,
6. Defamation, and
7. Violation of Georgia Employment Security Law O.C.G.A. § 34-8-190(c).
Id #7
Plaintiff states that he has no intention of re-filing these claims at the present time. However, his memorandum in support requests dismissal without prejudice "as he may wish to re-assert some of these claims . . . in the Northern District of Georgia, pending this Court's determination on the remaining claims presented before it."
See supra note 16 at #8
Norrell has objected to plaintiff's 41(a)(2) motion to dismiss asserting that each of the plaintiff's claims is time barred and/or fails to state a claim upon which relief can be granted and should be ruled upon and dismissed with prejudice. Coca-Cola has not objected to this motion but has previously argued that each of the plaintiff's claims is time barred and/or fails to state a claim upon which relief can be granted and should be dismissed with prejudice.
Plaintiff's Opposition To Norrell's Motion To Dismiss
Plaintiff alleges in his opposition to Norrell's motion to dismiss that: 1) plaintiff filed his § 1981 claim within Louisiana's one year prescriptive period, 2) plaintiff filed his Charge of Discrimination in a timely manner with the EEOC on January 27, 2000, 3) the court must accept as true the allegation that he exhausted all administrative remedies for his Title VII claim within the applicable limitations period, 4) alternatively, plaintiff exhausted his administrative remedies timely under the doctrine of equitable tolling, 5) plaintiff's intentional infliction of emotional distress claim is timely under the continuing tort doctrine, 6) compelling considerations warrant preservation of plaintiff's state law and § 1981 claims, and 7) plaintiff properly states a claim for intentional infliction of emotional distress.
1. Timeliness of Claims
Plaintiff asserts that he filed his § 1981 claim within Louisiana's one year prescriptive period. Plaintiff's contention is that prescription began to run on September 27, 1999. He claims that, although he was "fired" on July 27, 1999, by Norrell, this action was not finalized until September 27, 1999, when Norrell's internal review was complete and he received final notice of the action taken. Plaintiff argues that it was at this point that plaintiff knew of the discriminatory action and Louisiana's one year prescriptive period began to run.
In support of this assertion plaintiff relies on Fifth Circuit case law holding that the limitations period for both Title VII and § 1981 claims commences from the time the claimant "knew or should have known" that the discriminatory act has occurred. Because his termination was under review until September 27, 1999, plaintiff asserts that he could not have known of the alleged discriminatory act until that time. Therefore, having filed his cause of action on August 30, 2000, plaintiff's action is timely.
See Moore v. McDonald, 30 F.3d 616, 620-621 (5th Cir. 1994), Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988), McWilliams v. Escambia School Board, 658 F.2d 326, 328 n. 1 (5th Cir. 1981)
Likewise, plaintiff asserts that his Title VII claim is timely under the same "knew or should have known" standard. Plaintiff states that a Charge of Discrimination must be filed within 180 days from the date he knew or should have known of the alleged wrongful employment act. Plaintiff alleges knowledge of the alleged discrimination on September 27, 1999, when Norrell completed its internal review of plaintiff's employment status. Thereafter, plaintiff filed his Charge of Discrimination on January 27, 2000. Accordingly, plaintiff's Charge of Discrimination was timely filed thus meeting the applicable statutory deadlines.
In further support of his argument that his charge of discrimination was timely filed, plaintiff relies on the allegations made in his complaint. Plaintiff argues that upon a 12(b)(6) motion to dismiss, the court must "accept all well pleaded facts as true and review them in the light most favorable to plaintiff." Plaintiff argues that in his first amended petition for damages he pled that his date of termination and the date that he actually knew that he was entitled to rights under federal law was September 27, 1999. Therefore, for purposes of a 12(b)(6) motion, this fact cannot be challenged by defendants. Accordingly, plaintiffs charge of discrimination was timely filed with the EEOC.
Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995)
Alternatively, plaintiff asserts that he exhausted his administrative remedies timely under the doctrine of equitable tolling. Plaintiff correctly points out that "the limitation statute is subject to estoppel and equitable tolling." He states that the circumstances regarding his termination and Norrell's alleged review thereof, cast in doubt his actual employment status until September 27, 1999 when he was made aware of the final decision. Based on this plaintiff maintains that the time period between July 27, 1999 and September 27, 1999 tolled the Title VII and § 1981 statutes of limitations. Accordingly, plaintiff's claims were effectively tolled until September 27, 1999, and should be viewed as timely filed.
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)
Additionally, Plaintiff argues that his claim for intentional infliction of emotional distress is timely under the continuing tort doctrine. Plaintiff maintains that Louisiana recognizes the continuing tort doctrine and that he suffered a continuous tort. Norrell is alleged to have engaged in extreme and outrageous behavior. Plaintiff alleges that Norrell continued this behavior beyond his September 27, 1999 termination and well into his claim with the Georgia Department of Labor for unemployment benefits. Accordingly, plaintiff's intentional infliction of emotional distress claim was timely filed.
Plaintiff relies on Wheelock v. Philip Morris, USA, 1997 WL 45292, *14 (E.D. La. 1997) (quoting South Central Bell v. Texaco Inc., 418 So.2d 531, 533 (La. 1982)) "Louisiana recognizes the continuing tort doctrine, whereby a series of wrongful acts is to be regarded as a single wrongful act, with the prescriptive period running from the 'cessation of the wrongful conduct causing the damage.'"
Supra note 1 at #161
Neither opposition filed by plaintiff addresses any of the claims mentioned in his Rule 41(a)(2) motion and he has filed nothing in response to Norrell's opposition to his Rule 41(a)(2) motion.
Plaintiff also asserts that "compelling considerations" warrant preservation of his state law and § 1981 claims. He relies on La.C.C. Art. 3549 for this proposition. The plaintiff argues that "compelling considerations" exist in this case. These considerations are apparent from the plaintiff's circumstance as a pro se plaintiff with limited means. Plaintiff maintains that his suit was filed in Louisiana as a matter of necessity, not convenience. In support of this proposition, plaintiff relies on La.C.C. Art. 3549, cmt.(f) stating the article applies in "situations where suit in the alternative forum, although not impossible would be extremely inconvenient for the parties." Accordingly, given plaintiff's limited means, "compelling considerations of remedial justice" warrant maintenance of plaintiff's suit in Louisiana.
Plaintiff relies on 3549(1) "If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice."
La.C.C. Art. 3549, cmt(f) quoting Restatement (Second) of Conflict of Laws, 1986 Revisions, § 142 comment (f)
Lastly, plaintiff suggests that his claim for intentional infliction of emotional distress satisfies the pleading requirement under Fed.R.Civ.Proc. Rule 8 and is therefore sufficient to overcome a Rule 12(b)(6) motion to dismiss. He argues that all that is required is a "short plain statement of the claim" and that he is not required to set out in detail the facts upon which the claim is based. Plaintiff maintains that his complaint does so and is therefore sufficient.
Boudeloche v. Grow Chemical Coatings Corp., 728 F.2d 759, 762 (5th Cir. 1984)
Plaintiff's opposition to Coca-Cola's Motion To Dismiss
In addition to the above arguments, plaintiff's opposition to Coca-Cola's motion to dismiss also asserts that defendants Coca-Cola and Norrell constitute "joint employers" for Title VII purposes and for purposes of exhaustion of administrative remedies. Plaintiff contends that, under this theory, the September 27, 1999 termination date by Norrell should attach to Coca-Cola as well. He argues that these two entities acted as a "single integrated enterprise". Plaintiff relies upon the test adopted by the United States Supreme Court and followed by the Fifth Circuit. The test contains the following factors: 1)interrelation of operations, 2)centralized control of labor, 3)common management, and 4)common ownership or financial control.
See Radio Union v. Broadcast Service, 380 U.S. 255, 257 See also Bishop v. Consolidated Natural Gas, Inc., 2000 WL 6263, *2 (E.D. La. 2000)
Plaintiff claims that he was assigned to Coca-Cola at all times and that Coca-Cola played an integral role in his termination from Norrell. Coca-Cola "controlled the details of the work Mr. Taylor performed, had the right to make or change Mr. Taylor's assignments, and had the right to terminate the relationship with Mr. Taylor." Further, Coca-Cola had the right to replace plaintiff if it found his work to be unsatisfactory. Plaintiff alleges that these actions constitute proof that the defendants qualify as "joint employers".
Supra note 1 at #1
Id #22
Because Coca-Cola and Norrell constitute "joint employers", plaintiff argues that any action by Norrell was necessarily an action by Coca-Cola. Thus, when Norrell's Human Resources stated that reinstatement was still possible and that she would talk to all parties concerned, this reinstatement applied to Coca-Cola as well as Norell. Accordingly, Coca-Cola's assertion that July 27, 1999 is the operative date should be summarily disregarded by the court and September 27, 1999 should be the operative date.
Discussion
A defendant may move to dismiss a case pursuant to Rule 12(b)(6) upon plaintiff's "failure to state a claim upon which relief can be granted." The court must accept the plaintiff's factual allegations as true and view them in favor of the non-moving party. The motion should be granted where it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995)
Id
In determining whether the defendants' motions should be granted, the court must decide: 1) whether to grant plaintiff's motion for partial dismissal of claims, 2) whether plaintiff's claims were timely filed, and 3) whether plaintiff's pendent tort based claims are sufficient to support the relief he seeks.
1. Should the court grant plaintiff's motion for partial dismissal of claims?
Fed.R.Civ.Proc. Rule 41(a)(2) provides that "an action shall not be dismissed save by order of the court and upon such terms and conditions as the court deems proper." The Fifth Circuit has held that a dismissal without prejudice is not proper where a defendant would be deprived of a statute of limitations defense if the suit were re-filed in an alternate forum. The court stated that when "considering a dismissal without prejudice, the court should keep in mind the interests of the defendant, for it is his position which should be protected." In protecting the defendant's interests the court stated that if "the facts in the second lawsuit would differ in that the defendant would be stripped of an absolute defense to the suit — the difference between winning the case without a trial and abiding the unknown outcome of such a proceeding" constitutes clear legal prejudice to the defendant.
Phillips v. Illinois Central Gulf Railroad 874 F.2d 984, 987
Id at 987
Id
The result of granting the plaintiff's Rule 41(a)(2) motion in the instant case would be to strip the defendants of an absolute defense thus constituting "clear legal prejudice" as it is recognized by the Fifth Circuit. Norrell and Coca-Cola each contend that the majority of these claims are barred by Louisiana's one year prescriptive period. However, if dismissed without prejudice these claims may be re-asserted in Georgia where the prescriptive period is two years. The defendants would thereby be deprived of a statute of limitations defense thus constituting "clear legal prejudice". Accordingly, plaintiff's motion for partial dismissal of claims is denied.
See O.C.G.A. § 9-3-33 "Actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues."
2. Were plaintiff's § 1981, Title VII and pendent state law claims timely filed?
A. § 1981
Plaintiff's § 1981 claim against defendants Norrell Corporation and The Coca-Cola Company is barred by Louisiana's one year prescriptive period. The controlling period for § 1981 is the most closely analogous limitation in the state in which the action is filed. The Fifth Circuit has consistently applied Louisiana's one year prescriptive period to claims brought under § 1981.
See supra note 23 McWilliams at 329
See Frasier v. Callais Sons, Inc., 1999 U.S. Dist. LEXIS 14229, *5 (E.D. La. 1999) And Taylor v. Bunge Corp., 755 F.2d 617 (5th Cir. 1985)
Plaintiff alleges that the September 27, 1999 date must be accepted as a "well pleaded fact" for purposes of a 12(b)(6) motion. However, whether plaintiff was terminated on July 27, 1999 or September 27, 1999 is not a "well pleaded fact", but rather, a conclusion of law.
Federal law governs the determination of when a plaintiff's action accrues. According to federal law, an action accrues under § 1981 from the date the plaintiff "knew or should have known" that the discriminatory act has occurred. The Fifth Circuit has charged an employee with knowledge of wrongful termination when the employer has "established its official position and made that position apparent."
See supra note 43 Taylor at 630 And Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)
Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988)
Id
The alleged discriminatory act in the instant case was plaintiff's termination. He was contacted by Norrell on July 26, 1999 and told that his services at The Coca-Cola Company were no longer needed. Norrell contacted plaintiff again the very next day and told him that his contract of employment had been terminated. It was at this point, when plaintiff was no longer employed and his compensation and benefits had ceased, that Norrell had "established its position" and "made that position apparent" to plaintiff. Thus, plaintiff "knew or should have known" that the alleged discriminatory act had occurred by July 27, 1999 and his allegation that September 27, 1999 should be the operative date is nothing more than an erroneous conclusion of law.
Likewise, plaintiff's argument that prescription of his § 1981 claim is subject to equitable tolling is without merit. Courts have applied the doctrine of equitable tolling in § 1981 cases. However, equitable tolling focuses on "the plaintiff's excusable ignorance of the employer's discriminatory act" and is applied only in "rare and exceptional circumstances." Plaintiff alleges that between July 27, 1999 and September 27, 1999 his termination was under review by Norrell. Plaintiff argues that the alleged review of his termination "cast in doubt" his actual employment status until September 27, 1999 and that his claim should be tolled until that date.
See e.g. Conaway v. Control Data Corp., 955 F.2d 358 (5th Cir. 1992) And Amburgey v. Cohart Refractories Corp., 936 F.2d 805 (5th Cir. 1991)
Id Amburgey at 810 n. 14 quoting Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991)
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999)
However, there is no allegation that plaintiff would be compensated during this review nor is it alleged that there was a promise that he would be re-hired. Plaintiff should have been aware of the alleged act by July 26, 1999 and certainly by July 27, 1999. At this point, plaintiff's employment status had not been "cast in doubt". He had been terminated. The alleged review of plaintiff's termination is not enough to create "excusable ignorance" or cast in doubt his employment status as it existed at that time. The "final decision" reached by Norrell's alleged "review" was not plaintiff's termination. His termination occurred two months earlier.
The Fifth Circuit has rejected the argument that the limitations period is tolled when an employee is told that his termination is under review. Similar arguments have also been rejected by the Supreme Court.
See supra note 47 Conaway at 363
See Delaware State College v. Ricks, 449 U.S. 250, 261, 66 L.Ed.2d 431, 101 S.Ct. 498 (1980)
For these reasons, plaintiff's § 1981 claim was not timely filed.
B. Title VII
Plaintiff's Title VII claim failed to meet the 180 day statutory filing requirement mandated by 42 U.S.C.A. § 2000e-5 (e). Courts utilize the same "knew or should have known" standard for the commencement of the limitations period for Title VII claims as those under § 1981. As previously established, plaintiff "knew or should have known" of the alleged discriminatory act by July 27, 1999. Accordingly, plaintiff's EEOC Charges of Discrimination should have been filed by January 23, 2000. According to plaintiff's second amending complaint, the Charges of Discrimination were not filed with the EEOC until January 27, 2000.
See 42 U.S.C.A. § 2000e-5(e)(1) "A charge under this section shall be filed within 180 days after the alleged unlawful employment practice has occurred . . ." Plaintiff filed his complaint with the EEOC's Atlanta District office. Georgia is a non-deferral state thus requiring filing of the complaint within 180 days of the alleged discriminatory act.
See supra note 45 Clark at 765
In addition, plaintiff's "equitable tolling" argument regarding his Title VII claim is subject to the same shortcomings as those previously established in his § 1981 claim.
For these reasons, plaintiff's Title VII claim is dismissed as untimely.
C. Pendent State Law Claims
Plaintiff and defendants have agreed that Georgia substantive law applies to plaintiff's state law claims and that Louisiana's prescriptive period applies to these claims. They are correct on this point. A federal court must follow the choice of law provisions of the state in which it presides. Under Louisiana's choice of law provisions La.C.C. Art. 3543 governs which state's substantive law applies. The Article states that:
See Klaxon v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 496 (1941)
Issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state or in another state whose law did not provide for a higher standard of conduct.
In all other cases, those issues are governed by the law of the state in which the injury occurred, provided that the person whose conduct caused the injury should have foreseen its occurrence in that state.
All of the conduct from which plaintiff alleges injury occurred in Georgia. Thus Georgia substantive law applies.
However, it is Louisiana's prescriptive period which applies to these claims. Article 3549 provides that:
When the substantive law of another state would be applicable to the merits of an action brought in this state, the prescription and peremption law of this state applies, except as specified below:
If the action is barred under the law of this state, the action shall be dismissed unless it would not be barred in the state whose law would be applicable to the merits and maintenance of the action in this state is warranted by compelling considerations of remedial justice.
Under these articles Louisiana's prescriptive period applies absent "compelling considerations of remedial justice."
Plaintiff's claims for invasion of privacy, intentional interference with employer-employee relationship, negligence, and defamation are barred by Louisiana's one year prescriptive period because "compelling considerations of remedial justice" do not exist in this case.
The sole basis for asserting that compelling considerations exist is plaintiff's status as a "pro se plaintiff in Louisiana with limited financial resources." However, the Fifth Circuit has stated that "in cases where plaintiffs have litigated their claims in Louisiana by choice, not by necessity, claims of 'compelling considerations' warranting maintenance of the suit in Louisiana have been consistently rejected." The Court further stated that compelling considerations must be of an "exceptional character" and that matters of cost and inconvenience are not compelling considerations. Accordingly, compelling considerations are not present and the plaintiff's tort claims are subject to Louisiana's prescriptive period of one year.
See Plaintiff Nathaniel Taylor's Memorandum In Opposition To Defendant Coca-Cola's Motion To Dismiss p. 8
See Seagrave v. Delta Airlines, Inc., 848 F. Supp. 82, 83-84
Id
As established above, the prescriptive period began to run on July 27, 1999. The complaint was not filed until August 30, 2000. As such, these tort claims are dismissed as untimely.
3. Are plaintiff's remaining pendent claims sufficient to grant the relief he seeks?
A. Intentional Infliction of Emotional Distress
Plaintiff's intentional infliction of emotional distress claim is not supported by law. Georgia law requires a showing of 1) intentional or reckless conduct, 2) that is extreme and outrageous, and 4) the distress is severe in nature.
See Mears v. Gulfstream Aerospace Corp., 484 S.E.2d 659, 663 (Ga.App. 1997) And Biven Software, Inc. v. Newman 473 S.E.2d 527, 529 (Ga.App. 1996)
The defendants maintain that their conduct did not rise to the level of "extreme and outrageous" as required by Georgia law. In support of this assertion, defendants rely on recent Georgia case law for the proposition that employee termination, no matter how stressful to the employee, generally is not extreme and outrageous conduct. Additionally, employment related claims including alleged unlawful discrimination do not rise to the level necessary to support a claim for intentional infliction of emotional distress.
See Phinazee v. Interstate Nationalease, Inc., 514 S.E.2d 843, 845 n. 2 (Ga.App. 1999) And Clark v. Coats Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993)
The eleventh circuit has held that "[D]ischarge from an established position, even for improper reasons, does not constitute the egregious kind of conduct on which a claim of intentional infliction of emotional distress can be based." In addition, the Eleventh Circuit has recently held that "While illegal discrimination — if proved — may provide federal remedies, Georgia law offers no relief for discriminatory termination through this particular tort." Thus there is no basis in Georgia law for plaintiff's intentional infliction of emotional distress claim and it should be dismissed.
See Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir. 1992) (citing Suber v. Bulloch Cty. Bd. of Educ., 722 F. Supp. 736 (S.D.Ga. 1989)
See Farrior v. H.J. Russell Company, 45 F. Supp.2d 1358, 1364 (N.D. Ga. 1999)
B. Violation of O.C.G.A. § 34-8-190
Plaintiff's claim for violation of O.C.G.A. § 34-8-190 does not provide a remedy for him under the law. Plaintiff alleges a violation of O.C.G.A. § 34-8-190 which provides in pertinent part that:
(C) Each employer shall furnish to each employee a separation notice at such time as the employee leaves the employment of the employer. The separation notice shall contain detailed reasons for the employee's separation. The employee shall tender this separation notice at the time of filing a claim for benefits.
However, the statute does not provide a remedy for the employee, but rather penalizes the employer.
An employer may be penalized for failure to furnish an employee with a separation notice at the time of separation by having his account charged for any benefits paid to his former employee, notwithstanding any disqualification of that employee.C. Breach of Contract
1977 Op. Att'y Gen. No. 77-88
Plaintiff's breach of contract claim is not supported by law. Georgia has a codified version of the employee-at-will rule at O.C.G.A. § 34-7-1 which states:
If a contract of employment provides that wages are payable at a stipulated period, the presumption shall arise that the hiring is for such period, provided that, if anything else in the contract indicates that the hiring was for a longer term, the mere reservation of wages for a lesser time will not control. An indefinite hiring may be terminated at will by either party.
Plaintiff alleges in his petition that he had an implied employee contract based upon "express and written statements of employment policies, practices, and procedures, which it (defendants) provided or disseminated to its employees, specifically the Guidelines and the Norrell Employee Handbook." However, Georgia courts have refused to accept breach of contract claims based upon employee handbooks and/or policy guidelines. Georgia courts have routinely held that they "do not view manual[s] setting forth certain policies and information concerning, employment . . . necessarily as a contract". Further the courts have held that even if a company handbook was considered to be a contract, as it is for no specific term, employees remain at-will-employees and their employment is terminable at will. In addition, employment for an indefinite period is terminable at the will of either party and a discharge in such circumstances affords no cause of action for breach of contract. Thus plaintiff's claim for breach of contract is without merit and is dismissed.
See supra note 1 #122
Lane v. K-Mart Corp., 378 S.E.2d 136, 137 (Ga.App. 1989)
Jackson v. Nationwide Credit, Inc., 206 Ga. App. 810, 426 S.E.2d 630 (1992)
See Jackson v. Nationwide Credit, Inc., 206 Ga. App. 810, 426 S.E.2d 630 (1992).
Land v. Delta Air Lines, 130 Ga. App. 231, 202 S.E.2d 316 (1973).
For the reasons given above it is unnecessary for the court to address the issue concerning the defendants status as joint employers.
Conclusion
For the foregoing reasons, it is ordered that:
(1) The Motion To Dismiss For Lack of Personal Jurisdiction, filed by defendant Michael McCoy is granted as without opposition,
(2) The Motion To Dismiss For Lack of Personal Jurisdiction, filed by defendant Kevin Cherry is granted as without opposition,
(3) The Motion To Dismiss Under Fed.R.Civ.Pro. 12(b)(6) , filed by defendant The Coca-Cola Company is granted,
(4) The Motion To Dismiss Under Fed.R.Civ.Pro. 12(b)(6) , filed by defendant Norrell Corporation is granted, and
(5) The Motion For Partial Dismissal of Claims without prejudice, filed by plaintiff Nathaniel Taylor is denied.
Further it is ordered that plaintiff's claims for intentional infliction of emotional distress, violation of O.C.G.A. § 34-8-190, and breach of contract and/or promissory estoppel are dismissed with prejudice for failure to state a claim upon which relief can be granted.
It is further ordered that plaintiff's claims for invasion of privacy, intentional interference with employer/employee relationship, negligence, and defamation are dismissed with prejudice for failing to meet the applicable statutory and prescriptive deadlines.