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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RONALD L. DUPLESSIE, individually and §

on behalf of all others similarly situated, §

 §

Plaintiff, §

v. § Civil Action No. 3:04-CV-2361-M

 §

ZALE CORPORATION and ZALE §

DELAWARE INC., §

 §

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion to Dismiss of Defendants Zale Corporation and Zale

Delaware, Inc. (collectively “Zale”), filed on December 17, 2004. For the reasons discussed

below, this Motion is DENIED.

Plaintiff Ronald Duplessie (“Duplessie”) filed a class action lawsuit against Zale alleging

that he and others similarly situated were discriminated against on the basis of their race. This

lawsuit is related to Bell-Pierce v. Zale Corp., a case which was dismissed, without prejudice, on

October 7, 2004, by United States District Judge Robert Echols of the Middle District of

Tennessee. In that case, Jocelyn Bell-Pierce (“Bell-Pierce”) filed suit against Zale alleging race

discrimination against a class of Zale employees. During the pendency of that suit, Bell-Pierce

filed for bankruptcy. Due to her bankruptcy, Bell-Pierce became an inadequate representative for

the class. Prior to her dismissal as the class representative, Duplessie filed a motion seeking to

 

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substitute himself for Bell-Pierce as the class representative. Duplessie’s motion was granted. 

However, Duplessie had no contacts with Tennessee, so the case was dismissed without

prejudice for improper venue.

On November 2, 2004, Duplessie filed the instant lawsuit in the Northern District of

Texas. Zale’s Motion seeks to dismiss this suit for three reasons. First, Zale contends that

Duplessie is not an adequate class representative. Second, Zale argues that Duplessie has not

specifically alleged a prima facie case for his disparate impact claim. Third, Zale avers that

Duplessie did not fulfill the statutory prerequisites for filing this lawsuit.

 Duplessie has not yet filed for class certification. The Court finds Zale’s arguments

concerning Duplessie’s adequacy as a class representative premature. See Bell-Pierce v. Zale

Corp., No. 3:02-1238, slip op. at 3 (M.D. Tenn. Aug. 25, 2003) (denying a motion to dismiss and

finding Defendants’ arguments about whether the class could be certified to be prematurely made

in a motion to dismiss); see also Ford v. United States Steel Corp., 638 F.2d 753 (5th Cir. 1981)

(vacating a district court’s decision to dismiss a class action due to the inadequacy of the named

plaintiff and remanding the case for determination as to whether a live controversy exists). The

Court expresses no opinion at this time as to whether the putative class will be certified or

whether Duplessie is an adequate class representative.

As to Zale’s argument that Duplessie has not pled his disparate impact claim with

specificity, the Supreme Court has held that an “employment discrimination complaint need not

include [specific facts establishing a prima facie case of discrimination] and instead must contain

only a short and plain statement of the claim showing that the pleader is entitled to relief.”

 

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). At this stage of the litigation, Duplessie

is only required to give Zale fair notice of the claims that will be asserted against it. Bates v.

United States Small Bus. Assoc., No. 3:01-CV-1614-D, 2004 U.S. Dist. LEXIS 23208, at *11

(N.D. Tex. Nov. 16, 2004) (citing Swierkiewicz, 534 U.S. at 508). Plaintiff alleges that qualified

African-Americans have sought promotion within Zale, but few have been promoted. Compl. ¶

46, 47, 48, 49, 50, 51. For example, Plaintiff alleges that of the “approximately 60 Regional

Managers in the Zales Jewelers division[,] . . . only approximately two (2) are AfricanAmerican.” Id. at ¶ 46. Duplessie also alleges that as a result of discriminatory practices,

African-Americans are placed at Zale stores in areas with large minority populations. Id. ¶ 57. 

Plaintiff alleges that these stores tend to have a lower volume of business and thus, the

employees placed at these locations receive less compensation. Id. ¶ 60, 61. Plaintiff alleges that

Defendants’ promotion and job placement procedures are discriminatory in nature, and that

Defendants either intentionally discriminate or that their policies, practices, and procedures result

in a disparate impact upon African-Americans. Id. ¶ 53, 62. These allegations are sufficient to

place Zale on fair notice of the Plaintiff’s claims.

Zale also contends that this suit should be dismissed because Duplessie did not timely file

a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). “A

claimant must file a Title VII discrimination claim with the EEOC within 300 days of the

challenged discrimination.” Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir. 2003). 

Duplessie’s charge was filed on September 7, 2004, and in it he alleged that the latest act of

 

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 Zale attached a copy of Duplessie’s charge as an appendix to its Motion to Dismiss. 1

Duplessie attached a copy of Bell-Pierce’s charge as an appendix to his Response. “In deciding a

motion to dismiss, the court may consider documents attached to or incorporated in the

complaint and matters of which judicial notice may be taken.” Willard v. Humana Health Plan

of Tex. Inc., 336 F.3d 375, 379 (5th Cir. 2003) (citing Lovelace v. Software Spectrum Inc., 78

F.3d 1015, 1017-18 (5th Cir. 1996)). The Court finds that the charges filed by Duplessie and

Bell-Pierce were incorporated by reference as a part of the Complaint. Thus, the Court will

consider the charges in its determination of this Motion to Dismiss. However, Duplessie’s

affidavit, which was attached as an appendix to his Response, will not be considered, because it

is extrinsic to the Complaint.

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discrimination occurred on June 1, 2003. App. Def. Mot Dismiss at 1. Thus, Zale argues 1

Duplessie’s charge was untimely because more than 300 days elapsed between the alleged

discrimination and the filing of the charge. Plaintiff argues that the statute of limitations was

tolled by Bell-Pierce’s suit and thus, Duplessie’s charge was timely filed.

“It is well established that a Title VII plaintiff may bring a class action on behalf of those

members who have not filed charges with [the] EEOC and that [the] charge [filed by the

plaintiff] tolls the running of the . . . limitation period for all members of the class.” NAACP v.

Corinth, 83 F.R.D. 46, 57 (N.D. Miss. 1979). In order for a plaintiff to “piggyback” on a charge

filed by another similarly situated person, three requirements must be satisfied:

First, the plaintiff must be “similarly situated” to the person who actually filed the

EEOC charge. Second, the charge must have provided some notice of the

“collective or class-wide nature of the charge.” Finally, a prerequisite – implicit

to be sure – for piggybacking under the single filing rule is the requirement that

the individual who filed the EEOC charge must actually file a suit that the

piggybacking plaintiff may join.

Bettcher v. Brown Schools., Inc., 262 F.3d 492, 494 (5th Cir. 2001) (internal citations omitted). 

Bell-Pierce filed her charge on October 1, 2001, and her lawsuit was filed on December

23, 2002. Compl ¶ 11, 16. Duplessie intervened in her suit as a named Plaintiff, and in the

 

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instant case, Duplessie seeks to represent the same class which Bell-Pierce sought to represent. 

Duplessie claims that his obligation to file a charge was tolled by Bell-Pierce’s charge and that he

can thus “piggyback” on the filing of her charge. Duplessie filed a charge with the EEOC on

September 7, 2004. Bell-Pierce’s suit was dismissed on October 7, 2004. Relying on Bettcher,

Zale argues that Duplessie cannot piggyback his claims onto Bell-Pierce’s EEOC charge. In

Bettcher, the Fifth Circuit upheld the district court’s decision to dismiss the plaintiff’s claims

because he did not meet the prerequisites to piggyback on the charge previously filed by another

individual.

When deciding a motion to dismiss, the Court accepts “the [factual] allegations of the

complaint as true, and resolv[es] ‘any ambiguities or doubts regarding the sufficiency of the

claim in favor of the plaintiff.’” Jones v. ALCOA, Inc., 339 F.3d 359, 362 (5th Cir. 2003)

(quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). Based on

the allegations in the Complaint, this case is clearly distinguishable from Bettcher, and satisfies

the three prerequisites described therein. First, in Bettcher, the individual whose charge the

plaintiff was seeking to piggyback never filed a lawsuit, class action or otherwise. Second, here

the charge filed by Bell-Pierce makes both individual and class allegations, Bell-Pierce filed a

class action lawsuit, and Duplessie was purportedly a member of the class she sought to

represent. Third, the charge upon which the plaintiff was seeking to piggyback in Bettcher

claimed both sex and age discrimination, whereas the plaintiff was claiming only age

discrimination, so there was a question as to whether they were similarly situated. Here, in

contrast, the charges filed by Duplessie and Bell-Pierce both complain of race discrimination in

 

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pay and promotion at Zale. Last, here both Bell-Pierce and Duplessie filed charges, unlike what

occurred in Bettcher.

Defendant further argues that Bell-Pierce’s suit may not be used to toll the statute of

limitations in this case because such tolling is unavailable for subsequent class actions. In the

case of Salazar-Calderon v. Presidio Valley Farmers Association, the Fifth Circuit held that

plaintiffs may not “toll the statute of limitations indefinitely” by filing one class action after

another. 765 F.2d 1334, 1351 (5th Cir. 1985). However, that general principle is designed to

prevent abuse and its application in particular cases depends upon the facts therein. In re

Norplant Contraceptive Prods., 961 F.Supp. 163, 167 (E.D. Tex. 1997). 

Salazar involved the consolidation of four class action lawsuits. 765 F.2d at 1350. After

class certification was denied in the first lawsuit, Lara v. PVFA, two other suits were filed on

behalf of the putative class members in Lara. Two days after class certification was denied in

those suits, a fourth suit, Zuniga v. PVFA, was filed. The plaintiffs sought to have the statute of

limitations tolled during the pendency of the class certification motions from the first three cases

so that the Zuniga claims would be timely. The court found this to be an abuse of the piggyback

mechanism and concluded that the statute was tolled only during the pendency of the first class

certification motion. The facts here are distinguishable. Duplessie is not seeking multiple tolling

periods. He filed his charge during the pendency of Bell-Pierce’s suit and he intervened in that

suit. Duplessie’s charge is timely if the statute of limitations is tolled during the pendency of the

first suit. The Court concludes that the concerns expressed by the Fifth Circuit in Salazar are not

present here.

 

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The Court finds that Duplessie has sufficiently alleged that the three hundred day period

was tolled by the original Bell-Pierce suit and that the application of piggybacking renders his

charge timely. Therefore, dismissal is not appropriate. See Causey v. Sewell CadillacChevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004).

For the reasons herein stated, Defendants’ Motion to Dismiss is DENIED.

SO ORDERED.

May 18, 2005.

_________________________________

BARBARA M. G. LYNN

UNITED STATES DISTRICT JUDGE

 

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