Tonya Lockhart v. Holiday Inn Express Southwind, et al
OPINION filed : we REVERSE the district court's dismissal of Plaintiff's Title VII claims and REMAND for further proceedings consistent with this opinion, decision not for publication. Karen Nelson Moore, Eric L. Clay (authoring), and Helene N. White, Circuit Judges.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0694n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Jul 29, 2013
DEBORAH S. HUNT, Clerk
HOLIDAY INN EXPRESS SOUTHWIND,
YOGESH PUROHIT, dba Holiday Inn Express
Southwind, DR. MUKESH JAIN, dba Holiday
Inn Express Southwind, NEELEM JAIN, dba
Holiday Inn Express Southwind, MNY
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
MOORE, CLAY, and WHITE, Circuit Judges.
CLAY, Circuit Judge. After being fired from her job at Defendant Holiday Inn Express
Southwind in Memphis, Tennessee, Plaintiff Tonya Lockhart filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”), claiming that she was discriminated
against on the basis of her race and her sex. She eventually sued the hotel under Title VII of Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., but the district court dismissed her complaint because
she had failed to name Defendants Yogesh Purohit, Mukesh Jain, and Neelem Jain in her EEOC
charge. For the following reasons, we REVERSE and REMAND.
Plaintiff Tonya Lockhart, an African-American female, was one of three “driver/houseman”
employed at the Holiday Inn Express Southwind in Memphis, Tennessee in June 2008. The other
two housemen were Caucasian males. At that time, the hotel was owned by MNY Partnership,
which was owned and operated by Defendants Mukesh Jain, Neelem Jain, and Yogesh Purohit
According to hotel’s employee handbook, employees are required to clock out before going
on break. On June 30, 2008, Plaintiff informed hotel management that during her previous shift, all
three housemen, including her, had taken a break without clocking out. The next day, hotel
management informed Plaintiff that she was being fired for breaking the rules regarding clocking
out during breaks; the other two housemen were neither fired nor reprimanded based on the incident.
On July 9, 2008, Plaintiff filed a pro se charge of discrimination with the EEOC, claiming
that she was discriminated against on the basis of her race and her sex in violation of Title VII. Her
charge listed “Holiday Inn Express Hotel” as the sole respondent, along with the hotel’s street
address and phone number. On May 29, 2009, the EEOC issued Plaintiff a right-to-sue letter, which
was “cc’d” to “Mary Zendal, General Manager, Holiday Inn Express Hotel,” and sent to the same
street address and phone number that Plaintiff listed on her charge. Plaintiff then filed this lawsuit
pro se in the United States District Court for the Western District of Tennessee on August 28, 2009.
In her complaint, she alleged both race and sex discrimination against “Holiday Inn Express
Southwind” under Title VII. On the same day, Plaintiff moved for leave to proceed in forma
pauperis and for the appointment of counsel.
On March 19, 2010, the district court ordered Plaintiff to amend her complaint to provide the
name and address of her employer because “[n]o company named ‘Holiday Inn Express Southwind’
is registered to do business in Tennessee . . . [and t]he complaint does not identify the owner of the
hotel.” (R. 7, at PID# 35.) Following that order, Plaintiff filed a pro se amendment on April 15,
2010, and asked the district court to add as Defendants “James and Jain Neelem”1 and Yogesh
Purohit, as well as Defendants’ corporate identity, MNY Partnership. (R. 8, Pl.’s Amendment, at
PID# 36.) More than a year later, on June 9, 2011, the district court granted leave and ordered the
clerk of the court to issue process and deliver the process to the marshal for service. Summons were
served on Defendants on July 13 and 14, 2011. Since November 4, 2011, Plaintiff has been
represented by counsel. After obtaining counsel, Plaintiff amended her complaint on April 17, 2012,
adding identical claims under the Tennessee Human Rights Act (“THRA”), Tenn. Code § 4-21-101
Purohit moved to dismiss the claims against him.2 In dismissing Plaintiff’s claims against
Purohit, the district court held that her Title VII claims failed because Plaintiff failed to name Purohit
in her EEOC charge and her THRA claims failed because they were time barred and she could not
avail herself of Federal Rule of Civil Procedure 15(c)(1)(C)’s relation back rule. Subsequently, the
Jains moved to dismiss, and the district court granted the Jains’ motion on essentially the same
The correct names are Mukesh Jain and Neelem Jain.
Plaintiff did not respond to the motion.
We review de novo a district court’s dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6). Conlin v. MERS, 714 F.3d 355, 358 (6th Cir. 2013). Similarly, we review de novo a
district court’s application of the relation back rule under Federal Rule of Civil Procedure 15(c).
United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 516 (6th Cir. 2007).
Defendants argue that the district court correctly dismissed Plaintiff’s Title VII claims3
because (a) they were not named in Plaintiff’s EEOC charge and (b) regardless, her addition of
Defendants does not relate back to the date of her initial complaint.
Failure to Name Defendants in the EEOC Charge
As a general rule, a plaintiff “may only sue an entity for violating civil rights statutes such
as Title VII . . . if it named the same entity in its prior EEOC charge.” Szoke v. United Parcel Serv.
of Am., Inc., 398 F. App’x 145, 153 (6th Cir. 2010) (citing Knafel v. Pepsi–Cola Bottlers of Akron,
Inc., 899 F.2d 1473, 1480–81 (6th Cir. 1990)); see also 42 U.S.C. § 2000e-5(f)(1). This rule is,
however, susceptible to a “limited exception” where there exists a “clear identity of interest”
between the party named in the EEOC charge and the unnamed party that was actually sued. Szoke,
398 F. App’x at 153–54.
The named-party rule serves two goals: “First, the charge serves to notify the defendant of
the discrimination claim alleged against him. . . . Second, by naming the charged party and bringing
him before the EEOC, that person is able to participate in conciliation efforts directed at securing
voluntary compliance with the Act.” Romain v. Kurek, 836 F.2d 241, 245 (6th Cir. 1987). “The
Plaintiff has not appealed the district court’s dismissal of her THRA claims.
‘identity of interest’ exception acknowledges the reality that laymen, unassisted by trained lawyers,
initiate the process of filing a charge with the EEOC, and accordingly prevents frustration of the
remedial goals of Title VII by not requiring procedural exactness in stating the charge.” Id.
We have adopted two tests for determining whether the identity of interest exception applies.
Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 411 (6th Cir. 1999); see also
Szoke, 398 F. App’x at 153–54. Under the Seventh Circuit’s test from Eggleston v. Chicago
Journeymen Plumbers’ Local Union No. 130, “an identity of interest exists when the unnamed party
possesses sufficient notice of the claim to participate in voluntary conciliation proceedings.”
Alexander, 177 F.3d at 411; see Eggleston, 657 F.2d 890, 905 (7th Cir. 1981). Under the test set
forth by the Third Circuit in Glus v. G.C. Murphy Co., we look to four factors to determine the
relationship between the named and unnammed parties:
(1) Whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint;
(2) Whether, under the circumstances, the interests of a named [party] are so similar
as the unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
(3) Whether its absence from the EEOC proceedings resulted in actual prejudice to
the interests of the unnamed party;
(4) Whether the unnamed party has in some way represented to the complainant that
its relationship with the complainant is to be through the named party.
Romain, 836 F.2d at 246 (alterations omitted); see Glus, 562 F.2d 880, 888 (3rd Cir. 1977).
Compliance with the named-party rule is part of a plaintiff’s obligation to exhaust her
administrative remedies with the EEOC before filing suit. See Romain, 836 F.2d at 245. “Failure
to exhaust administrative remedies . . . is an affirmative defense, and the defendant bears the burden
of pleading and proving this failure.” Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008); see
also Luedtky v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (citing Wright v. Universal Mar. Serv.
Corp., 525 U.S. 70, 75 (1998)). We, however, are reluctant to dismiss complaints based on
affirmative defenses at the pleading stage and before any discovery has been conducted. Pfeil v.
State St. Bank & Trust Co., 671 F.3d 585, 599 (6th Cir. 2012) (“Courts generally cannot grant
motions to dismiss on the basis of an affirmative defense unless the plaintiff has anticipated the
defense and explicitly addressed it in the pleadings.”). In fact, we only address affirmative defenses
on Rule 12(b)(6) motions where “‘the plaintiff’s own allegations show that a defense exists that
legally defeats the claim for relief.’” Marsh v. Genetech, Inc., 693 F.3d 546, 554–55 (6th Cir. 2012)
(quoting 5B Charles Alan Wright & Arthur Miller, Federal Practice & Procedure § 1357 at 713 (3d
That is not the case here. Plaintiff has alleged that each individual Defendant is a “coowner/operator of the . . . Holiday Inn Express Southwind,” (R. 32, Am. Compl., at PID# 147), and
this Court has held that there may be an identity of interest between a corporation and its owners.
See, e.g., Romain, 836 F.2d at 244–45; cf. Hutcherson v. Lauderdale Cnty., Tenn., 326 F.3d 747,
759–60 (6th Cir. 2003). But, at this stage, the record is insufficiently developed to allow us to
conduct the identity-of-interest analyses under Eggleston and Glus. Some, potentially limited,
discovery is necessary before it may be determined whether Defendants have a “clear identity of
interest” with the party named in Plaintiff’s EEOC charge. Therefore, it was error for the district
court to have dismissed Plaintiff’s Title VII claims at this stage in the litigation.
Defendants argue that dismissal of Plaintiff’s Title VII claims was nonetheless proper
because her complaint against them was out of time. To be sure, a Title VII plaintiff must bring suit
within ninety days of receiving her right-to-sue letter from the EEOC, 42 U.S.C. § 2000e-5(f)(1), and
Defendants were not served with Plaintiff’s complaint until mid-July 2011, more than two years after
Plaintiff received her right-to-sue letter. However, the Federal Rules of Civil Procedure allow
plaintiffs, in some circumstances, to have their addition of defendants “relate back” to their timely
filed initial complaint. See Fed. R. Civ. P. 15(c)(1)(C).
When a plaintiff seeks to amend a complaint to add a party against whom the claim would
otherwise be barred by the statute of limitations, the amended pleading is considered to relate back
to the date of the original, timely pleading where:
“the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original
pleading,” see Fed. R. Civ. P. 15(c)(1)(B), and
the added party is “served within 120 days after the [initial] complaint is
filed . . . [or] the plaintiff shows good cause for the failure [to serve the added
party within 120 days], see Fed. R. Civ. P. 4(m).
Fed. R. Civ. P. 15(c)(1)(C). If both these criteria are satisfied, then the party may be added so long
as the added party,
“received such notice of the action that it will not be prejudiced in defending
on the merits,” see Fed. R. Civ. P. 15(c)(1)(C)(i), and
“knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity,” see Fed. R. Civ.
The focus of both the Defendants’ and district court’s discussion of this issue was the 120day period, but the 120-day period is not a hard and fast rule because it can be excused for good
cause. See, e.g., Jackson v. Herrington, 393 F. App’x 348, 353–54 (6th Cir. 2010) (incorporating
Rule 4(m)’s good-cause exception into Rule 15(c)(1)(C)); Robinson v. Clipse, 602 F.3d 605, 609
(4th Cir. 2010) (observing that the delay caused by the district court’s failure to screen the plaintiff’s
in forma pauperis complaint and authorize service of process is beyond the plaintiff’s control and
constitutes good cause requiring that the 120-day period be extended). In Jackson, we found that
the plaintiff had shown good cause where the plaintiff’s case had to be screened under 28 U.S.C.
§ 1915A “for frivolousness and other defects” before the district court could issue summonses to the
added defendants. Jackson, 393 F. App’x at 353. Though that case dealt with prisoner in forma
pauperis suits, analogous strictures apply to run-of-the-mill pauper suits. “[W]here a plaintiff is
proceeding as a pauper, the district court bears the responsibility for issuing the plaintiff’s process
to a United States Marshal who must effect service upon the defendants once the plaintiff has
properly identified the defendants in the complaint.” Donaldson v. United States, 35 F. App’x 184,
185 (6th Cir. 2002) (citing 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(2); Byrd v. Stone, 94 F.3d 217,
219 (6th Cir. 1996)). That is, issues relating to service of process are out of the hands of a plaintiff
proceeding in forma pauperis until the district court approves such service.
In this case, the district court did not consider whether there was good cause to excuse
Plaintiff’s noncompliance with the 120-day period. We have previously found error where the
“district court failed to undertake any good [cause] analysis at all.” See Abel v. Harp, 122 F. App’x
248, 251 (6th Cir. 2005). In that case, we were able to determine, based on the record, that the
plaintiff had “demonstrated good cause for his failure to effectuate service of process.” Id. at 253.
In this case, the record is not so clear. What it does show is that Plaintiff filed her pro se complaint
as well as her request to proceed in forma pauperis on August 28, 2009, and on March 19, 2010, the
district court granted Plaintiff pauper status. In the same March 19, 2010 order, the district court
ordered Plaintiff to amend her complaint by providing the name and address of her former employer.
She did so on April 15, 2010, and requested that the district court add Defendants as parties.
Plaintiff’s April 15, 2010 filing then languished as pending until the district court, on June 9, 2011,
ordered service on Defendants. Defendants were served shortly thereafter on July 13, 2011 (Purohit)
and July 14, 2011 (Jains). It seems that Plaintiff dutifully complied with the district court’s orders,
and when she was able to serve Defendants, did so promptly. However, because “the determination
of good cause is a discretionary determination entrusted to the district court,” Abel, 122 F. App’x at
251, remand is appropriate for the district court to consider whether Plaintiff can show good cause
to excuse her noncompliance with the 120-day period. See Sykes v. Anderson, 625 F.3d 294, 323
(6th Cir. 2010).
For the foregoing reasons, we REVERSE the district court’s dismissal of Plaintiff’s Title
VII claims and REMAND for further proceedings consistent with this opinion.
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