Beair v. Polymers

Filing 28

OPINION & ORDER: (1) DENYING dft's 16 MOTION to Dismiss for Lack of Jurisdiction; (2) DENYING pla's 19 MOTION to Amend/Correct 1 Complaint. Signed by Judge Karen K. Caldwell on 2/21/13.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
ANETIA BEAIR,
Plaintiff
v.
SUMMIT POLYMERS,
Defendant

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CIVIL ACTION NO. 5:11-420-KKC

OPINION AND ORDER

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This matter is before the Court on the Defendant’s Motion to Dismiss (DE 16) and the
Plaintiff’s Motion to Amend (DE 19). In its Motion to Dismiss, the Defendant argues that the
Plaintiff’s retaliation claim filed under the Americans with Disabilities Act should be dismissed
because she failed to bring that claim before the Equal Employment Opportunity Commission
prior to filing this civil action.
In her Motion to Amend, the Plaintiff seeks to add a retaliation claim under the Kentucky
Civil Rights Act.
I.

Background.

The Plaintiff was employed by the Defendant as a production worker from March 24,
1999 until the Defendant fired her on March 15, 2010. She alleges that, during her employment
with the Defendant, she suffered from anxiety and depression and she requested that the
Defendant accommodate that disability by assigning her to a different production line or shift.
She asserts two claims against the Defendant under the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. First, she asserts that the Defendant discriminated against her
in violation of 42 U.S.C. § 12112(a) by not reasonably accommodating her disability. Second,

she asserts that the Defendant retaliated against her in violation of 42 U.S.C. § 12203(a) by firing
her because she requested the reasonable accommodation.
I.

The Defendant’s Motion to Dismiss.

The Defendant asks the Court to dismiss the retaliation claim because the Plaintiff failed
to bring that claim before the EEOC prior to filing this action.
Prior to filing an action under the ADA, the plaintiff must exhaust her administrative
remedies by filing an EEOC charge within 180 days of the alleged discrimination or with the
state agency within 300 days. Marcum v. Oscar Mayer Foods Corp., 46 F. App’x 331, 333 (6th
Cir. 2002) (citing Perry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309 (6th Cir. 2000)). If
the Plaintiff fails to exhaust her administrative remedies before filing a civil action, then
dismissal of the charge is appropriate. Id.
The purpose of the exhaustion requirement is to give the EEOC, prior to litigation, the
opportunity to investigate and “attempt to obtain voluntary compliance” from the employer.
Davis v. Sodexho, 157 F.3d 460, 463 (6th Cir. 1998).

The EEOC’s investigation and

negotiations with the defendant also serve to “notify potential defendants of the nature of the
plaintiffs’ claims and provide them the opportunity to settle the claims before the EEOC rather
than litigate them.” Id.
The Plaintiff filed a charge of discrimination with the EEOC prior to filing this civil
action. However, on the form, when asked what her discrimination claim was based on, the
Plaintiff checked only the box labeled “disability.”

She did not check the box labeled

“retaliation.” (DE 16-2, Charge of Discrimination.)
That does not necessarily mean that the Plaintiff failed to exhaust her retaliation claim.
“A complainant need not ‘attach the correct legal conclusion’ to allegations in the charge,

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‘conform to legal technicalities,’ or use ‘the exact wording which might be required in a judicial
pleading.’” Jones v. Sumser Retirement Village, 209 F.3d 851, 853 (6th Cir. 2000) (quoting
Davis, 157 F.3d at 463). But, “[t]he claim must grow out of the investigation or the facts alleged
in the charge must be sufficiently related to the claim such that those facts would prompt an
investigation of the claim.” Id. (citing Davis, 157 F.3d at 464) (emphasis added).
A plaintiff may be deemed to have exhausted a claim with evidence that the EEOC
actually investigated the claim. Scott v. Eastman Chem. Co., 275 F. App’x 466, 475 (6th Cir.
2008); Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 362 n.1 (6th Cir. 2010) (quoting Scott,
275 F. App’x at 475). “When the EEOC investigation of one charge in fact reveals evidence of a
different type of discrimination against the plaintiff, a lawsuit based on the newly understood
claim will not be barred.” Davis, 157 F.3d at 463. A claim is within the scope of an EEOC
charge if it was within the “actual scope of the EEOC investigation or the subject of conciliation
attempts.” Cedar v. Premier Indus. Corp., 869 F.2d 1489, 1989 WL 20615, at *4 (6th Cir.
1999). See also Josephs v. Pacific Bell, 443 F.3d 1050, 1061 (9th Cir. 2006) (“Subject matter
jurisdiction extends over all allegations of discrimination that either fell within the scope of the
EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination.”) (quotations and citation omitted); Saley v. Caney
Fork, LLC, No. 3:11-cv-00824, 2012 WL 3286060, at *5 (M.D. Tenn. Aug. 10, 2012) (“Thus,
the EEOC in fact investigated the retaliation claim, and Defendant, by virtue of its denial in fact
had notice of the existence of the claim.”).
This matter is before the Court on a motion to dismiss. In response, the Plaintiff has
presented evidence that the EEOC actually investigated whether the Defendant fired the Plaintiff
in retaliation after she asserted rights provided under the ADA.

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The Plaintiff’s discrimination charge explained that she had requested a reasonable
accommodation for her disability and that she was subjected to a hostile work environment. In
the course of the investigation of that claim, the Plaintiff explained to the EEOC that the
Defendant ultimately fired her.

(DE 17-1, EEOC Investigator Intake Notes.) During the

investigation, the Defendant’s Human Resources Manager, Christie Smallwood, filed an
affidavit detailing the circumstances behind the Plaintiff’s termination. Smallwood states that the
Plaintiff was discharged for violating the Defendant’s sexual harassment policy. (DE 17-2,
Smallwood Aff.)

Smallwood further states that she investigated the sexual-harassment

complaint filed against the Plaintiff and, in the affidavit, she details the findings of that
investigation.
Smallwood states that whether the Defendant discharges an employee for violating the
sexual harassment policy depends on the “seriousness of the offense.” She states that the
Plaintiff was discharged because she had sexually harassed various male employees.
Smallwood also explains that she was the person who made the decision to fire the Plaintiff. She
states that other employees have been discharged for violating the sexual harassment policy and
states that she will provide additional information regarding those terminations. Smallwood did
later provide the EEOC with records regarding another employee fired by the Defendant for
violating its sexual harassment policy. (DE 17-3, Employee Warning.)
The EEOC investigator’s notes regarding her communications with the Plaintiff and her
settlement negotiations with the Defendant state that, during the investigation, the EEOC found
that the Defendant failed to provide reasonable accommodations but that the EEOC did not find
“cause” on the termination claim. (DE 17-4, Saldivar Mem.)

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Thus, the Plaintiff has presented evidence that the scope of the EEOC’s actual
investigation included whether the Defendant fired her in retaliation for exercising rights under
the ADA.

The EEOC’s investigation included the circumstances regarding the Plaintiff’s

termination, whether the Defendant had a legitimate nondiscriminatory reason for firing her, and
whether that reason was pretextual. By triggering an investigation of these elements of a
retaliation claim, the Plaintiff’s charge with the EEOC served the purposes of exhaustion. It gave
the Defendant notice of the claim and gave the EEOC and the Defendant an opportunity to
attempt to resolve the claim instead of litigating it.
In its reply brief, the Defendant does not dispute that the EEOC actually investigated
whether the Defendant fired the Plaintiff by retaliating against her.
Accordingly, the Court must deny the Defendant’s Motion to Dismiss the Plaintiff’s
retaliation claim.
II.

The Plaintiff’s Motion to Amend (DE 19).

After the Defendant moved to dismiss the Plaintiff’s ADA retaliation claim, she sought
leave to amend her complaint to assert a retaliation claim under the Kentucky Civil Rights Act.
In her motion, the Plaintiff states that she seeks to amend the complaint because “[i]f the Court
grants Defendant’s motion to dismiss, the dismissal will serve as an adjudication on the merits”
and, thus, she would be “precluded from filing a claim of retaliation under the Kentucky Civil
Rights Act . . . .” (DE 19, Motion at 1-2.) Because the Motion to Amend was premised on a
scenario in which the Court dismissed the ADA retaliation claim, the motion should be denied,
the Court having denied the Defendant’s Motion to Dismiss the ADA retaliation claim.
Further, the Scheduling Order in this action establishes April 18, 2012 as the deadline for
filing motions to amend the pleadings. (DE 9.) The Plaintiff did not file her motion until nearly

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six months after the deadline. The scheduling order may be modified “only for good cause.”
Fed. R. Civ. P. 16(b)(4); Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003). The only “good
cause” even alleged by the Plaintiff for modifying the Scheduling Order so that she can add a
state-law retaliation claim is that the Defendant moved to dismiss her ADA retaliation claim.
(DE 19, Motion at 3-4.) The Defendant’s Motion to Dismiss having been denied, the Plaintiff’s
Motion to Amend should also be denied.
Finally, the Plaintiff has put forth no reason why she could not have filed the state law
claim prior to the deadline for amending the pleadings. The Defendant would be prejudiced by
the filing an additional claim at this point in the litigation.
Accordingly, the Plaintiff’s Motion to Amend (DE 19) will be denied.
III.

Conclusion.

For all these reasons, the Court hereby ORDERS as follows:
1)

the Defendant’s Motion to Dismiss (DE 16) is DENIED; and

2)

the Plaintiff’s Motion to Amend (DE 19) is DENIED.

Dated this 21st day of February, 2013.

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