Case Information
*1 IN THE UNITED STATES DISTRICT COURT F'OR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION
SUHASINI NADESAN.
$ $
Plaintiff,
$ $
v. NO.2:10-CY-239-J $ $ TEXAS ONCOLOGY PA,
$ $
Defendant.
$
$
$
$ OPINION AND ORDER
Before the Court Defendant Texas Oncology, P.A.'s Motion Dismiss, filed on November 3,2010. Nadesan filed motion amend her complaint on November 24,2010, which granted November 30, 2010. This Court will treat the motion dismiss as directed amended complaint. Holmes Nat'l Football League,939 F.Supp. 517, 522 n. 7 (N.D.Tex. 1996) ("Defendants' motion dismiss pre-dates filing of plaintiff s first amended complaint. . [T]he court may nevertheless treat defendants' motion directed amended complaint because defects Holmes' complaint reappear amended complaint. " (citations omitted)).
Nadesan was employed as a medical oncologist Texas Oncology starting in 2006. On February 19,2009, Texas Oncology delivered notice that her employment was being terminated on April 2I,2009. Starting from date notice (February 19,2009),Nadesan was told vacate Texas Oncology's premises and return. Nadesan was additionally told to contact any Oncology's patients or employees, among certain other restrictions.
Nadesan filed a formal charge and complaint with the Equal Employment Opportunity Commission (EEOC) Texas Workforce Commission Civil Rights Division on or about January 26, 2010, approximately 341 days after notice of termination, alleging unlawfi.rl discrimination. On October 6, 2010, within days of receiving right-to-sue letter from the EEOC, filed an action Court. Nadesan asserts causes action under the Age Discrimination Employment Act (ADEA), Title VII Civil Rights Act, well claims for violations of Texas Labor Code and common law defamation.
Texas Oncology alleges failed timely file Charge Discrimination EEOC and her claims employment discrimination are therefore barred. Texas Oncology argues that Nadesan filed her Charge Discrimination on about January 26,2010, approximately 341days after the period began run, thus her administrative claims under VII, ADEA, Texas Labor Code were untimely.
Nadesan responds that the Intake Questionnaire and attached supplement she submitted on July 10, 2009 (141 days from date termination) constituted "charge" sufficient satisfy the requirements both the ADEA VII. She alleges that since the Questionnaire constituted charge, and it was filed approximately 141 days after the alleged discriminatory conduct, also satisfied 180-day filing limit under Labor Code.
Altematively, Nadesan argues that the deadline a charge equitably tolled. She alleges she sent her Intake the EEOC on July 10,2009, she received back a drafted formal charge sign January 20,2010, approximately 195 days later. She argues because timely filed Intake Questionnaire, and later promptly returned the formal the EEOC, any delay between filing of Intake Questionnaire and *3 filing of a formal attributable EEOC. In regard, Nadesan alleges the EEOC both "mishandled" and made misleading statements about the timeliness complaint.
STANDARD OF REVIEW
A motion for failure state a claim under Fnp. R. CIv. P. l2(bx6) is to be evaluated on the pleadings alone. See, e.g., Jackson v. Procunier,789 F.2d 307,309 1986). o'To survive a Rule l2(bx6) motion dismiss, a complaint must contain sufficient factual matter, accepted as true, state claim to relief that is plausible on its face." Cox v. Hilco Receivables, L.L.C., --- F.Supp.2d ---,2010 WL *2 (N.D.Tex. 2010). When matters outside the pleadings are presented and considered, motion shall be treated one for summary judgment and all parties shall be given an opportunity present any pertinent material. Id. at 310; Feo. R. CIv. P. lz(d). A motion for summary judgment should granted if movant shows there is no genuine issue any material fact. Fpo. R. Clv. P. 56(a).
A party who moves for summary judgment has the burden identifying the parts pleadings discovery on that, together with any affidavits, show the absence genuine issue material fact. See Celotex Corp. v. Catrett, U.S. 317, (1986). The nonmovant must set forth specific facts show genuine issue trial. Anderson Liberty Lobby, Inc., U.5.242,256 (1986). determining whether genuine issue of material fact exists, courts must resolve all ambiguities fact in favor of non-movingparty. Id.
Both Oncology (the movant) Nadesan have submitted materials affidavits support of their positions. Because materials beyond pleadings the EEOC filings have *4 been presented by both sides and considered in this opinion, conversion this motion into one summary judgment on Nadesan's federal claims is appropriate.
DISCUSSION
1. Is the Questionnaire "charge" under the ADEA Title VII?
A plaintiff alleging discrimination under the ADEA must an administrative charge with the EEOC within 300 days the alleged discrimination. Julian v. City of Houston, Tex., 314 F.3d 721,726 (5th Cir. 2002);29 U.S.C. $ 626(dX1) (2010). A VII plaintiff is also required to file discrimination EEOC within 300 days alleged discrimination. See, e.g., Adams v. Cal-Ark Intern., Inc., F.Supp.2d 402,407 (E.D.Tex. 2001);42 U.S.C. 2000e-5.
When alleged discrimination issue is unlawful termination, applicable limitations period begins run from date an employer makes known that an employee's services are no longer accepted. Elliot v. Group Medical & Surgical Service,7l4F.2d 556, 1983); Payne Crane Co., F.2d 198, (5th Cir. 1977). Nadesan was notified termination on February 19,2009. There is no apparent dispute as to the use of date beginning of limitations period.
Likewise, there no dispute approximate date Nadesan's formal Charge of Discrimination filed with EEOC - on about January 26,20I0,r approximately 341 days after received notice termination. Texas Oncology contends that Nadesan's formal charge was therefore time-barred both 300- and 180-day time limits imposed by ADEA VII Labor Code, respectively. Nadesan, however, argues that ' formal form was signed January 26,2010 notarized the same day, but stamped "RECEfVED" by the February 1, 2010. Both dates are beyond the 300-day limitations period. *5 an Questionnaire and attached supplement which submitted EEOC on July 10, 2009 - approximately l4l days after her termination - acted as a formal charge all of her discrimination claims, thus administrative charge was timely filed with the EEOC.
The ADEA mandates "[n]o civil action may be commenced an individual under section until 60 days after charge alleging unlawful discrimination has been filed with [EEOC]. Such charge shall be filed . . within 300 days after the alleged unlawful practice occurred. ..;' 29 U.S.C. $ 626(dX1). EEOC's regulations define'ocharge" "a statement filed with the Commission by or behalf of an aggrieved person which alleges named prospective defendant has
engaged in or is about engage in actions in violation of Act ." C.F.R. $ 1626.3. The charge "shall be writing." 29 C.F.R. $$ 1626.6.
It should also contain name, address, and phone number both the person making the charge and the person against whom charge is made, clear statement facts involved (including dates), an approximate number employees the employer, and whether state proceedings have been initiated. C.F.R. $ 1626.8(a). These inclusions, however, are not mandatory. 29 C.F.R. g 1626.8(b). VII mandates "charges shall be in writing under oath or affirmation and shall
contain such information be such form [EEOC] requires." U.S.C. g 2000e-5(b). See also,29 C.F.R. 1601.9 ("A shall writing signed shall be verifred.").
EEOC regulations state that a VII charge should contain name, address, and phone number both the person making the person against whom the charge is made, clear statement facts involved (including dates), approximate number of employees the employer, and a statement disclosing whether state local proceedings have *6 been initiated. 29 C.F.R. $ 1601 .12(a). But like the ADEA, these inclusions are mandatory. 29 C.F.R. $ 1601.12(b).2 relies on the Supreme Court's holding in Federal Express Corp. v. Holowecki,
552 U.S. 389 (2008) . Federal Express addressed the definition of "charge" under the ADEA and its application to an Intake Questionnaire. In case, the Court reviewed existing regulations in defining the term, including 29 C.F.R. S 1626.6 ("A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s).") The Court found these requirements - a written allegation discrimination along with the name of employer - insufficient, standing alone, to wholly define the meaning term 'ocharge" as used ADEA.
Instead, Court adopted EEOC's proffered definition: addition information required by the regulations, i.e., an allegation and name charged party, if a filing deemed a charge must be reasonably construed as a request agency take remedial action protect employee's rights or otherwise settle a dispute between the employer and the employee.
Federal Express,552 U.S. at 402. The Court held that qualifu a charge, a filing must reasonably "be construed request agency action and appropriate relief. . ." Id. at 404. The Court then examined Questionnaire at issue determine whether it fit this definition a "charge." The Intake Questionnaire contained the information suggested 29 ' only significant difference between the requirements "charge" under the ADEA a "chatge" under Title VII verification requirement. See Evenson Sprint/United Mgmt. Co.,2008 WL (N.D.Tex. 2008) ("The ADEA, however, has no parallel 1601.9, which adds verification requirement for VII charge." (citations omitted)). "Verified" means "sworn to or affrrmed before notary public, designated representative Commission supported an unsworn declaration writing under penalty perjury." 29 C.F.R. $ 1601.3(a). Nadesan signed statement the Intake which read: "I DECLARE (CERTIFY, VERIFY OR STATE) LINDER PENALTY OR PERJURY THAT TFIE FOREGOING IS TRUE AND CORRECT.', Nadesan,s filing, therefore, satisfies the verification requirement for charges under VII. Evenson,2008 WL [*] . *7 C.F.R. 1626.8, including both the employee and employer's names, addresses, phone numbers, an allegation age discrimination, the number employees at the facility, an indication that the employee had not approached another govemment agency regarding the alleged discrimination. On reviewing this document alone, the Court noted:
Were the Intake Questionnaire the only document before us we might agree its handwritten statements do not request action . . . [T]he Intake Questionnaire is not labeled 'Charge Discrimination' In fact the wording the questionnaire suggests the opposite: that the form's pu{pose is to facilitate 'pre- filing counseling' to enable agency to determine whether has jurisdiction over 'potential charges.' . There might be instances where indicated discrimination so clear pervasive that the agency could infer from the allegations themselves action requested and required, but the agency is
not required to treat every completed Intake Questionnaire as a charge.
Id. at (citations omitted). so holding, Court noted that the printed language of questionnaire "does give rise inference employee requests action against employer." Id. However, Federal Express, Intake Questionnaire supplemented six- page affidavit wherein the employee "asked the agency '[p]lease force Federal Express end their age discrimination plan. .' " Id. The Court held the combination the employee's election on the Questionnaire allow agency contact her employer combined with request "that agency 'force' the employer stop discriminating against her were enough bring the entire within definition of charge . . ." Id. 406. filed an Intake similar one examined Federal Express. She included her name, address, and phone number, well those Oncology. She indicated that had sought assistance any other governmental agency and she believed discriminatory action had been taken against her on the basis of National Origin, Sex, Age.
The printed language on Nadesan's questionnaire mirrors that in Federal Express, including the advisory that "the Commission has jurisdiction over potential charges . . and to provide such pre-charge appropriate." Nadesan's questionnaire also states: "[a]n officer EEOC will review information you provide and determine whether or not your allegations warrant a charge being filed." Because Nadesan's questionnaire contains similar wording questionnaire Federal Expresr nothing printed language suggests questionnaire itself is a charge, likewise o'does give rise inference employee requests action ." Federal Express,552 U.S. at405.
Nadesan notes she marked 'Yes' on the questionnaire a question asking whether she had attempted resolve problem "discussing matter with someone in management." addition to selecting 'Yes' box, listed three individuals whom she spoke. Nadesan argues constitutes a request action.
If Nadesan's proper response question form were sufficient request for action, every properly completed intake questionnaire would considered charge, conclusion unsupportedby Federal Express. Federal Express,552 U.S. at ("the agency is required treat every completed Intake Questionnaire as a charge"); see also, Evenson v. Sprint/United Management Co.,2008 WL *7 (N.D.Tex. 2008) ("If court were to deem these filings - individually collectively - as a discrimination, then, contrary to Federal Express, would be required treat virtually every completed intake questionnaire as a charge.").
Attached questionnaire, Nadesan included detailed statement outlining her allegations. Unlike filing in Federal Express, though, Nadesan's supplement does not include any language requesting agency action. Nothing Nadesan's Intake or *9 attached supplement qualifies as request that the EEOC take action. Additionally, language printed on the form does not raise presumption that the questionnaire itself constitutes a charge. Therefore, Nadesan's Intake is not a charge under either the ADEA or VII, she thus failed timely submit of discrimination the EEOC. 2. Was the filing deadline equitably tolled? alternative, Nadesan argues limitations period should be equitably tolled.
Nadesan contends that took affirmative efforts preserve her rights with timely inquiry (i.e., questionnaire) and the EEOC waited approximately 195 days before sending a formal discrimination complete and retum. Nadesan argues that delay constituted mishandling her claim by EEOC and as such, equities weigh favor of tolling limitations period. argues because Oncology had knowledge of Nadesan's claims April 9, 2009, prejudiced any delay her charge. limitations period for federal discrimination claims is subject equitable
considerations, including equitable tolling. See, e.g., Zipes v. Trans World Airlines, lnc.,455 U.S. 385, (1982); Chappell v. Emco Mach. Worlcs. Co., 601 F.2d 1295 (5th 1979). The burden proof rests on the party invoking the equitable tolling, the doctrine is applied sparingly. Tillison v. Trinity Valley Electric Co-op. lnc.,204 Fed.Appx. 346, 348 Cir. 2006). When applying equitable tolling, the focus is whether plaintiff acted with reasonable prudence. Nazir Wal-Mart Stores,2009 WL 3735937 (S.D.Tex. 2009). "It common maxim equity intended those who sleep on their rights." Covey v. Arkans River Co, F .2d 660, (Sth Cir. 989).
Equitable tolling has been held apply when plaintiff is "prevented in some extraordinary way from asserting his rights." Rashidi v. Am. President Lines,96 F.3d I24,I28 1996). See also, Crittendon v. American NaL Ins. Co.,967 F.Supp.933,942 (S.D.Tex. 1997) ("[E]quitable tolling not available claimants who do not suit in timely fashion because factors that were clearly within their control."). "[T]he principles equitable tolling . . do extend to what is at best a garden variety claim excusable neglect." Irwin v. Dept. Veterans Affairs,498 U.S. 89,96 (1990). regards untimely filed EEOC charges, equitable tolling may apply following circumstances: when there pending action between the parties the incorrect forum; when claimant was unaware facts supporting her claim because defendant intentionally concealed them; when the claimant misled by EEOC. Id. See also, Chappell,60I F.2d at 1303. These circumstances are exclusive. Sayre Pharmacy Corp. of America, WL 4638597 (S.D. Miss. 2010).
Misleading Statements
Equitable tolling may justified when the claimant has been misled by the EEOC and misrepresentation causes claimant miss filing deadline. Tillison, 204 Fed.Appx. at ("equitable tolling may be appropriate where the plaintiff s delayed /iling 'was caused by 'the EEOC's misleading the plaintiff about nature her rights.' ' " (emphasis added) (quoting Ramirez v. City San Antonio,3l2 F .3d (5th Cir. 2002))).
Here, only representations made were made after the filing deadline had already passed. Thus, the EEOC could not have affirmatively misled such way cause miss deadline.
t0 *11 Mishandling of the Questionnaire
Nadesan argues that EEOC mishandled her questionnaire and, though she timely pursued claim, the agency's delay processing her questionnaire caused any untimely filing formal charge.
Nadesan has the burden showing that she was prevented some extraordinary way from asserting rights. Rashidi, 96 F.3d 128. ln Shempert Harwick Chemical Corp.,l5l F.3d793 Cir. 1998), the court held equitable tolling not to apply where the plaintiff received formal Charge from the EEOC sign return only two days before the deadline expired. court held that "[t]he situation was never beyond [plaintiff s] control so justifu tolling frling deadline" because she waited her intake questionnaire until two weeks before deadline, she also had the advice counsel before the filing period expired. Id. at798.
Although did not receive a formal from the EEOC sign until or about January 20,2010, approximately 195 days after she submitted her Intake Questionnaire, and after 300-day filing deadline had passed, nothing prevented Nadesan from completing formal charge and submitting the EEOC. had the assistance counsel before filing questionnaire. Edwards v.
Kaiser Aluminum & Chem. Sales, Inc., F.2d 1195, n. (5th 1975); Marsteller v. Alex. Brown & Sons, Inc.,1995 WL795679 at*2 (E.D.Va. 1995) ("Moreover, the record reveals Plaintiff represented counsel during EEOC period, fact that underscores the Court's determination Plaintiff has failed establish a sufficient reason not filing charges the EEOC timely fashion." (footnote omitted) (citations omitted)).
She does claim that attempted contact after submitting her questionnaire check on the status her case. Nadesan has shown diligent pursuit of her
I1 *12 rights sufficient apply equitable tolling. Monheimer Nielsen,2008 WL at *5 (S.D.Ohio 2008). "The situation was never beyond [plaintiff s] control so justify tolling deadline," Shempert,l5l F.3d at798, and "neither legally nor practically necessary" wait for EEOC's response her questionnaire before filing formal charge. Portis,2000 WL726220 +3.
Nadesan has therefore met burden proving the doctrine equitable tolling applies her claims of discrimination under ADEA VII.
CONCLUSION
This Court hereby GRANTS summary judgment favor Texas Oncology on Nadesan's claims discrimination under ADEA VII failure exhaust administrative remedies by not filing timely EEOC. Having granted summary judgment Nadesan's federal claims, Court hereby DISMISSES WITHOUT PREJUDICE her claims under state law, including common law defamation claims under Labor Code, pursuant U.S.C. 1367(c). It SO ORDERED.
Signed thi, /V day Janu ary,2otr.
---7--V-
t2