Guidry v. Louisiana Military Department-Youth Challenge Program

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

MICHELE GUIDRY

CIVIL ACTION

VERSUS

NO. 20-801-JWD-EWD

LOUISIANA MILITARY DEPARTMENT

YOUTH CHALLENGE PROGRAM

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment, (Doc. 49), (the

“Motion”) filed by the Louisiana Military Department – Youth Challenge Program (“Defendant”

or “YCP”). Plaintiff Michele Guidry (“Plaintiff” or “Guidry”) opposes the Motion. (Doc. 56-5.)1

YCP filed a reply. (Doc. 60.) Oral argument is not necessary. The Court has carefully considered

the law, the facts in the record, and the arguments and submissions of the parties and is prepared

to rule. For the following reasons, Defendant’s Motion is denied.

I. BACKGROUND

A. Introduction and Relevant Procedural History

This is a Title VII case involving allegations of discrimination, retaliation, and a hostile

work environment on the basis of race and sex.2 (Plaintiff’s Second Amended Complaint (“Am.

1 After Plaintiff filed her first opposition, (Doc. 51), she moved for leave to refile it, (Doc. 53), and the Court granted

that request, (Doc. 55). She then filed another opposition, (Doc. 54), but later moved to substitute several documents,

including that brief, to correct the caption, (Doc. 56). The Court granted Plaintiff’s motion to substitute, but as far as

the Court can tell, the second opposition, (Doc. 54), was not properly replaced by Plaintiff’s proposed replacement

opposition, which was attached to her motion to substitute as Doc. 56-5. Based on this information, the Court believes

Doc. 56-5 is Plaintiff’s intended opposition brief and, thus, refers to that document only in this opinion. The Court has

shown considerable leniency regarding Plaintiff’s brief. Counsel for Plaintiff is cautioned to be more attentive to the

Court’s rules and deadlines.

2 Plaintiff additionally “alleges any and all claims that are grounded in TORT, which are State Law Claims whereby

this Honorable Court exercises Supplemental Jurisdiction under 28 U.S. Code § 1367(a), et seq.” (Plaintiff’s Second

Amended Complaint ¶ 6, Doc. 46.) Only Plaintiff’s Title VII claims are the subject of this Motion.

Compl.”) ¶ 24, Doc. 46.) In sum, Plaintiff is a white, female social worker who claims that her

previous employer, Defendant, treated her differently than other black social workers and took

various other actions against her over the course of a couple of months. (See id. ¶¶ 9–24; see also

Doc. 40 at 1.) According to the allegations, this treatment culminated in a constructive discharge

on October 3, 2018. (Am. Compl. ¶ 18, Doc. 46.)

On July 6, 2021, Defendant filed a motion to dismiss the case “on three main grounds: (1)

the Title VII claims were not properly exhausted because no EEOC charge was timely filed within

the 300-day window, (Doc. 26-1 at 4–5); (2) Plaintiff’s state law claims have prescribed because

they were not filed within eighteen months from the date the claims accrued, (id. at 5–6); and (3)

Plaintiff failed to state viable claims under any theory, (id. at 7–11).” (Doc. 40 at 2.) In ruling on

that motion, this Court stated that the exhaustion issue had become particularly “convoluted” for

several reasons. (Id. at 2.) First, the operative complaint at that time provided that Plaintiff filed a

charge with the Equal Employment Opportunity Commission (“EEOC”) on August 27, 2019,

whereas Plaintiff’s opposition to the motion provided that she filed her EEOC complaint on

October 10, 2018. (Id. at 2–3.) Further compounding the confusion, Plaintiff attached “an EEOC

Charge of discrimination signed and dated February 24, 2019,” to her opposition without

discussing the significance of the document in her brief. (Id. at 3.) Then, however, “Plaintiff

provided a surreply in which she assert[ed], for the first time, that the February 24, 2019, charge

was the correct one.” (Id.)

Considering several factors, including Plaintiff’s evolving position about when her EEOC

charge was filed, the Court denied the motion to dismiss without prejudice and specifically ordered

that the parties “contact the Magistrate Judge’s office to set up a schedule (1) for Plaintiff to amend

the operative complaint (a) to provide the correct date that Plaintiff contends she filed her EEOC

charge, and (b) to cure any deficiencies Plaintiff deems necessary in light of this ruling and

Defendant’s [motion to dismiss]; (2) for the parties to conduct limited discovery on the narrow

issue of exhaustion; and (3) for Defendant to file a motion for summary judgment on this narrow

and controlling question.” (Id. at 1.)

Following that directive, on February 11, 2022, Plaintiff amended her complaint, alleging

that she filed her first EEOC charge via email to EEOC investigator Fred Lewis on February 24,

2019, which is before the exhaustion deadline. (Am. Compl. ¶¶ 2–4, Doc. 46.) Plaintiff further

alleges that she filed an EEOC charge again on August 27, 2019, and though this falls beyond the

exhaustion deadline, she claims that this charge “relates back” to her February charge, thus making

it timely. (Id. ¶ 7.) Thereafter, Defendant filed the instant Motion seeking summary judgment on

the Title VII claims based solely on the exhaustion issue.

B. Relevant Facts

Plaintiff filed a charge with the EEOC on August 27, 2019; this is not in dispute.

(Defendant’s Statement of Uncontested Material Facts (“Def. SUMF”) ¶ 1, Doc. 49-1; Plaintiff’s

Statement of Uncontested Material Facts [sic] (“Pl. OSMF”) ¶ 1, Doc. 51-1.) As discussed below,

the controversy instead centers around whether Plaintiff previously filed an EEOC charge on

February 24, 2019. Because little is provided by the parties’ statements of fact, the Court turns to

the record evidence cited in the parties’ briefs to both glean the material facts and “determine if

there is a factual dispute” for summary judgment purposes. Braud v. Wal-Mart Stores, Inc., No.

17-320, 2019 WL 3364320, at *4 (M.D. La. July 25, 2019) (deGravelles, J.) (citing Smith v.

Brenoettsy, 158 F.3d 908, 910 (5th Cir. 1998) (holding that, where plaintiff failed to oppose the

motion for summary judgment, the facts in the “Statement of Undisputed Facts” were admitted,

“except to the extent that the ‘facts’ in the ‘Statement of Undisputed Facts’ are contradicted by

‘facts’ in other materials attached to his motion for summary judgment.” (citation omitted)); Porter

v. Dauthier, No. 14-41, 2015 WL 5611647, at *8, *13 (M.D. La. Sept. 23, 2015) (deGravelles,

J.)). Where necessary and relevant, the Court will note which facts are disputed.

The activity log contained within Plaintiff’s EEOC file shows that on October 10, 2018,

approximately one week after her employment with Defendant was terminated, she submitted an

online inquiry with the EEOC’s New Orleans Field Office. (Def. Ex. A-2, File for EEOC Charge

No. 461-2019-00077 (“EEOC File”), Doc. 49-4 at 14.) Plaintiff began corresponding with an

EEOC investigator, Fred Lewis, and an appointment was scheduled for February 6, 2019, though

it is unclear whether that interview was held. (Id. at 13–14.)

Plaintiff’s exhibits show an email thread between her and Lewis concerning her claim.

Plaintiff’s exhibit A shows, inter alia, an email she sent Lewis on February 11, 2019, in which she

indicated that the two had previously spoken and asked Lewis what the next steps would be. (See

Pl. Ex. A, EEOC FORM 5A FEB 2019, Doc. 59-1 at 4.) Then, on February 24, 2019, Plaintiff

emailed Lewis stating that she was “attaching a copy of the requested documentation [Lewis]

asked [her] to complete by” February 26, as well as some additional documentation relevant to her

claim; the subject line reads “Requested EEOC documentation.” (Id. at 3; see also Pl. Ex. B,

Plaintiff’s Email Exhibit, Doc. 59-2 at 1.) The “requested documentation” referenced here is,

according to Plaintiff, the EEOC charge she properly filed on February 24, 2019. More details

concerning this document and its submission to Lewis are discussed below.

The next day, on February 25, 2019, Lewis responded “Thank you – Please Print sign and

date the attached form 5A – scan – then email back as an attachment.” (Id.) Plaintiff responded to

Lewis later the same day: “That form was sign[ed] and dated yesterday with the information you

requested, but here it is again for your records. There should be no need for me to resign a form I

have already signed.” (Pl. Ex. D, Plaintiff's Due Diligence Email, Doc. 59-4 at 1.) The activity log

in Plaintiff's EEOC file does not seem to reflect this activity, as there is no activity logged between

February 19, 2019, and mid-June; in fact, only a handful of activities are logged during the

timespan of February 2019 through July 2019:

07/02/19 09:25 Lewis, Fred Charging Party hasn't established credibility identified as relevant.

07/02/19 09:25 Lewis, Fred Charge Is self-defeating identified as relevant.

07/02/19 09:25 Lewis, Fred It is unlikely that further investigation would result in cause finding identified as

relevant.

07/02/19 09:25 Lewis, Fred Charge raises no Topic at this time.

ae ee

07/02/19 09:16 Lewis, Fred Receiving Office Intent selected: Investigate Charge, Deferral office: Lincoln

Commission On Human Rights

06/14/19 09:51 Lewis, Fred Document Download : Correspondence To/From Charging Party (461-2019-00077 -

GUIDRYMNICHELE RECD FROM PCP.msg)

02/18/19 16:49 Johnson, Mildred Uploaded Correspondence To/From Charging Party (461-2019-00077 -

GUIDRYMNICHELE RECD FROM PCP.msqg)

02/04/19 15:23 Lewis, Fred Uploaded Correspondence To/From Charging Party (CP email Michel Guidry

461-2019-00077- Confirmed appointment for FEB 6 at 230 pm-Memo Style_pdf)

02/04/19 15:20 Lewis, Fred Deleted Correspondence To/From Charging Party (Email CP Michele Guidry -

Confirming Interview at 230 pm Feb 6.pdf)

02/04/19 15:20 Lewis, Fred Uploaded Correspondence To/From Charging Party (Email CP Michele Guidry -

Confirming Interview at 230 pm Feb 6_pdf)

02/04/19 13:34 Johnson, Mildred Uploaded Correspondence To/From Charging Party (Reschedule interview on Case

46 1-2019-00077.msg)

(Def. Ex. A-2, EEOC File, Doc. 49-4 at 13.) Activity continued to be documented in this log up

until, and after, Plaintiff filed the formal charge of discrimination with the EEOC on August 27,

2019. (See id. at 12-13.)

II. SUMMARY JUDGMENT STANDARD

“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). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)). “The moving party

may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out

that the record contains no support for the non-moving party’s claim.” Wease v. Ocwen Loan

Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Stahl v. Novartis Pharm. Corp., 283

F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . . .

[T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover’s burden is not satisfied 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 and internal quotations omitted).

Ultimately, “[w]here the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (internal citations

omitted).

“[I]f the movant bears the burden of proof on an issue, either because he is the plaintiff or

as a defendant he is asserting an affirmative defense, he must establish beyond peradventure [(that

is, beyond doubt)] all of the essential elements of the claim or defense to warrant judgment in his

favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); peradventure, MERRIAM-

WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/peradventure (last visited

Sept. 20, 2023). Phrased another way, “[w]here the summary judgment movant bears the burden

of proof at trial, the summary judgment evidence must affirmatively establish the movant’s

entitlement to prevail as a matter of law.” Universal Sav. Ass’n v. McConnell, 14 F.3d 52, 1993

WL 560271, at *2 (5th Cir. Dec. 29, 1993) (unreported).

III. DISCUSSION

A. Parties’ Arguments

1. Defendant’s Original Memorandum (Doc. 49-2)

Defendant argues that summary judgment is warranted because Plaintiff failed to exhaust

her administrative remedies before initiating this lawsuit. (Doc. 49-2 at 1.) More specifically,

Defendant contends that exhaustion has not occurred because Plaintiff failed to file a timely charge

with the EEOC. (Id. at 2–3.) Defendant correctly points out that charges are considered filed at the

time the EEOC “receives” the charge. (Id. at 2.) According to Defendant, the evidence available

to the parties shows that Plaintiff did not file a charge with the EEOC until August 27, 2019, which

is beyond the 300-day deadline. (Id. at 4.) Though Plaintiff claims that she filed a charge several

months earlier, on February 24, 2019, Defendant maintains that there is no genuine issue of fact

concerning whether that document was received for primarily two reasons: (1) the activity log

contained in Plaintiff’s EEOC file is evidence that the February 24, 2019, document was not

received by the EEOC; and (2) Plaintiff has no evidence showing that said document was ever

received. (See id.)

As to the activity log in Plaintiff’s EEOC file, Defendant specifically points to the

following as being relevant: (1) the file’s activity log shows “a distinct lack of any entry” that

would indicate the February 24, 2019, document was received, whereas there is “a clear entry on

August 27, 2019, indicating that the EEOC received” the latter document; (2) “there is a four

month gap in activity between February 18, 2019, and June 14, 2019;” (3) the activity on those

two dates merely indicates the EEOC received correspondence from Plaintiff, who the file still

listed as “PCP” for potential charging party; and (4) the activity log reveals “an August 15, 2019,

entry of ‘Inquiry status changes to PRE_CHARGE By FredMLewis (70310).’ ” (Id. at 2–3

(citations omitted).) Thus, according to Defendant, “Plaintiff’s file clearly shows that the EEOC

did not believe that a charge had been filed until the August 27, 2019, document.” (Id. at 3.)

Not only does Defendant’s evidence indicate the February 2019 charge was never received,

Defendant argues, but there is also no evidence in the record that EEOC investigator Fred Lewis

ever received the document Plaintiff emailed him on February 24, 2019. (Id. at 4.) “While Plaintiff

may suggest that her [deposition] testimony that she sent the email, or even the email she sent,

itself, is proof of receipt, ‘[p]roof of message exit from a transmitting machine cannot serve as a

proxy for proof of actual receipt of the sent message by a remote receiving terminal.’ ” (Id. (quoting

Riley & Ephriam Const. Co., Inc. v. United States, 408 F.3d 1369, 1372 (Fed. Cir. 2005)).) Finally,

Defendant states, because the February 24, 2019, document was never filed, the August 27, 2019,

charge has nothing to “relate back” to. (Id.) In other words, the lack of receipt of the February

2019 document means the untimely charge must fall too. Hence, Defendant concludes, Plaintiff is

unable to show that she exhausted her administrative remedies by filing a timely EEOC claim,

making summary judgment warranted. (Id.)

2. Plaintiff’s Opposition (Doc. 56-5)

In response, Plaintiff argues that summary judgement should be denied because “[a] careful

reading of the email thread” between her and Lewis shows that there are genuine issues of material

fact concerning whether she filed an EEOC charge on February 24, 2019. (Doc. 56-5 at 1–2.)

According to Plaintiff, in her email to Lewis on February 24, 2019, she “referenced and attached

the documentation Mr. Lewis had provided her in the EEOC” online portal and instructed her to

complete. (Id. at 4.) She also points out that, in this email, she “reference[d] the EEOC Portal

Communication Number 2018.” (Id.) According to Plaintiff, “[t]he EEOC Portal containing case

number 2018 was apparently deleted from the portal[,]” but her email is clearly evidence

demonstrating “that at the time this email was generated there was a portal open for that particular

charge number.” (Id. at 5; see also id. at 4 n.8 (“This account number was no longer available

when requested from [the] EEOC.”).) Plaintiff argues that Lewis’s reply to that email, along with

Plaintiff’s later response that she had already sent the signed and dated Form 5A, constitutes

evidence of Lewis’s acknowledgement that he received the completed EEOC Form 5A. (Id. at 9.)

Next, Plaintiff addresses Defendant’s arguments concerning the lack of any entry in the

activity log showing she filed the February 24, 2019, charge. According to Plaintiff, the reason

there is no entry evidencing this filing “is due to [the 2018] case number being unavailable at the

time the record was requested from the Portal . . . [and] [Lewis’s] failure to properly open and

investigate the 2018 claim.” (Id. at 8–9; see also id. at 9 n.9 (“Mr. Fred Lewis closed the 2018

Portal and opened a 2019 Portal. The case did not change in that amount of time to justify why he

would close it and open another claim. Therefore, opening the 2018 claim with the same facts

implies that Mr. Lewis accepted the EEOC charge and DID NOT intend to close it.”).) Because

Lewis failed to properly record and investigate the 2018 claim, Plaintiff states, she was “eventually

assigned a new [case] number” and “forced to file another charge under the 2019 case.” (Id. at 9.)

Moreover, Plaintiff submits, because the February 24, 2019, charge was properly filed, the

later-filed EEOC charge (August 27, 2019) can and does relate back to the charge filed in February.

(Id. at 2.) In closing, Plaintiff reiterates that, while she contends that she did properly file a charge

with the EEOC on February 24, 2019, the evidence in the record at the least shows that material

factual issues remain on the question of exhaustion, making summary judgment improper. (Id.)

3. Defendant’s Reply (Doc. 60)

In response to Plaintiff’s opposition, Defendant re-urges many of the same arguments set

forth in its original memorandum. (See Doc. 60.) In short, Defendant maintains that: (a) the email

thread between Plaintiff and Lewis “show[s] only Plaintiff’s apparent attempt to send the Form

5A to Mr. Lewis, not [his] receipt of the form[,]” (id. at 2); and (b) the activity log in Plaintiff’s

EEOC file “does not adequately explain the absence of any indication that the EEOC received the

charge Plaintiff purports to have filed in February 2019.” (Id. at 3.)

In addition, Defendant now argues that the exhibits Plaintiff presents as evidence showing

she attached the Form 5A do not show that she attached that document; rather, they indicate the

Form 5A was attached by Lewis when he responded to her on February 25, 2019. (Id. at 2–3.)

Next, Defendant attacks Plaintiff’s contention that her February charge is missing from her EEOC

file due to Lewis improperly assigning her a case number:

The file number for Plaintiff’s EEOC file is 461-2019-00077. From

the activity log in Plaintiff’s EEOC file, the Court can see that this

number was assigned to the file by absolutely no later than February

4, 2019, with no indication that any other file number was associated

with it beforehand. Following this, there is no indication of any

change to the file number until August 27, 2019, when an “N” is

briefly appended to the end in response to the actual receipt of a

charge. As such, not only is Plaintiff’s assertion factually incorrect,

even assuming this were true for the sake of argument, it does not

adequately explain the absence of any indication that the EEOC

received the charge Plaintiff purports to have filed in February 2019.

(Id. at 3 (citations omitted).)

In summary, Defendant argues that summary judgment should be granted because the

available evidence presented by the Plaintiff reflects that the EEOC did not receive Plaintiff’s

charge until August 27, 2019, which is past the 300-day deadline. (Id. at 4.)

B. Applicable Law

“A plaintiff asserting a claim under Title VII must exhaust administrative remedies before

pursuing the claim in district court.” Bracken v. Welborn, No. 20-72, 2021 WL 237693, at *4

(M.D. La. Jan. 25, 2021) (Dick, C.J.) (first citing Taylor v. Books A Million, Inc., 296 F.3d 376,

378–79 (5th Cir. 2002); then citing Davis v. Fort Bend Cnty., 893 F.3d 300, 303 (5th Cir. 2018)

(citing 42 U.S.C. § 2000e–5(e)(1))). Administrative exhaustion occurs when a plaintiff files a

timely charge with the EEOC and subsequently receives from the EEOC a statutory notice of the

right to sue the employer named in the charge. Id. (citations omitted); 42 U.S.C. § 2000e–5(e)(1).

Thereafter, the plaintiff has ninety days from receipt of the right-to-sue notice to file an action in

court. Taylor, 296 F.3d at 379 (citations omitted).

In this case, the sole question for purposes of exhaustion is whether Plaintiff filed a timely

charge with the EEOC detailing her Title VII complaints. The time-period applicable to

determining whether the plaintiff filed a “timely” EEOC charge differs depending on the state in

which it is filed. “Generally, Title VII’s enforcement provisions require that an EEOC charge must

be filed within 180 days after the alleged unlawful employment practice has occurred.” Fontenot

v. Bd. of Supervisors of La. State Univ., No. 20-8, 2022 WL 2709006, at *7 (M.D. La. July 12,

2022) (Dick, C.J.) (citing 42 U.S.C. § 2000e–5(e)(1)). “However, in a ‘deferral state,’ such as

Louisiana, a claimant has an extended, 300-day period to file an EEOC charge.” Id. (citing Conner

v. La. Dep’t of Health & Hosps., 247 F. App’x 480, 481 (5th Cir. 2007)). For purposes of filing a

timely charge under Title VII, “[a] discrete retaliatory or discriminatory act ‘occurred’ on the day

that it ‘happened.’ ” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002).

This timing requirement is imposed on all Title VII claims regardless of “whether they are

based on allegations of disparate treatment, disparate impact, hostile work environment, or

retaliation[.]” Clark v. City of Alexandria, No. 20-01581, 2022 WL 822912, at *8 (W.D. La. Feb.

23, 2022), report and recommendation adopted, 2022 WL 816793 (W.D. La. Mar. 16, 2022).

“Filing a timely charge is a prerequisite to having an actionable claim.” Santos v. Baton Rouge

Water Works Co., No. 18-1098, 2021 WL 1227875, at *11 (M.D. La. Mar. 31, 2021) (deGravelles,

J.) (quoting Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 328 (5th Cir. 2009)). Consequently,

“any claims arising more than 300 days prior to the filing of an EEOC charge are time-barred.” Id.

(citing 42 U.S.C. § 2000e–5(e)(1)).

C. Analysis

1. Preliminary Issues

Though the parties do not specifically address the issue, the Court finds it prudent to first

explain why it need not list the tolling date for each individual claim in order to resolve the narrow

dispute raised by the Motion. The question of whether Plaintiff exhausted her administrative

remedies under Title VII by filing a timely charge with the EEOC necessarily requires a

determination as to when Plaintiff was required to file said charge. The operative complaint

contains allegations of discrete discriminatory and retaliatory acts occurring as early as August 20,

2018, and as late as October 3, 2018, the date Plaintiff claims she was constructively discharged.

(See Am. Compl. ¶¶ 10–18, Doc. 46.) Because the 300-day tolling period for each of these claims

began running on the date the discrete violation occurred, the tolling date for each differs.

As previously explained, it is undisputed that Plaintiff filed a formal charge with the EEOC

on August 27, 2019. At issue is whether Plaintiff also filed a charge months earlier, on February

24, 2019. If Plaintiff properly filed a charge of discrimination with the EEOC on February 24,

2019, then the only time-barred claims are those that arose more than 300 days before she filed

that charge—here, that would include any acts occurring before April 30, 2018. Hence, if Plaintiff

properly filed a charge with the EEOC on February 24, 2019, then none of her claims are time-

barred.

On the other hand, if her only properly filed charge is the one filed on August 27, 2019,

then any claims arising more than 300 days before then (that is, any claims that arose before

October 31, 2018) are time-barred. In other words, regardless of the tolling date for each of

Plaintiff’s individual Title VII claims, the outcome is the same: if Plaintiff filed an EEOC charge

on February 24, 2019, her claims are timely; if she did not file a charge on that date, then only the

charge filed on August 27, 2019, remains, making all claims untimely in this case.3

The Court now turns to a separate threshold issue that the parties failed to address. Based

on the briefing, the controversy between the parties centers on whether the Form 5A was received

3 The Court is cognizant that Plaintiff also claims she was subjected to a hostile work environment. (Am. Compl. ¶ 24,

Doc. 46.) “The continuing violation theory typically applies to hostile work environment claims.” Adams v. United

Ass’n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. of the U.S. & Canada, AFL-CIO, Loc. 198,

469 F. Supp. 3d 615, 635 (M.D. La. 2020) (citation omitted), on reconsideration in part, 495 F. Supp. 3d 392 (M.D.

La. 2020). “Under the continuing violations doctrine, a plaintiff is relieved of establishing that all of the alleged

discriminatory conduct occurred within the actionable period, if the plaintiff can show a series of related acts, one or

more of which falls within the limitations period.” Id. at 636 (quoting Pegram v. Honeywell, Inc., 361 F.3d 272, 279

(5th Cir. 2004)). Here, however, if Plaintiff filed a charge on February 24, 2019, then all her claims are timely

regardless of that doctrine’s applicability. Conversely, if she did not file a charge on that date, then she cannot show

that “one or more [of the alleged acts] falls within the limitations period.” Id. (citation omitted). Thus, even if the

continuing violations doctrine applied, it would have no effect on the exhaustion analysis in this case.

by—and thus filed with—the EEOC on February 24, 2019. In making their arguments, both parties

seem to assume that the Form 5A would constitute a charge of discrimination if it was received by

the EEOC in a timely manner. However, it is undisputed that the document Plaintiff filed on

August 27, 2019, constitutes a formal charge of discrimination, (Def. SUMF, ¶ 1, Doc. 49-1; Pl.

OSMF, ¶ 1, Doc. 51-1; see also Def. Ex. A-2, EEOC File, Doc. 49-4 at 16), and that document

clearly differs from the Form 5A executed in February 2019, (compare Def. Ex. A-2, EEOC File,

Doc. 49-4 at 16 (listed as “EEOC Form 5 (11/09)”), with Pl. Ex. A, EEOC FORM 5A FEB 2019,

Doc. 59-1 at 1 (listed as “EEOC Form 5A (October 2017)”)). Moreover, though the Form 5A

appears in many ways to be a document by which one files a formal charge4, the form provides in

bold print at the bottom of the second page: “THIS PRE-CHARGE INQUIRY IS NOT A

CHARGE OF DISCRIMINATION[.]” (Pl. Ex. A, EEOC FORM 5A FEB 2019, Doc. 59-1 at 2.)

Despite the form’s language that it constitutes nothing more than a pre-charge inquiry, that

fact alone does not necessitate the conclusion that the form is insufficient to qualify as a charge in

the Title VII context. See Conner, 247 F. App’x at 481–82 (“Because the intake questionnaire was

sufficient to constitute an EEOC charge and filed within the 300–day period, the district court

erred in concluding that it was untimely and in dismissing [plaintiff]’s complaint on that basis.”);

see also Clark v. Auger Servs., Inc., 443 F. Supp. 3d 685 (M.D. La. 2020) (deGravelles, J.) (finding

that the intake questionnaire filed with the EEOC qualified as a charge for purposes of the timely

filing requirement and Rule 12(b)(6)); see also Jackson v. Chalmette Ref., LLC, No. 23-858, 2023

WL 4409166 (E.D. La. July 7, 2023) (citations omitted) (“Although some courts have rejected the

notion that an online inquiry constitutes a charge, other courts have allowed a delinquent charge

4 For example, the title of the EEOC Form 5A reads in bold: “U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION CHARGE OF DISCRIMINATION[.]” (Pl. Ex. A, EEOC FORM 5A FEB 2019, Doc. 59-1 at 1.)

Further, the signature and verification box of the form provides: “I understand by signing below that I am filing a

charge of employment discrimination with the EEOC.” (Id.)

to relate back to an initial inquiry and/or interview notes recorded by the EEOC officer later

included in the charge document.”); see also Thomson v. Westlake Chem. Corp., No. 19-236, 2019

WL 4447594, at *5 (W.D. La. Sept. 16, 2019) (finding the plaintiff provided the EEOC with

enough information before the 300-day deadline to allege a charge of discrimination based on

interview notes created by EEOC representative).

However, that issue is not before the Court because—again—Defendant does not argue

that the Form 5A is insufficient to constitute a charge. Further, considering that failure to comply

with Title VII’s charge-filing requirement is an affirmative defense for which Defendant would

bear the burden of proof at trial, the Court is even more inclined to forgo making an explicit finding

on a matter the movant has not specifically raised. See Fort Bend Cnty., Tex. v. Davis, 139 S. Ct.

1843, 1851 (2019) (“Title VII’s charge-filing requirement is a processing rule, albeit a mandatory

one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”).

Consequently, regardless of whether the Form 5A qualifies as a charge sufficient to toll the 300-

day prescriptive period, the Court will presume it does constitute a charge for purposes of the

proceeding analysis.

2. Genuine Questions of Material Fact Exist

As Defendant correctly points out, “[a]n EEOC charge is ‘filed’ when it is received by the

EEOC.” Jackson, 2023 WL 4409166, at *5 (citing 29 C.F.R. § 1601.13); see also Owens v. Dall.

Cnty. Cmty. Coll. Dist., 793 F. App’x 298, 301 (5th Cir. 2019) (citation omitted) (“Charges are

considered filed when the EEOC receives the document.”). “The Fifth Circuit has made clear that

‘mailing’ may not be construed as ‘filing’ for purposes of Title VII.” Id. (cleaned up) (quoting

Taylor v. Gen. Tel. Co. of Sw., 759 F.2d 437, 440 (5th Cir. 1985)). “Thus, a charge is not considered

filed when dated, signed, or mailed; rather, a charge is considered filed only when received by the

EEOC.” Id. (citing, inter alia, Kirkland v. Big Lots Store, Inc., 547 F. App’x 570, 573 (5th Cir.

2013); Taylor, 759 F.2d at 440).

The sole question raised in Defendant’s Motion is whether the EEOC received the charge

Plaintiff allegedly emailed EEOC investigator Lewis on February 24, 2019. In short, the Motion

is denied because the Court finds that numerous questions of material fact preclude a determination

of whether the EEOC received this charge.

Where exhaustion is concerned, Jackson is factually similar to the present case in several

respects, and the Court finds it instructive on this issue. There, the defendant argued that the

plaintiff did not file a timely charge with the EEOC and attached “the EEOC records, which

indicate[d] that she filed her charge on February 24, 2023, which [wa]s 18 days after expiration of

the 300-day filing period.” Jackson, 2023 WL 4409166, at *2. Plaintiff disagreed and, to show she

filed her charge earlier, “submit[ted] a copy of an email that she sent to [an] EEOC Investigator

on January 29, 2022, enclosing a signed draft charge of discrimination dated January 29, 2023,

along with an Affidavit confirming her transmission of same.” Id. at *3. Though faced with a Rule

12(b)(6) motion, the court treated the matter as a Rule 56 motion to consider certain evidence

submitted by the plaintiff. Id. at *6. After reviewing the EEOC file’s activity log as well as the

plaintiff’s evidence revealing her emails with the EEOC investigator, the court concluded that

genuine issues of fact existed. Its reasoning was as follows:

Initially, a review of the EEOC log reflects that the log is not

exhaustive as it does not list every activity in the case. For instance,

the EEOC log does not list Plaintiff’s interview on September 19,

2022, which evidently occurred given that it was scheduled (as

reflected on the log) and that the EEOC documents include the

investigator’s notes from that interview. ECF No. 14-1 at 13-14.

Plaintiff’s email exhibit certainly reflects that she attempted to email

a copy of her charge, properly addressed, to the EEOC on January

29, 2023; however, the exhibit does not establish that the EEOC

actually received her charge on that date. The email could have been

caught in spam or undelivered for some other reason, which would

mean the EEOC did not receive it as required. Considering Fifth

Circuit precedent holding that mailing is insufficient, as Plaintiff

concedes (ECF No. 14 at 3), the January 29, 2023 charge cannot be

considered “filed” based only on the email dated the January 29

absent evidence of receipt by the EEOC.

Defendant, however, offers no evidence regarding the EEOC’s

procedures for uploading documents received via email. Thus, while

the absence of an entry on the log suggests the absence of receipt, it

is equally plausible that the document had been delivered to the

EEOC investigator and was simply not uploaded by the investigator

in a timely fashion. Drawing all inferences in favor of the non-

movant, as required, based on the evidence before me at this time,

the Court cannot find that the undisputed evidence establishes that

Plaintiff failed to deliver timely her EEOC charge.

Id. at *6–7 (third emphasis added).

Here, like in Jackson, Defendant points primarily to the EEOC file and the lack of any

entry in the activity log indicating that the charge sent on February 24, 2019, was ever received,

but this EEOC file too appears non-exhaustive. For example, Plaintiff’s EEOC file in this case also

indicates that she had an interview with EEOC investigators on February 6, 2019, as it was

confirmed numerous times beforehand, (see Def. Ex. A-2, EEOC File, Doc. 49-4 at 13, 41), but

the activity log does not indicate an interview occurred. (See also id. at 51 (Plaintiff’s email from

February 17, 2019, referencing a phone call with the EEOC and advice Lewis gave her the week

before, neither of which are reflected in the activity log).) In addition, the activity log time and

time again lists “Correspondence To/From Charging Party[,]” (see id. at 11, 13), but no entries

were made between February 18, 2019, and June 14, 2019, despite the fact that Plaintiff’s exhibits

establish that she and Lewis emailed back and forth on February 24–25, 2019.

This case is also similar to Jackson in that Plaintiff attaches an email thread between her

and an EEOC investigator—here, Lewis—to show that she did in fact send the charge to the EEOC

within the prescriptive period. The email exhibit Plaintiff says establishes that she attached the

completed Form 5A shows that a Form 5A was attached to someone’s email—either hers on

February 24, 2019, or Lewis’s on February 25, 2019—but to whose, the Court is unsure. (See Pl.

Ex. B, Doc. 59-2.) Plaintiff claims the signed and dated form was attached to her email to Lewis,

(Doc. 56-5 at 4), whereas Defendant argues that the exhibit shows the blank Form 5A being

attached by Lewis on February 25, 2019, when he asked Plaintiff to fill it out, (Doc. 60 at 2–3).

And, even if Plaintiff did attach the completed Form 5A to her email on February 24, 2019, “the

exhibit does not establish that the EEOC actually received her charge on that date[;] [t]he email

could have been caught in spam or undelivered for some other reason, which would mean the

EEOC did not receive it as required.” Jackson, 2023 WL 4409166, at *6. These are but a few of

the factual disputes concerning whether Lewis actually received Plaintiff’s February 24, 2019,

charge on behalf of the EEOC.

When drawing all inferences in Plaintiff’s favor, this Court cannot say that the lack of any

corresponding entry on the activity log establishes that Plaintiff’s email was never received, nor

can it conclude that no genuine fact issues exist given the parties’ disputes about the email thread

between Plaintiff and Lewis. Accordingly, summary judgment for Defendant on the Title VII

claims is inappropriate.

IV. Conclusion

Accordingly,

IT IS ORDERED that Defendant’s Motion for Summary Judgment (Doc. 49) is DENIED.

Signed in Baton Rouge, Louisiana, on September 21, 2023.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA