Kern v. Ingevity Corp.

Decision Date16 October 2017
Docket NumberDOCKET NO. 15-cv-2694
CourtU.S. District Court — Western District of Louisiana



Before the court is a Motion for Summary Judgment [doc. 55] filed pursuant to Rule 56 of the Federal Rules of Civil Procedure by Ingevity Corp., formerly known as MWV Specialty Chemicals Co. ("MWV," "defendant"), the sole remaining defendant in this action. The plaintiff, Ron Kern, opposes the motion. Doc. 74. The defendant's Motion for Oral Argument [doc. 64] was granted, and this matter was heard on October 12, 2017, at 11:00 am. Doc. 65.

For the following reasons, the Motion for Summary Judgment [doc. 55] will be GRANTED, and the action DISMISSED WITHOUT PREJUDICE by accompanying judgment, each party to bear its own costs.


Kern was employed at MWV1 as a full-time lead process chemist at that company's facility in DeRidder, Louisiana, from August 2011 until October 2014. Doc. 55, atts. 3, 33. He received apoor performance review in December of 2013 and expressed his disagreement with same. Doc. 55, att. 7; doc. 55, att. 8, pp. 7, 11. In February 2014 plaintiff was diagnosed with shingles. See doc. 55, att. 10. Though he attempted to return to work on a few occasions, he largely remained on leave from February 21, 2014, onward. Id.; see doc. 55, atts. 12-14, 16; see doc. 74, att. 2, pp. 3-4; doc. 55, att. 33.

During this time Kern continued to express disagreement with his 2013 performance review to his manager and sent a request for assistance to the MWV ethics line on March 23, 2014. Doc. 55, atts. 15-17. On March 26, 2014, Kern sent another email to the MWV ethics line, stating that he "fear[ed] the worst" as he had heard nothing to date and that, as he was "a 59 year old male with ongoing medical issues," he had contacted the Equal Employment Opportunity Commission ("EEOC") for assistance. Doc. 55, att. 22. He completed an EEOC intake questionnaire that same date, alleging discrimination on the basis of age and disability based on his 2013 performance review and the resulting performance improvement plan. Doc. 55, att. 29. This questionnaire resulted in a discrimination charge ("2014 EEOC charge"), to which MWV responded. See doc. 55, atts. 30, 31. On July 15, 2014, the EEOC dismissed the charge and informed Kern of his right to file suit within ninety days. Doc. 55, att. 32.

On September 26, 2014, a human resources representative from MWV sent a letter to Kern, informing him that a recent medical release, allowing him to begin working part-time, was insufficient for his full-time position and pointing out that he would run out of his short-term leave allowance on October 10, 2014. Doc. 55, att. 33. Accordingly, she stated, his employment at MWV would end once his leave was exhausted. Id. On that same date, a termination request was processed by MWV, effective October 10, 2014. Doc. 74, att. 1, p. 29. In December 2014 Kernapplied for another position with the defendant but the position was never filled due to a reduction in force. Doc. 74, att. 2, p. 12; doc. 55, att. 23, pp. 19-20.

On March 2, 2015, Kern submitted another intake questionnaire to the EEOC, alleging retaliation for his 2014 EEOC charge and discrimination on the basis of age and disability. Doc. 55, att. 38. His case was recommended for closure after he failed to provide a required signature within the allotted time. Doc. 55, att. 40. The EEOC issued a dismissal and notice of suit rights on June 3, 2015. Doc. 55, att. 41. Kern filed suit in the 36th Judicial District, Beauregard Parish, Louisiana, on September 1, 2015, alleging that defendant had violated federal statutes forbidding retaliation, and discrimination on the basis of age and disability, as well as Louisiana statutes forbidding same. Doc. 1, att. 1, pp. 4-9. In relief he seeks compensatory and exemplary damages, as well as an award of attorney's fees. Id. at 8-9.

Defendant now moves for summary judgment on all claims, asserting that there is no genuine issue as to any material fact on Kern's claims of discrimination and retaliation and that the defendant is entitled to judgment as a matter of law and dismissal of this action at plaintiff's cost. Specifically, it maintains that Kern failed to exhaust the claims raised in the 2015 EEOC charge and that the claims raised in the 2014 EEOC charge have prescribed. Doc. 62. Should this court disagree on either front, defendant asserts that plaintiff does not show a right to relief on the merits. Id. Kern opposes the motion. Doc. 74.


A court should grant a motion for summary judgment when the pleadings, including the opposing party's affidavits, "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986). The party moving for summary judgment is initiallyresponsible for demonstrating the reasons justifying the motion for summary judgment by identifying portions of pleadings and discovery that show the lack of a genuine issue of material fact for trial. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The court must deny the moving party's motion for summary judgment if the movant fails to meet this burden. Id.

Once the movant makes this showing, the burden then shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law. Celotex, 106 S.Ct. at 2553. There is no genuine issue of material fact if, viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). Furthermore, a court may not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000). However, the nonmovant must submit "significant probative evidence" in support of his claim. State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 106 S.Ct. at 2511.


The defendant contends that the claims raised in the 2015 EEOC intake questionnaire are subject to dismissal due to his failure to properly exhaust administrative remedies through a charge of discrimination. In his opposition to this motion, Kern concedes that all claims raised in his 2014 EEOC charge have prescribed. Doc. 74, pp. 1-2. As such, a finding in the defendant's favor on the exhaustion claim is dispositive for the case as a whole.

A. Legal standards for exhaustion

1. Federal claims

Private sector employees seeking relief on claims of employment discrimination under Title VII of the Civil Rights Act must exhaust their administrative remedies before filing suit by filing a charge of discrimination with the EEOC. McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). "The charge enables the EEOC to investigate and, if appropriate, negotiate a resolution with the employer." Id. For an EEOC filing to be considered a properly filed charge of discrimination, it must have the name of the charged party, an allegation, and a request for remedial action. See Stone v. La. Dep't of Revenue, 996 F.Supp.2d 490, 502 (E.D. La. 2014) (citing Fed. Express Corp. v. Holowecki, 128 S.Ct. 1147, 1157-58 (2008)), reversed in part on other grounds, 590 Fed. App'x 332 (5th Cir. 2014) (unpublished). An intake questionnaire may be construed as a charge so long as it fulfills these requirements. Crevier-Gerukos v. Eisai, Inc., 2012 WL 681723, *6-*9 (S.D. Tex. Feb. 29, 2012) (citing Holowecki, 128 S.Ct. at 1157-58).

This requirement extends to employees asserting claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Stith v. Perot Sys. Corp., 122 Fed. App'x 115, 118 (5th Cir. 2005); Williamson v. American Nat. Ins. Co., 695 F.Supp.2d 431, 444-45 (S.D. Tex. 2010). Specifically, a plaintiff must file a claim with the EEOC within 180 days of the unlawful act (or within 300 days if filing with a state or local agency). Williamson, 695 F.Supp.2d at 445 (citations omitted). After the plaintiff receives a "right to sue" letter from the agency, he must file suit in the district court within ninety days. Id. For Title VII and ADA claims, "exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue." Garcia v. Penske Logistics, LLC, 631 Fed. App'x 204, 207 (5th Cir. 2015) (citing Taylor v. Books AMillion, Inc., 296 F.3d 376, 278-79 (5th Cir. 2002)) (alteration omitted). No right to sue notice is required under the ADEA, however, and such a claim is instead exhausted when the plaintiff files a timely charge and then waits sixty days, regardless of whether the agency takes any action. Julian v. City of Houston, Tex., 314 F.3d 721, 725-26 (5th Cir. 2002) (citing 29 U.S.C. § 626(d)).

2. State claims

Kern also asserts claims under state antidiscrimination law. The Louisiana Employment Discrimination Law ("LEDL"), LA. REV. STAT. § 23:301 et seq., requires a plaintiff who intends to pursue court action based on a claim of discrimination to provide the defendant with written notice of his claim at least thirty days before filing suit. LA. REV. STAT. § 23:303(C). Under this requirement, "both parties shall make a good faith effort to resolve the dispute prior to...

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