Kittling v. Boise Cascade LLC

JAMES N KITTLING v. BOISE CASCADE LLC

CASE NO. 1:17-CV-01637

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION

April 24, 2020

JUDGE DRELL

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM RULING

Before the court is a motion for summary judgment filed in the above-captioned employment discrimination suit by defendant, Boise Cascade, LLC ("Defendant" or "Boise"). (Doc. 26). For the reasons expressed below, the court finds that the motion should be GRANTED and, accordingly, all claims by plaintiff, James N. Kittling ("Plaintiff" or "Kittling") should be DENIED and DISMISSED with prejudice.

I. Relevant Facts

Boise hired Kittling, an African-American male, into a "Utility Production" position at its Lena, Louisiana plant on or about September 13, 2016.¹ As is its practice with new employees, Boise advised Kittling that he must complete a 120-day probationary period at the start of his employment, during which time he could be terminated if he accrued two (2) instances of tardiness.²

Several weeks after beginning his employment, Boise offered Kittling the opportunity to move from one production team to another in order to avoid a potential layoff.³ Kittling accepted the opportunity and moved to what the parties refer to as "Team 2."⁴ On November 18, 2016, Kittling was tardy arriving to work and received a disciplinary write up from his supervisor, ArthurFields ("Fields"), for this infraction.⁵ On December 6, 2016, Kittling was absent from work due to a flare-up of his gout - a condition he claims he has suffered from since approximately age 17 and for which he takes medication.⁶ Upon returning to work on December 7^th, Kittling presented Boise with paperwork received during his visit to urgent care.⁷ Consequently, Kittling received another disciplinary write up from Fields.⁸ At the end of his shift on December 7^th, he was told not to return to work until further notice. On December 12, 2016, Lori Sepulvado ("Sepulvado"), a human resources employee with Boise, notified Kittling that his employment with Boise was terminated effective December 7^th for attendance violations during his probationary period.⁹

Kittling completed an EEOC Intake Questionnaire ("Questionnaire") on January 30, 2017.¹⁰ Kittling's questionnaire responses specified both race and disability as causes for his claim of employment discrimination against Boise.¹¹ It is unclear from the record whether or not Kittling signed and returned the EEOC Charge of Discrimination ("Charge"), forwarded to him with the EEOC letter dated June 26, 2017.¹² In any event, the EEOC issued a right to sue letter, dated September 19, 2017, dismissing Kittling's charge and advising him of his right to file suit against Boise.¹³

Kittling timely filed suit against Boise on December 19, 2017.¹⁴ Kittling's complaint asserts federal claims for employment discrimination under both Title VII of the Civil Rights Actof 1964 ("Title VII")¹⁵ and the Americans with Disabilities Act ("ADA"),¹⁶ as well as companion Louisiana law claims under Louisiana's Employment Discrimination Law ("LEDL)¹⁷ and the Louisiana Whistleblower Law.¹⁸ While Kittling's claim asserts a claim for retaliation under the LEDL to the extent such a claim is cognizable, Louisiana does not recognize this cause of action, so none is deemed asserted.¹⁹

Boise timely answered the suit²⁰ and seeks summary judgment dismissing all remaining claims against it. Boise's motion, now fully briefed, is properly before the court for consideration and disposition.

II. Applicable Standard

A 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). A dispute of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "We consider all evidence 'in the light most favorable to the party resisting the motion.'" Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680 quoting Trevino v. Celanese Corp., 701 F.2d 397, 407 (5^th Cir. 1983). However, the non-moving party does not establish a genuine dispute with "'some metaphysical doubt as to the material facts,' by 'conclusory allegations,' by 'unsubstantiated assertions,' or by only a 'scintilla' of evidence." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). It is importantto note that the standard for a summary judgment is two-fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law.

III. Analysis

Exhaustion of Administrative Remedies

Boise's motion urges dismissal of Plaintiff's claims based on Kittling's alleged failure to exhaust administrative remedies prior to filing this suit. Citing 29 C.F.R. § 1601.3, Boise points out that Kittling's unsigned, unverified charge does not meet the regulation's requirements that the charge be in writing, signed and verified. Boise admits that it received a Notice of Charge, dated March 1, 2017, from the EEOC, but argues that this notice was insufficient to apprise it of the nature of the claims against it by Kittling prior to the filing of this suit and, thus, Kittling's unsigned and unverified charge should not be deemed as fulfilling the important purposes of exhaustion in this case.²¹

In response, Kittling offers no concrete assertion as to whether he signed and returned the charge to the EEOC but relies instead on the EEOC's issuance of a right to sue letter in September 2017.²²

Before a plaintiff may file suit in federal court on claims of employment discrimination under Title VII, he must first exhaust his administrative remedies.²³ Exhaustion is not a jurisdictional issue but is a condition precedent to bringing a claim under Title VII, nonetheless.²⁴ Exhaustion requires the timely filing of a charge of discrimination with the EEOC and the receipt of a notice of right to sue.²⁵

The instant case presents a unique fact pattern regarding the issue of exhaustion. While no evidence exists to support Kittling's execution of a signed, verified, formal Form 5 charge of discrimination, it's clear that the EEOC did issue a notice of right to sue.²⁶ Regardless of whether Kittling's signed formal charge was not returned or was somehow lost along the way to being filed by the EEOC, it's clear from the record that it is EEOC policy to issue a right to sue letter when a claimant fails to respond to a request to sign and return a Form 5 formal charge.²⁷ Given that the EEOC did issue a right to sue letter in this case and Boise admits that it received a Notice of Charge advising it of Kittling's claims against it, we find that dismissal on the grounds of failure to exhaust would be inappropriate in this case.

Employment Discrimination - McDonnell Douglas Analysis

Turning to the merits, we begin by noting Kittling's voluntary dismissal of both his retaliation and whistleblower claims.²⁸ Consequently, Kittling's remaining allegations of employment discrimination are based on race and disability. Whether based on race discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII")²⁹ or on disability discrimination under the Americans with Disabilities Act ("ADA"),³⁰ the court's analysis is rooted in the McDonnell Douglas burden shifting framework derived from the United States Supreme Court's seminal opinion McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973).

Boise contends that Kittling's claims under both theories fail at all stages of the requisite McDonnell Douglas analysis and, for that reason, summary judgment should be granted as to theseclaims in its favor. The McDonnell Douglas framework is employed by courts to evaluate employment discrimination claims supported only by circumstantial evidence.³¹ In such cases, the plaintiff is unable to show direct evidence of discrimination but must instead "raise the inference of discrimination."³² Under the McDonnell Douglas framework, the plaintiff first bears the burden of a prima facie showing of discrimination. In order to make a prima facie showing regarding disability discrimination under the ADA, Kittling must demonstrate the following: (1) that he has a disability or was regarded as being disabled; (2) that he was qualified for the job; (3) that he was subject to an adverse employment decision because of his disability.³³ If the plaintiff successfully carries his burden, which is one of production and not persuasion, the prima facie stage, the employer must respond by articulating some legitimate, non-discriminatory reason for the adverse employment action.³⁴ The burden then returns to the plaintiff, who may refute the employer's proffered reason by offering evidence that this reason is merely pretext for impermissible discrimination.³⁵

Boise concedes for purposes of this motion that Kittling can demonstrate that he was either disabled or regarded as such, that he was qualified for the job at issue and that he suffered an adverse employment action when he was fired.³⁶ Boise disputes Kittling's ability to offer evidence that his termination was based on his disability, however. Specifically, Boise offers evidence that Kittling's supervisor, Fields, was unaware of Kittling's gout and that, in keeping with its well-publicized policy, other probationary employees who accrued two "occurrences" within theprobationary period were also fired.³⁷ Kittling avers that Boise was aware of his gout via Mark Bossier, superintendent at Boise, and citing his own EEOC Questionnaire and the Boise Attendance/Performance Evaluation form, which constituted a "final written warning with suspension" following his second occurrence during probation.³⁸ After reviewing the proffered evidence, the court finds that Kittling fails to satisfy his prima facie burden as to disability discrimination. Given Kittling's failure to establish the...