Belton v. GEO Group

Case: 21-30144      Document: 00516122420         Page: 1    Date Filed: 12/08/2021




              United States Court of Appeals
                   for the Fifth Circuit                                United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        December 8, 2021
                                   No. 21-30144
                                                                          Lyle W. Cayce
                                                                               Clerk
   Paul Belton,

                                                            Plaintiff—Appellant,

                                       versus

   GEO Group, Incorporated,

                                                            Defendant—Appellee.


                  Appeal from the United States District Court
                     for the Western District of Louisiana
                              USDC 1:19-CV-133


   Before Higginbotham, Stewart, and Wilson, Circuit Judges.
   Per Curiam:*
          This case concerns whether the district court properly dismissed the
   appellant’s claims for racial discrimination under Title VII, 42 U.S.C. § 1981,
   and Louisiana state law. The district court properly held that Appellant’s
   Title VII and Louisiana state law claims were time barred and that Appellant




          *
            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   opinion should not be published and is not precedent except under the limited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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   could not make a prima facie case of racial discrimination as required by
   § 1981. We affirm.
                                         I.
          Paul Belton, a black male correctional officer working for GEO Group,
   was fired on August 7, 2017. On March 28, 2017, Sergeant Tammy Roberts,
   a white female employee of GEO, accused Belton of sexual harassment and
   assault at the LeSalle Detention Facility in Jena, Louisiana, where they both
   worked. Roberts reported this incident and the Jena Police Department was
   called; Officer Joseph Spence of the Jena Police Department spoke with
   Roberts that day. The following day, written statements were taken from
   both Roberts and Belton.
          According to Roberts, at approximately 5:15 pm on March 28, 2017,
   Belton followed her into the Lieutenants’ office and walked up behind her.
   As she turned around, Belton leaned in, attempted to kiss her, and grabbed
   her between her legs in the “crotch area.” Roberts reported that she said
   “no” and told him to “stop” but he “leaned in again to attempt to kiss her.”
   Roberts also reported that two “similar incidents” had occurred two weeks
   earlier, but she did not report those instances “thinking he would leave [her]
   alone but he did not.”
          The next day, Belton was placed on unpaid administrative leave
   pending an investigation into the allegations. On April 10, Belton was charged
   with misdemeanor sexual battery under Louisiana Revised Statute
   § 14:35.14; during plea negotiations the charges were increased to a felony.
          On August 7, 2017, while the criminal charges were still pending,
   Belton was fired. Included with the termination letter was a disciplinary
   action form stating that Belton had been fired for violating GEO policy 3.2.10,
   “Sexual and Workplace Harassment.”




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                                    No. 21-30144


          On November 28, 2017, Belton received Roberts’s personnel file and
   discovered that Roberts had also been accused of sexual harassment and
   violating GEO policy 3.2.10. Roberts had received a final reprimand and had
   been required to participate in a retraining on sexual harassment. In addition,
   Roberts had four disciplinary violations on attendance related matters, while
   Belton had none.
          On July 31, 2018, nearly a year later, the charges against Belton were
   dismissed. The same day, Belton filed a charge of discrimination with the
   Equal Employment Opportunity Commission (EEOC), alleging that he had
   been subject to racial discrimination in the form of a hostile environment and
   disparate treatment regarding his termination. On September 12, 2018, the
   EEOC issued a right to sue letter to Belton.
          On December 12, 2018, Belton brought suit in Louisiana state court,
   alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
   1981, Louisiana’s Employment Discrimination Law (LEDL), and Louisiana
   tort law. GEO removed the suit to federal court. 1 GEO moved for summary
   judgment, seeking dismissal of all claims. The district court granted summary
   judgment, finding that Belton’s Title VII, LEDL, and state law tort claims
   were time barred. The district court also found that Belton failed to establish
   a prima facie case of discrimination as necessary for a § 1981 claim. The
   district court dismissed Belton’s claims with prejudice. Belton timely
   appealed.
                                         II.
          We review de novo a district court’s grant of summary judgment,
   viewing all evidence and drawing reasonable inferences in favor of the non-



          1
              28 U.S.C. § 1331.




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   moving party. 2 Summary judgment is proper “if the movant shows that there
   is no genuine dispute as to any material fact and the movant is entitled to
   judgment as a matter of law.” 3 “A fact is material if it might affect the
   outcome of the suit and a factual dispute is genuine if the evidence is such
   that a reasonable jury could return a verdict for the nonmoving party.” 4
   “This court may affirm the district court’s grant of summary judgment on
   any ground supported by the record and presented to the district court.” 5
                                                 III.
           The district court dismissed Belton’s Title VII, LEDL, and Louisiana
   tort law claims as time barred. We affirm.
                                                  A.
           A plaintiff alleging discrimination claims must exhaust administrative
   remedies before filing suit. 6 In a deferral state, such as Louisiana, the time to
   file an EEOC charge is extended by state discrimination law, so a plaintiff has




           2
            Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Ratliff v. Aransas Cnty.,
   948 F.3d 281, 287 (5th Cir. 2020).
           3
               FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).
           4
            Harville v. City of Hous., 945 F.3d 870, 874 (5th Cir. 2019) (citation and internal
   quotation marks omitted).
           5
               Salinas v. R.A. Rogers, Inc., 952 F.3d 680, 682 (5th Cir. 2020) (citation omitted).
           6
              Taylor v. Books A Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002); see also Jones
   v. City of Hous., 756 F. App’x 341, 348 (5th Cir. 2018) (citing 42 U.S.C. § 2000e-5(f)(1))
   (per curiam).




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   300 days from the discriminatory act to file the charge with the EEOC. 7 Any
   claims filed later than 300 days later are time barred. 8
           Belton contends that the EEOC filing period should not have started
   accruing until November 2017, when he became aware of how Roberts was
   treated after a complaint of sexual harassment was made against her. Belton
   alleges that he was unaware that he had been discriminated against until he
   learned that Roberts had also had a sexual harassment complaint levied
   against her, but that she had not been fired. However, “it is clearly
   established that the limitations period starts running when the plaintiff knows
   of the discriminatory act, not when the plaintiff perceives a discriminatory
   motive behind the act.” 9 And “[t]o allow plaintiffs to raise employment
   discrimination claims whenever they begin to suspect that their employers
   had illicit motives would effectively eviscerate the time limits prescribed for
   filing such complaints.” 10
           Here, the allegedly discriminatory act occurred on August 7, 2017,
   when GEO fired Belton. The discriminatory act is not Belton’s discovery of


           7
            Although generally one has 180 days from a discriminatory act to file a charge
   with the EEOC, in a deferral state “[t]he 180 calendar day filing deadline is extended to
   300 calendar days if a state or local agency enforces a law that prohibits employment
   discrimination on the same basis.” Time Limits for Filing a Charge, U.S. EQUAL EMP.
   COMM’N, https://www.eeoc.gov/time-limits-filing-charge (last visited Dec. 3, 2021).
           8
               Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 555–56 (5th Cir. 1987).
           9
             Miller v. Potter, 359 F. App’x 535, 536–37 (5th Cir. 2010) (per curiam) (citing
   Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992)); Abels v. Braithwaite,
   832 F. App’x 335, 336 (5th Cir. 2020) (per curiam) (This Court has “consistently focused
   on the date that plaintiff knew of the discriminatory act.”); Eastin v. Entergy Corp., 865 So.
   2d 49, 54 (La. 2004) (“In both Ricks and Chardon, the United States Supreme Court
   determined that suits brought more than one year from the date of notice of the termination
   are time barred as the proper focus is on the time of the discriminatory act not the point at
   which the consequences of the act become painful.” (cleaned up)).
           10
                Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir. 1992).




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   how Roberts was treated, it is his termination. He did not file his EEOC
   Charge until July 31, 2018. This was 358 days after the discriminatory act at
   issue—the 300-day filing period had thus expired. The district court did not
   err when it found that Belton’s Title VII claim was time barred.
           Alternatively, Belton argued that the filing period should have been
   tolled while GEO’s Office of Professional Responsibility (OPR) investigation
   was pending. Although we do not consider this argument as it was raised for
   this first time on appeal, this argument would also fail. 11
                                                B.
           The district court dismissed Belton’s LEDL claims because they were
   filed after the prescriptive period expired. Discrimination claims brought
   under LEDL are subject to a one-year prescriptive period. 12 As with the Title
   VII claims, “[t]his one-year prescriptive period commences to run from the
   day injury or damage is sustained.” 13 Thus, the one-year prescriptive period
   began to run on August 7, 2017, when GEO terminated Belton.




           11
              Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (“[T]he
   plaintiffs may not advance on appeal new theories or raise new issues not properly before
   the district court to obtain reversal of the summary judgment.”); see also Buchanan v.
   CCA/Tallahatchie Cnty. Corr. Facility, 704 F. App’x 307, 308–09 (5th Cir. 2017) (per
   curiam) (“The mere pendency of her grievance, however, is an insufficient basis to find the
   district court abused its discretion in declining to apply equitable tolling.”); West v. Miss.
   Dep’t of Pub. Safety, 37 F. App’x 712, 712 (5th Cir. 2002) (per curiam) (“[T]he pendency
   of a grievance, or some other method of collateral review of an employment decision, does
   not toll the running of the limitations period.” (quotation omitted)).
           12
                LA. STAT. ANN. § 23:303(D) (2008).
           13
             King v. Phelps Dunbar, L.L.P., 743 So. 2d 181, 187 (La. 1999); see also Eastin v.
   Entergy Corp., 865 So. 2d 49, 53–54 (La. 2004) (“[I]t is well settled that the damage is
   sustained in any employment discrimination case at the earlier of the date the employee is
   informed of his termination or his actual separation from employment.”).




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           The one-year prescriptive period for LEDL claims is suspended
   during any pending administrative review or investigation by the EEOC. 14
   The suspension period does not apply to GEO’s internal OPR investigation,
   only to investigations by the EEOC or the Louisiana Commission on Human
   Rights. 15 Thus, the one-year prescriptive period was suspended from when
   Belton filed his EEOC charge, on July 31, 2018, until the EEOC issued its
   right-to-sue letter, 43 days later, on September 12, 2018. 16 However, the one-
   year prescriptive period had already run for 358 days when it was suspended
   by Belton filing his EEOC charge. After the suspension ended, Belton would
   only have had seven days to timely file suit. Belton did not file his LEDL
   claims until December 12, 2018, well after the one-year prescriptive period
   had elapsed. 17 Belton’s LEDL claims were prescribed.
                                               C.
           The district court also found that Belton’s state law tort claims for
   “negligent and/or intentional infliction of mental distress” were time barred.
   These tort claims are also subject to a one-year prescriptive period. 18 Belton
   was terminated on August 7, 2017; he has not alleged that any discriminatory
   conduct or harassment occurred after that date. Thus the prescription period


           14
             LA. STAT. ANN. § 23:303(D) (2008) (although no suspension “shall last longer
   than six months”); Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546,
   552 (5th Cir. 2009).
           15
                LA. STAT. ANN. § 23:303(D) (2008).
           16
             See Briggs v. Fla. Pars. Juv. Just. Comm’n., 244 So. 3d 438, 440 (La. Ct. App. 1st
   Cir., 2018) (finding that the suspended prescriptive period commenced to run on the date
   the employee received the right-to-sue letter from the EEOC).
           17
              The 90-day deadline to sue from receipt of the EEOC letter applies only to
   federal claims; it does not apply to Belton’s state law claims. See LA. STAT. ANN. §
   23:303(D) (2008).
           18
                LA. CIV. CODE ANN. art. 3492 (1984).




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   for Belton’s tort law claims began, at the latest, on August 7, 2017.
   Accordingly, the district court did not err when it found that Belton’s state
   law tort claims were prescribed before he filed suit on December 12, 2018,
   more than 16 months after his termination.
                                                   IV.
                                                   A.
           Belton also sued GEO under § 1981. GEO does not contest that this
   claim is timely. Section 1981 does not contain a statute of limitations; for
   actions arising under federal statutes enacted after December 1, 1990, courts
   apply a catchall four-year statute of limitations. 19 Section 1981 was originally
   enacted as part of the Civil Rights Act of 1866. At that time it only protected
   against discrimination at the time of contract formation. 20 However, Ҥ 1981
   was later amended by the Civil Rights Act of 1991 to create a new cause of
   action for discriminatory and retaliatory conduct occurring after the
   formation of the contract.” 21 Where the claim is only available under the
   amended § 1981, the cause of action is said to arise under the Civil Rights Act
   of 1991. 22 Here, the alleged racial discrimination occurred during Belton’s
   employment. This is discrimination during the contract period rather than at
   the time of contract formation. Therefore, his claims arose under the Civil




           19
                28 U.S.C. § 1658.
           20
            Jones v. R.R. Donnelly & Sons Co., 541 U.S. 369, 373 (2004) (citing Patterson v.
   McClean Credit Union, 491 U.S. 164, 179 (1989)).
           21
                Culbert v. Cleco Corp., 926 F. Supp. 2d 886, 891 (W.D. La. 2013).
           22
                See id. (citing Jones, 541 U.S. at 382).




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   Rights Act of 1991 and the four-year statute of limitations applies. 23 Belton’s
   § 1981 claims were not time barred.
                                                 B.
           Racial discrimination claims under § 1981 are analyzed under the same
   standard as Title VII claims. 24 Where, as here, there is no direct evidence,
   this Court uses the McDonnell Douglas burden-shifting framework. 25 First,
   the plaintiff must establish a prima facie case of discrimination. Then, the
   defendant must offer a legitimate, non-discriminatory reason for its actions. 26
   The burden then shifts back to the plaintiff to rebut the stated reasons and
   show that they are “merely pretextual.” 27 Here, the district court found that
   Belton did not make a prima facie case. Viewing all evidence in favor of
   Belton, we agree.
           A plaintiff can establish a prima facie case of racial discrimination by
   showing that (1) he is a member of a protected class; (2) he is qualified for the
   position at issue; (3) he was subject to an adverse employment action; and (4)
   he was replaced by someone outside the protected class or treated less
   favorably than someone outside the protected class.28 The first three
   requirements are not at issue here. To satisfy the fourth element, Belton must


           23
            See Jones, 541 U.S. at 382; see also Balakrishnan v. Bd. of Supervisors of La. State
   Univ. & Agric. & Mech. Coll., No. 08-4315, 2009 WL 2175974, at *6–7 (E.D. La. July 21,
   2009).
           24
                DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007).
           25
             McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Turner v. Kan. City S. Ry.
   Co., 675 F.3d 887, 892 (5th Cir. 2012).
           26
                Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007).
           27
                Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
           28
             Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020); Russell v. McKinney
   Hosp. Venture, 235 F.3d 219, 223–24 (5th Cir. 2000).




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   show either that he was replaced by someone outside of his protected class or
   that he was treated less favorably than a similarly situated comparator outside
   the protected class. 29 Here, Belton alleges he was treated less favorably by
   GEO than Roberts was in response to the sexual harassment allegations
   brought against each of them.
          This Court requires that a plaintiff proffering a comparator must
   “demonstrate that the employment actions at issue were taken under nearly
   identical circumstances.” 30 Although the district court took issue with
   Belton’s comparator, Roberts, because they had different supervisors, we do
   not “interpret nearly identical as synonymous with identical.” 31 The
   “ultimate decisionmaker as to employees’ continued employment” was the
   same, and thus Roberts could have been a valid comparator. 32
          Belton argues that he was discriminated against because although both
   he and Roberts received disciplinary sanctions for sexual harassment, he was
   fired, while she was not. However, to make a prima facie showing on racial
   discrimination,           Belton      must     show     that    “he    was    treated   less
   favorably . . . under nearly identical circumstances.” 33 Belton and Roberts
   did not face nearly identical circumstances. The criminal charges against
   Belton were still pending when he was fired. We must evaluate GEO’s
   decision at the time it was made, without the advantage of knowing that the



          29
               Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
          30
               Id. (citation omitted).
          31
              Id. at 260; see also Turner, 675 F.3d at 896 (employees with different job
   responsibilities could still be comparators where the person responsible for ultimate
   decisions like termination and suspension was the same).
          32
               Lee, 574 F.3d at 260 (internal quotation marks omitted).
          33
               Id. at 259.




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   charges were later dismissed. 34 There is no evidence that Roberts was ever
   criminally charged regarding the sexual harassment complaints made against
   her. Given the difference in circumstances surrounding Belton and Roberts,
   Roberts is not a valid comparator and Belton has not made a prima facie
   showing that he was racially discriminated against under § 1981. 35
                                             V.
           Belton’s Title VII, LEDL, and state tort claims were time barred.
   Further, Belton failed to make a prima facie showing of racial discrimination
   under § 1981. We AFFIRM the ruling of the district court.




           34
             Turner, 675 F.3d at 896 (“[T]he relevant perspective is that of the employer at
   the time of the adverse employment decision.”); see Nieto v. L&H Packing Co., 108 F.3d
   621, 624 (5th Cir. 1997) (Title VII does not protect against unfair business decisions).
           35
                Lee, 574 F.3d at 259.




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