Campbell v. Verma Systems, Inc.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA MICHAEL CAMPBELL CIVIL ACTION VERSUS VERMA SYSTEMS, INC., ET AL. NO. 21-00272-BAJ-RLB RULING AND ORDER Before the Court is Defendant Verma Systems, Inc.’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Pursuant to Rule 12(b)(6) (Doe. 6). The motion is opposed.! See (Doc. 7). For the reasons stated below, Defendant’s Motion is GRANTED, in part. I. BACKGROUND Plaintiff is a former employee of Verma Systems, Inc. (“Verma”). (Doc. 6-1, p. 1). Plaintiff aleges that he was terminated on May 28, 2019, in retaliation for reporting alleged sexual harassment by a coworker, in violation of Title VII, as well as state and federal whistleblower statutes. (Doc. 1-2, p. 11). Plaintiffs petition states that he “was given the right to sue by the EEOC on August 13, 2020, and as a result this action is timely.” (Doc. 1-2, p. 12). Plaintiff filed suit on November 12, 2020, in the Nineteenth Judicial District, Court for East Baton Rouge Parish, Louisiana. ? Plaintiffs opposition was not timely filed. See (Doc. 7). Under Local Rule 7(f), a respondent opposing a motion must file a response within twenty-one days after service of the motion. Plaintiff's opposition was filed ten days after the twenty-one-day mark. (Doc. 1-2). On May 12, 2021, Verma filed a Notice of Removal to this Court. (Doc. 1). On June 7, 2021, Verma filed the instant motion, alleging that Plaintiffs action under Title VII is time-barred. (Doc. 6). Verma also alleges that Plaintiffs state law whistleblower claims are prescribed. (Doc. 6). Plaintiff filed his opposition on July 7, 2021, ten days after the deadline imposed by Local Rule 7(f. He did not request leave to file an untimely opposition, as required by Federal Rule of Civil Procedure (“Rule”) 6(b)(1)(B) and provided no explanation for his failure to timely file an opposition. Therefore, Defendant's Motion is deemed unopposed. II. LEGAL STANDARD A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the legal standard set forth in Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “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.” Ashcroft v, Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id, at 679. “[FJacial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556 ). Hence, the complaint need not set out “detailed factual allegations,” but something “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action” is required. Twombly, 550 U.S. at 555 . When conducting its inquiry, the Court must “accepti] all well-pleaded facts as true and view[] those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted). Ill. ANALYSIS A. Federal Claims When filing a claim for employment discrimination, a plaintiff must exhaust ail administrative remedies prior to pursuing a claim in federal court. Taylor vu. Books A Million, Inc., 296 F.3d 876, 378-79 (5th Cir. 2002). “Exhaustion occurs when [a] plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue.” Id. at 379 (citing Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996)). Title VIE provides that claimants have ninety days to file a civil action after receipt of a “right-to-sue” notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1). This time period is “strictly construed,” such that filing suit even one day beyond the ninety-day period is grounds for dismissal. Taylor, 296 F.3d at 379-80 . Plaintiffs petition asserts that he “was given the right to sue by the EEOC on August 13, 2020, and as a result this action is timely.” (Doc. 1-2, p. 12). Plaintiff filed suit on November 12, 2020, ninety-one days after he was “given” the right to sue. (Doc. 1-2). Plaintiff's complaint does not specify what “given” means. When the date on which a right-to-sue letter was received is unknown or disputed, courts may presume that the plaintiff received the right-to-sue letter up to three days after it was mailed. See Taylor, 296 F.3d at 379 ; Jenkins v. City of San Antonio Fire Dept., 12 F. supp. 3d 925, 936 (W.D. Tex. 2014) (collecting cases). The Complaint in Taylor specifically provided that “the EEOC issued a Right to Sue Letter on September 29, 2000, and this suit is filed within ninety (90) days of receipt of the Right to Sue Letter.” Id. Here, Plaintiff merely states that he was “given” the right to sue by the EEOC on August 13, 2020. Plaintiff has not provided the EEOC right-to-sue letter or made any other effort to show when the letter was sent or received. Viewing the facts as pleaded in the light most favorable to Plaintiff, Plaintiff was given the right to sue upon receipt of the EEOC letter. The Court presumes Plaintiff received the right to sue letter on August 13, 2020, due to his statement and failure to provide the letter. Based on this assumption it appears that Plaintiffs Title VII claims are time-barred. However, if Plaintiff can show the letter was sent by the EEOC on August 18, 2020, then his claims may not be time barred. Therefore, Defendant’s Motion is GRANTED, in part. Defendants seek dismissal of Plaintiffs claims with prejudice. However, Rule 15(a) provides that “[t]he court should freely give leave [to amend pleadings] when justice so requires.” FED. R. Civ. P. 15(a)(2). The United States Court of Appeals for the Fifth Circuit has held that “[glranting leave to amend is especially appropriate ... when the trial court has dismissed the complaint for failure to state a claim.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (Sth Cir. 2002) (citing Griggs v. Hinds Junior College, 563 F.2d 179, 180 (5th Cir.1977) (per curiam)). Here, Plaintiffs petition was either filed only one date late or within the ninety-day period. The issue of whether Plaintiffs claims is time barred turns on whether the EEOC mailed the right to sue letter on August 18, 2020 or whether Plaintiff received the right to sue letter from the EEOC on August 13, 2020. See Taylor, 296 F.3d at 379 . Additionally, the instant Motion was filed before any responsive pleadings in the matter were filed. As such, no undue prejudice to the Defendants will follow by allowing Plaintiff limited leave to amend his complaint to address the deficiencies outlined in this Order. B, State Law Claims Plaintiff also alleged that Verma violated the Louisiana whistleblower statute. See LA. REV. STAT. ANN. 23:967. While there is no prescriptive period specifically set out in the Louisiana Whistleblower Statute, “absent any specification within La. R.S. 23:967, the plaintiff's cause of action thereunder is subject to the general one-year prescriptive period for delictual actions provided in La. Civ. Code art. 2942.” Clark v. Auger Services, Inc. 443 F. Supp. 3d 685 , 712 (M.D. La. 2020) (quoting Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 790 So.2d 725, 733 (La. App. 5 Cir. 6/27/01)). The prescriptive period for delictual actions begins to run from the day the injury or damage is alleged to have been sustained. LA. CODE CIV. P. art 3492. Unlike Plaintiffs corresponding federal claims, Louisiana law does not provide an extension of time. “Prescription for retaliation claims under La. R.S. 23:967 is not suspended during administrative review or investigation.” Clark, 443 F. Supp. 3d at 712 (citing Langley v. Pinkerton's Inc., 220 F. Supp. 2d 575, 581 (M.D. La. 2002)). Here, the prescriptive period began to run on the date Plaintiff was terminated: May 43, 2019. It is undisputed, therefore, that Plaintiffs state law claims brought in his November 12, 2020 suit are prescribed. Thus, Defendant's Motion is GRANTED as to Plaintiffs state law claim and Plaintiffs state law claims are DISMISSED WITH PREJUDICE. IV. CONCLUSION Accordingly, IT IS ORDERED that Defendant’s Motion (Doc. 6) is GRANTED, as to Plaintiffs state law claims. Plaintiffs state law claims are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Defendant’s Motion is GRANTED, in part, regarding Plaintiff's federal claims. Plaintiff's federal claim, as pleaded, is timebarred. Therefore, Plaintiffs federal claims are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff is GRANTED LEAVE to file a revised Amended Complaint addressing the deficiencies described in this order no later than February 10, 2022. Baton Rouge, Louisiana, this 2h of January, 2022 : RS f □□ JUDGE BRIANA. JACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA