Melgar v. T.B. Butler Publ'g Co.

• Decision Date: 03 July 2019
• Docket Number: No. 18-41080,18-41080
• Citation: 931 F.3d 375
• Parties: Jose Carlos Caycho MELGAR, Plaintiff - Appellant v. T.B. BUTLER PUBLISHING COMPANY, INCORPORATED; T.B.B. Printing Limited ; Nelson Clyde, IV, Defendants - Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

931 F.3d 375

Jose Carlos Caycho MELGAR, Plaintiff - Appellant

v.T.B. BUTLER PUBLISHING COMPANY, INCORPORATED; T.B.B. Printing Limited ; Nelson Clyde, IV, Defendants - Appellees

No. 18-41080

United States Court of Appeals, Fifth Circuit.

FILED July 3, 2019

Jose Carlos Caycho Melgar, Pro Se.

Earl Glenn Thames, Jr., John F. Bufe, Attorney, Potter Minton, P.C., Tyler, TX, for Defendants - Appellees.

Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Jose Carlos Caycho Melgar ("Caycho"),¹ proceeding in forma pauperis, appeals the district court’s grant of summary judgment in favor of his employer on his claims of discrimination based on age, disability, and national origin. The district court held that Caycho had filed an untimely charge of discrimination and thus failed to properly exhaust his administrative remedies prior to seeking relief in federal court. Finding no reversible error, we AFFIRM.

I. FACTUAL AND PROCEDURAL HISTORY

Caycho was employed by T.B.B. Printing, Ltd., a subsidiary of T.B. Publishing Company, Inc., (referred to collectively as "T.B.B. Printing") from September 2011 to December 2013. After Caycho left T.B.B. Printing, he filled out an intake questionnaire with the Texas Workforce Commission ("TWC"). On that form, Caycho checked the boxes for retaliation and discrimination based on national origin. Although that form is not dated, there are emails in the record between Caycho and Hector Macias, a TWC Intake Investigator. The emails state that the form was emailed on June 30, 2014. There are several emails in which Macias unsuccessfully attempts to obtain information from Caycho. An email dated August 11, 2014, from Macias’s supervisor (Walter Bryan) to Caycho states as follows: "It is impossible to understand your written response to Mr. Macias’ request that you provide a number where we can speak with you. We have transferred this complaint out of an abundance of caution for the statute of limitations." Additionally, the TWC sent Caycho a form letter dated August 15, 2014, notifying him that his complaint was untimely for TWC, which had a 180-day deadline. The letter further provided that the complaint was within the 300-day deadline for the Equal Employment Opportunity Commission (EEOC) and that TWC had forwarded the complaint to the EEOC for investigation.

On September 23, 2014, the EEOC sent Caycho a letter stating that it would review his "correspondence concerning allegations of possible employment discrimination." The letter provided an EEOC inquiry number for the case and informed Caycho that it could take between 90 and 120 days before he would be contacted by the EEOC and that any additional information from him had to be in writing.

On October 1, 2014, the EEOC sent Caycho a letter informing him that he would receive a phone call at 10:15 am on October 22, 2014, and that the interview should not take more than an hour. The letter also stated that a charge had not been filed at this time and that the "EEOC do[es] apologize for the long delay in assessing [his] inquiry." It also instructed him to have any documents or evidence in support of his claims available during the interview and that the investigatory would provide him a preliminary assessment of his allegations and options going forward.

More than eight months later, on June 12, 2015, the EEOC sent a letter to the Human Resources Department of T.B.B. Printing informing the company that a party had filed a charge of employment discrimination against it. The letter further provided that although the EEOC had not timely served the company, it intended to investigate the claim and that the delay in serving the charge "occurred through no fault of the Charging Party." Additionally, it provided that the company would be receiving a formal charge of discrimination within 60 days.

On July 17, 2015, Monica Fernandez ("Fernandez"), an EEOC investigator assigned to Caycho’s case, sent him a letter instructing him to read, sign, and date the attached form (EEOC Form 5) and return it to her "no later than close of business, August 4, 2015. " The letter informed Caycho that the EEOC found that his evidence "does not substantiate a violation under the laws enforced by this agency," that the EEOC will issue a dismissal and that Caycho had 90 days from the date of his receipt of the Dismissal Notice to file suit in court.

On August 20, 2015, Fernandez sent Caycho another letter instructing him to read, sign and date the attached charge of discrimination (EEOC Form 5) and return it to the EEOC "no later than close of business, September 8, 2015." The letter also stated that per his request the "name of the joint company ha[d] been added to your charge of discrimination" and that there were "two additional blank pages for you to add additional issues to your charge." It again informed Caycho that the EEOC found that his evidence "does not substantiate a violation under the laws enforced by this agency," that the EEOC will issue a dismissal and that Caycho had 90 days from the date of his receipt of the Dismissal Notice to file suit in federal district court.

Subsequently, on November 11, 2015, Fernandez emailed Caycho the following: "Can you please call me before December 17, 2015? I haven’t been able to proceed with your charge, since you have not signed it yet. Please find the charge of discrimination attached for your signature." The email also notified him that if he did not respond by December 17, 2015, his charge would be dismissed.

On December 16, 2015, the EEOC received Caycho’s signed and dated (December 15, 2015) EEOC Form 5 Charge of Discrimination. On January 26, 2016, the EEOC issued a Dismissal and Notice of Rights to Caycho. The notice provided that the EEOC had been unable to conclude that the information obtained from him established any violations of the statutes and that he had 90 days to file suit in state or federal court. On April 20, 2016, Caycho, proceeding pro se, filed the instant employment discrimination suit in federal district court. The complaint listed the defendants as T.B. Butler Publishing Company Inc., T.B.B. Printing Ltd., Nelson Clyde IV ("Clyde"), and three unknown FBI agents.² The T.B.B. Printing defendants filed a motion to dismiss for failure to state a claim. Clyde also filed a motion to dismiss for failure to state a claim.

The magistrate judge issued a report and recommendation that Clyde’s motion to dismiss be granted because although he was an officer at the company, he was not Caycho’s employer. With respect to the claims against T.B.B. Printing, the magistrate judge opined that Caycho’s "pleadings do not allege any facts that would support a claim pursuant to 42 U.S.C. § 1985, the Lilly Ledbetter Fair Pay Act of 2009, 42 U.S.C. § 1981, 42 U.S.C. § 1982, 42 U.S.C. § 1983 and 42 U.S.C. § 1986." Thus, it recommended that those claims be dismissed for failure to state a claim. However, the magistrate judge recommended that the motion to dismiss the remaining claims of discrimination based upon age, disability and national origin be denied. After a de novo review, the district court adopted the report and recommendation.

The parties consented to proceed before the magistrate judge pursuant to 28 U.S.C. § 636(c). T.B.B. Printing subsequently filed a motion for summary judgment as to the remaining claims, arguing that Caycho’s claims were barred for failure to exhaust his administrative remedies because Caycho failed to timely file a charge of discrimination with the EEOC within the 300-day deadline. The district court agreed and stated that because Caycho "filed an untimely charge of discrimination nearly two years after his employment was terminated ... he failed to exhaust his administrative remedies." The court also rejected Caycho’s contention that he was entitled to equitable tolling to excuse the delayed filing of the charge of discrimination. Thus, the court granted T.B.B. Printing’s motion for summary judgment. Caycho timely filed a notice of appeal.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, applying the same standards as the district court. Am. Home Assurance Co. v. United Space Alliance, LLC , 378 F.3d 482, 486 (5th Cir. 2004). "A summary judgment motion is properly granted only when, viewing the evidence in the light most favorable to the nonmoving party, the record indicates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Id . ; see also FED. R. CIV. P. 56(a).

III. ANALYSIS

A. Sufficiency of the Charge of Discrimination

Caycho argues that the district court erred in holding that he filed an untimely charge of discrimination, which resulted in his failure to properly exhaust his administrative remedies. To bring a suit under Title VII, the ADA (disability), or the ADEA (age), a complainant must file a charge of discrimination with the EEOC to exhaust his administrative remedies.

Price v. Southwestern Bell Telephone Co. , 687 F.2d 74, 77 (5th Cir. 1982) (Title VII); Dao v. Auchan Hypermarket , 96 F.3d 787, 789 (5th Cir. 1996) (recognizing that the ADA incorporates by reference Title VII’s administrative procedures); Foster v. Nat’l Bank of Bossier City , 857 F.2d 1058, 1060 (5th Cir. 1988) (ADEA).³

Caycho’s principal argument is that the intake questionnaire he submitted to the TWC suffices as a charge of discrimination for the EEOC. Caycho is correct that if his TWC intake questionnaire constitutes a charge of discrimination, it was timely filed "within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1) (stating that if complainant first pursues state or local remedies, the charge must be filed with the EEOC within 300 days of the alleged unlawful employment practice). The latest allegations of discrimination on the intake questionnaire are in December of 2013, and although the questionnaire was not dated, the...