Marcus v. Tate & Lyle Ingredients Americas LLC
Filing
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OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Court GRANTS Defendant's 8 Motion to Dismiss. The Clerk is ordered to dismiss Counts II and III of the complaint. Signed by Judge Joseph S Van Bokkelen on 9/21/2017. (jss) Modified on 9/22/2017 (jss).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
Sabrina Marcus,
Plaintiff,
v.
Case No. 4:16-CV-95 JVB
Tate & Lyle Ingredients Americas LLC,
Defendant.
OPINION AND ORDER
Plaintiff Sabrina Marcus was employed with Defendant Tate & Lyle Ingredients
Americas. Finding herself stressed and anxious by the demands of her employer (she says the
demands were capricious and unjust), she took an FMLA leave. After returning from her leave,
she alerted a fellow employee about a sex video featuring the employee circulating among the
coworkers. She told the employee about the video because she was going to complain about it to
the management and she wanted the employee not to be surprised when this was brought to her
attention. The management construed her actions as harassment of the employee and put her on
administrative leave. At the end of this leave, she was fired.
In this lawsuit, Plaintiff claims that she was really fired because:
Defendant discriminated against her because of her actual or perceived disability (Count
I);
Defendant discriminated against her because of her gender (Count II);
Defendant retaliated against her because she reported sexual harassment (Count III); and
Defendant retaliated against her because she took the FMLA leave (Count IV).
Defendant seeks to dismiss Counts II and III pursuant to Federal Rule of Civil Procedure
12(b)(1) and (6), for lack of subject matter jurisdiction and for failure to state a claim upon which
relief can be granted. Defendant submits that Plaintiff failed to exhaust the administrative
remedies regarding her gender discrimination and retaliation claims with the Equal Employment
Opportunity Commission (“EEOC”). Plaintiff counters Defendant’s motion and argues that,
although not explicitly brought before the EEOC, the sex discrimination and retaliation claims
can be easily inferred from her ADA and FMLA charges. The Court disagrees.
On her EEOC charge form, Plaintiff indicated only that she was seeking relief against
disability-based discrimination and retaliation for taking FMLA leave.
This is evident by her
checking the Discrimination based on Disability box and leaving all other boxes, including
Discrimination based on Sex, unchecked. (Charge of Discr. Form, DE 20-2 at 16.) More
importantly, the narrative of the charge is about her being mistreated because of her actual or
perceived disability and her taking FMLA leave. (Id.) She explains that she is “a qualified
individual with a disability,” that she complained about work hazards and in return was subjected
to hostility and unreasonable demands by her managers, causing her to go on FMLA leave “due
to ongoing harassment at work coupled with my increased work load and lack of support from
management.” (Id.) When she returned to work a few months later, harassment had’t stopped.
But nothing in this charge suggests that her sex played any part in her work conditions.
Although Plaintiff mentions the incident regarding the sex video of another employee and
the actions she took as a result, she does so to debunk the employer’s stated reason for her firing,
not to show that her harassment was sexual in nature or she was treated differently because she is
a woman. She concludes her charge narrative with references only to the ADA and FMLA:
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I believe I was continuously harassed by management including
overwhelming me with work in retaliation for reporting a safety
violation, which ultimately led to my need to take leave under the
FMLA, which only increased the harassment and ultimately resulted in
my employment being terminated in retaliation for taking FMLA leave.
I believe I have been harassed, given extra work, denied assistance, and
my employment was terminated in violation of the Americans with
Disabilities Act, as amended.
(Id. at 17.)
These concerns are mirrored in her attorney’s earlier letter to the EEOC. In a four-page
narrative, the focus is exclusively on the ADA and FMLA. (See Pl.’s Atty. Letter, DE 20-2 at 5–
8.) The letter makes no mention of Plaintiff being sexually harassed, or being fired because she
complained of sexual harassment, or being fired as a result of sex discrimination. Rather, the
letter, just as the charge with the EEOC, is accusing Defendant of violating the ADA and FMLA.
The EEOC construed the Plaintiff’s attorney’s letter as alleging the ADA violations
(EEOC’s Letter, DE 20-2 at 10–11). Plaintiff never tried to clarify herself or tell the EEOC that
its construction was incomplete. To the contrary, as the administrative proceedings continued,
Plaintiff stuck with her original allegations.
In adding the sex discrimination and retaliation charges to her lawsuit, Plaintiff has exceeded
the scope of the EEOC charge. Such practice is not allowed as Plaintiff had not given Defendant
the opportunity to address her allegations during the administrative process. Just because the
word “sexual” appears in the charge, it does not magically become a charge of sex discrimination
or retaliation. Something else—an actual basis for such an inference—is needed and it’s simply
lacking in this case. If Plaintiff believed that she was mistreated because of her sex, she should
have made that clear at the outset, as the law requires:
Only the charge is sent to the employer, and therefore only the charge can affect
the process of conciliation. What is more, the charge is not the work of a faceless
bureaucrat, leaving victims of discrimination helpless to protect themselves.
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Complainants are free to draft and file charges on their own, or hire attorneys to do
so, and a charge drafted by the EEOC's staff is not filed unless the complainant
signs it––as [plaintiff] did. If she had been dissatisfied with the staff’s
understanding of her answers, all she had to do was point this out and ask for an
addition.
Novitsky v. Am. Consulting Eng’rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999).
None of the cases upon which Plaintiff relies stand for the proposition that the Court should
accept new claims when the charge as a whole did not put Defendant on notice that there may
have been more that Plaintiff was complaining about.
For this reason and the reasons stated above, namely because the Court lacks subject matter
jurisdiction over Counts II and III, the Court grants Defendant’s motion to dismiss (DE 8).
The Clerk is ordered to dismiss Counts II and III of the complaint.
SO ORDERED on September 21, 2017.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE
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