Michael E. MENNOR, Plaintiff-Appellee, v. the FORT HOOD NATIONAL BANK, Defendant-Appellant

Fonseca, carpenter, had been hired to

complete construction on the barn. When work, began joists

he the floor were in

place upper on the level of the barn. had temporarily

Boards been laid but not joists.

nailed across those stepped Fonseca

on the end of one of those unsecured flipped up

boards which and caused his fall. opinion imposed its initial

liablity on the owner of the barn under

articles and 2322. On rehear-

ing, impo- court withdrew its liability

sition of under article holding

based its on articles 2315 and 2317.

Summary judgment properly en-

tered in favor of Shell the claim Ains- predicates

worth on article 2322.

III. correctly granted district court sum-

mary judgment Shell; accordingly

judgment is affirmed.

AFFIRMED. MENNOR,

Michael E.

Plaintiff-Appellee, BANK,

The FORT HOOD NATIONAL Defendant-Appellant. Luedke, Carolyn Harper, Barefield A.J. Bennett, Houston, Tex., II and Peter for No. 86-1595. defendant-appellant. United Appeals, States Court of Ker, Hewitt, Tex., R. plaintiff-ap- Jon Fifth Circuit. pellee. Oct. GEE, JOHNSON, HILL,

Before Judges. Circuit JOHNSON, Judge: Circuit The defendant Fort Hood National Bank appeals judgment from an adverse in this plaintiff Title case. The Michael E. VII Equal complaint, the In his charge his with Mennor asserted a filed Mennor Rights claim under Title VII of the with- Civil Opportunity Commission Employment 88-352, Act of Pub.L. No. 78 Stat. filing period of 42 U.S.C. 300-day in the (as amended), as well as other claims. filing period is 2000e-5(e). The The court district dismissed Mennor’s other local in which state or for cases Thereafter, following trial, claims. a bench proceedings have been instituted. agency the district court found in Mennor’s favor ques- principally presents the appeal This In judgment, on the Title VII claim. its the 300-day period applies this tion whether pay, awarded back district court an attor- proceedings other or not these whether fee, ney’s appeals. and costs. The Bank under state or local law. timely instituted 300-day filing period ap- hold that We II. Discussion regardless and affirm the district plies A. judgment. court's provides

Title VII that an em- unlawful ployment practice charge shall be filed with History I. Facts and Procedural the EEOC employ- E. Mennor’s Plaintiff Michael within one hundred eighty days defendant Fort Hood Nation- ment with the alleged employment after the unlawful to an end on June al Bank came ..., practice except occurred that a by telephone mat- spoke Mennor about the employment practice case of an unlawful Em- Equal office of the ter to the Dallas respect person aggriev with to which the (EEOC) ployment Opportunity Commission initially ed has instituted instruc- pursuant and then to the EEOC’s with a State or local with authori August a letter dated tions addressed grant to ty or seek relief from such letter, to that office. Mennor practice proceed or to institute criminal charged Bank had terminated ings respect upon receiving thereto with employment Mennor’s in retaliation for thereof, charge notice such shall be filed opposition Mennor’s to the Bank’s discrimi- person aggrieved or on behalf of the natory Hispanic employees. treatment of days after the al within three hundred eventually responded by practice The EEOC leged employment send- unlawful oc curred, ing questionnaire. thirty days Mennor after receiv Shortly after or within ing receipt, his notice that the State or local completed Mennor returned the has under questionnaire terminated February law, the State or local whichever earlier prepared EEOC then charge employ- .[1] ment discrimination for Mennor. He signed charge and returned it to the the unlawful termination of Men- When EEOC, charge which received the on March employment occurred on June nor’s 1984. The following day, March there no state or local the EEOC transmitted the to grant seek relief from authority with the Texas Rights. Commission on Human practice under which Mennor had suf- April however, On the EEOC is- Thus, days had 180 to file fered. Mennor sued stating a notice that the Texas Com- Shortly after charge with the EEOC. Rights mission on termination, Human had waived Texas the June 23 jurisdiction and that the EEOC would on Human created the Texas Commission process creating therefore charge. (TCHR).2 Rights In due The Texas act time, September right-to-sue Mennor received a effective letter the TCHR was from the parties EEOC and then district filed the 1983.3 agen- qualified suit in as an agree federal district that the TCHR court. Act, Rights ch. (emphasis supplied). 1. 42 U.S.C. Human 3. Commission on (Ver- 10.06, Serv. 1983 Tex.Sess.Law (Vernon 2. See Tex.Rev.Civ.Stat.Ann. art. 5221k non). 1987). authority grant days or seek relief dred cy with after”6 the termination of Men- employment practice employment the unlawful un- on June from 1983.7 Thus, Mennor had suffered. der which court, Before the district the defendant existence, had come into once the TCHR Bank resisted the above analysis timeliness qualify 300-day peri- for the Mennor. could by moving to dismiss the Title VII claim on 180-day period by insti- od instead of the singular ground that Mennor’s March tuting proceedings agency. with that state 30 institution of TCHR proceedings was did transmit Mennor’s March 29 The EEOC untimely under state law.8 The Bank con- 30, 1984, charge the on March TCHR 300-day period tended that the of 42 U.S.C. parties and the district court and the have 2000e-5(e) was only when the § as the of treated this transmittal institution institution of state or local proceedings is proceedings with the TCHR the within timely under state or local law. The dis- 2000e-5(e).4 meaning of 42 U.S.C. Short- § rejected contention, trict court the and the ly after the March 30 institution TCHR Bank now renews it before this Court. proceedings, the issued its notice EEOC

stating juris- that the TCHR had waived its opposes Mennor the Bank’s conten process the diction and that EEOC would by arguing tion first in favor of the district charge. jurisdic- Mennor’s The waiver of ruling by court’s and second arguing that proceedings, tion terminated the TCHR August 10 letter to the EEOC constitut apparently the EEOC treated filing 180-day period ed a within the of 42 automatically filed 2000e-5(e), as thereafter U.S.C. even without resort to § filing with the EEOC.5 This automatic 300-day period. that subsection’s More 8, 1984, place April over, latest on August took the filing place asserted took Finally, issued its notice. when EEOC before the creation of the TCHR and thus filing April any was “within three hun- duty agen- before to file with the state Silver, terminated,” id., generally yet 4. See Mohasco must be certain to file 807, 815-17, 2486, 2492, L.Ed.2d 300-day period with the EEOC within the Evans, Mayer Oscar & Co. v. 2000e-5(e). reasons, subsection For these U.S. 764 n. Supreme explained: Court has L.Ed.2d 609 Love v. Pullman employment practices In a State with a fair 522, 525-26, 616, 618, 30 L.Ed.2d old, year complain- less than one ... Park, Deyo City Deer days ant must file within 180 in order to be (5th Cir.1981). rights preserved, sure that his federal will be since the EEOC must defer consideration dur- generally Corp., 5. See Mohasco 447 U.S. at ing proceedings before such a new 2492-93; Mayer 100 S.Ct. at Oscar & up days. to 120 U.S. at 765 n. S.Ct. at 2076 n. 13. 16,100 Mohasco 447 U.S. at 814 n. S.Ct. at 2000e-5(e). 6. 42 U.S.C. § The three-hundredth 2491 n. 16. day appropriate is the measure under 42 U.S.C. pro- Mennor’s March 30 institution of TCHR § in the case because that ceedings days was not within 180 of the June 23 day “thirty days receiving is "earlier” than after fortune, good termination. Mennor had how- notice that the State or local has termi- ever, proceedings because the TCHR were “ear- proceedings nated the under the State or local terminated," 2000e-5(c), lier 42 U.S.C. § at the law.” April permitted latest which Men- filing day 7. Another subsection of 42 U.S.C. 2000e-5 on that same with the EEOC provides charge may that "no be filed" with the period within the of 42 U.S.C. 2000e- EEOC 5(e). Evangelistic See Smith v. Oral Roberts Ass’n, expiration sixty days pro- before the after ceedings have been commenced under the law, 8. See State or local unless such Tex.Rev.Civ.Stat.Ann. art. 5221k sec. terminated, 6.01(a): provided claiming aggrieved been person by have earlier that "A to be sixty-day period such shall be extended to employment practice, per- one an unlawful or that twenty days during year hundred and the first agent, may son’s file with the a com- [TCHR] after the effective date of such State or local plaint____ complaint... A be within must filed law. days alleged after date unlawful 2000e-5(c) (emphasis supplied). 42 U.S.C. § A occurred; employment practice untimely com- complainant such as Mennor cannot be sure plaints be dismissed the [TCHR].” shall proceeding that the state or local will be "earlier being.9 cy came into We do not reach trict court’s allowance of an attorney’s argument concerning Mennor’s second fee.12 Review of an allowance of costs is August uphold 11 letter because we appellate narrow.13 The may test the ruling formally district court’s and now district court’s discretionary power to allow adopt growing the rule for this Circuit of a certain costs.14 An allowance of costs 300-day filing number10 of circuits: The power within that is reviewable only for 2000-5(e) period 42of U.S.C. for cases in abuse of discretion.15 agency proceedings which state or local 1920 of Section Title 28 authorizes the applies have been instituted whether or not district court to tax as costs certain enu- timely these other institut- expenses. merated Federal Rule of Civil ed under state or local law.11 54(d) Procedure provides turn

B. “costs shall be allowed as course to the prevailing party unless the court otherwise The Bank challenge also makes diffuse Supreme directs.” The Court has held that to the district court’s allowance of certain section “1920 defines the term ‘costs’ as costs, specifically its allowance of costs for 16 54(d).” in used Rule This Court has de- general ($104.00), copying taking deposi- termined that general the costs of ($1,153.15), ($17.62), copy- attorney postage tions ing17 taking depositions18 attorney long telephone among distance use are ($73.33), ($256.25). expenses attorney mileage enumerated in 28 U.S.C. challenge The Bank makes no to the dis- 1920. § supra

9. See note 7. 96 L.Ed.2d City Apop 385 Dowdell v. ka, 1181, (11th Cir.1983); 698 F.2d 1188 6 J. Co., Light 10. See Thomas v. Florida Power and Moore, Taggart Wicker, Wm. W.J. & J.C. 768, (11th Cir.1985) (collecting 764 F.2d 771 54.77[1], Moore’s Federal Practice ¶ 54-411 cases); Maurya Co., Peabody see also Coal 823 (2d printing). ed. 1948 1987 933, (6th Cir.1987); F.2d 935 EEOC v. Shamrock Co., 491, Optical (8th Cir.1986); 788 F.2d 493-94 Ford, Inc., 549, 15. Curtis v. Bill Hanna 822 F.2d Co., Seredinski v. Precision Prods. a Div. Clifton (5th Cir.1987); Studiengesellschaft 553 Kohle Inc., 56, Sys., (3d Cir.1985). Litton 776 F.2d 62 Co., 128, mbH v. Eastman Kodak 713 F.2d 132 (5th Cir.1983); see McDonald v. Union Carbide 11. We therefore do not decide whether Men- 182, (5th Corp., Cir.1984) 734 F.2d ("appar 184 untimely TCHR were institut- discretion”); ent abuse of Nissho-Iwai Co. v. ed under state law as the Bank contends or Sales, Inc., 1530, Occidental Crude 729 F.2d 1551 equitable ground whether some exists under (5th Cir.1984) ("‘clear discretion) abuse’” of treating state law for these as time- (quoting Kinnear-Weed v. Humble Oil & ly or further whether the TCHR must itself cert, Co., 631, Refining (5th Cir.), 441 F.2d 637 invoke untimeliness under state law before a denied, 941, 285, 404 U.S. 92 S.Ct. 30 L.Ed.2d may rely upon federal court ground (1971)). 255 denying relief. 2000e-5(k): 12. any See 42 U.S.C. § “In action or Co., Fitting 16. 107 S.Ct. at 2497. Crawford proceeding court, subchapter under this in discretion, may prevailing party allow the Co., 1553; 17. Nissho-Iwai 729 F.2d at Allen v. attorney’s ... a part reasonable fee as of the 689, Corp., United States Steel 665 F.2d 697 n. 5 costs____” (5th 1982); Scroogins Cargo, Cir. Unit B v. Air Inc., 534 F.2d 1133 Brumley Processors, Inc., Estate v. Iowa Beef (5th Cir.1983) 704 F.2d 1363 (quoting In re Co., Copper Liquor, Adolph Inc. v. Coors 684 Litig., (5th Nissan Antitrust 577 F.2d (5th 1982), F.2d Cir. on cert, oth- Cir.1978), denied, modified 99 S.Ct. (5th grounds, Cir.1983) (en er 701 F.2d 542 (1979)). banc), grounds, overruled on other International Woodworkers, (5th Cir.1986), Falls, City 14. See 790 F.2d 1174 United States v. Twin cert, — — (9th Cir.1986), denied, Fitting F.2d sub nom. aff’d Crawford U.S.-, -, 96 L.Ed.2d L.Ed.2d 385 Univ., Allen, 697; Kolesar, Gottlieb v. Tulane 809 F.2d 665 F.2d at United States v. 284-85 (5th Cir.1987); (5th Cir.1963); Carpa, International 313 F.2d see Woodworkers v. Inc., Champion (5th Foods, Inti Inc. v. Ward Cir.1986) (en banc) (Rubin, J., (5th Cir.1978), concurring grounds, in on overruled other result), Fitting sub nom. Copper Liquor, Adolph Co. v. Inc. v. Coors aff'd Crawford — Gibbons, Inc., U.S.-, (5th J.T. Cir.1983). F.2d 542 here, remaining costs at issue The district court therefore had the discre- tionary power to allow the attorney’s out-of-pock an costs at called issue sometimes here. costs, not included in the apparently are et In of 28 U.S.C. 1920.19 enumeration § exercising power, the district case, however, section 1920 was express finding court made an of fact23 the sole source of the district court’s not that the costs were “reasonable and neces- Also to the

power to allow costs. sary only and related to the successful supplied power by U.S.C. court was prosecution of Plaintiff’s Title VII suit.” 2000e-5(k) to allow costs. The court is in There the record for this supplemental power finding. The clearly exercised this Bank has not shown an abuse clear attorney’s fee abuse discretion. to allow an as costs. The general language20 in a statute such as C. 2000e-5(k) may interpreted not U.S.C. be spe by to authorize what is disallowed Finally, challenges the Bank certain dis- language of 28 As findings cific U.S.C. 1920.21 trict court of fact on the merits noted, regu section 1920 does not Mennor’s Title VII claim. Suffice it say out-of-pocket attorney adequate support costs. On the that there in late the record hand, uphold findings these 2000e-5(k) under the clear other section has been “ error standard.24 interpreted power ‘to to include out-of-pocket award those reasonable ex III. Conclusion penses attorney incurred which client, normally charged fee-paying to a uphold We ruling the district court’s ”22 providing legal the course of services.’ the timeliness under 42 U.S.C. § Unless, Television, Inc., 1978); Combes v. possibly, 19. when incurred in connec- 421 Griffin expense 841, (W.D.Okla.1976) F.Supp. (ADEA case); tion with an enumerated in 28 U.S.C. 847 179, Stoltenberg, Laboratories, Inc., Gerber v. 1920. 394 F.2d Payne v. Travenol 74 F.R.D. Cf. (5th 1968). 179 Cir. 19, 21, (N.D.Miss.1976); Bayou Barth v. Can 23 Co., 1201, dy (E.D.La.1974); F.Supp. 379 1205 20. note 12. Infra County Angeles, Empl.Prac.Dec. Davis v. Los 8 of 9444, (CCH) (C.D.Cal.1974); Peters v. at 5048 Woodworkers, 21. See International 790 F.2d at U R.R., (CCH) Empl.Prac.Dec. 3 Fitting 1180-81. But 107 S.Ct. Missouri-Pacific cf. Crawford 8274, (E.D.Tex.1971), aff’d, (Blackmun, J., at 6927-28 483 concurring), ¶ at 2499 n. 1 2500 cert, denied, (5th Cir.), 1002, J., (Marshall, dissenting) (language F.2d 414 U.S. suggesting 490 356, (1973); general see passage upon the Fifth Circuit relied to be S.Ct. 38 L.Ed.2d 238 here 94 Moolchand, dictum). Liners, ly v. Webster Sethia M/V Ltd., 1035, (5th Cir.1984); Dow 730 F.2d 1040 Airlines, Inc., 4, Laffey v. Northwest 746 F.2d dell, Carson, 12; Miller v. 698 F.2d at 1189 n. 42, (D.C.Cir.1984) (quoting Northcross 30 346, (5th 1980); Gates v. Col 628 F.2d 349 Cir. Educ., 624, (6th v. Board F.2d Cir. 611 639 of lier, 1268, 1270, (5th 616 F.2d & n. 17 1279 cert, denied, 1979), 911, 2999, 447 U.S. Cir.1980), reh’g granted grounds, on other 636 cert, denied, (1980)), 64 L.Ed.2d 862 U.S. 472 Collier, (5th Cir.1981); Gates v. F.2d 942 559 1021, 3488, see 87 L.Ed.2d 622 241, (5th 1977); Fairley Patter v. F.2d 244 Cir. Curtis, 550, 553; Thomberry also 822 F.2d at son, 598, (5th Cir.1974); 493 F.2d 607 n. 11 Lines, Inc., Delta Air 676 F.2d 1244- 512, Tumipseed, Loewen v. F.Supp. 505 517-19 (9th Cir.1982), grounds, vacated on other 45 461 Lucas, (N.D.Miss.1980); Crowe v. F.Supp. 479 952, 2421, U.S. 77 L.Ed.2d 1311 1258, (N.D.Miss.1979); Guajardo v. Es 1262-63 Transp., United States v. Terminal 653 F.2d telle, (S.D.Tex.1977), F.Supp. 432 1388 cert, denied, (5th 1981), 1021 Cir. Unit B grounds part part, in and on other in rev’d aff’d 455 S.Ct. 71 L.Ed.2d 849 102 (5th 1978). 580 F.2d 748 Cir. Co. Dominic v. Consolidated Edison of York, (S.D.N.Y. New F.Supp. 652 822-23 Curtis, 553; Studiengesells- 23. See 822 F.2d at (case 1986) Age in Em under Discrimination mbH, 133; Kohle Chore-Time at 713 F.2d (ADEA), chaft ployment Act of Pub.L.No. 90- 1967 Equip., Inc. Cumberland 713 F.2d (as amended)); Monroe v. 81 Stat. Inc., (Fed.Cir.1983); Carpa, Lines, Inc., (N.D. Air F.Supp. United (ADEA Ill.1983) case); Greenspan v. Automobile Club, (E.D.Mich.1982); F.Supp. Pullman-Standard, generally a Div. Soc'y County, 24. See Vulcan Westchester Inc. v. Fire of Pullman, Swint, (S.D.N.Y.1982); Dep’t, Inc. v. S.Ct. F.Supp. (1982). (D.D.C. Califano, Parker v. F.Supp. EEOC, filing having with the federal courts follow the same costs, findings and its court’s allowance course in cases of this kind in order to of the district judgment country-wide of fact. establish uniformity in the application is therefore merely regulatory statutes regulations. and With no underlying ide- AFFIRMED. ological principles involved, the courts should not unnecessarily conflict on the GEE, Judge, concurring: Circuit application of regulatory laws such as opinion judg- I concur in the Court’s and the one at issue here. Congress ment, although writing upon I —were administrative readily change can Judge slate—I would not. Chief clean the rules if interpreted wrongly. In the Circuit, Roney, expresses of the Eleventh meantime, required all citizens are to fol- exactly: my views low same rules. The district court noted that because Thomas v. Florida Power Light and received the claim 300- EEOC within the day period, appear, “it would at first gives The Court no adopting reason for glance, that Plaintiff ... had filed a time- the rule that it except selects that it is the ly of race discrimination with growing rule of a number of circuits. F.Supp. EEOC.” 595 148 at 150. The view, my the rule trivializes held, however, the deferral court then that because mechanism, which must have been meant period the state had limitation significance to have some or it would not bringing complaints, discrimination put have been devised place. As plaintiff did not file because within Judge notes, however, Chief Roney this is period, the extended 300-day filing one relatively of those uncommon situa- period apply. did not tions in which it is important more to have argument It seems to us that a sound one rule than right it to have the one. can be made to the district Thus, although I think the rule wrong court's purpose decision. The whole one, adoption. I concur in its deferral of federal action is to ensure that a state or local will have

priority claim, in answering a by giving agencies

“state an opportunity to redress

the evil at which the legislation federal aimed, and to avoid federal interven- tion unless its need was demonstrated.” Silver,

Mokasco DZANA, Plaintiff-Appellant, Lindelo M. (1980). require To the institution FOTI, Jr., al.,

with a state or local Charles C. et with authori- ty Defendants-Appellees. grant to relief as a get- condition to ting days, the extended 300 not but re- No. 86-3668 quire plaintiff to proceed- institute those Summary Calendar. ings within the state’s period, limitation Appeals, United States Court of purpose defeats the of deferral. Obvi- Fifth Circuit. ously, filing an untimely claim with a state or local meaningless is a Oct. gesture because the does not authority grant have relief on an un-

timely claim.

Whatever the merits of that and other

arguments the district court’s

decision, however, there is more merit

Case Details

Case Name: Michael E. MENNOR, Plaintiff-Appellee, v. the FORT HOOD NATIONAL BANK, Defendant-Appellant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 16, 1987

Citation: 829 F.2d 553

Docket Number: 86-1595

Court Abbreviation: 5th Cir.