United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
GUIROLA, JR. CHIEF U.S. DISTRICT JUDGE
THE COURT is the  Motion to Dismiss Plaintiff's
Second Amended Complaint, filed by Chevron U.S.A., Inc. and
joined by Chevron Corporation. Chevron asserts that
Plaintiff's Title VII complaint is time-barred or
otherwise fails to state a claim. Carlow has responded, and
Chevron has replied. After due consideration, it is the
Court's opinion that Carlow's allegations fail to
state claims against Chevron under Title VII, and those
claims should be dismissed with prejudice. The Court declines
to exercise supplemental jurisdiction of the state law
claims, and instead dismisses them without prejudice.
Linda Carlow was employed as a temporary Console Operator
Trainer by Chevron for approximately seven
years. Chevron converted the position to a
permanent salaried one, which Carlow was required to compete
with other candidates to retain. Carlow alleges that in early
March 2015, she learned she was not selected for either of
two permanent positions she applied for, even though she had
received excellent performance reviews and was
“eminently qualified.” (2d Am. Compl. 3, ECF No.
18). She alleges this was because she is a gay woman. On
March 6, 2015, she made a complaint of discrimination through
Chevron's HR hotline, because she “understood that
Chevron had no legitimate reason for denying her either
promotion and that it had made its employment decisions
solely because of her gender, sexual orientation and
non-conformity to sexual stereotyping.” (Id.
at 5). She alleges she learned on December 14, 2015, that her
personnel records were altered by her supervisors and/or
unknown persons to create a pretext for denying her a
permanent position as retaliation for contacting the HR
filed a charge of discrimination with the EEOC on December
28, 2015. (2d Am. Compl. Ex. A 3, ECF No. 18-1). She alleged
sex discrimination and retaliation, stating “I believe
I was not selected [for the position] because of my
sex.” The retaliation charge was that she was removed
from her temporary position as Console Operator Trainer and
transferred to the refinery approximately six weeks after her
complaint to the Chevron HR hotline. (Id.). Carlow
does not specify what position she now holds at the refinery,
but she alleges she is still employed there. (See 2d
Am. Compl. 13 (¶ 47), ECF No. 18). Carlow's Title
VII claims are for sex discrimination, retaliation, hostile
work environment and constructive discharge.
moves for dismissal of Carlow's claims under Fed.R.Civ.P.
12(b)(6), arguing that 1) the Title VII sex discrimination
claim is time-barred, and 2) the allegations do not state
Title VII claims for retaliation, hostile work environment or
constructive discharge, or any state law claim.
The Legal Standard
considering a motion to dismiss under Rule 12(b)(6), the
Court must accept all well-pleaded facts as true and view
those facts in the light most favorable to the plaintiff.
Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th
Cir. 2010). However, “[f]actual allegations must be
enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Whether this standard
has been met is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
Timeliness of the Sex Discrimination Claim
charge of discrimination was dismissed by the EEOC because it
was not timely filed. (2d Am. Compl. Ex. B, ECF No. 18-2). As
noted above, she had alleged discrimination on March 4, 2015,
the date she was informed she had not been selected for a
permanent position, and retaliation at “the end of
April 2015” for having contacted Chevron's HR
hotline with a discrimination complaint. (2d Am. Compl. Ex. A
3, ECF No. 18-1).
instituting a Title VII action in federal district court, a
private plaintiff must file a charge of discrimination with
the EEOC against the discriminating party within 180 days of
the alleged discrimination and receive statutory notice of
the right-to-sue the respondent named in the charge. 42
U.S.C. § 2000e-5(e); Nilsen v. City of Moss
Point, 621 F.2d 117 (5th Cir. 1980). “If an EEOC
charge is untimely filed, a suit based upon the untimely
charge should be dismissed.” Barrow v. New Orleans
S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir.1991);
see also Kirkland v. Big Lots Store, Inc., 547
F.App'x 570, 573 (5th Cir. 2013). The operative date from
which the limitations period begins to run is the date of
notice of the adverse action. See Hartz v. Adm'rs of
the Tulane Educ. Fund, 275 F.App'x 281, 287 (5th
Cir. 2008). So, Carlow had 180 days from on or about March 4,
2015, or until on or about August 31, 2015, to file a charge
of discrimination with the EEOC, and 180 days from April 30,
2015, or until on or about October 27, 2015, to file a charge
of retaliation. See Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002) (“Each incident
of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable unlawful
employment practice.”). Carlow's charge, received
by the EEOC on December 28, 2015, was plainly late as to both
sex discrimination and retaliation.
timely filing of an EEOC charge is “not a
jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject
to waiver, estoppel and equitable tolling.” Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982).
Though courts apply the doctrine of equitable tolling
“sparingly, ” three possible bases have been
described: (1) the pendency of a suit between the same
parties in the wrong forum; (2) plaintiff's unawareness
of the facts giving rise to the claim because of the
defendant's intentional concealment of them; and (3) the
EEOC's misleading the plaintiff about the nature of her
rights. Granger v. Aaron's, Inc., 636 F.3d 708,
712 (5th Cir. 2011). It is well established, however, that an
employee's ignorance of the law cannot justify tolling.
See Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir.
2002). A litigant seeking equitable tolling must also show
they have been diligently pursuing their rights. See Pace
v. DiGuglielmo, 544 U.S. 408, 418 (2005).
argues that equitable tolling should apply in this case
because 1) the delay in filing her charge was brief; 2)
Chevron concealed the contents of her employee file until
December 14, 2015, so she did not know that false information
had been added to justify its decision; 3) she was pro se at
the time of filing her charge; and 4) the EEOC's charge