Lewis v. Norfolk Southern Corp., CIV.A. 202CV379.

• Decision Date: 17 April 2003
• Docket Number: No. CIV.A. 202CV379.,CIV.A. 202CV379.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Harry D. LEWIS, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.

271 F.Supp.2d 807

Harry D. LEWIS, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.

No. CIV.A. 202CV379.

United States District Court, E.D. Virginia, Norfolk Division.

April 17, 2003.

COPYRIGHT MATERIAL OMITTED

James H. Shoemaker, Jr., Patten, Wornam, Hatten & Diamonstein, Newport News, for Plaintiff.

Samuel J. Webster, Timothy M. McConville, John T. McDonald, Willcox & Savage, Norfolk, for Defendant.

ORDER AND OPINION

FRIEDMAN, District Judge.

The court heard oral argument with respect to the defendant's motion to dismiss and for summary judgment under Federal Rules of Civil Procedure 12(b)(6) and 56. The defendant asserts that any claims premised on three charges that the plaintiff filed with the Equal Employment Opportunity Commission (EEOC) are time-barred. Based on the briefs submitted by the parties, the arguments of counsel at the hearing, and for the reasons set forth below, the court GRANTS the defendant's motion for summary judgment.

I. PROCEDURAL BACKGROUND

The plaintiff's action is brought under the Age Discrimination Act (ADEA), 29 U.S.C. §§ 621-633a.¹ The plaintiff claims that while he was employed by the defendant, Norfolk Southern, he was subjected to various forms of age discrimination. His complaint alleges three categories of wrongful conduct. Count I alleges denial of promotions on four occasions; Count II alleges denial of pay increases on at least five occasions; and Count III alleges retaliation for the plaintiff's opposition to unlawful employment practices, ultimately resulting in his constructive discharge. As a result of this alleged conduct, the plaintiff filed three charges with the EEOC, two during his employment and one after he retired.

The first charge was filed on December 7, 1999. The plaintiff complained of a discriminatory job transfer, three denials of promotions, a denied merit-based pay increase, and a negative performance review in retaliation for an internal complaint regarding age discrimination. The EEOC rendered a "no cause" determination and issued a right to sue notice on April 28, 2000. The second charge was filed June 22, 2000, alleging three specific acts of discrimination: a denied merit pay increase and two denied promotions. This charge was withdrawn twenty-two days later, and the EEOC issued a notice approving the withdrawal and terminating further processing of the matter. On February 15, 2001, the EEOC unilaterally issued a notice of reconsideration and reopened its investigation of this charge's allegations. On August 22, 2001, the EEOC issued its determination letter with notice of right to sue. The defendant asked for a reconsideration of the EEOC "for cause" finding with respect to an alleged act of discrimination asserted in the charge, which was rejected. A second notice of right to sue based on the second charge issued on February 27, 2002. The plaintiff filed his third charge on October 26, 2001, alleging that his early retirement constituted a constructive discharge. The EEOC issued its right-to-sue notice on March 13, 2002. The plaintiff filed his complaint on May 21, 2002.

II. ANALYSIS

The defendant's motion is pursuant to two alternative avenues: Rule 12(b)(6) or Rule 56 of the Federal Rules of Civil Procedure. Both parties' briefs rely on materials outside the plaintiff's complaint; therefore, the court will address the motion as one for summary judgment. See Fed.R.Civ.P. 12(b) ("If matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."). Because the defendant's motion explicitly invoked Rule 56, the plaintiff has been on notice that the court could rule on this basis, and the requirements of a "converted" motion to dismiss are not relevant. Additionally, the court need not afford the plaintiff further time to present additional pertinent material as he has had a fair and full opportunity to do so already.

A. Standard of Review

Summary judgment is appropriate when the record presents no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P 56(c). While the non-moving party is entitled to have all factual inferences construed in its favor, only facts that might affect the outcome of the suit are to be considered. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The ultimate question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. 2505.

Entry of summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a party has filed evidence supporting the motion for summary judgment, the nonmoving party may not rest upon his complaint but must instead set forth specific facts in the form of exhibits or affidavits illustrating genuine issues for trial. See id. at 322, 106 S.Ct. 2548.

B. EEOC Requirements

The defendant's argument against the plaintiff's claims primarily is one of timeliness. In essence, the defendant contends that either the plaintiff was late in filing a charge with the EEOC or that the plaintiff was too late in filing the instant lawsuit once the charges were filed. The defendant also contends that the EEOC lacked authority to reconsider the plaintiff's second charge once it was withdrawn. The issues the defendant raises, then, are ones of law and there appear to be no disputed material facts with regard to the timing of the EEOC charges and the timing of the relevant acts of alleged discrimination that they were based on. As such, summary judgment is appropriate if the court resolves the legal issues at hand against the plaintiff.

As a prerequisite to filing a civil action charging age discrimination, an aggrieved party must first file a charge with the EEOC. In a "deferral" state, like Virginia,² this charge must be filed no later than 300 days "after the alleged unlawful practice occurred...." 29 U.S.C. § 626(d)(2). The prospective plaintiff must then wait sixty days before filing a lawsuit, 29 U.S.C. § 626(d), but he has no more than ninety days following the EEOC's issuance of his right-to-sue-notice in which to file the action. The ninety-day requirement operates as a statute of limitations that bars subsequently filed suits.

The timing requirements for filing a lawsuit following an EEOC right-to-sue notice have been strictly construed. See Harvey v. City of New Bern Police Dep't, 813 F.2d 652 (4th Cir.1987) (holding suit filed ninety-one days after notice untimely); Boyce v. Fleet Finance Inc., 802 F.Supp. 1404 (E.D.Va.1992) (ninety-two days). Ameliorating the severe results of such a bright-line rule is the general applicability of waiver, estoppel, and equitable tolling to the two limitations periods. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-93, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

The Supreme Court has stated that equitable tolling is to be used "sparingly." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The Fourth Circuit has declared similarly that "equitable tolling is a narrow limitations exception.... Courts cannot countenance ad hoc litigation for every missed deadline. The repose that statutes of limitations provide will be lost if their applicability is `up for grabs' in every case." Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir.1990). The Supreme Court has suggested certain contexts where tolling may be appropriate: Where a claimant has received inadequate notice; where a motion for appointment of council is pending and equity justifies tolling until the motion is acted upon; where the court has led the plaintiff to believe she has done all that is required, though she has not; where the affirmative misconduct of the defendant "lulled the plaintiff into inaction," Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984); or where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, Irwin, 498 U.S. at 96, 111 S.Ct. 453.

If the claimant has not been diligent in pursuing his legal remedies or the delay in filing is a result of simple neglect, courts are unwilling to exercise equitable tolling. See id. The Fourth Circuit has limited equitable tolling in the employment discrimination context primarily to instances where an "employee's failure to timely file results from either a `deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.'" Olson, 904 F.2d at 201 (quoting Price v. Litton Bus. Sys. Inc., 694 F.2d 963, 965 (4th Cir.1982)).

An additional constraint on a discrimination complaint is that the "plaintiff's EEOC charge defines the scope of [his] subsequent right to institute a civil suit." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir.2000). The contents of each claim in a complaint must bear a relation to the earlier EEOC charges or the plaintiff risks dismissal for failure to exhaust his administrative remedies. Accordingly, the court's analysis is structured to address each charge rather than each claim. If each charge fails then the lawsuit should be dismissed in its entirety.

As a threshold matter, the court notes that the plaintiff has alleged a violation of Title VII in the third claim of his complaint. See Pl's. Compl. at ¶ 30. Because there has been no charge filed with the EEOC under Title VII, the portion of Claim III that is premised on Title VII is dismissed for a failure to exhaust administrative remedies....