The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
RAY WILLIAMS CASE NO. 17-cv-1366
-VS- JUDGE DRELL
JELD-WEN INC MAGISTRATE JUDGE PEREZ-MONTES
RULING AND ORDER
Before the court are the following motions: a motion for summary judgment, (Doc. 108),
filed by defendant Jeld-Wen, Inc. (“Jeld-Wen”), a motion to exclude expert testimony, (Doc. 129),
also filed by Jeld-Wen, and a motion for leave to file a third amended complaint, (Doc. 138), filed
by plaintiff Ray Williams (“Williams”). For the following reasons, the motion for summary
judgment, (Doc. 108), is DENIED in part and GRANTED in part; the motion to exclude expert
testimony, (Doc. 129), is DENIED; and the motion to amend the complaint, (Doc. 138), is
GRANTED.
I. FACTS AND PROCEDURAL POSTURE
This case concerns employment action, including alleged violations of Title VII of the 1964
Civil Rights Act, 42 U.S.C. §§ 20006, et seq. (“Title VIP’), the Age Discrimination Employment
Act, 29 U.S.C. § 623, et seq. ““ADEA”), and the Louisiana Employment Discrimination Law, La.
RS. 23:301 et seq. Plaintiff Ray Williams (“Williams”) is an employee of Jeld-Wen and alleges
that Jeld-Wen unlawfully discriminated against him because of his age (53 when the case was filed
in state court in 2017) and race (African American). (Doc. 1-2 96). The original complaint, (Doc.
1-2), the first amended complaint, (Doc. 33), and the second amended complaint, (Doc. 58), allege
claims pertaining to promotions, a hostile work environment, and retaliatory job assignments.
Specifically, Williams alleges that (1) Jeld-Wen has on numerous occasions denied Williams a
promotion and instead promoted or hired younger white individuals with lesser or similar
qualifications, (2) that a co-worker hung a noose in Williams work area, and (3) that Jeld-Wen
began assigning him demeaning job duties in retaliation for Williams having filed a complaint
with the Equal Employment Opportunity Commission (“EEOC”).
During the discovery period, Williams alleges further retaliation in the form of intense
interrogation lasting at least an hour over answers provided by Williams’ counsel in discovery.
(Doc. 77). As a result of such alleged retaliatory action, Williams moved to strike Jeld-Wen’s
answer to the complaint, moved to impose sanctions, and moved to expedited consideration of
Williams’ claims. Ultimately, the Magistrate Judge denied the motion but allowed Williams to -
amend his complaint to include a claim for the retaliatory interrogation. (Doc. 131). Williams
then moved for leave to file a third amended complaint to include the instance of retaliatory
interrogation and in addition another instance of promoting younger white individuals over
Williams. (Doc. 138).
Discovery continued, but neither party was satisfied by the scope and quality of
information and documentation provided. As a result, both parties filed motions to compel. (Docs.
89, 101). Shortly thereafter, Jeld-Wen filed the instant motion for summary judgment. (Doc. 108).
The motion for summary judgment is opposed by Williams, claiming, among other things, that the
motion is premature in light of pending motions to compel. (Doc. 123). Williams’ opposition also
presented the report of expert Dr. Robert G. Rose, Ph.D. but prefaced saying that Dr. Rose’s report
is incomplete because information and documentation necessary to conduct a full report was
improperly withheld in discovery and was the subject of Williams’ motion to compel. Jeld-Wen
filed its reply to Williams’ opposition to the motion for summary judgment, (Doc. 128), and the
said motion to exclude the expert testimony of Dr. Rose, (Doc. 129). The motion to exclude also
is opposed based upon the pending motions to compel. (Doc. 132). The Magistrate Judge has
since granted in part and denied in part each party’s motion to compel, (Doc. 140), and the parties
have filed a notice of compliance thereto, (Docs. 145, 146).
II. SUMMARY JUDGMENT 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. 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 680 (5th Cir. 2011) (internal
citations omitted). It is important to note that the standard for 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.
The movant has the burden of pointing to evidence proving there is no genuine dispute as
to any material fact, or the absence of evidence supporting the nonmoving party's case. The burden
shifts to the nonmoving party to come forward with evidence which demonstrates the essential
elements of his claim. Liberty Lobby, 477 U.S. at 250. The nonmoving party must establish the
existence of a genuine dispute of material fact for trial by showing the evidence, when viewed in
the light most favorable to him, is sufficient to enable a reasonable jury to render a verdict in his
favor. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Duffy v. Leading Edge Products, Inc.,
44 F.3d 308, 312 (Sth Cir. 1995). A party whose claims are challenged by a motion for summary
judgment may not rest on the allegations of the complaint and must articulate specific factual
allegations which meet his burden of proof. Id. “Conclusory allegations unsupported by concrete
and particular facts will not prevent an award of summary judgment.” Duffy, 44 F.2d at 312 (citing
Liberty Lobby, 477 U.S. at 247).
i. LAW
Before pursuing claims in federal court, employment discrimination plaintiffs must exhaust
their administrative remedies by filing a charge of discrimination with the EEOC. 42 U.S.C.A. §
2000e-5(b); 29 U.S.C. § 626(c). Under Title VII, “[e]xhaustion occurs when the plaintiff files a
timely charge with the EEOC and receives a statutory notice of right to sue. A plaintiff must file
[his] civil suit within ninety days of receipt of a right-to-sue-letter.” Garcia v. Penske Logistics,
L.L.C., 631 F. App'x 204, 207-08 (Sth Cir. 2015) (internal citations and quotations omitted).
However, “[t]he ADEA follows a different administrative exhaustion mechanism. Once a plaintiff
has filed a timely EEOC charge of discrimination under the ADEA, the plaintiff must wait 60 days
before filing a civil action in state or federal court. If the charge is dismissed, the plaintiff must file
within ninety days of the receipt of a notice of dismissal from the EEOC.” Id. at 208 (internal
citations and quotations omitted).
As explained by the Fifth Circuit,
[t]he scope of the exhaustion requirement has been defined in light of two competing
Title VII policies that it furthers. On the one hand, because “the provisions of Title
VII were not designed for the sophisticated,” and because most complaints are
initiated pro se, the scope of an EEOC complaint should be construed liberally.
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (Sth Cir.1970); Fellows v.
Universal Restaurants, Inc., 701 F.2d 447, 451 (Sth Cir.1983). On the other hand, a
primary purpose of Title VII is to trigger the investigatory and conciliatory
procedures of the EEOC, in attempt to achieve non-judicial resolution of employment
discrimination claims. Id. at 466. Indeed, “[a] Jess exacting rule would also
circumvent the statutory scheme, since Title VI clearly contemplates that no issue
will be the subject of a civil action until the EEOC has first had the opportunity to
attempt to obtain voluntary compliance.” Sanchez, 431 F.2d at 467. See also Ong v.
Cleland, 642 F.2d 316, 319 (9th Cir.1981) ( “[a]llowing a federal court complaint to
proceed despite its loose ‘fit’ with the administrative charge and investigation ... is
precluded if it would circumvent ... agency efforts to secure voluntary compliance
before a civil action is instituted.”). With that balance in mind, this court interprets
what is properly embraced in review of a Title-VII claim somewhat broadly, not
solely by the scope of the administrative charge itself, but by the scope of the EEOC
investigation which “can reasonably be expected to grow out of the charge of
discrimination.” Sanchez, 431 F.2d at 466. We engage in fact-intensive analysis of
the statement given by the plaintiff in the administrative charge, and look slightly
beyond its four corners, to its substance rather than its label. Fellows, 701 F.2d at
451; Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (Sth Cir.1993); Ong, 642 F.2d
at 319. .
Pacheco v. Mineta, 448 F.3d 783, 788-89 (Sth Cir. 2006) (footnotes omitted). Presumably, similar
competing policies apply to the exhaustion requirements of ADEA and the scope of judicial
review. □
IV. ANALYSIS
Jeld-Wen’s motion for summary judgment contends first that Williams’ failed to exhaust
his administrative remedies regarding a number of claims levied against Jeld-Wen for failure to
promote him. Indeed, several of Williams’ claims against Jeld-Wen for failure to promote predate
and are not described in the first EEOC charge Williams filed. (Doc. 31-2, 31-3). However, such
is not necessary under a theory of continuous violations. The Fifth Circuit in Berry vy Board of
Sup’rs of L.S.U. established a framework for such a theory with three factors to consider. 715 F.2d
971, 981.
The first is subject matter. Do the alleged acts involve the same type of
discrimination, tending to connect them in a continuing violation? The second is
frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the
nature of an isolated work assignment or employment decision? The third factor,
perhaps of most importance, is degree of permanence. Does the act have the degree
of permanence which should trigger an employee's awareness of and duty to assert
his or her rights, or which should indicate to the employee that the continued
existence of the adverse consequences of the act is to be expected without being
dependent on a continuing intent to discriminate?
Id.
In the instant case, Williams’ complaint lists a series of promotion opportunities for which
he was denied in favor of another who was younger and white. Accordingly, the subject matter of
those complaints is consistent. Second, Williams alleges that he was denied a promotion in each
and every instance a promotion opportunity was available, all of which suggests a degree of
frequency and reoccurrence. Third, Williams may have had reason to suspect after the first or
second time Jeld-Wen declined to promote him that race or age discrimination played a role, but
the permanence of that alleged discrimination is recognizable after Jeld-Wen repeatedly failed to
promote him and instead promoted or hired a younger white individual with, as Williams claims,
lesser or similar qualifications.
Moreover, although Williams did not file an EEOC charge for each instance Jeld-Wen
promoted a younger white individual, Williams has filed at least one EEOC charge alleging the
same and received a right to sue letter thereon, (Docs. 31-2, 31-3). The scope of our review is not
limited “by the scope of the administrative charge itself, but by the scope of the EEOC
investigation which ‘can reasonably be expected to grow out of the charge of discrimination.’ ”
Pacheco, 448 F.3d at 789 (citing Sanchez, 431 F.2d at 466). It is not unreasonable to expect that
the scope of review of Williams’ claim may include an inquiry into the existence of similar past
practices outside the EEOC charge filed. Because the claims of retaliatory behavior relate to
Williams’ filing of EEOC charges and the instant suit, we also agree that those claims have grown
out of the charge of discrimination.
Accordingly, every instance Williams alleges that Jeld-Wen did not promote him but
instead promoted a younger white individual is actionable under a theory of continuing violations
and within the scope of our review. Thus, to the extent that Jeld-Wen’s motion for summary
judgment seeks to dismiss each of Williams’ claims alleging failure to promote and suggesting
non-exhaustion, the motion will be DENIED. Similarly, to the extent Jeld-Wen’s motion for
summary judgment seeks to dismiss each of Williams’ claims of retaliation that have not been
exhausted, the motion will be DENIED.
However, we note that the claims of workplace harassment, which are separate from claims
of failure to promote, do not appear to have been exhausted. Williams must show proof that claims
of workplace harassment have been timely filed with the EEOC. Without such proof in this record,
Williams claims of workplace harassment will be DISMISSED.
The remaining aspect of Jeld-Wen’s motion for summary judgment, namely that Williams
cannot succeed on his claims even if properly exhausted, and Jeld-Wen’s motion to exclude the
report of Dr. Rose will be DENIED as premature because it has been filed before the completion
of discovery and ostensibly hinges upon that information.
Finally, Williams’ motion for leave to file a third amended complaint will be GRANTED
in accordance with the Magistrate Judge’s sealed memorandum order, (Doc. 131). To the extent
that the amendment includes allegations of another instance of failure to promote which is beyond
the scope of the Magistrate Judge’s allowance, the amendment is allowed because the allegations
amount to a continuing violation of Williams’ rights already asserted in the EEOC charge for
which he obtained a right to sue letter.
V. CON CLUSION
In light of the foregoing, the motion for summary judgment (Doc. 108) is GRANTED in
part and DENIED in part. The motion to exclude the expert report of Dr. Rose (Doc. 129) is
DENIED as premature and the motion for leave to file a third amended complaint (Doc. 138) is
GRANTED.
The court will issue a judgment in conformity with these findings.
BRR
THUS DONE AND SIGNED in Alexandria, Louisiana this -day of May, 2022.
DEE D. DRELL, SENIOR JUDGE
UNITED STATES DISTRICT COURT ’