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Patillo v. Sysco Foods of Arkansas LLC

United States District Court, E.D. Arkansas, Western Division

June 1, 2018




         Lateshia Patillo commenced this action against her former employer, Sysco Foods of Arkansas, LLC, on October 6, 2016, alleging race discrimination and retaliation in violation of Title VII. Patillo, who is black, alleges that she was constructively discharged because of her race and in retaliation for complaining about discriminatory actions. Sysco filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Patillo failed to exhaust her administrative remedies. Document #15. The Court granted the motion and entered a judgment dismissing the complaint on December 16, 2016, Patillo appealed, and the Eighth Circuit entered an order vacating the judgment and remanding the action for further proceedings on December 6, 2017. Documents #23, #25, and #28. Patillo had filed a motion for appointment of counsel, which the Court then granted. Document #31. The Court directed Sysco to file a brief addressing the issues on remand on or before February 14, 2018, and directed Patillo to file a brief in response on or before February 28, 2018. Id. The Court then stayed the action pending entry of an order by the bankruptcy court authorizing Patillo to proceed and approving retention of counsel; Patillo filed a notice of the bankruptcy court's authorization and approval on April 20, 2018, and the Court lifted the stay. Document #36.

         Sysco and Patillo have filed briefs addressing the issues on remand and Patillo has filed a motion for leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2). Documents #32, #38, and #39. Sysco has responded, maintaining that amendment would be futile because Patillo's claims are not timely and even if they were, the proposed amended complaint fails to state a claim. Document #40. Patillo's motion for leave to amend the complaint is denied. Sysco's motion to dismiss is again granted.


         Rule 15(a)(2) provides that once the time to amend a pleading as a matter of course has expired, “a party many amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires, ” but may deny leave if there is a compelling reason, such as undue delay, bad faith, dilatory motive, or futility of the amendment. See Reuter v. Jax Ltd., Inc., 711 F.3d 918, 922 (8th Cir. 2013). “Denial of a motion for leave to amend on the basis of futility ‘means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.'” Zutz v. Nelson, 605 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I. Crowell GST Trust v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008)). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The Court accepts as true all of the factual allegations contained in the complaint and draws all reasonable inferences in favor of the nonmoving party. Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th Cir. 2014). The complaint must contain more than labels, conclusions, or a formulaic recitation of the elements of a cause of action, which means that the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

         Patillo seeks leave to amend so she can correctly name Sysco as a defendant, add a new defendant, and add claims for race discrimination and retaliation under 42 U.S.C. § 1981 and the Arkansas Civil Rights Act, and add claims for interference with her rights under the Family Medical Leave Act. Document #39 at 3, ¶ 6. Regarding Patillo's Title VII claims, she says that if the Court grants her leave to amend, then the motion to dismiss will be rendered moot because the amended complaint cures the deficiencies in the original complaint and raises additional claims that do not have exhaustion requirements. Document #38 at 1, n. 1.


         As a threshold matter, Sysco argues that the Court should exercise its discretion and hold that Patillo's claims are barred by judicial estoppel because she did not disclose them in the bankruptcy proceeding. Document #40 at 3-9. Patillo filed for bankruptcy on June 23, 2016. Chapter 13 Voluntary Petition at 1, In re Patillo, No. 4:16BK13311 (Bankr. E.D. Ark. June 23, 2016). She did not disclose any potential claim that she may have had against Sysco. See Id. Patillo filed this action on October 6, 2016. Document #2. She did not disclose it until February 12, 2018, when she amended her schedules to reflect the ongoing lawsuit. Amended Schedules/Statements, In re Patillo, No. 4:16BK13311 (Bankr. E.D. Ark. Feb. 12, 2018).

         “Judicial estoppel is an equitable doctrine that ‘protects the integrity of the judicial process.'” Combs v. Cordish Co., Inc., 862 F.3d 671, 678 (8th Cir. 2017) (quoting Stallings v. Hussman Corp., 447 F.3d 1041, 1046-47 (8th Cir. 2006)). It prevents a party from taking a position in a legal proceeding, continuing that position, and then assuming a conflicting position “simply because [her] interests have changed.” New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The Court considers three factors, known as the New Hampshire factors, in determining whether a party should be estopped from asserting a claim: “(1) whether the party's later position is ‘clearly inconsistent' with its prior position; (2) whether a court was persuaded to accept a prior position ‘so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and (3) whether the party claiming inconsistent positions ‘would derive an unfair advantage or impose an unfair detriment on the opposing party if not stopped.'” Smith v. AS Am., Inc., 829 F.3d 616, 624 (8th Cir. 2016) (quoting New Hampshire, 532 U.S. at 750, 121 S.Ct. 1808). These factors are not “an exhaustive formula” and are intended to aid the Court in exercising its discretion. Stallings, 447 F.3d at 1047. “In the bankruptcy context, a party may be judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements.” Id.; see also Combs, 862 F.3d at 679 (“[I]f a debtor obtains property during the pendency of a Chapter 13 bankruptcy, the debtor may be required to amend the Chapter 13 schedules.”).

         Even if the New Hampshire factors favor the application of judicial estoppel, it is an extraordinary remedy and the Court should only apply it “when a party's inconsistent behavior will result in a miscarriage of justice.” Stallings, 447 F.3d at 1049. Patillo filed for bankruptcy prior to commencing this lawsuit; she represented herself pro se; the Court dismissed the action with prejudice just three months after its commencement; she appealed just a few days after the Court's order of dismissal; she represented herself pro se on appeal; the action was pending on appeal for one year; and she prevailed on appeal. Allowing Patillo to proceed in this case will not result in a miscarriage of justice. Patillo has done nothing during the course of this litigation to indicate that she is gaming the system or that she chose not to disclose this action as a tactical decision. Patillo has now amended her schedules and the bankruptcy court granted her permission to retain counsel in this action. Judicial estoppel is not appropriate in this case.


         The Eighth Circuit remanded to this Court for further consideration, in light of Supreme Court precedent, as to whether Patillo has satisfied Title VII's administrative requirements. Patillo v. Sysco Foods of Ark., LLC, 704 Fed.Appx. 612, 612-13 (8th Cir. 2017); Document #28; Document #23. “To exhaust administrative remedies, an individual must: (1) timely file a charge of discrimination with the EEOC setting forth the facts and nature of the charge and (2) receive notice of the right to sue.” Rush v. State of Ark. DWS, 876 F.3d 1123, 1125 (8th Cir. 2017). A charge must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred and a civil action be brought by the complaining party within 90 days after the EEOC gives notice of the right to sue. 42 U.S.C. § 2000e-5(e)(1), (f)(1). The charge must "be in writing under oath or affirmation . . . contain[ing] such information and . . . in such form as the Commission requires.” Id. at 2000e-5(b).

         Patillo has filed two charges of discrimination with the EEOC. In 2015, she filed a charge alleging race and sex discrimination and retaliation. The EEOC issued a notice of the right to sue on September 8, 2015, but Patillo did not file suit. Document #20-2. She continued working for Sysco until October 20, 2015, when, according to her, Sysco forced her to resign because of her race and in retaliation for filing the 2015 charge. Document #20-3. Then, on March 21, 2016, Patillo filed an unverified intake questionnaire with the EEOC alleging instances of race discrimination and retaliation, some that had occurred since the 2015 charge. Document #18 at 11-14. The EEOC responded on April 11, 2016, requesting that Patillo provide them with more information. Document #19 at 9. The EEOC informed Patillo that if she did not respond within 30 days, it would assume she did not wish to pursue her claims and labeled its correspondence: “Sysco Food Services of AR EEOC No. 493-2016-00978.” Id. Patillo filed a second charge of discrimination with the EEOC on June 13, 2016. Document #20-3. The second charge is labeled Charge No. 493-2016-00978. Id. The EEOC issued a notice of the right to sue on July 8, 2016. Document #2 at 4. Patillo filed the second EEOC charge more than 180 days after the last alleged unlawful employment practice-constructive discharge-occurred. Id. at 1-3. But Patillo filed the questionnaire with the EEOC on March 21, 2016, which was within 180 days of the alleged unlawful employment practice.

         Whether Patillo's action is timely depends on whether the unverified intake questionnaire can be deemed a charge for the purposes of calculating the 180 day cut-off for filing a charge. Document #28. The Eighth Circuit directed the Court to reconsider this question in light of Fed. Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) and Edelman v. Lynchburg Coll., 535 U.S. 106, 122 S.Ct. 1145 (2002). Document #28.[1] Prior to those opinions, the Eighth Circuit consistently held that intake questionnaires which are neither verified nor signed under oath cannot be considered charges under Title VII for purposes of satisfying the requirement that a charge be filed within 180 days of the alleged unlawful employment practice. Shempert v. Harwick Chem. Corp., 151 F.3d 793, 796 (8th Cir. 1998) (collecting cases). This holding does not align with Edelman and Holowecki. See Wilkes v. Nucor-Yamato Steel Co., No. 3:14CV00224, 2015 WL 5725771 at *7 (E.D. Ark. Sept. 29, 2015).

         In Edelmen, the plaintiff sent the EEOC a letter accusing his employer of discrimination, but he failed to verify the letter. 535 U.S. at 109, 122 S.Ct. 1145. He later, however, filed an untimely but verified formal EEOC charge. Id. at 109-10, 122 S.Ct. 1145. The Court agreed with the EEOC's regulation providing that a later, verified charge would relate back to the date on which the original letter was filed. Id. at 118, 122 S.Ct. 1145. Therefore, Title VII permits "the relation back of an oath omitted from an original filing" because an unverified, unsworn filing can still constitute a charge under Title VII if the defect is later cured. Id. at 115, 112 S.Ct. at 1150.

         Patillo's March 21, 2016 intake questionnaire does not satisfy the requirements of 42 U.S.C. § 2000e-5(b) because it is not verified. Document #18 at 14. The June 13, 2016 charge of discrimination, however, is sworn under oath and cures those deficiencies. Document #20-3. Therefore, the fact that the intake questionnaire is not verified does not preclude it from being considered a charge for determining whether Patillo has satisfied Title ...

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