Dennis W. Dohnal, Judge.
This matter is before the Court by referral from the District Court ( 28 U.S.C. § 636) on the Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 as to the remaining Count II of the Complaint. The Plaintiff essentially alleges that the Defendant's failure to rehire her after she had been laid off in a work reduction effort was due to illegal race discrimination in violation of 28 U.S.C. § 1981. The Defendant asserts that: (1) the action is time-barred under the applicable two-year statute of limitations; and (2) the Plaintiff cannot sustain her burden of establishing a prima facia case because she was not qualified for the position and the position was filled by a member of the same unprotected class. Even if the Plaintiff could offer the necessary prima facie showing, the Defendant further argues that its explanation for declining to rehire the Plaintiff was so clearly not racially motivated or otherwise pretextual so as to require summary relief in its favor.
Count I was dismissed for lack of subject matter jurisdiction because Plaintiff failed to exhaust her administrative remedies in the retaliation claim. (Order, Mar. 22, 2001).
The Plaintiff makes no allegation that the initial lay-off was racially motivated.
Standard of Review
Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U. 5. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U. 5. 242, 255 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp. v. Catrett, 477 U.S. at 327 (White, J., concurring). In essence, the Court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. at 25 1-252.
Undisputed Material Facts and Justifiable Inferences
The Court deems the following to be the relevant factual allegations and permissible inferences on which the resolution of the pending motion must be based:
1. The Plaintiff, an African-American woman, worked as a cloth room inspector in the Defendant's facility from February 17, 1997, to December 27, 1997, when she and several others were laid off indefinitely due to a work force reduction resulting from a decrease in business activity (Compl. ¶¶ 2, 5, 13, P1. Dep. at 33, 37);
2. The Plaintiff was told by her former supervisor, Melvin Vick, on or about January 5, 1998, after one available position had been filled for which she was admittedly not physically qualified, that there were no other positions available at the time and that he (Vick) would "get back to her" (Vick DecI. ¶ 6);
3. The Plaintiff had a second, consistent conversation with Mr. Vick on or about April 10, 1998, from which Plaintiff concluded she would be offered a position in the near future (Pl.'s Dep. at 88-89);
4. Mr. Vick confirms that the Plaintiff "made several efforts to communicate with me regarding her interest in re-employment with Belding and on each such occasion, I told [her] either there were no available openings or that I would have to get back with her later, or words to that effect." (Vick Decl. ¶¶ 6-7);
5. Some time before April 17, 1998, the Plaintiff spoke to Francis Clark, Human Resources Manager, about being rehired. Mr. Clark told her to talk to Mr. Vick again who would get in touch with her(" . . . . . . he expressed that he [Clark] had talked with Melvin Vick about it, and they will be getting back in touch — that Melvin Vick will be getting back in touch with me.") (Pl.'s Dep. at 89-90, 100);
6. Plaintiff wrote a letter addressed to "Dear Federal EEOC," dated April 17, 1998, in which it appears she made general allegations of having been laid off and not rehired for illegal discriminatory reasons. The letter also alleged that more women than men had been laid off and that another individual with less seniority had been either retained or rehired in a different position (Pl.'s Dep. at 93, Pl.'s Dep. Ex. 2);
7. The Plaintiff was not contacted by any representative of the Defendant after her conversation with Mr. Clark and she did not attempt to initiate any contact herself (Pl.'s Dep. at 90);
8. The Plaintiff forwarded an employment discrimination questionnaire to the EEOC dated April 29, 1998, in which she asserted she had been discriminated against by the Defendant when she was laid off and not rehired (Pl.'s Dep. at 104-105, PI.'s Dep. Ex. 3);
9. Mr. Vick rehired an African-American female, Novella Butler, on May 4, 1998, for the same position from which Plaintiff had been laid off and a second person, a white female, Phyhis Woodruff, for an additional position of the same type on May 11, 1998 (Vick Decl. ¶¶ 9, 10);
10. The Plaintiff wrote a second letter to "Dearest EEOC and Beverly Crawford" (Plaintiffs counsel), dated May 21, 1998, in which she discussed the re-hires of the two individuals on May 4 and May 11, 1998, and which she intended as substantiation of her allegations of discrimination (Pl.'s Dep. Ex. 4; P1. Dep. 112-113);
11. The Plaintiff contacted the EEOC by telephone on May 24, 2001, and stated . . . . . that [attorney] will be filing charge on her behalf on [Tuesday] June 2, 1998 via FAX." (Reply Mem. of Def. in Supp. of its Mot. for Sum. J., Ex. A);
12. The Defendant asserts that the Plaintiff was not rehired because of dissatisfaction with her prior performance, "including poor judgment in exercising her authority to order the shutting down of looms that were producing defective cloth, failing to observe defects in cloth, working at a pace that was too slow, and causing too frequent breakage of certain of the pieces of equipment she used due to her carelessness." (Vick DecI. ¶¶ 7-8; Def's Mem. in Supp. of Mot. for Sum. J. at 3-4);
13. The Plaintiff and several former co-employees dispute that there were any unsatisfactory performance issues regarding the Plaintiff and although the evaluation conducted as of the time of her termination noted her "quality of work" as "poor," all other categories (some fourteen categories) were noted as at least "average" with the reason for termination noted as "layoff' (Affs. of P1., Joyce Moody Johnson, and Shirley Hill) (Pl.'s Mem. Ex. 15);
14. The Plaintiff received eleven merit increases between the date of hire, February 17, 1997, and September 22, 1997 (Def.'s Mem. Exs. 1-10, 12-14); and
15. The Plaintiff filed a formal complaint with the EEOC on August 6, 1998, based on the allegation of gender, not race, discrimination and she thereafter filed the instant Complaint on June 1, 2000 (PI.'s Dep. Ex. 5).
Analysis The Action is time-Barred Pursuant To The Applicable Statute of Limitations
Virginia's two year limitations period (Va. Code § 8.01-243(a)) governs a § 1981 claim. McCrary v. Runyon, 515 F.2d 1082, 1096 (4th Cir. 1975), aff'd, 427 U. 5. 160 (1976); Carter v. Rental Uniform Serv. of Culpepper, 977 F. Supp. 753, 761 (W.D. Va. 1997); Griffin v. Prince William Hosp. Corn., 716 F. Supp. 919 (E. D. Va. 1989). The Complaint was filed on June 1, 2000. Therefore, the action is time-barred if the Plaintiff became aware that the Defendant rehired others of an unprotected class instead of her before June 1, 1998, unless the doctrine of equitable estoppel excuses any delay. Hamilton v. 1st Source Bank, 928 F.2d 86 (4th Cir. 1990).
Equitable tolling and equitable estoppel are two concepts that could possibly modify the limitations period. Equitable tolling may be available if a plaintiff was excusably ignorant of the employer's discriminatory act. Equitable estoppel is only available where an employer actively undertook to conceal its discriminatory activity and prevented a party from exercising his or her rights. Morse v. The Daily press. Inc., 826 F.2d 1351, 1352-1353 (4th Cir. 1987). Although not actually invoked in this case, the doctrine of equitable tolling is generally not available for "garden variety" claims of excusable neglect. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990).
The doctrine of equitable estoppel, as applied to this case, holds that the time period is tolled if "the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Felty v. Graves-Humphrevs Co., 818 F.2d 1126, 1131 (4th Cir. 1987) (emphasis added). Although there is no evidence that the Defendant undertook and executed a deliberate design to deceive the Plaintiff to lull her into complacency, there is evidence by the Defendant's own agent, Mr. Vick, that he had several conversations with the Plaintiff during the critical time period in 1998 when he told her he would get back to her about rehiring her. (Vick DecI. ¶¶ 6-7; Pl.'s Dep. at 88-89). Surely, such qualification could lead a reasonable mind to conclude that the possibility of being rehired remained open at least until such a time as one is definitively told otherwise. However, aside from the authority cited by Defendant that may stand for the proposition that the applicable period commences when the employer takes any action adverse to the employee's interest (as opposed to actual notice to employee of discriminatory effect or motive), there is uncontroverted evidence that the Plaintiff did not, in fact, rely on what can reasonably be viewed as the agent's assurances.
Hamilton v. 1St Source Bank, 928 F.2d 86, and other authority cited by Defendant. (Def.'s Mem. at 7-8).
Specifically, not only is there at least the suggestion that the Plaintiff believed she had been discriminated against as of the date of her termination in December of 1997, she confirmed in deposition that her intent in writing the second letter to the EEOC on May 21, 1998, in addition to completing the discrimination questionnaire of April 29th", was to alert the agency of the re-hires of the other employees as evidence of the discrimination she had alleged. In addition, her follow-up telephone call to the same authority on May 24, 1998, leaves no doubt that she had engaged the services of counsel by that point in regard to her discrimination claims and that she was otherwise on full notice of the Defendant's actions that she asserted to be the basis for her cause of action. Although the period of overlap is brief, the law does not permit exception based only on the brevity of the time period involved. Order of R. R. Telegraphers v. Ry. Express Agency, Inc., 321 U. 5. 342, 348-349 (1944). Therefore, it is recommended that the action be dismissed as time-barred.
There Is A Genuine Dispute of Material Fact As To Whether The Plaintiff Can Establish A Prima Facie Case And Whether The Defendant's Explanation For Its Actions Is Pretextual Should the Court's recommendation to find this action time-barred be rejected, it is necessary to analyze whether Plaintiff establishes a prima facie claim under Title VII. To do so, an analysis must be conducted pursuant to the McDonnell Douglas precedent whereby if, as here, there is no direct evidence of discrimination, the plaintiff must first make a prima facie showing of such intent by establishing, in addition to being a member of a protected class, that she was qualified for the position in question and that it was given to a member outside the protected class who had comparable or lesser qualifications so as to at least raise an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The Defendant asserts that even if the Court were to conclude that the action is not time barred, it must be granted summary judgment relief because the Plaintiff cannot, as a matter of law, offer a prima facie showing that she was qualified for the position or that a member outside the protected class with the same or lesser qualifications was given the position. (Def.'s Mem. at 9-11.) Furthermore, the Defendant argues that even if the Plaintiff can get past that preliminary showing, the Defendant's proffered reasons for not rehiring Plaintiff due to poor performance based on her prior work experience are legitimate, nondiscriminatory business reasons that rebut any prima facie showing as a matter of law. Id. at 11.
Simply put, three of the undisputed facts are clearly sufficient to raise genuine issues of disputed material fact both as to whether the Plaintiff was qualified for the position necessary to establish a prima facie case and whether the Defendant's explanations are pretextual. First, the Plaintiff held the position for several months while being awarded no less than eleven "merit" increases (Def.'s Mem. Exs. 1-10, 12-14). Second, her termination evaluation cited the only reason for termination was "layoff," while rating her as "average" or above in all but one out of fourteen criteria (Pl.'s Mem. Ex. 15, Easter-Davis Aff). Third, the Defendant's agent, Mr. Vick, told Plaintiff there were no openings which was not only untrue but different from the reasons now offered for not rehiring Plaintiff (Vick Decl. ¶¶ 6-7).
Without even having to address whether the statements of former co-employees are relevant. (Def.'s Reply Mem. at 7-8).
The remaining issue of whether the Plaintiff can demonstrate that a member outside the protected class was given the position so as to satisfy that additional element of a prima facie case is also readily resolved. Although the first person to be rehired for the same position is also a member of the same protected class as the Plaintiff, a second position was filled shortly thereafter by one outside the class so that, at most (as Defendant's counsel conceded at oral argument), the initial rehire is a "neutral" consideration that does not preclude the Plaintiff from asserting that she was denied an opportunity to be rehired because of discriminatory factors.
As opposed to the Court's preliminary thoughts as expressed at oral argument on the motion.
Conclusion
For the reasons stated, it is recommended that although there exists genuine disputes of material fact so as to preclude summary disposition on the merits of the claim, the action is nevertheless time-barred and the Defendant's motion for summary judgment should therefore be GRANTED.
Let the Clerk forward a copy of this report and recommendation to the Honorable Robert E. Payne and all counsel of record. It is further Ordered that the complete transcript of the discovery deposition of the Plaintiff (March 15, 2001) as requested by the Court for purposes of issuing this report be filed in the record as a court exhibit.
It is so Ordered.