ORDER AND REASONS ON MOTION
This is an employment discrimination action brought by two African-American plaintiffs, Quinton O’Neal and Demon Me-lancon, against their former employer,
Cargill filed a Motion to Dismiss for Failure to State a Claim Pursuant to Fed. Rule Civ. Proc. 12(b)(6); Motion for Award of Damages, Attorneys’ Fees, -and Costs; or, Alternatively, Motion to Sever for Improper Joinder of Plaintiffs Pursuant to Fed. Rule Civ. Proc. 20. Record Doc. No. 6. The motion is supported by unverified copies of each plaintiffs Charge of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) and the EEOC’s notices of dismissal to each plaintiff. Defendant seeks dismissal of (1) all of O’Neal’s claims as untimely, (2) Melancon’s claims under the Louisiana Employment Discrimination Law as untimely, and (3) Melancon’s Title VII retaliation and hostile work environment claims for failure to allege sufficient facts to state a claim for relief. Cargill does not seek dismissal of Melancon’s Title VII race discrimination claim. Alternatively, if the court does not dismiss all of O’Neal’s claims, defendant asks the court to sever his claims from Melancon’s because they do not arise out of the same occurrence or series of occurrences and do not present common questions of law or facts. If the court dismisses any of the claims, Cargill requests an award of damages, including reasonable attorneys’ fees and. court costs incurred as a result of the dismissed claims, pursuant to Title VII and the Louisiana Employment Discrimination Law.
Plaintiffs filed a timely memorandum in opposition, supported by two unverified exhibits regarding O’Neal’s claims and one unverified exhibit regarding Melancon’s claims. Plaintiffs argue that their Title VII claims were timely filed and that their complaint sufficiently alleges all of their claims. They do not contest the authenticity of the exhibits attached to Cargill’s motion. Record Doc. No. 10.
Defendant filed a timely reply memorandum that includes a new, unverified exhibit responsive to O’Neal’s exhibits. Cargill does not object to the authenticity of plaintiffs’ exhibits, but asks that its motion be converted to a summary judgment motion if the court considers plaintiffs’ exhibits and its own new exhibit. Record Doc. No. 11.
Having considered the complaint, the record, the arguments of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant’s motion to dismiss is converted to a motion for summary judgment as to O’Neal’s claims only. IT IS FURTHER ORDERED that defendant’s motion is GRANTED IN PART AND DENIED IN PART as follows.
I. STANDARDS OF REVIEW
A. Motion to Dismiss under Rule 12(b)(6)
Defendant moves to dismiss plaintiffs’ claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Under this rule, as recently clarified by the Supreme Court,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” A claim for relief is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendantis liable foe the misconduct alleged.” A claim for relief is implausible on its face when “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.”
Harold H. Huggins Realty, Inc. v. FNC, Inc.,
“The Supreme, Court’s decisions in Iqbal and Twombly... did not alter the longstanding requirement that when evaluating a motion to dismiss under Rule 12(b)(6), a court must accept[ ] all well-pleaded facts as true and view[ ] those facts in the light most favorable to the plaintiff.” Id. at 803 n. 44 (quotation omitted); accord Murchison Capital Partners, L.P. v. Nuance Commc’ns, Inc.,
Generally, a court should not dismiss an action for failure to state a claim under Rule 12(b)(6) without giving plaintiff “at least one chance to amend.” Hernandez v. Ikon Ofc. Solutions, Inc.,
However, that general rule does not apply if amendment would be futile. Townsend v. BAC Home Loans Serv’g, L.P.,
Cargill supports its motion to dismiss with copies of each plaintiffs discrimination charge filed with the EEOC and the EEOC’s notices of dismissal. Defendant’s Exhs. A-l, A-2, B-l, B-2. None of these documents were attached to plaintiffs’ complaint. Ordinarily, the court is “confined to reviewing the allegations in the plaintiffs complaint, including its attachments, when.. .ruling on a motion to dismiss under Rule 12(b)(6).” Murchison Capital, Partners, L.P. v. Nuance Commc’ns, Inc.,
However,
[i]t is well-established that “[djocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.” “In so attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elenientary determination of whether a claim has been stated.”
The documents at issue here — [plaintiffs] two EEOC Charges — were referenced in her complaint and are central to her claim. Them contents are-essential to determining (i) whether the EEOC and [Louisiana Commission on Human Rights] Charges were filed within the applicable statute of limitations, and (ii) whether the allegations contained in those complaints allege a colorable violation of Title VII. These issues are central to [plaintiffs] pleadings, and her failure to include them does not allow her complaint to bypass [defendant’s] motion to dismiss unexamined.
Carter v. Target Corp.,
In the instant case, plaintiffs neither referred to the EEOC documents in their complaint nor attached any of the EEOC documents. If plaintiffs had referred to these essential documents in their complaint, thé court could consider defendant’s exhibits under clear Fifth Circuit precedent regarding a Rule 12(b)(6) motion to dismiss. Nonetheless, the court can take judicial notice of the EEOC documents, which are public records whose authenticity is not disputed. Papasan v. Allain,
On the other hand, plaintiffs’ three exhibits are not essential to their employment discrimination claims. Plaintiffs’ Exhibits A and B are letters from the National Labor Relations Board (“NLRB”) regarding O’Neal’s grievance filed with that agency after Cargill terminated his employment. Plaintiffs Exhibit C is a grievance signed by Melancon and his union steward and apparently filed with Cargill in March 2014, before he was terminated. In response to plaintiffs’ Exhibits A and B, Cargill included with its reply memorandum a copy of O’Neal’s NLRB charge. Defendant’s Exh. 1. If the court considers these exhibits from outside the pleadings, it must convert defendant’s motion to one for summary judgment. Fed. R. Civ. P. 12(d).
2. Motion for Summary Judgment under Rule 56
“A party may move for summary judgment, identifying each claim or defense— or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:
(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party’s case. Capitol Indem. Corp. v. United States,
A fact is “material” if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby,
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular evidence in the record to support the essential elements of its claim. Id. (citing Celotex,
“Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists.” Edwards v. Your Credit, Inc.,
“Moreover, the nonmoving party’s burden is not affected by the type of cáse; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the
II. ANALYSIS
A. O’Neal’s Claims Under Title VII and Louisiana Discrimination Law
Cargill argues that O’Neal’s claims are time-barred under both Title VIPs 300-day limitations period for filing a charge with the EEOC and the one-year prescriptive period of the Louisiana Employment Discrimination Law. Because O’Neal relied in his opposition on two exhibits outside the pleadings and Cargill responded to his argument with an additional exhibit, the court converts Cargill’s motion to one for summary judgment as to O’Neal’s claims. Fed. R. Civ. P. 12(d). The motion is granted as to O’Neal’s claims under the Louisiana Employment Discrimination Law and Title VII for the following reasons.
According to O’Neal’s complaint and NLRB charge, Cargill terminated his employment on October 2, 2014, Record Doc. No. 1 at ¶ 4; Record Doc, No. 11-1, Defendant’s Exh. 1. However, O’Neal’s EEOC charge states that he was terminated on October 3, 2014. Defendant’s Exh. A-l. Solely for purposes of the pending summary judgment motion, the court resolves this factual conflict, as it must, in favor of plaintiffs claim and accepts the later date of October 3, 2014. The undisputed evidence shows that O’Neal filed his EEOC charge on September 29, 2015, 361 days after he was fired. The EEOC dismissed his charge as untimely on September 30, 2015. Defendant’s Exh. A-2. Plaintiff filed the instant action on December 31, 2015. Record Doc. No. 1.
O’Neal argues that the 300-day Title VII limitations period for filing his complaint with the EEOC was suspended from October 24, 2014, when he filed a charge of unfair labor practices arising out of his termination with the NLRB, until July 29, 2015, when the NLRB dismissed his charge. Plaintiffs Exhs. A, B. O’Neal argues that his EEOC charge was timely filed two months later, on September 29, 2015.
1. Claims under the Louisiana Employment Discrimination Law
Defendant’s motion regarding O’Neal’s claims under the Louisiana Employment Discrimination Law is deemed to be unopposed. O’Neal asserts in the heading of Section A of his opposition memorandum that these claims are not prescribed, Record Doc. No. 10 at p. 1, but he presents neither facts nor legal argument in opposition to Cargill’s contention that his state law claims prescribed. The Fifth Circuit has repeatedly held that a party’s “complete failure to raise any legal or factual issue regarding that claim in his Opposition [to a motion for summary judgment] constitutes a waiver of the issue.” Ledet v. Fleetwood Enters., Inc.,
Even if O’Neal had not abandoned his state law claims, the undisputed evidence establishes that his claims pre
The Louisiana Employment Discrimination Law provides that prescription “is suspended during administrative review or investigation of the claim conducted by the EEOC, but no such suspension ‘shall last longer than six months.’ ” Minnis v. Bd. of Supervisors,
Cargill terminated O’Neal’s employment on October 3, 2014. O’Neal filed his EEOC charge 361 days later, on September 29, 2015, which suspended the one-year prescriptive period with four days left in the period. The EEOC dismissed the charge by letter dated September 30, 2015. Prescription of O’Neal’s claims under the Louisiana Employment Discrimination Law was therefore suspended for one day while his EEOC charge was pending. “When prescription is interrupted, a new prescriptive period begins to commence after the period of interruption. When prescription is suspended, the time which preceded the suspension is added to the time which follows it.” Miller v. Vogel, No. 03-2039,
No evidence has been presented to establish when O’Neal received the EEOC’s letter. Although the Louisiana‘statute does not state that prescription remains suspended until plaintiff receives his right-to-sue letter from the EEOC, Cargill concedes for purposes of its summary judgment motion that the prescriptive period remained suspended until O’Neal presumptively received the letter. “When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed.” Taylor v. Books A Million, Inc.,
Applying this presumption, which Cargill asserted in its memorandum and O’Neal did not dispute in his opposition memorandum, and according plaintiff the longest period available, the court finds that plaintiff received the letter on October 7, 2015, seven days after it was mailed. “Even if we were to apply'the maximum number of days that court’s [sic] have allowed under the presumption of receipt doctrine, i.e. seven days after the EEOC mailed the letter, [plaintiff s] claim would still be considered untimely.” Taylor,
2. Claims under Title VII
“Title VII requires employees to exhaust their administrative remedies before seeking judicial relief.” McClain v. Lufkin Indus., Inc.,
A plaintiffs Title VII claims based on events that occurred more than 300 days before he filed his EEOC charge are time-barred. Grice,
Cargill terminated O’Neal’s employment on October 3, 2014, which was the last discriminatory or retaliatory act that plaintiff experienced. He filed his EEOC charge 361 days later, on September 29, 2015, or 61 days too late. His Title VII claims in this court are time-barred on their face, unless he can show that the limitations period was tolled. Trinity Marine Prods., Inc. v. United States,
Plaintiffs Exhibits A and B and defendant’s Exhibit 1 to its reply memorandum establish that O’Neal filed a charge with the NLRB on October 24, 2014, in which he alleged that Cargill “interfered with, restrained, and coerced its employees by terminating ... O’Neal for his protected concerted activity.” Record Doc. No. 11-1. A unionized employee’s right to engage in “concerted activity” is protected by the National Labor Relations Act. 29 U.S.C. §§ 157, 158(a)(1). An employer’s retaliation against an employee for exercising protected rights is an unfair labor practice that is within the NLRB’s exclusive jurisdiction. Brandon v. Lockheed Martin Corp., No. 99-3513,
O’Neal argues that the limitations period for filing his EEOC charge was suspended while his NLRB charge was pending from October 24, 2014, to July 29, 2015. He cites no law to support his argument, which “is squarely up against the formidable bar of Supreme Court authority.” Deloney v. Tri-Cty. Metro. Transp. Dist., No. 3:11-CV-00977-ST,
It is well established that filing a grievance under a collective bargaining agreement, contract or employer’s policy does not toll the time period for filing a
[C]olleetive-bargaining remedies are separate and independent from Title VII remedies-When an employee believes that she has suffered discrimination, she .may proceed under the grievance procedure, under Title VII, or both, but the fact that the employee has one of these independent types of rights does not entitle her to anything with respect to the other.
United States v. Brennan,
The pendency of O’Neal’s grievance before the NLRB in no way prevented him from filing a timely charge with the EEOC. Daviton v. Columbia/HCA Healthcare Corp.,
O’Neal’s filing of an NLRB charge did not toll the Title VII limitations period. Because he failed to file a timely charge with the EEOC, his claims of discrimination, retaliation and hostile work environment under Title VII are time-barred. Accordingly, Cargill is entitled to summary judgment in its favor on O’Neal’s claims under Title VII and the Louisiana Employment Discrimination Law.
B. O’Neal’s Section 1981 Claims
Plaintiffs’ complaint asserts that their federal claims arise under Title VII and 42 U.S.C. § 1981. Record Doc. No. 1 at ¶3. Although Cargill seeks dismissal of all of O’Neal’s claims, it does not mention his claims under Section 1981. Not surprisingly, O’Neal does not refer to Section 1981 in his opposition memorandum.
Cargill’s failure to cite Section 1981 specifically does not preclude the court from granting its motion to dismiss O’Neal’s claims under that statute, if the analysis of the grounds for dismissing his Section 1981 claims is identical to that for dismissing his Title VII claims. Chen v. Ochsner Clinic Found.,
Claims of race discrimination, racially hostile work environment and retaliation may be brought under Section 1981. Jones v. R.R. Donnelley & Sons Co.,
Section 1981 claims are governed by the same standards as Title VII, except that Section 1981 does not require exhaustion of administrative remedies. Chen,
In addition, Section 1981 does not contain a statute of limitations. The Supreme Court held in 1987 that federal courts should apply “the most appropriate or analogous state statute of limitations” to claims based on violations of Section 1981, Goodman v. Lukens Steel Co.,
Therefore, “the Supreme Court has determined that certain claims brought pursuant to Section 1981, namely those made possible by a post-1990 Congressional enactment [the Civil Rights Act of 1991, which amended Section 1981], are subject to the federal four year catch-all statute of limitations set forth in 28 U.S.C. § 1658.” Liddell v. Northrop Grumman Shipbldg,, Inc.,
O’Neal was fired on October 3, 2014, and filed this lawsuit on December 31, 2015, well within the four-year limitations period for his claims under Section 1981. Thus, even if Cargill’s motion is construed as seeking dismissal of O’Neal’s Section 1981 claims as untimely, the motion is denied.
C. Melancon’s Claims Under the Louisiana Employment Discrimination Law
Cargill moves pursuant to Rule 12(b)(6) to dismiss Melancon’s claims under the Louisiana Employment Discrimination Law because they are untimely. Defendant’s motion in this regard is deemed to
Even if Melancon had not abandoned his state law claims, they prescribed before he filed the instant action. According to the complaint, Cargill terminated Melancon’s employment on April 26, 2014. Record Doc. No. 1 at ¶ 45. He stated in his EEOC charge that he was suspended without pay on April 26 and terminated on April 28, 2014. Record Doc. No. 6-4, Defendant’s Exh. B-l. The court need not resolve which date is correct, as the outcome is the same for timeliness purposes regardless of which date is used.
Melancon filed his EEOC charge on July 21, 2014. The EEOC dismissed his charge almost 17 months later on January 19, 2016, because Melancon had filed the instant action on December 31, 2015. As previously discussed, the Louisiana Employment Discrimination Law has a one-year prescriptive period. La. Rev. Stat. § 23:303(D). Prescription began to run on Melancon’s claims the day his employment ended. Williams,
Prescription was suspended while Melancon’s EEOC charge was pending, but only for six of the 17 months that it was actually pending. He had a maximum of 18 months from April 28, 2014, or until October 28, 2015, to file his lawsuit. Senegal,
Generally, a court should not dismiss an action for failure to state a claim under Rule 12(b)(6) without giving plaintiff “at least one chance to amend.” Hernandez,
Any attempt by Melancon to amend his complaint to reassert his prescribed claims under the Louisiana Employment Discrimination Law would be futile. Accordingly, Cargill’s motion to dismiss is granted as to Melancon’s claims under the Louisiana Employment Discrimination Law.
D. Melancon’s Title VII Claims of Retal- , iation and Hostile Work Environment
Cargill concedes that Melancon states a claim for race discrimination, but moves to
Melancon’s complaint alleges that, after he complained to Ms supervisors about his working conditions, he was “heavily scrutinized and targeted” and eventually.filed a “grievance with regards to the harassment.” Record Doc. No. 1, at ¶¶ 47, 49. He states that he was suspended without pay and then terminated for alleged work violations that he says he did not commit and/or that did not warrant such harsh disciplinary action. He alleges that white workers who committed similar infractions were not treated as severely. Id. at ¶¶ 48, 52-54. Melancon avers that Cargill’s management was “made aware of this racially charged, unsafe and hostile working environment and [did] nothing to correct it.” Id. at ¶ 56.
Cargill argues that Melancon does not allege that he engaged in activity protected by Title VII before he was terminated, a necessary element of a retaliation claim. The statute prohibits “discrimination for opposing any practice made unlawful by Title VII, or maMng a charge, testifying, assisting, or participating in any investigation, proceeding, or hearing under Title VII.” Washington v. M. Hanna Constr. Inc.,
Standing alone, Melancon’s allegation in his complaint that he filed a “grievance,” without specifying that his grievance complained of racial discrimination, could lead to an inference that he had not engaged in any activity protected by Title VII. However, the use of the word “grievance” in the context of the entire complaint does not preclude the possibility that plaintiff complained of racial discrimination, either through the written grievance or orally, and thereafter experienced retaliation. Melancon stated in the charge that he filed with the EEOC that he believed he had been terminated in retaliation for engaging in protected activity. Record Doc. No. 6-4, Defendant’s Exh. B-1. His charge stated that he had filed “harassment/discrimination charges” against a white supervisor twice in March 2014, about one month before he was fired, for “harassment, unsafe worMng conditions, creating a hostile work environment and discrimination;” that the same supervisor routinely discriminated against African-Americans;' and that the supervisor concurred in another supervisor’s recommendation to terminate Melancon’s employment.
These allegations suffice to state a plausible claim for retaliation under Rule 12(b)(6),- the Twombly/Iqbal standards and Rule 8(a)(2), which requires only that a complaint “contain a short and plain statement of the claim showing that the pleader is entitled to relief [and].... does not require detailed factual allegations.” Iqbal,
Cargill also argues that Melancon’s complaint fails to allege all the elements of a hostile work environment claim. To establish a race-based hostile work environment claim, plaintiff must show that he:
(1) belongs to a protected group; (2) was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; [and] (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
Minnis v. Bd. of Supervisors,
Melancon may also be alleging a retaliatory hostile work environment claim, a type of claim that various courts have recognized, although the Fifth Circuit has not yet spoken on this issue. See Baird v. Dep’t of the Interior, No. 14-1879,
Melancon attached to his opposition memorandum a copy of his March 2014 grievance, arguing that it supports his allegations of harassment. Record Doc. No. 10-3, Plaintiffs Exh. C. Cargill suggests that the court should not consider this evidence that “attempts to expand the allegations in the Complaint” or, if the court does consider the exhibit, the court should convert Cargill’s motion to one for summary judgment and find that the grievance is insufficient to support a claim for racially hostile work environment because it does not mention race or racial harassment. Record Doc. No. 11 at pp. 7-8. The court declines to consider this evidence because it is illegible in large part and because the allegations of the complaint itself sufficiently state a plausible claim for a racially or retaliatory hostile work environment.
Accordingly, defendant’s motion to dismiss is denied as to Melancon’s retaliation and hostile work environment claims under Title VII.
E. Motion to Sever
Defendant asks the court to sever O’Neal’s and Melancon’s claims because they do not arise out of the same occurrence or series of occurrences and do not present common questions of law or facts. Fed. R. Civ. P. 20(a)(1) provides that persons may join in one action as plaintiffs only if “(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; mid (B) any question of law or fact common to all plaintiffs will arise in the action.” (Emphasis added). Both prongs of the test must be met for multiple plaintiffs to proceed in one action. Acevedo v. Allsup’s Convenience Stores, Inc.,
Plaintiffs in the instant case argue that their claims arise out of the same series of transactions and have common questions of law and fact because they are both African-Americans who worked for the same defendant, brought up similar issues about safety with their supervisors, and were allegedly harassed, targeted and fired because of their race and their outspokenness. However, these similarities are insufficient to establish that plaintiffs’ Title VII and Section 1981 claims arise out of the same series of transactions or occurrences.
As plaintiffs’ complaint and the foregoing separate analyses of their claims demonstrate, Melancon and O’Neal had different job titles and work histories. Each experienced different episodes of alleged discrimination, harassment and retaliation by different supervisors on dates that were months apart. Then’ factual allegations and Cargill’s defenses will require different witnesses and evidence for each. When “[a]ll these facts demonstrate that these employment decisions hardly constitute a single action on the part of the defendant,” Bailey v. N. Trust Co.,
Accordingly, defendant’s motion to sever is granted. Melancon’s claims will be severed from the instant action and a new civil action will be opened for his claims.
F. Cargill’s Motion for Attorney’s Fees and Costs
Cargill requests an award of damages, including reasonable attorneys’ fees and court costs incurred as a result of any dismissed claims,, pursuant to Title VII and the Louisiana Employment Discrimination Law. Title VII provides that the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 2000e-5(k). However, a prevailing defendant may recover attorney’s fees
only when the court in its discretion finds that the plaintiffs claims were “frivolous, unreasonable, or withoutfoundation.” “[T]o determine whether a suit is frivolous, a court must ask whether the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.”
Greco v. Velvet Cactus, LLC, No. 13-3514,
Similarly, under the Louisiana Employment Discrimination Law, “[a] plaintiff found by a court to have brought a frivolous claim under this Chapter shall be held liable to the defendant for reasonable damages incurred as a result of the claim, reasonable attorney fees, and court costs.” La. Rev. Stat. Ann. § 23:303(B). In interpreting Louisiana’s anti-discrimination law, the courts routinely look to federal employment discrimination law for guidance. Provensal v. Gaspard, No. 10-4276-SS,
Cargill’s motion to dismiss has been denied as to all of Melancon’s claims for which defendant sought dismissal. Therefore, Cargill is not a prevailing party and Melancon’s claims have not been found to be frivolous. The motion for attorney’s fees and costs is denied as to him.
Defendant’s motion for summary judgment has been granted as to O’Neal’s claims under Title VII and the Louisiana Employment Discrimination Law, which were found to be untimely, but denied as to his Section 1981 claims, which factually mirror his Title VII and state law claims. Cargill cites the Fifth Circuit’s opinion in Provensal to support its argument that O’Neal’s untimely claims were legally baseless from the outset and that dismissal of those claims merits a fee award. The Fifth Circuit stated in Provensal that, “[i]n appropriate cases, we have held that time-barred suits are meritless and properly deemed frivolous,” and affirmed the district court’s award of attorney’s fees on plaintiffs untimely tort claim.. Provensal,
However, Provensal is not on point with the instant case. Provensal asserted numerous causes of action against two defendants. The court dismissed parts of the eomplaint that Provensal conceded did not state a claim upon which relief could be granted, including his untimely claim for intentional infliction of emotional distress. Eventually all claims were dismissed either under Rule 12(b)(6) or on summary judgment. Id. In awarding attorney’s fees, the trial court held that, the
frivolity of the claims for which attorney’s fees are. being sought is self-evident. The claims for religious discrimination, slander, and defamation had no colorable basis in fact or law, the claims for intentional infliction of emotional distress were clearly prescribed, and the federal and state employment claims against [the supervisor] were patently meritless because [he] was not plaintiffs employer.
Provensal,
Therefore, even though Cargill is a prevailing party as to O’Neal’s untimely
CONCLUSION
For all of the foregoing reasons, IT IS ORDERED that Cargill’s motion for summary judgment is GRANTED IN PART and that O’Neal’s claims under Title VII and the Louisiana Employment Discrimination Law are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion is GRANTED IN PART and that Melancon’s claims under the Louisiana Employment Discrimination Law are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion is GRANTED IN PART as to Car-gill’s request to sever the claims of the two plaintiffs. The Clerk of Court is directed to sever the claims of Demon Melancon and open a new civil action for him.
In all other respects, the motion is DENIED. O’Neal’s claims remaining for trial at this time are his claims for retaliation, race discrimination and hostile work environment under 42 U.S.C. § 1981. Melan-con’s claims remaining for trial at this time are his claims for retaliation, race discrimination and hostile work environment under Title VII and 42 U.S.C. § 1981.