Barr v. Stripes

Case: 21-20278 Document: 00516271441 Page: 1 Date Filed: 04/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 7, 2022
No. 21-20278 Lyle W. Cayce
Clerk
Sam Barr,
Plaintiff—Appellant,
versus
Stripes L.L.C.;
Energy Transfer Partners L.P./Sunoco L.P.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-296
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:*
Sam Barr accuses his former employer, Stripes LLC, of discriminating
against him because of his age, creating a hostile work environment, and
retaliating against him in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and Chapter 21 of the Texas Labor
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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Code. Following Barr’s case-in-chief at trial, the district court granted
Stripes’s motion for judgment as a matter of law, finding that Barr failed to
exhaust his administrative remedies for his state claims and failed to timely
file his federal claims. For the following reasons, we AFFIRM.
BACKGROUND
I. The Alleged Age Discrimination
Sam Barr worked for Stripes as a stocker at one of its gas station
convenience stores from October 2010 until he was terminated on March 3,
2016. Unsurprisingly, both parties provide vastly different theories regarding
the reason for Barr’s termination. Stripes asserts that management
terminated Barr for multiple performance deficiencies. But Barr argues that
these “performance deficiencies” were pretext for the real reason for his
termination, which was his age. 1
Barr worked at the company’s “flagship” location. Because this
location generated much of the company’s business, it caught management’s
attention when the store was not performing well. To redress this issue,
Stripes replaced the store’s management in the spring of 2015. Tim Foster
took over as General Manager and Theresa Ferm took over as Assistant
General Manager.
Barr contends that, prior this management change, he had a very
successful career at Stripes, during which he received employee awards and
was never reprimanded or disciplined. But that all changed shortly after
Foster and Ferm began their tenures. Barr alleges that, from the very
beginning, Ferm repeatedly berated and insulted him about his age and
general slowness. She supposedly told him that he needed to quit so that she
1
Barr was 63 years old at the time of his termination.
2
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could hire a 19-year-old at minimum wage. When he would not quit, she
allegedly cut his hours, causing him to lose his benefits.
Barr claims that he complained to human resources on multiple
occasions for his mistreatment and reduced hours. He also visited the Texas
Workforce Commission (“TWC”) on July 1, 2015 to apply for partial
unemployment when his hours were reduced. Even though he eventually got
his hours and benefits restored, he claims that Ferm’s hostile treatment
intensified and became “chronic.”
Despite a previously clean record, Barr was written up four times in
the months that ensued, eventually resulting in his termination. Ferm first
wrote Barr up for failing to stock disposable hand towels in the dispensers at
the gas pumps. Five months later, Ferm wrote Barr up a second time for
taking a break even though the soda fountain drink dispenser needed to be
restocked with 44-oz cups. Days later, Tim Foster wrote Barr up for failing
to stock the Coca-Cola cooler at the beginning on his morning shift. On
March 3, 2016, Foster wrote Barr’s final write-up, which was also his
termination notice. Barr supposedly failed to organize crates after Foster had
instructed him to. Barr challenges the legitimacy of each of these write-ups,
suggesting that they were pretextual and that his termination was actually
motivated by his age and his complaints to human resources.
II. Administrative Remedies
Immediately after his termination, Barr filed a claim with the TWC
for unemployment benefits. Although the TWC process primarily addressed
Barr’s eligibility for unemployment benefits, the TWC records did
acknowledge his claims of age discrimination. But nothing in the TWC
records indicated that Barr intended to pursue claims of discrimination or
that he authorized the TWC to investigate his allegations.
3
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Barr filed an intake questionnaire with the EEOC in November 2016, 2
on which he indicated his intent to pursue claims of discrimination and
provided his authorization for the EEOC to investigate further. All parties
agree that this questionnaire qualifies as an administrative complaint to the
EEOC and TWC for purposes of federal and state law. 3 After its
investigation, the EEOC concluded that Barr was “terminated for
performance issues which [he] had been warned about” and that there was
insufficient evidence to suggest that Foster or Ferm were motivated by age
2
In the district court, the parties disputed whether this intake questionnaire was
the first complaint that qualified as a charge of discrimination. On August 8, 2016, the
EEOC received an initial intake questionnaire from Barr, but he failed to check the box
indicating that he intended to pursue claims of discrimination and that he wanted the
EEOC to investigate. This was a necessary feature for the questionnaire to count as a
charge of discrimination. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402, 128 S. Ct.
1147, 1157–58 (2008). After the EEOC informed him that he needed to complete this
aspect of the form, Barr allegedly returned to the EEOC and completed the form. In an
affidavit, he attests that he did so within two weeks of initially submitting the questionnaire.
But the official EEOC records suggested otherwise. Because of the conflicting evidence,
the trial judge determined at the summary judgment stage that this conflict ultimately
posed a fact question for the jury. At trial, however, the district court refused to admit the
checked questionnaire because Barr failed to adequately authenticate it.
It is unclear whether Barr challenges this ruling on appeal. On the one hand, he
repeatedly admits that the “uncontroverted evidence” shows that November 29, 2016 is
the date on which he filed his charge of discrimination. Yet, confusingly, he also complains
about the district court’s refusal to admit the checked-August questionnaire into evidence.
Ultimately, Barr asserts no substantive argument as to why the district court’s exclusion
was improper and, thus, the court declines consider the issue. United States v. Avants,
367 F.3d 433, 442 (5th Cir. 2004) (parties forfeit inadequately briefed evidentiary
objections).
3
Holowecki, 552 U.S. at 402, 128 S. Ct. at 1157–58; 40 TEX. ADMIN.
CODE § 819.71(2) (“For a complaint filed with EEOC and deferred to [TWC’s Civil
Rights Division], timeliness of the complaint shall be determined by the date on which the
complaint is received by EEOC.”).
4
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when they terminated him. It issued a right-to-sue letter on June 29, 2017,
which Barr claimed to have received on July 6, 2017.
III. Procedural History
Barr filed a complaint in Texas state court 88 days after receiving his
right-to-sue letter. But his complaint failed to reference any state or federal
statute. Rather, it simply accused Stripes of “age discrimination in violation
of the law.” Accordingly, Stripes filed a special exception seeking
clarification regarding the basis of Barr’s claims. Barr soon thereafter
amended his complaint to include claims under state law only. Months later,
he amended his complaint a second time to include claims under the ADEA.
As discussed below, these events proved dispositive in the district
court. Thus, for clarity, the relevant timeline is reproduced as follows.
March 3, 2016: Stripes terminated Barr.
March 3, 2016: Barr filed a claim with the TWC for
unemployment benefits and tangentially mentioned his
discrimination complaints.
November 29, 2016 (271 days after termination): Barr filed
an administrative complaint with the EEOC and the TWC.
June 29, 2017: The EEOC issued a notice of dismissal to Barr
(i.e., his right-to-sue letter), which notified him that he “must”
file a lawsuit “within 90 days of the date you receive this
Notice.”
July 6, 2017: Barr presumptively received his right-to-sue
letter.
October 2, 2017 (88 days after receipt of right-to-sue letter):
Barr filed a complaint in Texas state court. He accused Stripes
of “age discrimination in violation of the law,” but did not cite
to a specific statutory provision—state or federal—under
which Barr sought relief.
5
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November 10, 2017: Stripes files a special exception seeking
clarification of the basis of Barr’s lawsuit.
November 21, 2017 (138 days after receipt of right-to-sue
letter): Barr filed an amended complaint, specifying that he
sought relief under Chapter 21 of the Texas Labor Code.
January 16, 2018 (194 days after receipt of right-to-sue
letter): Bar filed a second amended complaint, adding claims
under the ADEA.
Stripes removed Barr’s suit to federal court once he added the federal
claims. Stripes moved to dismiss and, later, for summary judgment, alleging
that Barr had failed to timely exhaust his administrative remedies and that his
federal claims were untimely. Specifically, it alleged that Barr (i) failed to
timely file his administrative complaint with the TWC for purposes of his
state claims; and (ii) that he further failed to file suit under the ADEA within
90 days of receiving his notice of dismissal from the EEOC. The district
court denied both motions, concluding that there were fact issues underlying
both questions best resolved by a jury. 4
The case went to trial. After Barr presented his case-in-chief, Stripes
moved for judgment as a matter of law under Federal Rule of Civil Procedure
50 on the same grounds it sought summary judgment and dismissal.
Alternatively, Stripes also argued that Barr’s evidence was insufficient to
prove his claims on the merits. The court orally granted the Rule 50 motion
based on “several grounds, each of which” it determined “[was]
dispositive.”
First, the court held that Barr failed to timely exhaust his state-law
claims and, as a result, those claims were barred. Moreover, because the state
claims were unexhausted, the original state complaint was not a viable means
4
See supra note 2.
6
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for relating the federal claims back. In other words, the federal claims—
which were asserted after the 90-day deadline—could not relate back to this
failed complaint. 5 Second, the court listed a number of reasons why the
discrimination claim failed on the merits, including the fact that there was
“no showing of a comparator in the Stripes workplace,” “no showing of
retaliation,” and no showing of the minimum required “harassment.” Barr
moved for a new trial under Federal Rule of Civil Procedure 59, which the
district court denied. Barr timely appealed the grant of Stripes’s Rule 50
motion and the denial of his Rule 59 motion.
STANDARD OF REVIEW
We review the district court’s grant of Stripes’s Rule 50 motion de
novo. Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1112 (5th Cir.), cert.
denied, 142 S. Ct. 101 (2021). “Judgment as a matter of law is appropriate if
there is no legally sufficient evidentiary basis for a reasonable jury to find for
a party on an issue.” Id. (quoting Industrias Magromer Cueros y Pieles S.A. v.
La. Bayou Furs Inc., 293 F.3d 912, 918 (5th Cir. 2002)). See also FED. R. CIV.
P. 50(a)(1). The district court’s denial of Barr’s motion for a new trial is
reviewed for abuse of discretion. Fornesa v. Fifth Third Mortg. Co., 897 F.3d
624, 627 (5th Cir. 2018).
DISCUSSION
The dispositive questions before the court are whether the district
court erred by determining that Barr’s state claims were unexhausted and
5
While the district court did not expressly state this while ruling, this seems to
have been the basis for its decision regarding the federal claims. This is the only argument
Stripes presented for the federal claims and the district court engaged orally with this
notion while the parties were debating the issue.
7
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that his federal claims were untimely. We address each in turn. We
ultimately agree with the district court on both issues, and thus affirm.
I. State-law claims
Texas law requires that a claimant seeking to file suit for employment
discrimination must first file a complaint with the TWC within 180 days of
the unlawful employment practice. TEX. LABOR CODE ANN. § 21.202(a).
This deadline is “mandatory and jurisdictional.” 6 Specialty Retailers, Inc. v.
DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996); Pegram v. Honeywell, Inc.,
361 F.3d 272, 281 (5th Cir. 2004). Because Barr filed his charge with the
EEOC 271 days after his termination, his claims under Chapter 21 of the
Texas Labor Code were unexhausted.
Barr contends that he actually had 300 days to exhaust his
administrative remedies. Specifically, he cites Mennor v. Fort Hood Nat.
Bank, 829 F.2d 553 (5th Cir. 1987), for the proposition that the 300-day filing
period provided by federal law applies to his state claims as well. But this is
a blatant misreading of Mennor. 7 Federal law provides two separate time
limits for prospective plaintiffs to file their charge of discrimination,
depending on whether the unlawful conduct occurred in a “deferral state.” 8
6
Cf. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 306–10 (Tex. 2010)
(overturning a previous holding that the Texas Commission on Human Rights Act’s
two-year statute of limitations was “mandatory and jurisdictional,” and determining that
it is not jurisdictional but still “mandatory”).
7
Mennor pertained to the interpretation of 42 U.S.C. § 2000e-5(e)(1), which is
found within Title VII of the Civil Rights Act. Applicable here is the ADEA’s very similar
provision, 29 U.S.C. § 626(d)(1).
8
“A deferral state is one in which (1) a state law prohibiting age discrimination in
employment is in effect and (2) a state authority has been set up to grant or seek relief from
such discriminatory practice.” Clark v. Resistoflex Co., A Div. of Unidynamics Corp.,
854 F.2d 762, 765 (5th Cir. 1988) (citing 29 U.S.C. §§ 626(d), 633(b)).
8
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Plaintiffs have 180 days to file a charge of discrimination in a non-deferral
state and 300 days to file in a deferral state. Clark v. Resistoflex Co., A Div. of
Unidynamics Corp., 854 F.2d 762, 765 (5th Cir. 1988). The issue in Mennor
was which of these two federal deadlines applied to a Title VII claim when
the plaintiff untimely instituted state or local proceedings in a deferral state.
829 F.2d at 554–55. The court ultimately held that the 300–day filing period
applied “whether or not these other proceedings are timely instituted under
state or local law.” Id. at 556.
This holding has no relevance regarding whether Barr satisfied the
statutory prerequisites for his state claims. See id. at 556 n.11. The federal
deadline does not preempt the state deadline in § 21.202(a). Thus, whether
a plaintiff filed a timely charge for his or her federal claims has no impact on
the analysis regarding whether a plaintiff filed a timely charge for his state
claims. See Ashcroft v. HEPC-Anatole, Inc., 244 S.W.3d 649, 651 (Tex. App.
—Dallas 2008, no pet.). Barr’s state claims were unexhausted and, thus, the
district court did not err in determining this as a matter of law.
II. Federal-law claims
To bring a claim under the ADEA, a plaintiff must (1) exhaust his
administrative remedies by filing a timely charge of discrimination with the
EEOC; and (2) file suit within 90 days of receiving a notice of dismissal from
the EEOC. 29 U.S.C. § 626(d)(1), (e). The parties agree that Barr exhausted
his administrative remedies by timely filing his charge with the EEOC within
300 days. But they dispute whether Barr timely filed suit after receiving his
right-to-sue letter. For the following reasons, we conclude that he did not. 9
9
Barr’s arguments on appeal indicate a mistaken understanding regarding the
effects of the district court’s order denying Stripes summary judgment. He suggests that
the district court’s order resolved the exhaustion issue once and for all such that it was not
free to come to a contrary result later. This is incorrect. A district court is free to grant
9
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Barr did not assert a claim under the ADEA until 194 days had lapsed
after he received his right-to-sue letter. His initial state court complaint,
which was the only one filed within the 90-day period, plainly did not allege
a claim under the ADEA. Barr contends that it did not need to because,
according to him, the nature of the controversy and the basic issues to be
disputed were clear from the face of the complaint. But this is inapposite
under federal law, where the 90-day filing requirement is “strictly
construed.” See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir.
2002). Furthermore, the language of the ADEA provides that “a civil action
may be brought under this section” within 90 days of receipt of a notice of
dismissal. 29 U.S.C. § 626(e) (emphasis added). Filing a vague complaint in
state court alleging employment discrimination claim is not a civil action
“under this section.”
Additionally, as a practical matter, Barr’s position is contradicted by
the fact that, when Stripes filed a special exception seeking clarification
regarding the basis of his claims, Barr amended his complaint by adding only
state claims. He did not add his federal claims until months later. Yet he now
contends on appeal that everyone should have known that from the beginning
he was invoking his rights under the ADEA. We reject such a strained
understanding of the 90-day filing requirement. Accordingly, Barr’s original
state complaint did not satisfy his requirement to file under the ADEA within
90 days.
judgment as a matter of law even where it previously denied a summary judgment motion
on the same grounds. “[T]he denial of a motion for a summary judgment because of
unresolved issues of fact does not settle or even tentatively decide anything about the merits
of the claim. It is strictly a pretrial order that decides only one thing—that the case should
go to trial.” Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25, 87 S. Ct.
193, 195 (1966). See also Gross v. S. Ry. Co., 446 F.2d 1057, 1060 (5th Cir. 1971).
10
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Additionally, the ADEA claims do not relate back to the original
complaint. Texas law governs whether the federal claims relate back to the
initial complaint because the second amended complaint was filed in state
court. Taylor v. Bailey Tool Mfg. Co., 744 F.3d 944, 946–47 (5th Cir. 2014).
Texas law allows a filing to relate back “to a cause of action . . . that is not
subject to a plea of limitation when the pleading is filed . . . .” 10 TEX. CIV.
PRAC. & REM. CODE § 16.068 (emphasis added). The original state
complaint was indeed subject to such limitation because the underlying state
claims were barred for being untimely exhausted. Thus, because Barr’s
complaint was barred when filed due to his unviable state claims, the
subsequently added federal claims cannot relate back. Taylor, 744 F.3d at
947.
Likewise, the district court did not abuse its discretion when denying
Barr’s motion for a new trial. We do not reach Barr’s challenges to the
district court’s determination on the merits because failure to exhaust and
failure to timely file independently justify resolving this case as a matter of
law. 11
10
“A plea of limitation is an affirmative defense[]” asserting that a plaintiff’s claim
is barred by limitations. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 170 (Tex. App.—
Texarkana 1997, no writ) (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517
(Tex. 1988)); see also Murray v. San Jacinto Agency, 800 S.W.2d 826, 829–30 (Tex. 1990).
11
We additionally reject Barr’s contention that the district court denied him due
process by not allowing Barr’s counsel to finish arguing his Rule 50 motion before granting
Stripes’s Rule 50 motion. The record shows that Barr had ample opportunity to present
his case and argue for the sufficiency of his evidence. There is no case or statute granting
Barr a right to the time and opportunity to orally argue every individual point he wishes to
raise, nor does he present a cogent theory regarding why the Constitution supports one.
11
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CONCLUSION
For the foregoing reasons, we AFFIRM.
12