PITTMAN v. PEDIATRIC SERVICES OF AMERICA

Filing 24

ORDER denying 20 Motion for Reconsideration. Ordered by Judge Hugh Lawson on 10/9/2012. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

SONIA W. PITTMAN,
Plaintiff,
v.

Civil Action No. 7:11-cv-159 (HL)

PEDIATRIC SERVICES OF
AMERICA,
Defendant.

ORDER
Before the Court is Plaintiff Sonia W. Pittman’s Motion for Reconsideration
of Plaintiff’s Motion to Set Aside (Doc. 20). For the reasons stated below, the
Motion is denied.
I.

BACKGROUND

Pittman filed her complaint in this case alleging that she was discriminated
against by her former employer on the basis of race and age in violation of Title
VII. (Doc. 1, p. 2.) Defendant Pediatric Services of America (“PSA”) filed a Motion
to Dismiss, contending that Pittman did not properly exhaust her administrative
remedies before filing her complaint. (Doc. 6.) Pittman did not respond to the
Motion. The Motion to Dismiss (Doc. 10) was granted and judgment was entered
in favor of PSA.

After judgment was entered, Pittman filed a Motion for Reconsideration
(Doc. 12) and a Motion to Set Aside (Doc. 16). In these Motions, Pittman alleged
that she properly exhausted her administrative remedies because she timely filed
an intake questionnaire with the EEOC, and therefore, she should be allowed to
proceed with her discrimination claims against PSA. The Court denied both
Motions on the grounds that Pittman was unable to establish that she exhausted
her administrative remedies.
Now, Pittman, who has previously been proceeding pro se, has filed her
second Motion for Reconsideration through her attorney, arguing that under
Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), Pittman’s submission
of an intake questionnaire to the EEOC should qualify as proper exhaustion. This
issue is addressed below.
II.

DISCUSSION

In Holowecki, the Supreme Court of the United States addressed the issue
of whether the submission of an intake questionnaire to the EEOC constituted a
“charge of discrimination” for purposes of properly exhausting administrative
remedies. 552 U.S. 389 (2008). The traditional purpose of an intake form is to
facilitate “pre-charge filing counseling.” Id. at 404. However, in Holowecki, the
Court determined that in some cases the intake questionnaire could also serve
as a formal charge. Id. In that case, the plaintiff submitted an intake form to the

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EEOC that contained all of the required information listed in 29 CFR § 1626.8. 1
Id. The intake form also included a six-page affidavit. Id. The affidavit asked the
EEOC to “[p]lease force Federal Express to end their age discrimination plan so
we can finish out our careers absent the unfairness and hostile work
environment.” Id.
The Holowecki Court determined that the intake questionnaire and the
affidavit were sufficient to exhaust administrative remedies, taking the place of a
formal charge. Id. at 405. The Court reasoned that, in most cases, a formal
charge of discrimination is necessary to demonstrate the plaintiff’s desire to seek
action against his or her employer. Id. However, in that case, the plaintiff
established his desire for action against his employer through the intake
questionnaire and attached affidavit. Id. The Court stated that a filing must “be
examined from the standpoint of an objective observer to determine whether, by
a reasonable construction of its terms, the filer requests the agency to activate its
machinery and remedial processes.” Id. at 402.2

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Section 1626.8 of the CFR requires that a charge filed with the EEOC should
contain: (1) the full name address and telephone number of the person making
the charge; (2) the full name and address of the person against whom the charge
is made; (3) a clear and concise statement of the facts, including pertinent dates,
constituting the alleged unlawful employment practices; (4) if known, the
approximate number of employees of the prospective defendant employer or
members of the prospective defendant labor organization; and (5) a statement
disclosing whether proceedings involving the alleged unlawful employment
practice have been commenced before a State agency charged with the
enforcement of fair employment practice laws and, if so, the date of such
commencement and the name of the agency.
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In light of the Holowecki decision, lower courts began to construe intake
questionnaires as sufficient to exhaust administrative remedies. The Middle
District of Georgia determined that to constitute proper exhaustion, the
questionnaire must be “reasonably construed as a request for the [EEOC] to take
remedial action to protect the employee’s rights or otherwise settle a dispute
between the employer and employee.” Street v. United Parcel Service, 822 F.
Supp. 2d 1357, 1365 (M.D. Ga. 2011).
However, intake questionnaires are not always sufficient to exhaust
administrative remedies. In EEOC v. Summer Classics, Inc., 471 Fed. Appx. 868
(11th Cir. 2012), the Eleventh Circuit determined that the plaintiff’s intake
questionnaire was not sufficient to exhaust administrative remedies because it
could not be construed as a request for the EEOC to act. The Eleventh Circuit
distinguished the plaintiff in Summer Classics from the plaintiff in Holowecki
based on the content of the questionnaires submitted by the plaintiffs. In
Holowecki, the plaintiff completed the questionnaire and attached a signed
affidavit that gave a specific request to act. 552 U.S. at 404-05. On the other
hand, in Summer Classics, the plaintiff completed the questionnaire and attached
a handwritten note labeling the defendant’s actions as “discrimination” and “a
crime.” 471 Fed. Appx. at 871. The Eleventh Circuit determined that the plaintiff

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The Holowecki Court also noted that there “might be instances where the
indicated discrimination is so clear or pervasive that the agency could infer from
the allegations themselves that action is requested and required.” 552 U.S. at
405. The Court does not find Pittman’s case to be one in which that type of
inference is permissible.
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in Summer Classics did not demonstrate that he was calling upon the EEOC to
“activate its machinery and remedial processes.” Id. Thus, the questionnaire was
insufficient to show that administrative remedies had been exhausted. Id.
In the present case, Pittman completed the intake questionnaire and
arguably submitted it in a timely fashion. However, based the reasoning in
Summer Classics, her questionnaire does not constitute a formal charge
because it does not contain a call to action. Pittman’s questionnaire gives the
details of her allegations, but she never requests action from the EEOC like the
plaintiff in Holowecki. Her case is more like Summer Classics, where the plaintiff
made allegations against his employer, but never requested formal action by the
EEOC.
The Court finds that Pittman’s intake questionnaire, even if submitted in a
timely fashion, does not meet the standard to constitute a formal charge. Without
a formal charge submitted to the EEOC within 180 days, Pittman’s case cannot
move forward because she failed to exhaust her administrative remedies. Thus,
Pittman’s Motion for Reconsideration is denied.
SO ORDERED, this 9th day of October, 2012.

s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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