ELIZABETH ERNY FOOTE, District Judge.
Before the Court is Defendant City of Shreveport's Motion To Dismiss [Record Document 5]. Pro se Plaintiff Frederick Lewis ("Lewis") filed this action against the City of Shreveport ("the City"), alleging race and gender discrimination claims in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 1981, the Age Discrimination in Employment Act ("ADEA"), and Louisiana state law. Record Document 1. The City moved to dismiss Plaintiff's Title VII and ADEA claims as untimely, and his § 1981 and state law claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Record Document 5.
For the reasons discussed below, the City's Motion To Dismiss [Record Document 5] is
Plaintiff, who is a "60-plus-year-old" black man, was hired by the City in 2006 and worked in the Shreveport Public Assembly & Recreation Department ("SPAR") until 2013, when he transferred to the City's Department of Community Development, where he is apparently still employed. Record Document 1, pp. 2-3. During his time at SPAR, Plaintiff worked in various positions, reporting to a Division Manager. In early 2012, Plaintiff inquired with Shelly Ragle ("Ragle"), the SPAR Department Director, about the possibility of promotion to Division Manager.
Based on these facts, Plaintiff alleges race and gender discrimination in violation of Title VII, racially discriminatory failure to promote in violation of § 1981, age discrimination in violation of the ADEA, and breach of contract for the City's failure to enforce its anti-discrimination policy.
Standard of Review
In order to survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must "state a claim to relief that is plausible on its face."
Title VII and ADEA Claims
Plaintiff alleges a discriminatory failure to promote because of his race and gender (under Title VII) and because of his age (under the ADEA). Record Document 1, ¶s 31, 34, 36. He also alleges racial discrimination on the basis that he and other black employees were paid less than similarly situated white employees, in violation of Title VII.
Both Title VII and the ADEA require that a charge of discrimination must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d). Plaintiff alleges that the unlawful employment practice was the City's failure to promote him or allow him to apply for a promotion to Division Manager. Record Document 1, p. 5-6. Plaintiff transferred out of SPAR in March of 2013, and the new Division Manager was hired in "May — June 2013." Record Document 5-3, p. 4. He filed his discrimination charge on May 26, 2015. Even assuming that the time clock began to run with the hiring of the Division Manager on the last day of June, 2013 — the latest possible date, based on these facts, on which the alleged unlawful employment practice could be said to have occurred — more than 300 days elapsed before Plaintiff filed his charge of discrimination with the EEOC. Plaintiff does not dispute that his claim exceeds the 300-day requirement, but argues that equitable tolling applies to his case.
The 300-day filing requirement is not jurisdictional, but "a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."
A plaintiff's lack of awareness of the facts of his claim is only a valid basis for equitable tolling when "the employer's affirmative acts mislead the employee and induce him not to act within the limitations period."
Plaintiff alleges that he specifically inquired about a position as Division Manager at SPAR and was explicitly told by Ragle that no such position was available and would not be "in the foreseeable future." Record Document 1, p. 5. A few months after this conversation, Ragle hired a young white woman as the Division Manager, without publicly posting the job or notifying Plaintiff it had become available and allowing him to apply.
At this stage, the Court must accept as true all of Plaintiff's factual allegations. Plaintiff's factual allegations state a clear case that Ragle's affirmative conduct reasonably misled Plaintiff about the facts supporting his claim. Ragle affirmatively acted to conceal the availability of a job Plaintiff had specifically inquired about by telling him it did not exist and by not publicizing the job opening. It was not until Plaintiff found out about Ragle hiring a young white woman for that job that he became aware of the facts supporting possible race, gender, and age discrimination claims for a failure to promote. Plaintiff's claims were therefore equitably tolled until December 2014. He filed his EEOC charge on May 26, 2015, less than 300 days later, whatever the exact date in December that he learned the facts. Therefore, Defendant's motion to dismiss Plaintiff's Title VII and ADEA claims for failure to promote is denied. Plaintiff may proceed on these claims.
At the beginning of his complaint, Plaintiff enumerates the statutes under which his action is brought, including 42 U.S.C. § 1981. Later in the complaint, when he separates his claims into individual causes of action, however, he asserts no cause of action under § 1981. Likely out of an abundance of caution, the City nevertheless moved to dismiss Plaintiff's § 1981 claim, and Plaintiff responded that he had in fact stated a claim under § 1981. Because Plaintiff is proceeding pro se, the Court holds his complaint to less stringent standards than would be required of a formal pleading drafted by an attorney.
A plaintiff asserting failure to promote because of racial discrimination must show: (1) the employee is a member of the protected class; (2) he sought and was qualified for the position; (3) he was rejected for the position; and (4) the employer continued to seek applicants with the plaintiff's qualifications or hired a person outside of the plaintiff's protected class.
Plaintiff is a member of a protected class: he is black. He sought the position of SPAR Division Manager, and by his account was qualified for the position, having reported to a Division Manager for 7 years, first as Recreation Supervisor and then as Public Relations and Marketing Manager. Record Document 1, pp. 3-4. The City eventually hired as Division Manager a woman who was not in Plaintiff's protected class; she is white.
For the first time in its reply brief, the City argues that Plaintiff's § 1981 claim is time-barred. Record Document 8, p. 6. Arguments raised for the first time in a reply brief are waived.
State Law Claim
Plaintiff's final claim is breach of contract for failure to enforce the City's anti-discrimination policy, set out in an Executive Order, in violation of Louisiana Civil Code article 1983. The City moved to dismiss this claim, arguing that Plaintiff does not allege how this policy created a contract under Louisiana law. Record Document 5-1, p. 7. Plaintiff responds that the City's Executive Order was an offer to report discrimination and have it investigated, which Plaintiff accepted when he reported discrimination. Record Document 7, p. 14. This is a clever argument, but it rests on no authority. In fact, in Louisiana, employee policies "do not confer any contractual rights upon the employee, unless the parties have so agreed."
For the reasons stated above, Defendant's Motion To Dismiss [Record Document 5] is