Redd v. Fisher Controls

• Decision Date: 24 November 1992
• Docket Number: No. A 91 CA 691.,A 91 CA 691.
• Parties: Frances V. REDD, Plaintiff, v. FISHER CONTROLS, Defendant.
• Court: U.S. District Court — Western District of Texas

814 F. Supp. 547

Frances V. REDD, Plaintiff, v. FISHER CONTROLS, Defendant.

No. A 91 CA 691.

United States District Court, W.D. Texas, Austin Division.

November 24, 1992.

William S. Babcock, Jr., Austin, TX, for plaintiff.

Frances V. Redd, pro se.

Christopher A. Knepp, Hughes & Luce, Ann A. Price, Hughes & Luce, Austin, TX, for defendant.

ORDER

SPARKS, District Judge.

BE IT REMEMBERED on this the 23rd day of November, 1992, came on to be heard and considered Defendant's Motion for Partial Summary Judgment, filed October 15, 1991, and Defendant's Motion for Summary Judgment on Plaintiff's Claims of Failure to be Rehired, filed April 24, 1992. Together, these motions, if granted, dispose of the entire case. Also before the Court is Defendant's Motion for Summary Judgment, filed November 2, 1992, which, if granted, would alone dispose of the entire case.

In her complaint, Plaintiff alleges that Defendant discriminated against her by terminating her employment and failing to promote her on the basis of her color (white), sex, and age (51) in September and October of 1987. She also alleges that Defendant discriminated against her by failing to "reinstate" her. See Plaintiff's Original Complaint (September 4, 1991).

Because the Court finds Plaintiff failed to timely file any of her claims and could not have been injured by any alleged discriminatory actions by the Defendant, if timely filed, the Court grants the Defendant's motions for summary judgment and will enter judgment in favor of Defendant.

I. Defendant's First Motion for Summary Judgment

Defendant's first motion for summary judgment is based on Plaintiff's failure to timely file her claims of sex, age, and race discrimination. In support, Defendant submitted copies of Ms. Redd's complaint filed with the EEOC on October 19, 1988 (Charge No. 36A-89-0016) and the EEOC determination that Ms. Redd's charge was untimely filed. See Defendant's Motion for Partial Summary Judgment (October 15, 1991), Exhibits A & B. Defendant also submitted, with their reply to Plaintiff's response to their motion for summary judgment, an affidavit of Irma Madrigal, the Austin Human Rights Commission (AHRC) employee with whom Plaintiff alleges she filed her charge in February 1988. In that affidavit, Ms. Madrigal states that when a person wishes to file a charge of discrimination she (Ms. Madrigal) prepares the charge, assigns AHRC and EEOC charge numbers, has the charging party sign the charge, notarizes the charge, and "always gives the charging party a copy of the charge." Affidavit of Irma Madrigal (attached to Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss and for Summary Judgment, filed August 14, 1992). She also stated that within two to three days the charge numbers, the charging party's name, the respondent's name, the date of filing, and the date of violation are entered into AHRC's computer database. Id. "Therefore, if an individual files a charge of discrimination there will be a record of that charge even if the charge itself is lost or misplaced." Id. There is no such charge, or record thereof, filed by Plaintiff against Fisher Controls in February 1988. Id. Section 2000e-5(e), Title 42, United States Code, requires Title VII employment discrimination claims based on color and sex to be filed with the Equal Employment Opportunity Commission (EEOC) within three hundred days of the alleged unlawful employment action. Similarly, Section 626(d)(2), Title 29, United States Code, also requires claims of age discrimination to be filed with the EEOC within three hundred days of the alleged unlawful practice. Plaintiff has provided no legally competent evidence that she filed a complaint with the EEOC within three hundred days of the time when Defendant allegedly failed to promote her and discharged her as a result of her age, color, and sex. Plaintiff in her pleading merely states that she filed a complaint with the EEOC in February and October of 1988. In response to Judge James R. Nowlin's order requiring Plaintiff to show cause as to why the case should not be dismissed for failure to timely file with the EEOC, Plaintiff stated she was incarcerated from March 21, 1988 through October 7, 1988 and was thus unable to discover the loss of the complaint until October 1988. In support, she attaches a letter from EEOC investigator, Irma Madrigal, with whom Plaintiff claims she met in February, who stated she did not remember the February visit but that Ms. Redd "does remember quite well the layout of our office at that time" and that the files had been destroyed so she could not confirm the meeting. Plaintiff also attaches a statement from a woman Sylvia Miller, who has no personal knowledge but says Plaintiff told her of her filing the complaint prior to March 1988; a statement from Plaintiff's husband Ed Redd who says he went with Plaintiff in February 1988 but stayed in the car (for 2 hours) and that Plaintiff told him "Well I did it" when she returned to the car; and a statement from Plaintiff's son stating that he went with Plaintiff in October 1988 and that Ms. Madrigal commented on the weight his mother had lost, indicating that she had met with Plaintiff before, and that Plaintiff was able to describe the layout of the old office which had been moved since February. Finally, Plaintiff attached a photocopy of the two business cards she received from Ms. Madrigal on each visit, which are each different (presumably because the office moved). None of the statements were notarized. However, following Defendant's response to Plaintiff's response to Judge Nowlin's show cause order, Plaintiff filed three affidavits. The first two were those of her husband and son described above. In addition, Ms. Redd filed her own affidavit, stating that "the attached letter dated February 5, 1988 is a true and correct copy of the original letter which I gave to Mrs. Irma Madrigal on or about February 9, 1988 with a complaint against Fisher Controls/Sunvic." The attached letter to Ms. Madrigal is unsigned and merely states that Ms. Redd had previously visited the office to obtain literature and that attached are copies of items listed in the table of contents and information on several Fisher Control employees. Plaintiff did not supply the Court with a copy of the table of contents or otherwise offer proof that she filed a complaint with the EEOC in February 1988.

The affidavits filed by Plaintiff do not sufficiently raise an issue of material fact to preclude granting of Defendant's October 15, 1991 motion for partial summary judgment. Plaintiff's son and husband did not have personal knowledge of Plaintiff's alleged filing of a complaint in February 1988. Hearsay evidence is insufficient to create a material issue of fact. See Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.1987). Plaintiff's affidavit, while based on personal knowledge, is also insufficient to create a material issue of fact with regard to her filing of a complaint prior to October 1988. At best, Plaintiff's affidavit raises a fact question concerning whether or not she gave EEOC employee Ms. Madrigal a copy of a complaint along with the letter which she provided to the Court, not whether or not such a complaint was filed. The Court cannot help but question Plaintiff's failure to file an affidavit directly stating that she filed a complaint with the EEOC in February 1988. Regardless, Plaintiff's proffered evidence to rebut Defendant's motion for summary judgment fails to create a material fact issue, and Plaintiff's claims of age, sex, and race discrimination with regard to Defendant's failure to promote Plaintiff and Defendant's discharge of Plaintiff in October 1987 are, as a matter of law, barred by 42 U.S.C. § 2000e-5(e) and 29 U.S.C. § 626(d).

II. Defendant's Second Motion For Summary Judgment

In Defendant's second motion for summary judgment, Defendant contends that Plaintiff's claim that Defendant's failure to rehire Plaintiff does not constitute a new or continuing violation so as to enable Plaintiff to maintain that claim despite the fact it was filed more than three hundred days after the date Plaintiff was discharged from her employment with Fisher Controls. The Court agrees with Defendant. Were the Court to hold otherwise, the limitations periods of Title VII and the Age Discrimination in Employment Act (ADEA) could be circumvented easily in discriminatory discharge cases by simply requesting to be rehired whenever one has failed to file a complaint of discriminatory discharge within the applicable time limit. Recognizing that, other courts have similarly held that failure to reinstate or rehire does not generally constitute an actionable new act of discrimination or continuing discrimination so as to allow the limitations period to begin at the time when the former employee requests reinstatement. See, e.g., Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 506 n. 15, 66 L.Ed.2d 431 (1980) ("Mere requests to reconsider ... cannot extend the limitations periods applicable to the civil rights laws."); Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761, 766 (5th Cir.1977) (Refusal to reinstate employee to former position "does not constitute a continuing course of discrimination"); Woodburn v. LTV Aerospace Corp., 531 F.2d 750, 751 (5th Cir.1976) (same); Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975) (Denial of request for reinstatement does not constitute a new and separate discriminatory act or a continuing violation as "a discharged employee who seeks to be reinstated is really litigating the unfairness of his original discharge....") (quoting NLRB v. Textile Mach. Works, 214 F.2d 929, 932 (3d Cir.1954)).

III. Defendant's Third Motion for Summary Judgment

In its third motion for summary judgment, Defendant contends that because Plaintiff lied on her job application by stating that she had never been...