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Carlow v. Chevron U.S.A., Inc.

United States District Court, S.D. Mississippi, Southern Division

March 15, 2017




         BEFORE THE COURT is the [19] Motion to Dismiss Plaintiff's Second Amended Complaint, filed by Chevron U.S.A., Inc. and joined by Chevron Corporation.[1] 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.


         Plaintiff Linda Carlow was employed as a temporary Console Operator Trainer by Chevron for approximately seven years.[2] 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 hotline. (Id.).

         Carlow 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.

         Chevron 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.


         1. The Legal Standard

         When 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.

         2. Timeliness of the Sex Discrimination Claim

         Carlow's 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).

         Before 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.

         The 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).

         Carlow 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 ...

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