United States District Court, S.D. Georgia, Brunswick Division
September 19, 2005.
CATO WALTHOUR and SAMUEL WALTHOUR, Plaintiffs,
RAYONIER INC., Defendant.
The opinion of the court was delivered by: ANTHONY ALAIMO, Senior District Judge
Plaintiffs, Cato Walthour and Samuel Walthour, filed the
above-captioned case against Defendant, Rayonier Inc., asserting
race discrimination claims under Title VII and related state law
claims for intentional infliction of emotional distress.
Presently before the Court is Rayonier's motion for sanctions.
Because some of the alleged discriminatory conduct was challenged
in a timely fashion, the motion will be DENIED. BACKGROUND
Rayonier operates a paper pulp mill in Jesup, Georgia. The
Walthours are Maintenance Support Utility Level II technicians in
the mill's Maintenance Department. In 1972, Cato Walthour began
working at the mill, as a laborer in the bleach plant. In his
current position, Cato Walthour operates a cherry picker, flatbed
truck, and Bobcat machinery. In 1972, Samuel Walthour also began
working at the mill, doing yard utility work. His typical duties
include operating a jackhammer, building scaffolds, and
Plaintiffs, both black men, are first cousins. They contend
that Rayonier discriminated against them by assigning more
lucrative, less labor-intensive work to less senior, white
maintenance workers. The Walthours aver that Hugh Harvey and Gary
Bowen were assigned vibration testing work, without either
Plaintiff having the chance to take the assignments first.
The parties agree that the vibration testing work was done
ordinarily by millwrights, not maintenance support technicians.
Bowen and Harvey performed these jobs on a temporary, or
"relief," basis, but how frequently the men did so is not in the
record. According to Rayonier, Bowen and Harvey had been
performing the work at least since August 1996. Bowen and Harvey began earning more than the Walthours, when performing
vibration testing duties.
On January 8, 2001, Plaintiffs filed a grievance through their
trade union, the Paper, Allied-Industrial, Chemical & Energy
Workers International Union, Local 787, contesting the job
assignments. Although this grievance was unsuccessful, on August
19, 2003, the Walthours filed another grievance regarding this
assignment of duties, seeking the difference in pay between their
wages and what Harvey and Bowen were earning until the matter was
When the second grievance was rejected, the Walthours took
their complaints to the federal government. On October 7, 2003,
Plaintiffs signed a charge questionnaire, jointly, and mailed it
to the U.S. Equal Employment Opportunity Commission ("EEOC"),
challenging Rayonier's conduct as racially motivated. On December
30, 2003, Cato Walthour submitted a perfected charge of
discrimination against Rayonier to the EEOC. The next day, Samuel
Walthour also filed an individual, perfected charge of
Federal Rule of Civil Procedure 11 provides, in part: (b) Representations to Court.
By presenting to the court (whether by signing,
filing, submitting, or later advocating) a pleading,
written motion, or other paper, an attorney or
unrepresented party is certifying that to the best of
the person's knowledge, information, and belief,
formed after an inquiry reasonable under the
(1) it is not being presented for any improper
purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension,
modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions
have evidentiary support or, if specifically so
identified, are likely to have evidentiary support
after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted
on the evidence or, if specifically so identified,
are reasonably based on a lack of information or
"Rule 11 motions should not be made . . . to test the legal
sufficiency or efficacy of allegations in the pleadings; other
motions are available for those purposes." Fed.R.Civ.P. 11
advisory committee's note (1993). Rule 11 is a salutatory tool
when invoked to deter frivolous litigation, but it must be
asserted with discretion and care. Rayonier contends that Plaintiffs' claims are time barred
because they failed to file their charges of discrimination with
the EEOC within 180 days of the alleged discriminatory event.
42 U.S.C.A. § 2000e-5(e)(1) (2003). Rayonier asserts that the
Walthours' failure to promote" claims arose either (1) when they
became aware that Bowen and Harvey were, assigned the work in the
early to mid-1990s, or (2) when they became aware that Bowen and
Harvey were earning more for performing that work in December
Having complied with the safe-harbor provision of. Rule
11*fn1 Rayanier seeks the sanction of dismissal of the
Walthours' claims, and monetary sanctions to reimburse it for
having to defend against these purportedly stale claims.
Rayonier argues that it is obvious that Plaintiffs felt that
they were being discriminated against more than 180 days before
the end of December 2003 (the time when Plaintiffs filed their
perfected charges), in light of Plaintiffs, internal grievance dated January 8, 2001. However, like the grievance
filed in August 2003, the January 2001 grievance was brought on
behalf of several members Of the union, both black and white. C.
Walthour Dep. 26. Notably, as Rayonier's counsel was careful to
emphasize during Plaintiffs, depositions, there is no mention in
either of the internal grievances that the Walthours suspected
they were being discriminated against on the basis of their race.
C. Walthour Dep., Exs. 3 & 5.
As a result, the Court rejects Rayonier's argument that the men
were aware of their claims, as a matter of law, on the date they
learned that Bowen and Harvey began the.vibration testing, or
when they learned that Bowen and Harvey were earning a better
wage for the work. All the grievances show is that certain union
members disputed the assignments on the basis of seniority under
the union contract. There are any number of justifications that
the Walthours could have come up with for management's conduct,
which might violate the union contract, but are legal under
federal employment law.
Rayonier recognizes that the Walthours contend that the
discrimination was an ongoing occurrence: that is, unlike
typical failure to promote, failure to hire, termination, or
other cases involving averments of discrete, discriminatory conduct, this is not a situation where Plaintiffs applied for a
promotion, but were denied it only once. Nonetheless, Rayonier
maintains that Plaintiffs' claims are still untimely because the
men identify April 14, 2003, as the last date on which
discrimination took place (which is more than 180 days before
Plaintiffs, perfected charges were filed).
The Court notes that "serial violations" of discrete acts of
discrimination do not give rise to a continuing violation"
theory, whereby conduct that occurs outside the 180 day window
can be "revived" by "anchor" violations that occur within the I80
day limitations period. See Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113-114 (2002). [F]ailure to promote"
claims are "discrete acts" that "occur" ion the day[s] that they
`happened.'" Id. at 114, 110.
Thus, the Walthours' claims do not constitute a "continuing
violation. Any claims that they might have had that occurred
more than 180 days before they filed their charging documents
with the EEOC are not actionable. Still, any discrimination that
occurred within 180 days I of their complaints to the EEOC is
independently actionable, and the statute does not "bar an
employee from using the prior acts as evidence in support of a
timely claim." Id. at 113. As Rayonier notes, each of the Walthours' charges of
discrimination state that 11[o]n or about April 14, 2003, 1 was
denied the opportunity to apply for a promotion, to the
Vi[b]ration job." However, in the charging document entitled
"date(s) the discrimination took place[,]" the Walthours also
marked the box indicating that the discrimination was a
"continuing action." Consequently, Rayonier was on notice that
the men viewed their complaints as ongoing, beyond April 14,
2003. The Walthours are laymen, and all indications are that they
prepared the EEOC documents without the assistance of counsel.
Moreover, during Cato Walthour's deposition, Rayonier's
attorney asked whether it was true that the vibration testing
ceased being performed on a relief basis by maintenance employees
in mid-December 2003, and the deponent agreed that he believed
that was accurate. C. Walthour Dep. 41-42. In light of these
facts, Rayonier's argument that the undisputed facts of record
demonstrate that the promotions did not occur after April 14,
2003, is difficult to fathom.
In sum, the Walthours assert timely failure to promote claims.
At the very least, the practice of assigning the vibration
testing to Bowen and Harvey occurred once in mid-December 2003. Cato Walthour Dep. 41-42. In addition, although the
perfected charges were filed on the final days of 2003, the 180
day limitations period did not begin running in mid-2003, as
Rayonier suggests. Rather,
a charge is sufficient when the Commission receives
from the person making the charge a written statement
sufficiently precise to identify the parties, and to
describe generally the action or practices complained
of. A charge may be amended to cure technical defects
or omissions, including failure to verify the charge,
or to clarify and amplify allegations made therein.
Such amendments and amendments alleging additional
acts which constitute unlawful employment practices
related to or growing out of the subject matter of
the original charge will relate back to the date the
charge was first received.
29 C.F.R. § 1601.12(b) (2005).
Thus, any failure to promote claim that arose in the 180 day
period before the Walthours filed or submitted their initial EEOC
questionnaire in October 2003 are not timebarred.*fn2 In filing this motion, Rayonier's lawyers have accused
Plaintiffs' attorney of professional incompetence. As should be
obvious, such a charge should not be made lightly, and counsel
are reminded that Rule 11 applies to motions made under Rule 11.
In that respect, it is not obvious that Rayonier's motion for
sanctions was well grounded in fact. The company posited that the
Walthours' claims were stale, even though it knew that Cato
Walthour testified, and otherwise contended, that the challenged
practices occurred on an ongoing basis until mid-December 2003
(about two weeks before Plaintiffs' perfected charges were
Unfortunately, Rayonier's attorneys may have also been less
than forthright by misstating another fact from Cato Walthour's
deposition. In its brief in support of sanctions, Rayonier
asserted that Cato Walthour testified that he was aware that
Bowen and Harvey began performing vibration testing work as early
as March 1993. Dkt. No. 25 at 6-7. Yet, the deposition does not
appear to support this factual contention. Rather, it shows the
following exchange between Rayonier's counsel and Walthour:
Q Now the company's records indicate that the very
first time that Hugh Harvey and Gary Bowen did
vibration testing was between March of 1993 and August of 1996, that far back. Do you disagree with
A I don't know.
Q So you don't have any reason to agree or disagree
A I don't.
C. Walthour Dep. 18-19; see also S. Walthour Dep. 20.
See Fed.R.Civ.P. 11(b) (3) & (4); see also Ga. Rules
of Prof'l Conduct R. 3.1 & 3.3 (regarding meritorious claims and
contentions and candor toward the tribunal).
These observations are not to say that Plaintiffs' counsel is
without fault in his conduct in the case. While the Court
concludes that the Walthours' lawyer acted appropriately in
insisting on prosecuting Plaintiffs' timely race discrimination
claims, the Court notes that the Walthours' attorney may have
misstated the law as it applies to this case.
In citing Provencher v. CVS Pharmacy, Div. of Melville Corp.,
145 F.3d 5, 14 (1st Cir. 1998), Plaintiffs' counsel asserted that
if a plaintiff alleges serial violations of the same sort of
discrimination, an act of discrimination that occurs during the
180 days prior to filing the EEOC charge serves as an "anchor
violation" that makes the entire course of discrimination
actionable. Dkt. No. 34 at 4.
Therefore, Plaintiffs' counsel contended, all of the Walthours'
failure to promote claims were cognizable under the "continuing violation" theory. Yet, outside the hostile work
environment context, Provencher has no application. See
Morgan, 536 U.S. at 113 ("discrete discriminatory acts are not
actionable if time barred, even when they are related to acts
alleged in timely filed charges"); id. at 115-120 (discussing
why hostile work environment claims are different). In arguing
that the continuing violation doctrine applied in this case,
Plaintiffs' counsel may have come perilously close to running
afoul of Rule 11(b) (2). See also Ga. Rules of Prof'1 Conduct
R. 1.1 (regarding competence).
While the Court does not find that counsel for either
Plaintiffs or Defendant violated Rule 11, it does note the types
of problems that have arisen in the litigation of this case are
far from uncommon. Therefore, it is fitting to remind counsel to
adhere scrupulously to all ethical restraints in the course of
exercising their professional duties.
For the reasons discussed above, Rayonier's motion for
sanctions is DENIED. See Dkt. No. 25.
SO ORDERED, this 19th day of September, 2005.
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