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opinion should not be published and is not precedent except under the limited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.”
2
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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.
3
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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).
4
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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).
5
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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.”).
6
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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).
7
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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).
8
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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).
9
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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.
10
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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.
11