Raulerson v. New South Express LLC
Filing
24
MEMORANDUM OPINION AND ORDER GRANTING 11 MOTION to Dismiss. However, the Court will give Plaintiff one additional opportunity, consistent with the holdings in this Opinion, to amend his Complaint to add an ADA claim. Any such amendment should be filed no later than May 11, 2018. Signed by Judge Virginia Emerson Hopkins on 4/27/2018. (JLC)
FILED
2018 Apr-27 PM 12:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DEREK RAULERSON,
Plaintiff,
v.
NEW SOUTH EXPRESS, LLC, et
al.,
Defendants.
)
)
)
)
) Case No.: 1:17-CV-1966-VEH
)
)
)
)
)
MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, Derek Raulerson, against Elwood
Staffing Services, Inc. (“Elwood”) and New South Express, LLC. (“NSE”), his former
joint employers. (Doc. 6). The Plaintiff alleges that after he complained about the
Defendants’ alleged discrimination against his co-employees, the Defendants retaliated
against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e through 2000e-17 (“Title VII”).
The case comes before the Court on the Defendants’ Motion To Dismiss, filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state
a claim upon which relief may be granted (the “Motion”). (Doc. 11). For the reasons
stated herein, the Motion will be GRANTED, but the Plaintiff will be given leave to
amend.
I.
STANDARD
Generally, the Federal Rules of Civil Procedure require only that the complaint
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief.” FED. R. CIV. P. 8(a). However, to survive a motion to dismiss brought under
Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and footnote
omitted). Pleadings that contain nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice
that are based merely upon “labels or conclusions” or “naked assertion[s]” without
supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most favorable
2
to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
II.
FACTS ALLEGED IN THE COMPLAINT
The Amended Complaint alleges:
8. Defendant Elwood . . . is in the business of supplying staffing
services to clients[,] such as NSE[,] on a contract basis. Elwood places
contingent workers in staffing positions with client companies while
employing numerous contract employees to manage its staffing
operations.
9. Defendant NSE . . . is in the business of operating a logistics and
distribution center that serves the Honda manufacturing plant in Lincoln,
Alabama (hereinafter “Honda”). NSE contracted with Elwood to provide
temporary employees and other staffing services.
10. Derek Raulerson was a staffing services manager hired by
Elwood to work for Elwood and NSE. Derek began his employment on
or about July 28, 2014. Raulerson was a joint employee of Elwood and
NSE. Working on-site at NSE, Derek’s job was to hire and manage
Elwood’s temporary employees assigned to work for NSE who, in turn,
assigned those employees to work at Honda. Derek’s performance was
supervised by both Elwood and NSE employees.
11. Consistently throughout his employment with Elwood and NSE,
Derek was asked to hire or fire employees for discriminatory reasons. On
several occasions, Derek was told to create working conditions for
pregnant persons[,] [conditions which] were not required of others[,] in
an attempt to force said persons to quit. Derek was also forced to
re-assign disabled persons who were otherwise fit to perform the work at
Honda simply due to the fact that NSE didn’t [sic] want to send “people
like that” to Honda.
12. Derek strenuously objected to NSE and Elwood’s demands and
3
complained repeatedly of these discriminatory practices to Elwood, NSE,
and ultimately to Honda Logistics of North America. Derek was told that
an investigation was undertaken by Honda, but he was never informed as
to the findings of any such investigation.
13. After Derek opposed and complained about the unlawful
discrimination taking place at Elwood and NSE, he was retaliated against,
harassed, and ultimately fired. Derek’s supervisor at Elwood told him that
he was being fired not because he did not perform his job well, but
because NSE did not approve of his complaints about [its] discriminatory
employment practices and “wanted him gone.” Derek had never
previously been disciplined by Elwood or NSE; in fact, he had received
only excellent performance reviews during his employment with the
Defendant companies.
14. Derek communicated to Elwood that he was due a monetary
bonus earned from work he had performed prior to his termination as well
as a monetary sum for unused vacation days per Elwood’s customary
practices for other employees. The sum of both payments was
approximately $4,200. Derek has yet to receive payment for either
amount due in retaliation against his complaining about the Defendants’
unlawful discrimination.
(Doc. 6 at 2-4, ¶¶8-14).
Count One, the only count in the Amended Complaint, states that the Plaintiff's
retaliation claim is brought “pursuant to Title VII of the Civil Rights Act of 1964.”
(Doc. 6 at 4, ¶16). The Amended Complaint alleges that the Plaintiff “repeatedly
complained of the said discriminatory practices,” and “[a]fter learning of Plaintiff[’]s
report of discrimination to Honda, the Defendants retaliated against, harassed, and
ultimately fired the Plaintiff.” (Doc. 6 at 4, ¶¶19, 20).
4
III.
ALLEGATIONS IN THE EEOC CHARGES1
On September 23, 2016, the Plaintiff filed a Charge of Discrimination against
Elwood with the Equal Employment Opportunity Commission (the “EEOC”). (Doc. 111). In that charge, the Plaintiff checked the box marked “Retaliation,” and stated:
I am a worker hired by the above named employer [on] July 28, 2014, as
an onsite manager. I performed my job on a satisfactory level. I submitted
a complaint to New South Express’[s] Vice-President of Operations after
a disabled candidate for employment was discriminated against by the Sr.
Human Resource Representative on February 11, 2016. In April 2016, the
New South Express Vice-President of Operations transferred out of his
position. On June 9, 2016, I was discharged and told the New South
Express Sr. Human Resource Representative no longer wanted me on the
premises.
I believe I was retaliated against due to submitting a complaint on
behalf of a disabled candidate in violation of Title VII of the Civil Rights
Act of 1964, as amended.
(Doc. 11-1 at 2). The charge is signed and verified by the Plaintiff.
On September 23, 2016, the Plaintiff filed a Charge of Discrimination against
1
The court may consider both of the EEOC charges filed in this case and the EEOC
Intake Questionnaire submitted by the Plaintiff without converting the Motion to a Motion for
Summary Judgment. “In ruling upon a motion to dismiss, the district court may consider an
extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not
challenged.” Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (internal quotations and citations omitted). The
charges are mentioned in the Amended Complaint, and both of the charges, and the questionnaire,
are central to the Plaintiff’s claims. Their authenticity is not in dispute. They are properly
considered without converting the Motion. See, Chesnut v. Ethan Allen Retail, Inc., 971 F. Supp.
2d 1223, 1229 (N.D. Ga. 2013) (Batten, J.) (on the issue of exhaustion of administrative
remedies, intake questionnaire and charges properly considered without converting motion to
dismiss into a motion for summary judgment).
5
NSE with the EEOC. (Doc. 11-2). In that charge, the Plaintiff also checked the box
marked “Retaliation,” and included the identical factual statement from his other
charge. That charge also is signed and verified by the Plaintiff.
IV.
EEOC INTAKE QUESTIONNAIRE2
Before he filed the charges set out above, the Plaintiff completed an “Intake
Questionnaire” with the EEOC. (Doc. 16-2). In that document the Plaintiff checked the
box for “Retaliation,” and stated that he believed that he was discriminated against
when, on June 9, 2016, he was discharged. (Doc. 16-2 at 3). The Plaintiff listed
Stephanie Burton as a witness to his retaliation and wrote that “[s]he can confirm I was
retaliated against for reporting a potential EEOC and OSHA claim against Elwood’s
client NSE.” (Doc. 16-2 at 5). The Plaintiff also listed Alan Balmer as a witness to the
retaliation against him and wrote that he “can confirm NSE Senior Manager’s
displeasure with me reporting the EEOC charge.” (Doc. 16-2 at 5).
In a statement attached to the questionnaire, the Plaintiff wrote:
I was a staffing services manager for Elwood Staffing (Elwood). I
was assigned at New South Express (NSE) and my job was to hire
employees through Elwood that worked for NSE. Elwood and NSE were
my joint employers. I was supervised by both Elwood and NSE
employees. NSE directed the hiring and firing of Elwood employees
assigned at NSE. NSE is the logistics arm for Honda Manufacturing of
Alabama. So, my job involved hiring employees who worked for NSE at
2
See note 1.
6
Honda Manufacturing in Lincoln, AL.
Consistently and pervasively during my employment I was asked
to hire or fire employees for discriminatory reasons. I was told to create
working conditions for pregnant persons[,] [which] were not required of
others[,] in an attempt to force them to quit. I was forced to re-assign
disabled persons who were otherwise fit to perform the work at Honda
Manufacturing just because NSE didn’t [sic] want to send “people like
that” to Honda. I complained repeatedly to Elwood, NSE[,] and ultimately
to Honda Logistics of North America. In February 2016[,] I lodged a
serious complaint about the hiring practices of Elwood and NSE. NSE
claimed they investigated the complaint[,] but I was never told the result
of any investigation.
After I complained, I was harassed at my job and told by my
supervisor at Elwood that NSE did not like me and “wanted me gone[.]”[]
All my performance reviews were excellent. I was never disciplined or
written up by Elwood or SE.
On June 9, 2016[,] I was fired by my supervisor at Elwood. I was
told that my termination was not because I did not do my job well but
because NSE “wanted me gone[.]”[]
I have been discriminated against in retaliation for my complaints
to Elwood and NSE about their discriminatory hiring practices. I
oppos[ed] the unlawful discrimination of Elwood and NSE and for that
reason I was fired.
(Doc. 16-2 at 6).
Printed form language on the questionnaire states:
The purpose of this questionnaire is to solicit information about claims of
employment discrimination, determine whether the EEOC has jurisdiction
over those claims, and provide charge filing counseling, as appropriate.
Consistent with 29 CFR 1601.12(b) and 29 CFR 1626.S(c), this
questionnaire may serve as a charge if it meets the elements of a charge.
7
(Doc. 16-2 at 5). The questionnaire also states:
If you would like to file a charge of job discrimination, you must do so
either within 180 days from the day you knew about the discrimination,
or within 300 days from the day you knew about the discrimination if the
employer is located in a place where a state or local government agency
enforces laws similar to the EEOC’s laws. If you do not file a charge of
discrimination within the time limits, you will lose your rights.
(Doc. 16-2 at 5). The Plaintiff also checked the box on the questionnaire noting that he
“want[s] to file a charge of discrimination.” (Doc. 16-2 at 5). Although the version of
the questionnaire in the record is unsigned, the Defendants have represented that the
version given to the EEOC, the same version of the questionnaire which the Defendants
received only in response to a Freedom of Information Act (“FOIA”) request, is signed.
(Doc. 17 at 7, n. 4). No version of the questionnaire is verified.3
V.
ANALYSIS
A.
The Amended Complaint Does Not State a Claim for Disability
Discrimination
The Amended Complaint alleges that the Defendants’ discriminated against
employees based on pregnancy and disability. Specifically, the Plaintiff claims that he
was retaliated against by the Defendant after he “complained repeatedly of these
discriminatory practices.” (Doc. 6 at 3). Importantly, the Plaintiff’s discrimination claim
3
In his response in opposition to the Motion To Dismiss, the Plaintiff alleges that he also
listed the names of two women he identified as “white, female, pregnant.” (Doc. 16 at 4). The
intake questionnaire contains no such notations.
8
is brought only pursuant to Title VII.
Title VII prohibits employers from “discriminating against any individual with
respect to . . . terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). In addition, Title VII makes it
unlawful to retaliate against an employee “because he has opposed any practice made
an unlawful employment practice by [Title VII].” The Pregnancy Discrimination Act
(the “PDA”), enacted in 1978, added, in pertinent part, the following language to Title
VII:
The terms “because of sex” or “on the basis of sex” include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by pregnancy, childbirth, or
related medical conditions shall be treated the same for all
employment-related purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected but similar in their
ability or inability to work, and nothing in section 2000e-2(h) of this title
shall be interpreted to permit otherwise.
42 U.S.C.A. § 2000e(k). Accordingly, Title VII, as amended by the PDA, provides a
cause of action for retaliation in response to the Plaintiff’s complaints of discrimination
based upon pregnancy. There is, however, no Title VII claim for the Defendant’s
alleged retaliation against the Plaintiff for his complaints of disability discrimination.
Any such claim should have been made under the Americans with Disabilities Act, 42
9
U.S.C. §§12101-12213 (the “ADA”).4 Therefore, as currently pleaded, the Amended
Complaint does not set out a claim for retaliation in response to the Plaintiff’s
complaints of disability discrimination.
B.
The Plaintiff Failed To Exhaust His Administrative Remedies Prior
to Filing His Pregnancy Discrimination Claim
Prior to filing a Title VII or ADA action, a plaintiff must first file a charge of
discrimination with the EEOC. Gregory v. Georgia Dep't of Human Res., 355 F.3d
1277, 1279 (11th Cir. 2004) (Title VII); E.E.O.C. v. Summer Classics, Inc., 471 F.
App'x 868, 869 (11th Cir. 2012) (ADA) (citing 42 U.S.C. § 2000e–5(e)(1) and 29
C.F.R. § 1626.7(a)).
“The purpose of this exhaustion requirement is that the EEOC should
have the first opportunity to investigate the alleged discriminatory
practices to permit it to perform its role in obtaining voluntary compliance
and promoting conciliation efforts.” [Gregory, 355 F.3d at 1279]
(quotations omitted). We have further noted that judicial claims are
allowed if they “amplify, clarify, or more clearly focus” the allegations in
the EEOC complaint, but have cautioned that allegations of new acts of
discrimination are inappropriate. Id. at 1279-80. In light of the purpose of
the EEOC exhaustion requirement, a plaintiff's judicial complaint is
limited by the scope of the EEOC investigation that can reasonably be
expected to grow out of the charge of discrimination. Id. at 1280. Courts
4
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. §12112(a). The ADA also prohibits
retaliation, providing that “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by [the ADA].” 42 U.S.C.A. §
12203(a).
10
are nonetheless extremely reluctant to allow procedural technicalities to
bar claims brought under Title VII, as such, we have noted that the scope
of an EEOC complaint should not be strictly interpreted. Id.
Litman v. Sec'y, of the Navy, 703 F. App'x 766, 771 (11th Cir. 2017).
The EEOC charges filed by the Plaintiff allege only one instance of protected
activity–the Plaintiff’s complaint regarding “a disabled candidate for employment
[who] was discriminated against by the Sr. Human Resource Representative on
February 11, 2016.” (Doc. 11-1 at 2; doc. 11-2 at 2) (emphasis added). The Defendants
argue that the pregnancy discrimination claim must be dismissed because neither EEOC
charge filed by the Plaintiff in this case mentions complaints regarding pregnancy, or
retaliation against the Plaintiff for making such complaints.5
In support of their argument, the Defendants cite Chanda v. Engelhard/ICC, 234
F.3d 1219 (11th Cir. 2000). In Chanda, the complaint alleged “retaliatory discharge
under Title VII.” Chanda, 234 F.3d at 1221. The court stated that the plaintiff’s EEOC
charge “appears to allege retaliation for complaining of discrimination based on his
disability.” Id. at 1225 (emphasis added). The court noted that the plaintiff
checked the “retaliation” box as well as the “disability” box on his EEOC
papers and in the “particulars” section thereof wrote “I also complained
about discrimination.” Chanda’s affidavit . . . states that he was
“retaliated against because [he] complained both verbally and in writing
about discrimination due to [his] disability.”
5
No version of the word “pregnant” appears anywhere in either charge.
11
Id. at 1224–25. The plaintiff’s complaint, however,
couch[ed] it as a ethnic discrimination claim. Counsel for [the plaintiff]
also briefly discussed the retaliation claim at oral argument, basing it on
national origin discrimination, and [the plaintiff’s] brief asserts retaliation
because he claimed national origin discrimination.
Id. at 1225. The Eleventh Circuit affirmed the dismissal of the Title VII claim, writing:
Nothing in his EEOC filing mentions discrimination based on national
origin, any complaint about such discrimination, or a claim under Title
VII. We must conclude, therefore, that a reasonable investigation based
on the EEOC charge did not and would not encompass retaliation based
on complaints about national origin discrimination.
Id. at 1225.
Chanda is directly on point. Like in Chanda, in the instant case the Plaintiff’s
retaliation claim is based on protected conduct, complaints regarding pregnancy
discrimination, which did not appear in either of his charges. Accordingly, this court
concludes, like the Eleventh Circuit did in Chanda, that a reasonable investigation
based on the EEOC charge would not encompass retaliation based on complaints of
pregnancy discrimination. Therefore, the Plaintiff did not exhaust his administrative
remedies regarding that claim and it must be dismissed.
On this issue, the Plaintiff cites only one case, Jacobs v. Henderson, No. CIV.A.
99T1357N, 2001 WL 34866606 (M.D. Ala. Nov. 20, 2001) (Thomson, J.). In that
case, in the plaintiff’s charge of discrimination the “race,” “sex,” and “age”
discrimination boxes-but not the “disability” box-were checked. Jacobs, 2001 WL
12
34866606, at *3. Judge Thompson held that the plaintiff’s disability claim
could reasonably have been expected to grow out of his initial charges of
discrimination because of (1) the disability-related nature of his factual
allegations, (2) his express use of the category “disability discrimination”
in his precomplaint form, and (3) the investigative agency's duty . . . to
investigate the possibility of statutory violations other than those charged
by the plaintiff when there is a basis in the record for such an expansion
of the investigation.
Id. at *10. Even if Jacobs were binding on this Court, it is factually distinguishable.
There is no factual basis in the instant charges for an investigation into complaints of
pregnancy discrimination, or retaliation therefor.
The Plaintiff argues that the necessary factual basis appears in the Intake
Questionnaire, which, as this Court noted previously, includes the Plaintiff’s statement
that he “was told to create working conditions for pregnant persons[,] [which] were not
required of others[,] in an attempt to force them to quit,” that he “complained
repeatedly,” and that afterwards he was “harassed at [his] job” and ultimately
terminated. (Doc. 16-2 at 6).
The Eleventh Circuit considered this very issue in Francois v. Miami Dade Cty.,
Port of Miami, 432 F. App'x 819 (11th Cir. 2011). In Francois, the district court had
ruled that the plaintiff’s national origin discrimination retaliation claim was barred
because Plaintiff included no such claim in his charge. The plaintiff argued that he had
fulfilled the exhaustion requirement because the claim was included in his intake
questionnaire. The Eleventh Circuit affirmed the dismissal, writing:
13
The law is clear that a charge must be verified—i.e., written under
oath or affirmation—in order to support a valid judicial suit. 42 U.S.C. §
2000e–5(b); [Vason v. City of Montgomery, Ala., 240 F.3d 905, 907
(11th Cir.2001)]. Additionally, “charges should contain, among other
things, ‘[a] clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment practices.’ ”
Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir.2000)
(quoting 29 C.F.R. § 1601.12(a)(3)), overruled on other grounds by
Manders v. Lee, 338 F.3d 1304, 1328 n. 52 (11th Cir.2003) (en banc ).
Though we have never directly addressed the effect of an intake
questionnaire for exhaustion purposes, we have considered the
interrelationship between an EEOC charge and an intake questionnaire
several times when assessing whether a charge has been timely filed. In
Wilkerson v. Grinnell Corporation we held an intake questionnaire could
be considered a charge for the purpose of satisfying the statute of
limitations where: the questionnaire was verified; the questionnaire
contained the basic information required by a charge; and the form’s
language could have been interpreted to represent a charge. 270 F.3d
1314, 1320–21 (11th Cir.2001).
This is not the general rule, however. In one case, we stated that,
“as a general matter an intake questionnaire is not intended to function as
a charge.” Pijnenburg v. West Georgia Health Sys., Inc., 255 F.3d 1304,
1305 (11th Cir.2001) (emphasis added). Therefore, we held the plaintiff's
unverified intake questionnaire did not satisfy Title VII’s timely filing
requirement, as it did not notify her employer of her claim or initiate the
EEOC investigation. Id. at 1306. In a second case, we similarly held a
plaintiff’s intake questionnaire, which was filed along with an affidavit,
did not satisfy the requirements of a timely charge. Bost v. Fed. Express
Corp., 372 F.3d 1233, 1241 (11th Cir.2004). There, after considering the
law set forth in Wilkerson, we noted the circumstances did not support a
conclusion that the questionnaire satisfied the timely filing requirement,
because: the plaintiff clearly understood the intake questionnaire was not
a charge because he later filed a timely charge; the EEOC did not initiate
its investigation until after the plaintiff filed his charge; and the
questionnaire form itself did not suggest it was a charge. Id.
Without definitively deciding whether an EEOC intake
14
questionnaire may ever be considered when determining whether a
plaintiff's . . . claim has been exhausted, we hold the district court
correctly granted summary judgment in this case. First, if only the EEOC
charge itself should have been considered, Francois failed to
administratively exhaust his national origin discrimination claim because
he did not check the box for national origin, or allege any facts in the
narrative section that could be construed to raise such a claim of
discrimination.
Second, even if an intake questionnaire can be taken into account
under certain circumstances, the facts do not support doing so here. As in
Pijnenburg, undisputed evidence showed Francois's intake questionnaire
was not verified, and the form language did not indicate it would be
considered a charge when a plaintiff also filed a timely charge, as
Francois did. Furthermore, the fact Francois filed an actual timely charge
suggests he did not intend his intake questionnaire to function as a charge.
See Bost, 372 F.3d at 1241.
Finally, none of the evidence demonstrated Miami was on notice
of the national origin claim. Moreover, the EEOC did not investigate the
national origin discrimination claim. Thus, the district court did not err
when it concluded Francois did not fulfill the purposes of exhaustion. See
Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 877 (11th Cir.1986)
(noting the filing of an EEOC charge serves two purposes: to put the
defendant on notice of the claim, and to give the EEOC an opportunity to
settle the grievance).
Francois, 432 F. App'x at 821–22.
The Court is persuaded by the reasoning in Francois.6 Like in Francois, in the
instant case the intake questionnaire was not verified. Furthermore, the Plaintiff does
not contend that he thought his questionnaire was a charge. Even if he did, just like in
Francois, the form language on the questionnaire used in this case made it clear that
6
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” Eleventh Cir. Rule 36-2.
15
the Plaintiff, despite completing the questionnaire, still needed to file a timely charge.
See, Davis v. Alabama Dep't of Transportation, No. 2:16CV583-MHT-WC, 2017 WL
4391730, at *10 (M.D. Ala. Aug. 2, 2017) (Capel, M.J.) (form language regarding the
need to file a timely charge “indicates that [p]laintiff must take additional action outside
of the action taken in submitting the Questionnaire in order to file an EEOC charge”).
Also like in Francois, the Plaintiff filed two timely charges after completing the
questionnaire, the Plaintiff does not contend that the Defendant was ever put on notice
of the pregnancy discrimination retaliation claim7, and there is no contention that the
EEOC actually investigated that claim. See, Kellam v. Indep. Charter Sch., 735 F.
Supp. 2d 248, 253 (E.D. Pa. 2010) (Joyner, J.) (“If a claim is initially mentioned in the
charge questionnaire but is not included in the formal charge, then this claim is not
exhausted. Indeed, to allow a plaintiff to initially raise a claim with a Charge
Questionnaire and then abandon it in his formal charge only to reassert that claim in
federal court would completely subvert the exhaustion requirement.”); Donnelly v. St.
John's Mercy Med. Ctr., 635 F. Supp. 2d 970, 999 (E.D. Mo. 2009) (Shaw, J.) (“Only
the charge is sent to the employer, and therefore only the charge can affect the process
of conciliation.”) (internal quotations and citations omitted).
The Plaintiff also argues that his pregnancy discrimination retaliation claim
7
Again, the Defendants only received notice of the allegations in the Intake Questionnaire
as a result of their FOIA request.
16
should be allowed because his charge clearly mentions disability discrimination and
“[a]ccording to the EEOC, a pregnant person is considered disabled.” (Doc. 16 at 3).
The Plaintiff is incorrect. See, EEOC Enforcement Guidance on Pregnancy
Discrimination
and
Related
Issues,
No.
915.003,
June
25,
2015
(https://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm) (“[P]regnancy itself
is not an impairment within the meaning of the ADA, and thus is never on its own a
disability, [but] some pregnant workers may have impairments related to their
pregnancies that qualify as disabilities under the ADA, as amended.”); see also, 29
C.F.R. § Pt. 1630, App., §1630.2(h) (“Other conditions, such as pregnancy, that are not
the result of a physiological disorder are also not impairments.”). The allegations in the
Intake Questionnaire do not satisfy the exhaustion requirement. The Plaintiff’s claims
that his employer retaliated against him based on his complaints of pregnancy
discrimination are therefore barred.
C.
The Plaintiff Did Not Exhaust His Administrative Remedies to the
Extent That He Claims That He Was Harassed by the Defendants or
Denied a Bonus or Vacation Pay
In his Amended Complaint, the Plaintiff claims:
13. After Derek opposed and complained about the unlawful
discrimination taking place at Elwood and NSE, he was retaliated against,
harassed, and ultimately fired. Derek’s supervisor at Elwood told him that
he was being fired not because he did not perform his job well, but
because NSE did not approve of his complaints about [its] discriminatory
employment practices and “wanted him gone.” Derek had never
previously been disciplined by Elwood or NSE; in fact, he had received
17
only excellent performance reviews during his employment with the
Defendant companies.
14. Derek communicated to Elwood that he was due a monetary
bonus earned from work he had performed prior to his termination as well
as a monetary sum for unused vacation days per Elwood’s customary
practices for other employees. The sum of both payments was
approximately $4,200. Derek has yet to receive payment for either
amount due in retaliation against his complaining about the Defendants’
unlawful discrimination.
(Doc. 6 at 3-4). The Defendants claim that, to the extent these paragraphs allege that
the Defendants “harassed” the Plaintiff and denied him vacation and bonus pay, the
Plaintiff has failed to exhaust his administrative remedies, since these acts were not
alleged in the Plaintiff’s charges. (Doc. 11 at 8).
The Eleventh Circuit addressed this issue in Green v. Elixir Indus., Inc., 152 F.
App'x 838 (11th Cir. 2005). In Green, the plaintiff alleged in his charge of
discrimination that he was terminated because of his race in violation of Title VII. In
his judicial complaint, he alleged “both racial hostile environment discrimination and
racially-motivated termination in violation of Title VII and § 1981.” Green, 152 F.
App'x at 840. In holding that the hostile work environment claim had not been
exhausted, the Eleventh Circuit wrote:
[A]ll of the factual allegations contained in Green's EEOC charge relate
to his termination and none relate to a retaliation claim. He noted the date
of his termination as both the earliest and latest date of discriminatory
conduct; explained that his termination ostensibly stemmed from
attendance policy violations; and stated that white males with inferior
attendance records were retained. Nothing in Green's EEOC charge
18
related to incidents of harassment, nor did anything mention the dates on
which they occurred. Because the facts alleged in Green's EEOC charge
form cannot be said to encompass a hostile work environment claim, we
affirm the district court's finding that his claim was therefore procedurally
deficient.
Id. at 840–41. Similarly, in the instant case the only retaliatory act which was alleged
in the Plaintiff’s charges was the Plaintiff’s termination. He alleges that the latest date
of discrimination was June 9, 2016, the date he was terminated, not some later date on
which the Defendants refused to pay him vacation and bonus pay.8
The Plaintiff argues:
The courts have made clear that when cases of retaliation when the
totality of circumstances, rather than a single discrete event, illustrate
discriminatory animus, all those circumstances can be subject to the
resulting lawsuit. Ward v. Glynn Cnty Bd. Of Comm’rs, [] 2016 WL
4269041 at 39-40 (distinguishing cases like the instant one from the case
Green v. Elixir cited by Defendants because it involved a single action of
retaliation).
(Doc. 16 at 7). Importantly, in Ward, unlike in the instant case, the plaintiff’s charge
actually included factual allegations of several allegedly discriminatory acts occurring
close in time to a discrete event. The court in Ward wrote:
As Plaintiff's EEOC charge in this case alleges that Defendant engaged in
a series of discriminatory acts over a period of time, and that such
conduct was sufficiently severe as to prevent Plaintiff from remaining in
the Data Analyst position, the charge sets forth facts that reasonably
8
The charges do state that the earliest date of discrimination was February 11, 2016.
However, the narrative facts in the charges state that that was the date when “a disabled candidate
for employment was discriminated against.” (Doc. 11-1 at 2; doc. 11-2 at 2). Further, that date is
not associated with any of the Plaintiff’s allegations of harassment.
19
encompass a claim of a hostile work environment.
Ward, 2016 WL 4269041, at *14. However, the court did not allow claims based on
other incidents which “were not part of the continuing violation set forth in the EEOC
charge and thus were not timely pursued.” Id.9
The Court is persuaded by the decision in Green. The facts alleged in the
Plaintiff’s EEOC charges cannot be said to encompass claims for harassment or the
denial of bonus and vacation pay. These claims, having not been administratively
exhausted, are due to be dismissed.10
VI.
CONCLUSION
For the reasons stated above, the Complaint, as currently pleaded, fails to state
a claim upon which relief may be granted. Accordingly, the Motion To Dismiss is
GRANTED. However, the Court holds that the EEOC’s investigation of the
allegations in the charges would have covered a claim under the ADA for retaliation.
Accordingly, the Plaintiff will be given one additional opportunity, consistent with the
9
The Plaintiff argues that his case is somehow different from the “typical retaliation case”
because “the Defendants are retaliating against [the] Plaintiff because he is protecting the rights of
others.” The Court finds no merit in this underdeveloped and unsupported argument.
10
The Plaintiff argues that “[i]n his intake questionnaire [he] made clear that the
retaliatory behavior included harassment.” (Doc. 16 at 7). He contends that this allegation covers
the refusal to pay bonuses and vacation pay. (Doc. 16 at 7-8). This argument fails for the same
reasons it failed in the preceding section. Furthermore, in his questionnaire, the Plaintiff identified
only one discriminatory act engaged in against him--his discharge. (Doc. 16-2 at 3, ¶5).
20
holdings in this opinion, to amend his Complaint to add an ADA claim.11 Any such
amendment should be filed no later than May 11, 2018. If no amendment is filed by
that date, this case will be dismissed with prejudice pursuant to Rule 12(b)(6) and
Rule 41(b).
DONE and ORDERED this 27th day of April, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
11
The Plaintiff has requested leave to amend in lieu of dismissal. (Doc. 16 at 9).
Furthermore, the Defendants have recognized the likelihood that this Court might determine that
an ADA claim was exhausted and have argued that, in such case, the Court “should order Plaintiff
to replead that claim with clarity and to remove the extraneous allegations of retaliatory denial of
bonus or vacation pay.” (Doc. 11 at 11).
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?