IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NELDA J. TILLISON, §

 §

Plaintiff, §

 § Civil Action No. 3:03-CV-2480-D

VS. §

 §

TRINITY VALLEY ELECTRIC §

COOPERATIVE, INC., et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

Plaintiff Nelda J. Tillison (“Tillison”) sues Trinity Valley

Electric Cooperative, Inc. and Trinity Valley Services, Inc.

(collectively, “Trinity”), her former employers, alleging sex

discrimination, quid pro quo sexual harassment, and hostile work

environment sexual harassment, in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.;

age discrimination, in violation of the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.; and

state-law claims of intentional infliction of emotional distress,

negligence, gross negligence, negligent retention, and gross

negligent retention. Concluding that her federal-law claims are

time-barred and that her state-law claims are precluded as a matter

of law, the court grants defendants’ motion for summary judgment.

The court also dismisses defendants’ third-party claim at their

request and enters a final judgment of dismissal.

 

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1The court recounts the evidence favorably to Tillison as the

summary judgment nonmovant and draws all reasonable inferences in

her favor. See, e.g., Clift v. Clift, 210 F.3d 268, 270 (5th Cir.

2000).

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I

From 1967 until 2002, Tillison worked in the billing or

accounting departments of Trinity or its predecessors.1

 During

much of that time, Trinity’s General Manager, third-party defendant

Jack Schwartz (“Schwartz”), tacitly promoted a company policy

requiring female employees to dress in a sexually-provocative

manner and behave as though they were receptive to his advances.

Schwartz behaved improperly during a period of several years,

including attempting to touch an employee’s breasts, forwarding

sexually-explicit material through the office email system, showing

a female employee sexually-explicit material on his computer, and

offering a female employee jewelry in exchange for sex. Schwartz

also commented that a female employee’s chances for promotion were

better if she were attractive.

Tillison refused to abide by Schwartz’s requirements and

thereafter began to experience difficult relations with her

supervisors. Supervisors assigned her additional responsibilities

and an unmanageable workload, reprimanded her based on false

allegations, and monitored her telephone use. Her workplace

difficulties came to a head on January 11, 2002, when, following a

confrontation with a supervisor concerning her workload, she left

 

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2Because Tillison asserts that she was constructively

discharged on January 11, 2002, and because the court later rejects

her assertion that she was not terminated until November 1, 2004,

the court will refer throughout this opinion to January 11, 2002 as

the date Trinity terminated her employment.

3Trinity filed a motion for summary judgment on January 3,

2005. In a February 7, 2005 memorandum opinion and order, the

court granted summary judgment after Tillison failed to respond to

the motion within the time required by N.D. Civ. R. 7.1(e). See

Tillison v. Trinity Valley Elec. Coop., 2005 WL 292423 (N.D. Tex.

Feb. 7), vacated, No. 3:03-CV-2480-D (N.D. Tex. Apr. 18, 2005)

(Fitzwater, J.). Fortuitously for her, the court did not enter a

final judgment due to the pendency of Trinity’s third-party action

against Schwartz. Tillison subsequently moved for relief on the

basis that her failure to respond to the motion was the result of

her attorney’s misunderstanding of the court’s rules and failure to

obtain evidence necessary to support her response. The court

granted her motion, vacated its memorandum opinion and order, and

permitted Tillison to file a response and Trinity to file a reply.

See Tillison v. Trinity Valley Elec. Coop., No. 3:03-CV-2480-D,

slip op. at 3-4 (N.D. Tex. Apr. 18, 2005) (Fitzwater, J.).

Trinity’s motion is again before the court for decision. 

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and did not return. Tillison alleges that she was constructively

discharged and that Trinity terminated her to avoid paying her full

retirement benefits and because of her female sex.2 She

subsequently filed a charge of discrimination, obtained a right to

sue letter from the Equal Employment Opportunity Commission

(“EEOC”), and filed this lawsuit. Trinity moves for summary

judgment.3

II

The court first considers whether Tillison’s claims of

negligence, gross negligence, negligent retention, and gross

negligent retention are subject to dismissal. 

In its February 7, 2005 memorandum opinion and order, the

 

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4

Tillison does not dispute Trinity’s assertion that it was a

subscriber under the TWCA.

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court dismissed Tillison’s negligence claims on the basis that they

arise from injuries she suffered in the course of her employment

and are therefore precluded by the exclusive remedy provision of

the Texas Workers’ Compensation Act (“TWCA”). See Tillison v.

Trinity Valley Elec. Coop., 2005 WL 292423, at *2 (N.D. Tex. Feb.

7) (“Tillison I”), vacated, No. 3:03-CV-2480-D (N.D. Tex. Apr. 18,

2005) (Fitzwater, J.). In her response, Tillison contends her

negligence claims are not barred by the TWCA because the Supreme

Court has recognized in Burlington Industries, Inc. v. Ellerth, 524

U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775

(1998), that an employer can be held vicariously liable for the

sexually-harassing conduct of a supervisor.4

Tillison’s reliance on Burlington and Faragher is misplaced.

Those cases address when under Title VII an employer can be held

vicariously liable for the sexually harassing conduct of a

supervisor. The question whether Tillison’s state-law negligence

claims are barred by the TWCA, however, is governed by Texas law.

See, e.g., Ward v. Bechtel Corp., 102 F.3d 199, 203-04 (5th Cir.

1997) (citing cases applying Texas law in analyzing TWCA preemption

of negligence claims). The TWCA exempts an employer from common

law liability for negligence and gross negligence for an employee’s

injuries sustained in the course of employment, except in death

 

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cases for certain exemplary damages. See Reed Tool Co. v. Copelin,

610 S.W.2d 736, 739 (Tex. 1980). 

If Tillison sustained her injuries in the course and scope of

her employment, her negligence-based claims are barred by the TWCA.

An injury is not within the scope of employment if it arises from

a third person’s personal reason and is not directed at the

employee because of employment. Walls Reg’l Hosp. v. Bomar, 9

S.W.3d 805, 806-07 (Tex. 1999) (per curiam); see Medina v. Herrera,

927 S.W.2d 597, 601 (Tex. 1996). Tillison does not address the

fact that the Texas Supreme Court has recognized that a victim of

sexual harassment can be deemed to have suffered injury within the

scope of her employment, see Walls Regional Hospital, 9 S.W.3d at

806-08, and she does not contend that her injuries were suffered

outside the scope of her employment. 

In Walls Regional Hospital nurses brought a negligent hiring

claim against their employer hospital based on sexually harassing

conduct of a doctor whom the hospital had credentialed. Id. at

806. As does Tillison, the nurses complained of sexually harassing

conduct that occurred exclusively at the workplace and during

working hours. Id. at 807. The court stated:

[A]ll the incidents described in the summary

judgment record occurred while plaintiffs were

doing their jobs and [the doctor] was doing

his. Plaintiffs do not contend that [he] ever

accosted them privately outside the Hospital,

nor do they contend that he came to the

Hospital because they were there. On the

contrary, plaintiffs contend, and the summary

 

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judgment record establishes, that [the doctor]

harassed plaintiffs because they happened to

be at work at the same time he was.

Id. The court concluded that the nurses’ injuries occurred in the

course and scope of employment and did not fall within the personal

animosity exception. See id. at 807-08. The court also held that

the negligence claims asserted against the hospital were preempted

by the TWCA. Id. at 808. Because Tillison does not maintain that

she was injured outside the course and scope of employment or that

the harassing conduct falls within the personal animosity

exception, the court concludes that her negligence claims are

barred by the TWCA and dismisses them with prejudice.

III

Tillison also seeks to recover for intentional infliction of

emotional distress. 

In Tillison I the court held that Tillison could not maintain

this claim because the gravamen of her complaint is employment

discrimination and she has not adduced evidence of intentional

infliction of emotional distress that is independent of her

employment discrimination claims. Tillison I, 2005 WL 292423, at

*2 (applying Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438

(Tex. 2004)). Tillison states in her response that she

“acknowledges this Court’s recognition in Wright v. Blythe-Nelson,

[2004 WL 2870082] (N.D. Tex. Dec. 13, 2004)[,] of the findings of

the Texas Supreme Court in Hoffmann-LaRoche . . . as to her claims

 

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5Trinity also moves for summary judgment on the merits of

these claims. Because the court grants summary judgment based on

limitations, it need not address these arguments.

6Because Texas is a deferral state, Tillison was required to

file her EEOC charge within 300 days after the alleged unlawful

practice occurred. See Stith v. Perot Sys. Corp., 2004 WL 690884,

at *3 (N.D. Tex. Mar. 12, 2004) (Fitzwater, J.) (citing 42 U.S.C.

§ 2000e-5(e) (Title VII claim); 29 U.S.C. § 626(d)(2) (ADEA

claim)), aff’d, 122 Fed. Appx. 115 (5th Cir. 2005) (unpublished

opinion).

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for intentional infliction of emotional distress.” P. Br. at 3,

¶ 1.6. (footnote omitted). Earlier in her brief, she opposes

summary judgment, “subject only to the discussion at paragraph

1.6[.]” Id. at 2, ¶ 1.2. And she does not present arguments in

opposition to granting summary judgment on this claim.

Accordingly, the court dismisses this claim with prejudice.

IV

Trinity moves for summary judgment as to Tillison’s claims

under ADEA and Title VII. It argues, inter alia, that it is

entitled to this relief because Tillison’s EEOC charge of

discrimination was untimely.5

 Trinity asserts that if it took an

adverse employment action as to Tillison, it occurred on January

11, 2002. It further posits that Tillison was required to file a

charge of discrimination no later than November 7, 2002, the 300th

day after the adverse employment action, but that she did not do so

by that date.6

 

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A

Tillison maintains that her EEOC charge was not untimely

because she was not actually discharged on January 11, 2002. Upon

her departure from Trinity in January 2002, she began receiving

long-term disability benefits, and Trinity changed her employment

status to “inactive employee.” On November 1, 2004 Trinity sent

Tillison a letter advising her that her long-term disability

benefits had been terminated and that, pursuant to Trinity policy,

her employment status would immediately be changed from “inactive

employee” to “retired.”

Tillison contends that her EEOC charge was not untimely

because she was not actually terminated until November 1, 2004,

when Trinity changed her to retired status. She argues that her

EEOC charge therefore was not filed outside the 300-day time limit.

The court rejects this argument. To concur in this contention

would mean that Tillison prospectively complained in November 2002

of discrimination that would not take place until two years later.

Tillison has not pointed to any authority that supports this

reasoning. Moreover, Tillison’s argument is refuted by her EEOC

charge. In it she lists January 11, 2002 as both the earliest and

the latest date that discrimination took place. See P. App. 167.

If she is now complaining of discrimination that took place on

November 1, 2004——a premise that is wholly inconsistent with the

nature of and grounds for the claims she asserts in this suit——she

 

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has not demonstrated that she exhausted the claim through the EEOC

complaint process.

B

Tillison alternatively argues that communication of her

complaint to the Texas Commission on Human Rights (“TCHR”) and

confusing instructions she received from the EEOC justify equitably

tolling the limitations period and deeming her charge timely filed.

1

On August 7, 2002 Tillison transmitted an intake questionnaire

to the TCHR by facsimile. She complained in the questionnaire of

the same conduct that underlies this lawsuit. On or about August

22, 2002 Tillison received a letter from the TCHR notifying her

that it was unable to draft a charge of discrimination on her

behalf. It also advised her that her complaint had been “deferred”

to the EEOC for investigation and that an EEOC investigator would

contact her when the complaint had been assigned. Tillison

received a completed charge of discrimination from the EEOC on

Thursday, November 7, 2002. A letter accompanying the charge

informed her that failure to sign and return the charge within 10

days would “result in the charge not being accepted for

investigation.” P. App. 166. Tillison signed the complaint on

November 7 and “overnighted” it to her attorney, who hand-delivered

 

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7

In her affidavit, Tillison mistakenly identifies November 7,

2002 as a Friday. It was a Thursday. Moreover, although November

11, 2002 was a federal holiday, that fact is immaterial because

November 8 was a business day and the deadline expired that date.

8Tillison does not argue that the intake questionnaire that

the TCHR received in August 2002 is sufficient to be treated as a

formal charge of discrimination that satisfies the 300-day time

limitation. Such an argument, if made, would be misplaced. The

Fifth Circuit has recognized circumstances in which a pro se

litigant’s EEOC intake questionnaire may be treated as a formal

complaint to determine its timeliness, see Price v. Southwestern

Bell Telephone Co., 687 F.2d 74, 78-79 (5th Cir. 1982), but

Tillison was not then (nor is she now) a pro se litigant.

Moreover, she does not point to any evidence that the EEOC

considered her intake questionnaire to have been a charge

sufficient to trigger the administrative process. Cf. Wilson v.

City of Dallas, Tex., 2003 WL 23017738, at *3 (N.D. Tex. Dec. 17,

2003) (Solis, J.) (distinguishing Price and holding intake

questionnaire not a charge of discrimination where plaintiff

adduced no evidence that EEOC considered questionnaire to be charge

or used it to initiate administrative process); Hester v. Van

Chevrolet Co., 1998 WL 118149, at *2 n.6 (N.D. Tex. Mar. 4, 1998)

(Fish, J.) (distinguishing Price and holding completion of EEOC

Form 283 and intake questionnaire did not constitute filing of

charge where plaintiffs adduced no evidence that EEOC considered

documents to satisfy 42 U.S.C. § 2000e-5(e)(1)).

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the charge to the EEOC on Monday, November 11, 2002.7

Tillison asserts that her attempt to satisfy the

administrative prerequisites of Title VII by submitting her

complaint to the TCHR, coupled with the EEOC’s confusing

instructions regarding the deadline to sign and return the charge

of discrimination, justify equitably tolling the 300-day complaint

requirement of Title VII.8 She presumably makes the same argument

with regard to her ADEA claim, which is also subject to the 300-day

limit. See supra note 6.

 

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2

The limitations period during which a charge of discrimination

may be filed “is subject to equitable doctrines such as tolling or

estoppel.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113

(2002). These equitable doctrines, however, “are to be applied

sparingly.” Id. Because Tillison invokes equitable tolling as a

basis for concluding that her charge was timely, she bears the

burden of demonstrating that it applies. See Manning v. Chevron

Chem. Co., 332 F.3d 874, 880 (5th Cir. 2003) (citing Ramirez v.

City of San Antonio, 312 F.3d 178, 183 (5th Cir. 2002)).

The Fifth Circuit has identified three potential circumstances

in which tolling the charge deadline may be appropriate: (1)

pendency of a suit between the same parties in the wrong forum; (2)

the plaintiff’s lack of awareness of facts supporting the claim due

to defendant’s intentional concealment of them; and (3) the EEOC

misleads the plaintiff about her rights. Id. Although other

circumstances may also merit equitable tolling, see Blumberg v. HCA

Management Co., 848 F.2d 642, 644-45 (5th Cir. 1988), the Fifth

Circuit has been reluctant to forgive late filings where a claimant

has failed to exercise due diligence in preserving her legal

rights, see Wilson v. Secretary, Department of Veterans Affairs, 65

F.3d 402, 404 (5th Cir. 1995) (per curiam).

Tillison has not introduced sufficient evidence to permit a

reasonable trier of fact to find that the EEOC misled her in the

 

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9

“[L]ack of knowledge of applicable filing deadlines is not a

basis for tolling.” Barrow v. New Orleans S.S. Ass’n, 932 F.2d

473, 478 (5th Cir. 1991) (citing Larson v. Am. Wheel & Brake, Inc.,

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letter she received on November 7, 2002. To demonstrate that she

was misled requires that she show the EEOC gave her information

that was affirmatively wrong. See Ramirez, 312 F.3d at 184. The

EEOC’s letter stated that her failure to sign and return the charge

within 10 days would cause her complaint not to be investigated.

It did not state that her complaint would be investigated even if

untimely or that it would be considered timely if returned within

10 days. The EEOC letter simply admonished Tillison that her

failure to sign and return the charge within the 10-day period

would jeopardize the investigation of her claim, and a reasonable

trier of fact could not find that this statement was incorrect or

misleading.

Nor has Tillison adduced evidence that would permit a

reasonable finding that this case warrants tolling the limitations

period on another basis. Trinity terminated Tillison’s employment

on January 11, 2002. She retained counsel in March or April 2002.

D. App. 110; see Kojin v. Barton Protective Servs., 339 F.Supp.2d

923, 930 (S.D. Tex. 2004) (treating plaintiff’s representation by

counsel as relevant to question whether equitable tolling was

appropriate). She does not explain why she waited until August to

file an intake questionnaire and, presumably knowing that the 300-

day limitation was approaching in November,9 failed to take any

 

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610 F.2d 506, 510 (8th Cir. 1979)).

10Tillison states at one point in her response brief that she

received the letter on November 6, 2002. See P. Br. at 30. Her

briefing, however, is not summary judgment evidence. See Larry v.

White, 929 F.2d 206, 211 n.12 (5th Cir. 1991) (“Unsworn pleadings,

memoranda, or the like are not, of course, competent summary

judgment evidence.”). In her affidavit she states that she

received the EEOC letter on November 7, 2002. P. App. 149.

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action to ensure that her charge would be timely filed.

Moreover, Tillison has not adduced evidence that would permit

a reasonable trier of fact to find that the EEOC issued “confusing

instructions” that are to blame for her failure to file a

discrimination charge within the limitations period. By invoking

equitable tolling based in part on the EEOC’s instructions,

Tillison implicitly argues that the EEOC misled her about her

rights and that its instructions prevented, or at least interfered

with, her making a timely filing. She has adduced no evidence,

however, that would permit a reasonable trier of fact to make this

finding. Tillison received the EEOC letter on November 7, 2002,

the 300th day following her termination.10 She has not presented

evidence that would permit the reasonable finding that, but for the

language that required receipt of the charge within 10 days, she

could and would have filed the charge on the same day she received

the letter. For example, she does not even include in her evidence

a statement to this effect: “Once I received the letter, I thought

I had ten more days, so I did not try to file my charge by the

300th day.”

 

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11In Trinity’s May 6, 2005 motion to reinstate the third-party

complaint, it indicates that it intends to dismiss the third-party

claim against Schwartz if the court grants summary judgment.

Accordingly, the court is filing a final judgment dismissing this

case today.

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The court concludes that a reasonable trier of fact could only

find that Tillison did not exercise due diligence in preserving her

legal rights by filing a charge of discrimination within the period

prescribed by 42 U.S.C. § 2000e-5(e). Accordingly, a reasonable

trier of fact could not find sufficient grounds to toll the

limitations period. Tillison’s charge is untimely, and Trinity is

entitled to summary judgment dismissing her Title VII and ADEA

claims.

* * *

The court grants Trinity’s motion for summary judgment and

dismisses this action by judgment filed today.11

SO ORDERED.

September 2, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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