Claude Williams v. Otis Elevator Company , 557 F. App'x 299 ( 2014 )

Case: 13-30584 Document: 00512533338 Page: 1 Date Filed: 02/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30584
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
February 14, 2014
CLAUDE WILLIAMS,
Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
OTIS ELEVATOR COMPANY,
Defendant–Appellee.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-57
Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Claude Williams sued his former employer Otis Elevator Company
alleging that he was discriminated against on the basis of his race and
subjected to retaliation in violation of Title VII of the Civil Rights Act of 1964
and various Louisiana anti-discrimination statutes. The district court
dismissed his claims and he now appeals. We affirm the dismissal of
Williams’s state and federal employment discrimination claims and dismiss for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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want of jurisdiction Williams’s appeal of the denial of his Rule 60(b) motion to
vacate the judgment.
I
Williams, an African-American male, was hired by Otis in May 2005. He
alleges that while he was employed by Otis, his supervisor, Randy Brown,
mounted a “campaign to have [him] fired.” Williams asserts that he was
“treated differently from his Caucasians [sic] co-workers” and that Brown
favored Caucasian employees by not “writing them up” for legitimate,
workplace infractions. In September 2008, Otis denied Williams’s request of a
“primo” route that would have come with better pay. He alleges that he was
denied this route because of his race and that instead the route was given to a
less-qualified, newly hired Caucasian employee. Williams reported this
treatment to his union, and as a result, he alleges that Otis retaliated against
him by altering his route “to less favorable conditions” and “subject[ing] [him]
to a series of . . . unwarranted write ups.” On November 2, 2010, Otis
terminated Williams’s employment.
On August 4, 2011, Williams filed a Charge of Discrimination with the
Equal Opportunity Employment Commission (EEOC). The EEOC charge
alleged that he had been terminated as a result of racial discrimination. He
then filed this suit on January 25, 2013, contending that Otis violated Title VII
of the Civil Rights Act, 1 the Louisiana anti-discrimination statute, 2 and the
Louisiana whistleblower statute. 3
The district court granted Otis’s motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). The district court held that Williams’s state law
1 42 U.S.C. § 2000e-2.
2 LA. REV. STAT. ANN. §§ 23:301-23:369.
3 LA. REV. STAT. ANN. § 23:967.
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anti-discrimination and whistleblower claims were time-barred because they
were brought, respectively, outside of the eighteen month and one-year
prescriptive periods established by Louisiana law. 4 The district court also
dismissed Williams’s Title VII claim. First, it stated that any allegedly
discriminatory conduct that took place more than 300 days before Williams
filed his EEOC charge, on August 4, 2011, could not serve as the basis for his
Title VII claim. 5 Thus, only those allegations of discrimination that took place
between October 8, 2010, and November 2, 2010, the date he was terminated,
were timely. Second, it held that regardless of which allegations were timely
or not timely, his Title VII claims were impermissibly outside of the scope of
his EEOC charge and therefore had to be dismissed because he had failed to
exhaust his administrative remedies.
After the order granting the motion to dismiss, Williams filed a Rule
60(b) motion to vacate the judgment on the grounds that one of the three
attorneys listed on the briefing for Otis in the district court had engaged in the
unauthorized practice of law because he was not admitted to practice before
the Middle District of Louisiana and had failed to file a pro hac vice motion
until after the motion to dismiss was granted. The district court denied this
motion. Williams now appeals raising only two issues: first, that the
continuing tort doctrine permits him to bring his otherwise time-barred federal
and state claims; and second, that the order granting the motion to dismiss
should be vacated because of the allegedly unauthorized practice of law by one
of Otis’s attorneys.
4A prescriptive period is the civil law equivalent of a statute of limitations. Ikossi-
Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 552 n.15 (5th Cir. 2009).
5 See 42 U.S.C. § 2000e-5(e)(1).
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II
We review the grant of a motion to dismiss de novo. 6 To survive a motion
to dismiss, a complaint must contain sufficient facts to support a claim to relief
that is plausible on its face. 7
III
Williams’s first point of appeal is that the district court erred in failing
to apply the continuing tort doctrine to his Louisiana state claims. Under
Louisiana law, “[w]hen tortious conduct and resulting damages are of a
continuing nature, prescription does not begin until the conduct causing the
damages is abated.” 8 For the continuous tort doctrine to apply, “the operating
cause of the injury [must] be a continuous one which results in continuous
damages.” 9 It does not apply if “the complained of actions by the defendant
were simply the continued ill effects that arose from a single tortious act.” 10
Williams alleges that the doctrine applies because he continues to accrue
damages from the alleged actions of Otis, including that he has been “unable
to find work with his Union, continues to have marital difficulties which [sic]
are heading towards divorce, and other family problems.” But this confuses
the function of the continuous tort doctrine. It does not suspend the statute of
limitations indefinitely for discrete acts of discrimination simply because the
ripple effects of those acts cause lingering harm. It is the tort that must be
continuous, not the repercussions of that tort. A “continuing tort is occasioned
6 Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010).
7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
8 First Nat’l Bank v. Smith, 29-350, p. 4 (La. App. 2 Cir. 4/2/97); 691 So. 2d 355, 358.
9 Crump v. Sabine River Auth., 98-2326, p. 7 (La. 6/29/99); 737 So. 2d 720, 726.
10Cooper v. La. Dep’t of Pub. Works, 03-1074, p. 6 (La. App. 3 Cir. 3/3/04); 870 So. 2d
315, 323 (citing Crump, 737 So. 2d at 728-29).
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by [the continual] unlawful acts, not the continuation of the ill effects of an
original, wrongful act.” 11
Even if the alleged torts had been continuous, however, Williams’s state
law claims would still be time-barred. The Louisiana anti-discrimination
statute has a prescriptive period of one year, which can be suspended for a
maximum of six months during the pendency of a state or federal
administrative investigation. 12 The Louisiana whistleblower statute does not
have a statute-specific prescriptive period but Louisiana courts typically apply
the general one-year statute of limitations to these claims. 13 There is no
comparable six-month tolling provision in the event of an administrative
investigation. 14 In this case, the allegedly discriminatory conduct abated when
Williams was terminated—over two years before Williams filed his suit.
Therefore, his Louisiana state claims would nevertheless be time-barred by the
applicable prescription statutes, of eighteen and twelve months, even if the
continuing tort doctrine applied.
IV
Williams also alleges that the district court erred in failing to apply the
substantially similar federal continuing violation doctrine to his Title VII
claim. The district court held that Williams could not base his Title VII claim
on any acts of discrimination that occurred before October 8, 2010, 300 days
before he filed his EEOC charge. Absent the application of the continuing
11In re Med. Review Panel for the Claim of Moses, 00-2643, p. 16 (La. 5/25/01); 788 So.
2d 1173, 1183 (alteration in original).
12 LA. REV. STAT. ANN. § 23:303(D).
13 Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 01-175, p. 12 (La. App. 5 Cir.
6/27/01); 790 So. 2d 725, 733 (“Absent any specification within [§ 23:967], [the] cause of action
. . . is subject to the general one-year prescriptive period for delictual actions.”); see also
Langley v. Pinkerton’s Inc., 220 F. Supp. 2d 575, 581 (M.D. La. 2002).
14 See LA. REV. STAT. ANN. § 23:967; Langley, 220 F. Supp. 2d at 581.
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violation doctrine, claims based on these acts would be time-barred by the
application of 42 U.S.C. § 2000e-5(e)(1). 15 Federal employment law recognizes
a continuing violation doctrine for the purpose of “reliev[ing] a plaintiff of
establishing that all of the complained-of 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.” 16 To succeed, Williams would
have to “show an organized scheme leading to and including a present
violation, such that it is the cumulative effect of the discriminatory practice,
rather than any discrete occurrence, that gives rise to the cause of action.” 17
Williams alleges that this doctrine applies on the basis that his discrimination
was continuous and that he continues to accrue damages.
It is unlikely that Williams has alleged sufficient facts in support of his
continuing violation theory to survive a motion to dismiss. Nothing in his
complaint seems to suggest a continuous, organized scheme on the part of
Otis. 18 But we decline to decide the issue because our resolution of it would be
fruitless. The district court dismissed the Title VII claim in its entirety—not
just the possibly time-barred factual allegations—because the claim fell
outside of the scope of Williams’s EEOC charge. The district court held that
the charge was “generalized and insufficient” and that therefore Williams had
15 See, e.g., Mack v. John L. Wortham & Son, L.P., No. 12-20798, 2013 WL 4758052,
at *6 (5th Cir. Sept. 5, 2013) (“Thus, though the effects of an allegedly discriminatory act may
persist, a claim based on that act is not actionable under Title VII if the act occurred more
than 300 days before the charge was filed.” (citing Del. State Coll. v. Ricks, 449 U.S. 250, 257-
59 (1980))).
16Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir. 1998) (quoting Messer v. Meno, 130
F.3d 130, 134-35 (5th Cir. 1997)).
17 Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001).
18See id. (“[A] one-time employment event, including the failure to hire, promote, or
train and dismals or demotions, is ‘the sort of discrete and salient event that should put the
employee on notice that a cause of action has accrued.’” (quoting Huckabay, 142 F.3d at 240)).
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failed to exhaust his administrative remedies. 19 On appeal, however, Williams
fails to challenge or even mention this portion of the district court’s holding.
Where an appellant challenges only one of the district court’s alternative
holdings, the argument that the other alternative holding was in error is
waived. 20 Therefore, the appeal on this issue necessarily fails and the district
court’s dismissal of his Title VII claims must stand. 21
V
As the final point of appeal, Williams alleges that the district court
abused its discretion in denying his Federal Rule of Civil Procedure 60(b)
motion to vacate the judgment. Williams filed a motion to vacate the judgment
on the grounds that one of the three attorneys for Otis had engaged in the
unauthorized practice of law because he had been listed on the briefing without
having filed a motion for pro hac vice admission to the Middle District of
Louisiana. We cannot reach the merits of this claim because we lack appellate
jurisdiction to consider the district court’s denial of the motion.
The Supreme Court has ruled that the timely notice of appeal is a
jurisdictional requirement for which we cannot fashion equitable exceptions. 22
In order to challenge an order that was subsequent to the final judgment in a
case an appellant must amend his notice of appeal. 23 “A party intending to
19 See Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (“[T]he
‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination.”).
20 R.R. Mgmt. Co. v. CFS La. Midstream Co., 428 F.3d 214, 220 n.3 (5th Cir. 2005)
(citing N.W. Enters., Inc. v. City of Hous., 352 F.3d 162, 185-86 (5th Cir. 2003)); see also United
States v. Hatchett, 245 F.3d 625, 644-45 (7th Cir. 2001) (failing to address one of two or more
alternative holdings on an issue waives claims of error with respect to that issue).
21See Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 809 n.17 (5th Cir. 2006)
(“Because they do not raise this argument in their briefs on appeal, it is waived.”).
22 Bowles v. Russell, 551 U.S. 205, 214 (2007).
23 Funk v. Stryker Corp., 631 F.3d 777, 781 (5th Cir. 2011).
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challenge an order disposing of [a Rule 60 motion] . . . must file a notice of
appeal, or an amended notice of appeal—in compliance with Rule(3)(c).” 24 Rule
3(c) requires that this notice or amended notice “designate the judgment, order,
or part thereof being appealed.” 25 Williams’s notice of appeal in the present
case was filed before the district court issued its order on his Rule 60(b) motion.
But Williams never filed a second notice of appeal or amended his notice of
appeal to indicate that he was appealing the district court’s order on the Rule
60 motion.
It is true that we construe the requirement of a new or amended notice
of appeal liberally and have held that “a brief may serve as the functional
equivalent of an appeal if it is filed within the time specified by [Rule] 4 and
gives the notice required by [Rule] 3.” 26 But this still requires that the opening
brief that first raises the issue be filed within thirty days. 27 In this case, the
district court’s order issued on June 6, 2013. Williams’s opening brief was not
filed until August 12, 2013. This falls outside of the thirty-day window and
thus we have no jurisdiction to consider whether the district court properly
denied his Rule 60(b) motion.
* * *
The district court’s dismissal of Williams’s state and federal employment
law claims is AFFIRMED, and the appeal from the denial of the motion to
vacate is DISMISSED for want of jurisdiction.
24 FED. R. APP. P. 4(a)(4)(B)(ii); see also Taylor v. Johnson 257 F.3d 470, 474-75 (5th
Cir. 2001) (“In general, we require a separate notice of appeal to preserve the issue for our
review.”).
25 FED. R. APP. P. 3(c)(1)(B).
26 Taylor, 257 F.3d at 475 (internal quotation marks omitted).
27Id.; FED. R. APP. P. 4(a)(1)(A) (“In a civil case . . . the notice of appeal required by
Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order
appealed from.”).
8