Tang v. Eaton Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DAVID TANG, )

)

Plaintiff, )

)

v. ) Case No. 4:22-CV-1116 PLC

)

EATON CORPORATION, )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on (1) Plaintiff David Tang’s Motion to Alter or Amend

Judgment [ECF No. 27] and (2) Defendant Eaton Corporation’s Motion to Strike Plaintiff’s Reply

to the motion or, in the alternative, Motion for Leave to File Sur-Reply in Opposition [ECF No.

37]. Plaintiff asserts he is entitled to relief under Federal Rule of Civil Procedure 59(e) because

the Court’s May 16, 2023 Judgment contained a “‘manifest error of law’ in its citations with

respect to Bazemore v. Friday, 478 U.S. 385, 395 (1986)” and in concluding that Plaintiff’s Charge

of Discrimination (the “Charge”) was untimely filed with the Equal Employment Opportunity

Commission (the “EEOC”). [ECF No. 27] Defendant opposes Plaintiff’s motion contending the

Court’s ruling is consistent with controlling precedent and that Plaintiff has failed to demonstrate

a cognizable basis for reconsideration of the Court’s ruling. [ECF No. 29]

In his reply, Plaintiff asserts, for the first time, that his Charge was timely filed because the

Charge and complaint “[t]aken as a whole…state a claim of hostile work environment that was

ongoing and continuous[.]” [ECF No. 36] Defendant filed a Motion to Strike Plaintiff’s Reply or,

in the alternative, a Motion for Leave to File a Sur-Reply in Opposition. [ECF No. 37] Defendant

requests that the Court strike Plaintiff’s reply for improperly asserting a new argument or, in the

alternative, grant Defendant leave to file a sur-reply to address Plaintiff’s newly raised hostile work

environment claim. [ECF No. 37] Plaintiff opposes Defendant’s Motion to Strike, requesting the

Court dismiss Defendant’s motion because it failed to file a separate memorandum in support of

the motion as required by Local Rule 4.01(A). [ECF No. 44] For the reasons set forth below, the

Court denies Plaintiff’s Motion to Alter or Amend the Judgment [ECF No. 27] and denies as moot

Defendant’s Motion to Strike or, in the alternative, Motion for Leave to File Sur-Reply in

Opposition [ECF No. 37].

I. Background

On December 17, 2018, after terminating Plaintiff’s employment several weeks earlier,

Defendant reinstated Plaintiff but placed him in a lower position. [ECF No. 1, ¶ 10 -12, Ex. A]

On April 26, 2019, Plaintiff’s shift supervisor recommended to Defendant’s plant manager that

Plaintiff be reinstated into his former position. [ECF No. 1, ¶14] Defendant nevertheless

maintained Plaintiff in the lower position. [Id. at ¶ 15]

On February 25, 2020, Plaintiff filed a charge with the EEOC alleging Defendant

discriminated against Plaintiff on the basis of age and national origin. [Id. at ¶ 15, Ex. A] In the

charge, Plaintiff checked the box for “continuing action” and alleged he was the victim of

“continuing and ongoing discrimination” beginning December 17, 2018, the date Defendant

reinstated Plaintiff’s employment in a lower position. [ECF No. 1 at ¶ 3, Ex. A] Plaintiff included

factual allegations related to his termination and reinstatement, specifically alleging he was

reinstated at a lower position due to his age and national origin. [ECF No. 1, Ex. A]

After the EEOC issued a “Right to Sue” letter, Plaintiff filed a complaint in this Court

bringing claims of national origin discrimination pursuant to Title VII of the Civil Rights Act of

1964 (Title VII), 42 U.S.C. § 2000e, et seq., and age discrimination pursuant to the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et seq. [ECF No. 1] Plaintiff

alleged he was “the subject of ongoing and continuous age and national origin discrimination by

Defendant.” [Id. at ¶ 8] Specifically, Plaintiff asserted he was demoted to “less desirable work”

and kept in this position after his supervisor’s April 2019 communication to Defendant’s plant

manager based on his age and national origin.1 [ECF No. 1, ¶13-16] Plaintiff also alleged that

some of Defendant’s employees, including Plaintiff’s supervisors, were “[i]n continuous and

ongoing fashion…overly [sic] racist, offensive, harsh, and critical of Plaintiff’s age and national

origin” and that “[b]ased on comments and prejudices regarding Plaintiff’s age and national origin,

Plaintiff was clearly the target of continuous and ongoing negative behaviors because of age and

national origin discrimination by Defendant and its employees and supervisors.” [ECF No. 1, ¶¶

9, 13]

Defendant moved to dismiss Plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(6),

contending Plaintiff’s claims were time-barred because he failed to file his discrimination Charge

within 300 days after the alleged acts of discrimination as required by 42 U.S.C. §2000e-5(e)(1)

and 29 U.S.C. §626(d)(1)(B). [ECF No. 4 at ¶¶ 2, 3, 4] Specifically, Defendant contended (1)

Plaintiff’s December 2018 reinstatement to a lower position was an alleged discrete act of

discrimination that occurred outside of the 300-day limitations period, and (2) Plaintiff’s

continuation in that position after his supervisor recommended Plaintiff’s reinstatement to his

former position in April 2019 letter was not an adverse employment action and, to the extent it

could be construed as such, was also outside the limitations period. [ECF No. 4 & 5] Defendant

also argued that, to the extent Plaintiff was attempting to assert a claim for hostile work

1 Although Plaintiff’s Charge and complaint include facts related to his termination, he

did not allege that his termination was discriminatory or seek any relief related to this event.

[ECF No. 1, Ex. A]

environment, Plaintiff’s claim should be dismissed for failing to exhaust his administrative

remedies by including factual allegations supporting the claim in the Charge. [ECF No. 5]

Plaintiff responded that his Charge was timely filed because the alleged discrimination was

“ongoing and continuous[,]” in that “[e]very day Plaintiff [was] on that lower job [was] another

event of ‘ongoing and continuous’ discrimination.” [ECF No. 17, ¶¶ 5, 7, 9] Plaintiff further

argued there was a reasonable inference that Defendant made a discriminatory “employment

‘determination’” after his supervisor’s April 2019 reinstatement recommendation. [Id.] Plaintiff

did not cite to any legal authority supporting his assertion that an employee’s continuation in a

lower position constituted an ongoing violation. [ECF No. 17] Plaintiff also did not respond to

Defendant’s argument that Plaintiff failed to exhaust his administrative remedies with respect to

any potential hostile work environment claim. [ECF No. 17]

The Court held a hearing on the motion to dismiss. At the hearing, Defendant reiterated

that Plaintiff failed to exhaust his administrative remedies in connection with a hostile work

environment claim. Plaintiff did not respond to this argument or assert that his Charge was a timely

because it raised an ongoing and continuous claim of hostile work environment. Instead, Plaintiff

relied on language from a United States Supreme Court decision, Bazemore v. Friday, 478 U.S.

385, 395 (1986), stating that “[e]ach week’s paycheck that delivers less to a black than to a

similarly situated white is a wrong actionable under Title VII…[,]” and asserted this language

supported a finding that Plaintiff was suffering from a new, actionable violation every two weeks

when he is paid a decreased salary resulting from his December 2018 reinstatement in a lower

position.

On May 16, 2023, the Court dismissed Plaintiff’s complaint finding he failed to timely file

his Charge. [ECF No. 25] Specifically, the Court found that Plaintiff’s reinstatement to a lower

position on December 17, 2018 was a discrete act that occurred outside of the 300-day limitations

period. [ECF No. 25] The Court also found that Plaintiff failed to allege an adverse employment

decision as a result of Plaintiff’s supervisor’s recommendation to reinstate Plaintiff to his former

position on April 26, 2019, much less that Defendant made an discriminatory decision more than

6 days later within the statutory deadline. [ECF No. 25] The Court rejected Plaintiff’s contention

that the discrimination was “ongoing and continuous” and, thus, not subject to the statute of

limitations by virtue of his continuation in the lower position. In doing so, the Court found the

language relied upon by Plaintiff from Bazemore was inapplicable to Plaintiff’s case and

inconsistent with Supreme Court precedent in National Railroad Passenger Corporation v. Morgan,

536 U.S. 101 (2002), which specifically addresses the timeliness of EEOC charges of

discrimination for discrete acts. The Court also observed that “[h]ostile work environment claims

are the exception to the bar on the consideration of discriminatory actions that occur outside the

statutory period” but that it was not addressing the issue because Plaintiff “does not raise a hostile

work environment claim[.]” [ECF No. 25, pg. 3, fn. 2; pg. 6]

In his current motion, Plaintiff asserts he is entitled to relief under Rule 59(e) because the

Court’s May 16, 2023 Judgment contained a “‘manifest error of law’ in its citations with respect

to Bazemore v. Friday, 478 U.S. 385, 395 (1986) and with respect to its judgment that Plaintiff’s

EEOC charge was not timely filed.” [ECF No. 27]

II. Legal Standard

Federal Rule of Civil Procedure 59(e) was adopted to clarify a district court’s power to

correct its own mistakes in the time period immediately following entry of judgment. Norman v.

Arkansas Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996) (citing White v. New Hampshire Dep’t

of Employment Sec., 455 U.S. 445 (1982)). “Rule 59(e) motions serve a limited function of

correcting ‘manifest errors of law or fact or present[ing] newly discovered evidence.’” Innovative

Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.

1998) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th Cir. 1988)). Therefore,

a Rule 59(e) motion must be based on one of three grounds: “(1) an intervening change in

controlling law; (2) the availability of new evidence not available previously; or (3) the need to

correct a clear error of law or prevent manifest injustice.” Clayton v. Dejoy, No. 4:18-CV-01039-

JAR, 2020 WL 7625010, at *1 (E.D. Mo. Dec. 22, 2020), aff’d, 854 F. App’x 772 (8th Cir. 2021)

(quoting Bannister v. Armontrout, 807 F. Supp. 516, 556 (W.D. Mo. 1991), aff’d, 4 F.3d 1434 (8th

Cir. 1993)). The Court has broad discretion in determining whether to grant a Rule 59(e) motion

to alter or amend the judgment. Innovative Home Health Care, Inc., 141 F.3d at 1286.

III. Discussion

A. Plaintiff’s Rule 59(e) Motion to Alter or Amend the Judgment

In his Rule 59(e) motion, Plaintiff contends the Court “made a ‘manifest error of law’ of

its citations with respect to Bazemore v. Friday, 478 U.S. 385, 395 (1986) and with respect to its

judgment that Plaintiff’s EEOC charge was not timely filed.” [ECF No. 27] Defendant opposes

Plaintiff’s motion contending the Court’s ruling is consistent with controlling precedent and that

Plaintiff has failed to demonstrate a cognizable basis for reconsideration of the Court’s ruling.

[ECF No. 29]

1. The Court’s interpretation of Bazemore

Plaintiff contests the Court’s finding that the language Plaintiff cited from Bazemore was

out of context and inapplicable to the case, and as well as inconsistent with subsequent Supreme

Court precedent addressing the timeliness of EEOC charges of discrimination for discrete acts.

[ECF Nos. 27 & 28] Specifically, Plaintiff argues he “fails to see how…[Bazemore’s] language

cuts off Plaintiff’s assertion that…each paycheck is a wrong actionable under Title VII” and asserts

that additional language from Bazemore “is even more convincing in support of Plaintiff.” [ECF

No. 28]

The excerpt relied upon by Plaintiff from Bazemore, comes from Section II, Subsection A

of the opinion, which provides in relevant part:

The first issue we must decide is whether the Court of Appeals erred in

upholding the District Court’s finding that petitioners had not proved by a

preponderance of the evidence that respondents had discriminated against black

Extension Service employees in violation of Title VII by paying them less than

whites employed in the same positions. The Court of Appeals reasoned that the

Extension Service was under no obligation to eliminate any salary disparity

between blacks and whites that had its origin prior to 1972 when Title VII became

applicable to public employers such as the Extension Service….

Both the Court of Appeals and the District Court found that before the

black and white Extension Service branches were merged in 1965, the Extension

Service maintained two separate, racially segregated branches and paid black

employees less than white employees….The Court of Appeals also acknowledged

that after the merger of the Extension Service, “[s]ome pre-existing salary

disparities continued to linger on,” and that these disparities continued after Title

VII became applicable to the Extension Service in March 1972 and after this suit

was filed….The court interpreted petitioners’ claim on appeal to be that “the pre-

Act discriminatory difference in salaries should have been affirmatively

eliminated but has not.” 751 F.2d, at 670. Relying on our cases in Hazelwood

School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768

(1977), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52

L.Ed.2d 571 (1977), it concluded, “[w]e do not think this is the law.” 751 F.2d, at

670.

The error of the Court of Appeals with respect to salary disparities created prior to

1972 and perpetuated thereafter is too obvious to warrant extended discussion:

that the Extension Service discriminated with respect to salaries prior to the time

it was covered by Title VII does not excuse perpetuating that discrimination after

the Extension Service became covered by Title VII. To hold otherwise would

have the effect of exempting from liability those employers who were historically

the greatest offenders of the rights of blacks. A pattern or practice that would have

constituted a violation of Title VII, but for the fact that the statute had not yet

become effective, became a violation upon Title VII’s effective date, and to the

extent an employer continued to engage in that act or practice, it is liable under

that statute. While recovery may not be permitted for pre-1972 acts of

discrimination, to the extent that this discrimination was perpetuated after 1972,

liability may be imposed.

Each week’s paycheck that delivers less to a black than to a similarly situated

white is a wrong actionable under Title VII, regardless of the fact that this pattern

was begun prior to the effective date of Title VII. The Court of Appeals plainly

erred in holding that the pre-Act discriminatory difference in salaries did not have

to be eliminated.

The Court of Appeals’ conclusion that pre-Act salary discrimination did not have

to be eliminated undermines the rest of its analysis of the District Court

opinion.… Because, as we have explained, the Extension Service was under an

obligation to eradicate salary disparities based on race that began prior to the

effective date of Title VII,[] the Court of Appeals erred in concentrating its

analysis solely on the issue whether there was racial discrimination in the ranking

system.

Bazemore, 478 U.S. at 394–96 (emphasis added).

At the hearing on the motion to dismiss, Plaintiff cited the italicized language in support

of his assertion that his reinstatement in a lower position results in ongoing and continuous

discrimination because he receives a lower paycheck. In the Court’s May 2023 Judgment, the

Court found that this language from Bazemore, “rejected the contention that Title VII did not

apply to current discriminatory compensation practices simply because those practices

commenced before Title VII was passed” and resolved “whether Title VII prohibited current

discriminatory conduct that originated in pre-Title VII discriminatory practices, not whether the

employees’ lawsuit was timely filed.” [ECF No. 25] The Court also found that Plaintiff’s

interpretation of Bazemore was inconsistent “with the Supreme Court’s subsequent holding in

Morgan which specifically addressed the timeliness of EEOC charges of discrimination for

discrete acts.” [ECF No. 25]

Plaintiff asserts the Court’s finding that the emphasized language “only applies to issues

of pre and post Title VII and not ongoing discrimination is an erroneous reading of Bazemore”

and that Bazemore “clearly says” “each paycheck is a wrong actionable under Title VII” and that

“if such discrimination was perpetuated after 1972, liability may be imposed.” [ECF No. 28, ¶4-

6] Plaintiff further contends the Court “cited [Morgan] for the idea that Morgan somehow

overruled the pertinent language in Bazemore.” [ECF No 28]

Once placed in context, it is clear that this section of Bazemore is, first and foremost,

reversing the lower court’s holding that an employer may escape liability for post-Act

discriminatory practices simply because the employer permitted its pre-Act discriminatory

practices to continue after the statute’s enactment. Furthermore, as noted by the Court in the May

2023 Judgment, Bazemore involved discriminatory pay practices. Bazemore, 478 U.S. at 394, 395

(deciding whether the employees had proven that their employer “had discriminated against black

Extension Service employees in violation of Title VII by paying them less than whites employed

in the same positions” and finding that “[e]ach week’s paycheck that delivers less to a black than

to a similarly situated white is a wrong actionable under Title VII”). See Tademe v. Saint Cloud

State University, 328 F.3d 982, 988-89 (8th Cir. 2003) (distinguishing salary discrimination from

discrete discriminatory acts for purposes of the statute of limitations). At no point has Plaintiff

claimed that Defendant engaged in discriminatory pay practices. Thus, Bazemore is largely

inapplicable to the case sub judice and, once placed in context, Plaintiff’s excerpted quotation from

Bazemore does not lend support to Plaintiff’s argument.

Furthermore, contrary to Plaintiff’s assertion, the Court did not conclude “that Morgan

somehow overruled the pertinent language in Bazemore.” Instead, the Court determined that

Plaintiff’s interpretation of Bazemore was inconsistent “with the Supreme Court’s subsequent

holding in Morgan which specifically addressed the timeliness of EEOC charges of

discrimination for discrete acts.” [ECF No. 25] This finding by the Court is not a suggestion that

Morgan overruled Bazemore, but a recognition that Bazemore and Morgan address different

issues and that Plaintiff’s case is governed by the precedent established in Morgan.

2. The Court’s Finding that Plaintiff’s Charge was Untimely Filed

Plaintiff further contends the Court erred in concluding that his Charge was not timely

filed. [ECF No. 28] Specifically, Plaintiff contends the Supreme Court’s decision in Morgan, 536

U.S. 112-13, holding that “[m]ere continuity of employment, without more, is insufficient to

prolong the life of a cause of action for employment discrimination” does not dictate a finding

that the Charge was untimely because his continued receipt of a lower paycheck constitutes

“more” than “mere continuity of employment” and transforms his case into one of ongoing and

continuing discrimination. [ECF No. 28] Plaintiff persists in confusing the timing of a

discriminatory act with the timing of the harm caused by a discriminatory act and his position is

inconsistent with the overwhelming precedent establishing that these are two distinct concepts.

As noted by the Court in the May 2023 Judgment:

The discriminatory act occurs when the employment decision is made and

communicated to the plaintiff and it is insufficient for a complainant to allege that

the past illegal act “gives present effect…and therefore perpetuates the

consequences of forbidden discrimination.” Ricks, 449 U.S. at 258 (quoting

United Air Lines, Inc. v. Evans, 431 U.S. 553, 557 (1977)). Thus, the Court’s

“proper focus is upon the time of the discriminatory act, not upon the time at

which the consequences of the acts became most painful.” Ricks, 449 U.S. at 258

(quoting Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir.1979)).

Similarly, the Eighth Circuit has held that the statute of limitations began to run

when the employment decision was made, “even though the effects of that

decision were felt much later.” Tademe, 328 F.3d at 988; see also High v. Univ.

of Minnesota, 236 F.3d 909, 909 (8th Cir. 2000) (noting the Eighth Circuit “has

never applied the continuing violations doctrine to a discrete act, such as failure to

promote”). [ECF No. 25]

Consistent with this precedent, as observed in the May 2023 Judgment, courts have

recognized that termination, demotion, failure to promote, denial of transfer, and refusal to hire

are discrete discriminatory acts that become actionable at the time they occurred. See ECF No.

25 citing to Morgan, 536 U.S. 101, 114 (termination, failure to promote, denial of transfer, and

refusal to hire are discrete discriminatory acts); Tademe, 328 F.3d at 988 (discrimination in

tenure and failure to promote are discrete discriminatory acts), Ross v. City of Independence,

Mo, 76 Fed. Appx. 108, 109 (8th Cir. 2003) (each decision not to promote is a discrete event);

Davis v. Lohr Distrib. Co, Inc., No. 4:18-cv-1437 HEA, 2019 WL 2053848, at *6 (E.D. Mo.

May 9, 2019) (“claims of discrimination as a result of being assigned less desirable routes,

failure to receive promotions, denial of vacation requests each were actionable at the time that

they occurred”); Borders v. Trinity Marine Products, Inc., No. 1:10-CV-00146 HEA, 2011 WL

1045560, at *3 (E.D. Mo. Mar. 17, 2011) (demotion, failure to promote, and denial of equal pay

are separate discrete discriminatory acts). Because Plaintiff has failed to demonstrate that the

Court made any manifest error of law with respect to its interpretation of Bazemore or its finding

that Plaintiff’s Charge was not timely filed, the Court denies Plaintiff’s Motion to Alter or

Amend the Judgment [ECF No. 27].

B. Defendant’s Motion to Strike

In his reply brief to his Motion to Alter or Amend the Judgment, Plaintiff asserts, for the

first time, that his Charge was timely filed because the Charge and complaint “[t]aken as a

whole…state a claim of hostile work environment that was ongoing and continuous[.]” [ECF No.

36] Defendant filed a Motion to Strike Plaintiff’s reply for improperly asserting a new argument

or, in the alternative, requests that the Court grant Defendant leave to file a sur-reply to address

Plaintiff’s newly raised hostile work environment claim. [ECF No. 37] Plaintiff opposes

Defendant’s Motion to Strike and requests that the Court dismiss Defendant’s motion because it

failed to file a memorandum in support of the motion as required by Local Rule 4.01(A). [ECF

No. 44] Defendant asks that the Court deny Plaintiff’s request to dismiss Defendant’s motion based

on its technical violation of Local Rule 4.01 because its motion provided substantive legal

authority and arguments required in the memorandum under Local Rule 4.01. [ECF No. 45]

“Absent some reason for failing to raise an argument in an opening brief, this court will

not consider an argument first raised in a reply brief.” United States v. Brown, 108 F.3d 863, 867

(8th Cir. 1997). See also Powell v. St. Francois Cnty., No. 4:14-cv-1230-AGF, 2016 WL 695674,

at *1 (E.D. Mo. Feb. 19, 2016) (“a court generally will not consider an issue raised for the first

time in a reply brief.”). Despite the fact that Plaintiff’s potential hostile work environment claim

was repeatedly raised and addressed by both Defendant and the Court during the motion to dismiss

proceedings, Plaintiff failed to acknowledge, much less discuss, the potential issue until asserting

it in his reply brief on his Motion to Alter or Amend the Judgment. Plaintiff has not offered any

justification for his failure to raise this issue either in response to the motion to dismiss or in his

initial brief on the Rule 59(e) motion. Furthermore, Plaintiff’s reply brief fails to present any

argument or answer to the issue initially raised by Defendant in its motion to dismiss, namely that

Plaintiff failed to exhaust any potential hostile work environment claim by alleging facts

supporting the claim in his Charge. Consequently, the Court declines to address the merits of

Plaintiff’s argument that his Charge was timely filed because it presents a hostile work

environment claim. Because the Court declines to address Plaintiff’s argument, the Court denies

as moot Defendant’s Motion to Strike Plaintiff’s Reply or, in the Alternative, Motion for Leave to

File Sur-Reply in Opposition [ECF No. 37].

IV. Conclusion

Accordingly, after careful consideration,

IT IS HEREBY ORDERED that Plaintiff’s Motion to Alter or Amend Judgment [ECF

No. 27] is DENIED.

IT IS FINALLY ORDERED that Defendant’s Motion to Strike Plaintiff's Reply or, in

the Alternative, Motion for Leave to File Sur-Reply in Opposition [ECF No. 37] is DENIED as

moot.

i oh ee

hives L Bho

PATRICIA L. COHEN

UNITED STATES MAGISTRATE JUDGE

Dated this 4th day of October, 2023.

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