Johnson v. Select Energy Servs., L.L.C.

GERORD D. JOHNSON, Plaintiff, v. SELECT ENERGY SERVICES, L.L.C., Defendant.

CIVIL ACTION H-12-2390

UNITED STATES DISTRICT COURT FOR THE SOUTHER DISTRICT OF TEXAS HOUSTON DIVISION

Dated: September 24, 2013

OPINION AND ORDER

Pending before the Court in the above referenced employment discrimination action under the Texas Commission on Human Rights Act ("TCHRA"), Texas Labor Code §§ 21.001-21.556,¹ and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, etseq.,² removed from state court based on a First Amended Petition alleging sexual harassment, a sexually hostile work environment, and retaliation,³ are Defendant Select Energy Services, L.L.C.'s("Select Energy's") (1) motion for summary judgment on limitations (instrument #19) and (2) motion for summary judgment on the merits (#22).

Because for the reasons stated below the Court concludes that Select Energy's motion for summary judgment on limitations should be granted as a matter of law, the Court does not reach the second motion for summary judgment, but issues a final judgment on limitations grounds.

Allegations of Plaintiff's Amended Petition (#1, Ex. 4)

Although Plaintiff Gerord D. Johnson's ("Johnson's") Original Petition (#1, Ex. 1), filed on April 18, 2012, sued Select Energy only under the TCHRA, his Amended Petition (#1, Ex. 4), filed on August 1, 2012, asserts the same facts, but is also grounded in Title VII, which provided the basis for the removal of this suit to this Court on August 9, 2012 on federal question jurisdiction.

In his amended pleading, Johnson, a male, states that Select Energy is in the business of oil and gas providing water solutions and wellsite services to oilfield operators, with its principal place of business in Harris County, Texas. Johnson began working for Select Energy on or around October 2010 as a truck driver. He complains that a female co-worker, Sheri Gilaspie ("Gilaspie"), subjected him to "constant and pervasive sexual advances and comments on several occasions." On or about December 27, 2010 Johnson made a complaint to Select Energy regarding sexualharassment by Gilaspie.⁴ Subsequently his supervisors, Chris Jones, Ronald Jones, and Mike Kelley, retaliated against him for filing the complaint by deliberately assigning him faulty trucks in need of significant repair, imposing arbitrary assignment changes that hindered his ability to perform his essential job duties, forcing him to handle HAZMAT duties when he was not licensed to perform them, denying him access to flame retardant protection material and clothing after he repeatedly requested them, and subjecting him to demeaning and hostile comments directly related to his sexual harassment complaint. He claims that Select Services knew of the harassment and failed to take action.

On or about March 18, 2011 Johnson filed a complaint of retaliation with human resources. Instead of investigating his complaint, Select Energy terminated him four days later. On June 10, 2011⁵ Johnson filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). He subsequently received a right-to-sue letter dated February 2, 2012.

Standard of Review

Summary judgment under Federal Rule of Civil Procedure 56(c) is appropriate when, viewing the evidence in the light most favorable to the nonmovant, the court determines that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show 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." A dispute of material fact is "genuine" if the evidence would allow a reasonable jury to find in favor of the nonmovant. Anderson v. Liberty Lobby_r Inc., 477 U.S. 242, 248 (1986). Initially the movant bears the burden of identifying those portions of the pleadings and discovery in the record that it finds demonstrate the absence of a genuine issue of material fact on which movant bears the burden of proof at trial; a "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1990); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5^th Cir. 1998).

If the movant meets its burden and points out an absence of evidence to prove an essential element of the nonmovant's case on which the nonmovant bears the burden of proof at trial, the nonmovant must then present competent summary judgment evidence to support the essential elements of its claim and to demonstrate thatthere is a genuine issue of material fact for trial. National Ass'n of Gov't Employees v. City Pub. Serv. Board, 40 F.3d 698, 712 (5^th Cir. 1994).

Applicable Law

A. Limitations Under Title VII and the TCHRA

Plaintiffs claiming employment discrimination under Title VII must exhaust administrative remedies by filing a timely charge with the EEOC and receiving a right-to-sue notice. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5^th Cir. 2002). Failure to exhaust administrative remedies "is not a procedural 'gotcha' issue," but "a mainstay of proper enforcement of Title VII remedies." McClain v. Lufkin Industries, Inc., 519 F.3d 364, 272 (5^th Cir. 2008), cert. denied, 129 S. Ct. 198 (2008). A private plaintiff must exhaust its administrative remedies before seeking relief by filing an administrative charge with the EEOC. 42 U.S.C. § 2000e-(5)(b); Id. Under Title VII, 42 U.S.C. § 2000e-5(e)(1), a charge of discrimination must be filed with the EEOC within 180 days after the unlawful conduct occurred unless the aggrieved person has initiated proceedings with a State or local agency authorized to grant relief from such practice (in Texas, the Texas Workforce Commission, Civil Rights Division), under which circumstance he need only file his complaint with the EEOC within 300 days after the practice occurred or within thirty days after receiving notice that the State or local agency has terminated theproceedings under the State or local law, whichever is earlier. 42 U.S.C. § 2000e-5(e)(1).⁶ A timely filing of the charge with the EEOC is a prerequisite to filing a Title VII suit in federal district court, and that action is "limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the EEOC charge of discrimination. Hernandez v. City of Corpus Christi, 820 F. Supp. 2d 781, 793 (S.D. Tex. 2011).

Once the claimant receives a right-to-sue letter from the EEOC, he has ninety days to file a civil action. Nilsen v. City of Moss Point, Miss., 674 F.2d 379, 381 (5^th Cir. 1982), citing 42 U.S.C. 2000e-5(f)(1). The ninety-day period begins to run on thedate a complainant receives his right-to-sue letter from the EEOC. Prewitt v. Continental Automotive, ____ F. Supp. 2d ____, Civ. No. SA 2013 WL 705555, 2013 WL 705555, at *5 (W.D. Tex. Feb. 26, 2013), citing Bunch v. Bullard, 795 F.2d 384, 387-88 (5^th Cir. 1986). The ninety-day period is strictly construed. Id., citing Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5^th Cir. 2002)("affirming the district court's dismissal of an employment discrimination claim 'because [plaintiff] did not file his complaint until . . . one day beyond the ninety-day period'"); Ringgold v. Nat'l Maint. Corp., 796 F.2d 769, 770 (5^th Cir. 1986)("'[Plaintiff's] suit, filed 92 days after delivery to his designated counsel of the right-to-sue letter, was untimely.'"); and Mohasco Corp. v. Silver, 447 U.S. 807, 825 (1980)("A court should dismiss claims brought outside this limitations period, because Congress 'clearly intended to encourage the prompt processing of all charges of employment discrimination' and to protect employers from defending claims arising from employment decisions that are long past."). Courts have allowed equitable tolling of this limitations period where factual allegations support such. Prewitt, 2013 WL 705555 at *6, citing Granger v. Aaron's, Inc., 636 F.3d 708 (5^th Cir. 2011)("tolling the limitations period under Title VII where plaintiffs 'were diligent about pursuing their rights and their attorney diligently and repeatedly followed up on their claims within the [limitations] period, notwithstanding his filing in the wrong forum"), Rowe v.Sullivan, 967 F.2d 186, 192 (5^th Cir. 1992)("'[E]quitable tolling may apply where the claimant has vigorously pursued his action, but has inadvertently missed deadlines due to his or her lack of sophistication with the procedural requirements of Title VII claims.'"), and Harris v. Boyd Tunica, Inc., 628 F.3d 237, 240 (5^th Cir. 2010)("affirming the district court's refusal to equitably toll the ninety-day filing period where plaintiff's attorney had inadvertently mismarked his calendar.'"). A plaintiff cannot revive a time-barred claim just by filing a new charge of discrimination and seeking a new notice-of-right-to-sue letter. Prewitt, 2013 WL 70555 at *7 ("[T]he ninety-day limitations period would be meaningless if potential Title VII plaintiffs could evade it simply by filing a new charge of discrimination."), citing Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d Cir. 1986)(same).

In enacting the TCHRA, the Texas Legislature intended to correlate "state law with federal law in the area of discrimination in employment." Gold v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.--Houston [14th Dist.] 1998, no writ); Autozone, Inc. v. Reves, 272 S.W. 3d 588, 592 (Tex. 2008); Shackelford v. Deloitte & Touche, LLP, 190 F.3d 398. 403 n.2 (5^th Cir. 1999)("[T]he law governing claims under the TCHRA and Title VII is identical."); Muniz v. Columbia Sussex Caorp., 477 Fed. Appx. 189, 189 n.1 (5^th Cir. May 14, 2012)(same). TCHRA's express purpose is "the execution of thepolicies embodied in Title VII." Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991); Texas Labor Code Ann. § 21.001(1). T...