Crevier-Gerukos v. Eisai, Inc., CIVIL ACTION NO. H-11-0434

• Decision Date: 29 February 2012
• Docket Number: CIVIL ACTION NO. H-11-0434
• Parties: MICHELLE CREVIER-GERUKOS, Plaintiff, v. EISAI, INC. AND EISAI CO., LTD., Defendants.
• Court: U.S. District Court — Southern District of Texas

MICHELLE CREVIER-GERUKOS, Plaintiff,

v.EISAI, INC. AND EISAI CO., LTD., Defendants.

CIVIL ACTION NO. H-11-0434

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Date: February 29, 2012

MEMORANDUM AND ORDER

This is an employment discrimination case. Michelle Crevier-Gerukos ("Gerukos") sued her former employer, Eisai, Inc. ("Eisai"), and its parent company, Eisai Co., Ltd., for retaliation under Title VII and age discrimination under the Age Discrimination in Employment Act ("ADEA").¹ Eisai moved to dismiss for failure to state a claim, arguing that Gerukos failed to timely exhaust her administrative remedies because she did not file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") within 300 days of her termination. (Docket Entry No. 3.) Gerukos responded to the motion, (Docket Entry No. 7), and Eisai replied, (Docket Entry Nos. 9 & 10). After this court converted the motion to dismiss into a motion for summary judgment, the parties submitted additional briefs and supplemented the record. (Docket Entry Nos. 19, 20 & 21.) Based on the pleadings; the motion, responses, and replies; the record; and the relevant law, Eisai's motion for summary judgment is denied. The reasons for this rulings are explained below.

I. Background

Gerukos worked for Eisai as a senior medical sales representative from April 1999 until October 8, 2008. In February 2011, she sued Eisai in federal court, alleging that her employment was terminated because she was identified as a witness by two coworkers who had filed employment discrimination complaints and because she complained to Eisai's human resources department that she was "targeted" by Eisai's management after the coworkers identified her as a witness. (Compl. ¶¶ 16, 19, 38.) She further alleged that Darren Heath, Eisai's regional sales director, made inappropriate comments to her about her age and that she was "passed over for a transfer and a promotion" in favor of younger, less qualified employees. (Id. ¶ 31.)

Eisai moved to dismiss Gerukos's complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to timely exhaust administrative remedies. Eisai argued that under federal law, Gerukos had to file a charge of discrimination with the EEOC by August 4, 2009, the 300th day after her termination. Because Gerukos signed the charge of discrimination attached to her complaint on September 28, 2009, Eisai contended that Gerukos's claims were time-barred. (Docket Entry No. 3, at 4.) Gerukos responded that she had filed her charge of discrimination on June 19, 2009, and that the September 28 charge was a second filing. She explained that she submitted the September 28 charge when an EEOC investigator told her that the June 19 charge "was not showing up in the system." (Docket Entry No. 7, at 1.) In support of her argument, Gerukos submitted an affidavit from Danya Fuller, the attorney who represented her in 2009, and a web printout of an EEOC intake questionnaire dated June 19, 2009. (Docket Entry Nos. 7-1 & 7-2.)

Because Gerukos's response relied on submissions not properly considered under Rule 12(b)(6), this court converted Eisai's motion to dismiss into a motion for summary judgment and allowed the parties to supplement the record. The parties have submitted the following summary judgment evidence:

• The sworn and notarized "Charge of Discrimination," prepared on the EEOC's Form 5, that Gerukos attached to her complaint. Gerukos signed the charge on September 28, 2009. The charge lists 524-2009-01144 as the charge number. (Docket Entry No. 1-1, at 3-4.)

• The EEOC's December 15, 2010 dismissal and notice of rights. The notice and dismissal stated that "[b]ased upon its investigation, the EEOC [was] unable to conclude that the information obtained establishe[d] violations of the statutes" and that the EEOC was "closing its file on this charge." The notice and dismissal did not state that the EEOC was "closing its file" because Gerukos's charge was untimely. (Docket Entry No. 1-1, at 1.)

• Gerukos's affidavit. Gerukos stated that on June 19, 2009 she filed "a verified complaint with the EEOC office in Newark, New Jersey" and submitted an intake questionnaire with Fuller's help. Gerukos further stated that "the EEOC assigned charge number 524-2009-01144" to her filing and told her that an investigator would contact Fuller "to obtain the relevant documentation underlying the complaint." On September 20, 2009, after "no one from the Newark EEOC ever contacted" Fuller, Gerukos "accompanied [her] attorney to the Houston District EEOC Office to determine the status of [her] case." Gerukos stated that Patricia Palacios-Ware ("Ware"), an EEOC investigator, told her that she "had timely filed a complaint with the Newark EEOC office on June 19, 2009, but that the EEOC had lost" the charge. On September 28, the "Houston EEOC office interviewed [Gerukos] and directed [her] to complete a new charge." According to Gerukos, an EEOC representative told her that her first charge "would be considered timely." (Docket Entry No. 19-4.)

• Fuller's affidavit. Fuller stated that she "helped Plaintiff file her complaint with the EEOC District Office in Newark, New Jersey on June 19, 2009," which "provided [her] with charge number 524-2009-0144." On September 20, 2009, "after months of trying to have an investigator . . . from the New Jersey office" contact her "regarding the charge," she "accompanied Plaintiff to the Houston District EEOC Office." According to Fuller, an EEOC representative from the Houston office "confirmed that a charge had been filed in New Jersey on June 19, 2009, but said that the charge had been lost." (Docket Entry No. 19-3.)

• A web printout of an EEOC intake questionnaire dated June 19, 2009 that Gerukos filled out. The questionnaire contains: (1) Gerukos's name, address, and telephone number; (2) Eisai's name, address, and telephone number; (3) the names of the Eisai representatives responsible for Gerukos's alleged discrimination; and (4) a general description of Gerukos's retaliation claim. At the end of the form, Gerukos checked "Box 1." Box 1's explanatory text stated: "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above." Gerukos did not check "Box 2." Box 2's explanatory text stated: "I want to talk to an EEOC employee before deciding whether to file a charge of discrimination. I understand that by checking this box, I have not filed a charge with the EEOC." Gerukos did not sign the questionnaire. (Docket Entry No. 7-1.)

• Ware's affidavit. Ware stated that "[t]he investigative file and EEOC computer records indicate that [Gerukos] contacted the EEOC on June 19, 2009, and indicated that she wanted to file a charge of discrimination. EEOC charge number 524-2009-01144 was assigned to her inquiry." Ware further stated that "[i]n September 2009,[Gerukos] visited the EEOC's Houston District Office in person and filed a formal Charge of Discrimination on an EEOC 'Form 5' document. I have no knowledge of [Gerukos] having submitted a 'Form 5' document to the EEOC's Newark office, and EEOC has no record of which I am aware of any such formal charge document[] having been filed prior to her September 2009 visit to the Houston District Office." (Docket Entry No. 20-2, at 1-2.)

• A computer printout showing an EEOC charge-detail inquiry for Gerukos's charge number. The charge-detail inquiry reflects eight note entries on June 19, 2009. The note entries replicate the information Gerukos provided on the intake questionnaire. (Docket Entry No. 20-2, at 3-5.)

• Letters from the EEOC Houston District Office Director to three elected representatives who wrote to ask about the status of Gerukos's complaint. The letters state that the EEOC "has grave concerns about the timeliness of [Gerukos's] allegations. As you no doubt know, there is a 300-day statute of limitations for filing a[n] EEOC discrimination charge[]. [Gerukos] was terminated on October 8, 2008, but did not file with the Commission until September 28, 2009—355 days after her termination. We have struggled to find a reason to toll the limitation period, but have found none." (Docket Entry No. 10-1.)

Gerukos argues that Eisai is not entitled to summary judgment because there are disputed fact issues material to determining whether she filed a timely discrimination charge with the EEOC. Relying on the affidavits she and Fuller filed, Gerukos contends that she filed a verified discrimination charge on June 19, 2009, within the 300-day deadline. In the alternative, Gerukos argues that the intake questionnaire she submitted to the EEOC on June 19 was itself a charge ofdiscrimination. (Docket Entry No. 19, at 9-11.) Eisai responds that the summary judgment evidence conclusively demonstrates that Gerukos's charge of discrimination was untimely. Eisai points to the charge of discrimination prepared on the EEOC Form 5, which Gerukos signed on September 28, 2009, and to the three EEOC letters expressing "grave concerns" about the timeliness of Gerukos's discrimination charge. Relying on Ware's affidavit, Eisai argues that there is no credible evidence that Gerukos filed a verified charge of discrimination on June 19 or that she submitted the intake questionnaire to the EEOC Newark office on that date. (Docket Entry No. 20, at 2-3.)

II. The Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). "The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by "'...