Cargo et al v. Kansas City Southern Railway Co

Filing 461

MEMORANDUM RULING re 207 MOTION for Partial Summary Judgment on the claims of Rodrick Wilson filed by Kansas City Southern Railway Co. Signed by Judge S Maurice Hicks on 9/16/2009. (crt,Reasor, M)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

C L A R E N C E CARGO, et al., V ER SU S K A N S A S CITY SOUTHERN

C IV I L ACTION NO. 05-2010 J U D G E S. MAURICE HICKS, JR. MAGISTRATE JUDGE HORNSBY

M E M O R AN D U M RULING B e fo re the Court is Defendant's Motion for Partial Summary Judgment on P la in tiff Rodrick W ils o n 's Title VII claims of hostile work environment, retaliation, and d e n ia l of transfer. [Record Document 207]. The motion is grounded in a claim that W ils o n failed to exhaust administrative remedies with respect to his Title VII claims o f hostile work environment, retaliation, and denial of transfer because these claims w e re not included in the charge of discrimination he filed with the EEOC on February 7 , 2005. See id. Plaintiff W ils o n states in response that he has exhausted

a d m in is tra tiv e remedies as to these claims because his claims of hostile work e n viro n m e n t, retaliation, and denial of transfer are like or reasonably related to the a lle g a tio n s contained within the documents he and others submitted to the EEOC. [R e c o rd Document 268]. For the reasons that follow, Defendant's Motion for Partial S u m m a r y Judgment is GRANTED. I. SUMMARY JUDGMENT STANDARD S u m m a ry judgment is proper pursuant to Rule 56 of the Federal Rules of Civil P r o c e d u re "if the pleadings, depositions, answers to interrogatories, and admissions

o n file, together with the affidavits, if any, show that there is no genuine issue as to a n y material fact and that the moving party is entitled to a judgment as a matter of la w ." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). "R u le 56(c) mandates the entry of summary judgment, after adequate time for d is c o ve ry and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which th a t party will bear the burden of proof at trial." Stahl v. Novartis Pharm. Corp., 283 F .3 d 254, 263 (5th Cir. 2002). If the movant demonstrates the absence of a genuine iss u e of material fact, "the nonmovant must go beyond the pleadings and designate s p e c ific facts showing that there is a genuine issue for trial." Littlefield v. Forney In d e p . Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001). Where critical evidence is so w e a k or tenuous on an essential fact that it could not support a judgment in favor of th e nonmovant, then summary judgment should be granted. See Alton v. Tex. A&M U n iv., 168 F.3d 196, 199 (5th Cir. 1999). II. LAW AND ANALYSIS A. S c o p e of Exhaustion Requirement

E m p lo ym e n t discrimination plaintiffs must exhaust administrative remedies b e fo re they may pursue claims in federal court. Taylor v. Books A Million, Inc., 296 F .3d 376, 378-79 (5th Cir. 2002). In order to exhaust his or her administrative re m e d ie s , a plaintiff must first file a timely charge with the EEOC and receive a n o tic e of right to sue. Id. A Title VII suit "may be based, not only upon the specific 2 of 9

c o m p la in ts made by the employee's initial EEOC charge, but also upon any kind of d is c rim in a tio n like or related to the charge's allegations . . . ." Turner v. St. Luke's E p is c o p a l Health Sys., 2008 W L 706709 at *7 (S.D. Tex. Mar. 14, 2008) (citing Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1992)). A t issue in this case is the scope of the exhaustion requirement, which "has b e e n defined in light of two competing Title VII policies that it furthers." Pacheco v. M in e ta , 448 F.3d 783, 788-89 (5th Cir. 2006). As the Fifth Circuit has explained, O n the one hand, because the provisions of Title VII were n o t designed for the sophisticated, and because most c o m p la in ts are initiated pro se, the scope of an EEOC c o m p la in t should be construed liberally. On the other h a n d , a primary purpose of Title VII is to trigger the in ve s tig a to ry and conciliatory procedures of the EEOC, in a tte m p t to achieve non-judicial resolution of employment d is c r im in a tio n claims. Indeed, a less exacting rule would a lso circumvent the statutory scheme, since Title VII c le a rly contemplates that no issue will be the subject of a c ivil action until the EEOC has first had the opportunity to a tte m p t to obtain voluntary compliance . . . . [A]llowing a fe d e ra l court complaint to proceed despite its loose `fit' w ith the administrative charge and investigation is p re c lu d e d if it would circumvent agency efforts to secure v o lu n ta ry compliance before a civil action is instituted. Id . (internal citations and quotation marks omitted). Accordingly, and keeping both c o n s id e ra tio n s in mind, "this court interprets what is properly embraced in review of a Title VII claim somewhat broadly, not solely by the scope of the administrative c h a rg e itself, but by the scope of the EEOC investigation which can reasonably be e xp e c ted to grow out of the charge of discrimination." Id. (citing Sanchez v. Standard

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B ra n d s , Inc., 431 F.2d 455, 463 (5th Cir. 1970)) (internal quotation marks omitted). In doing so, the Court "engage[s] in fact-intensive analysis of the statement given by th e plaintiff in the administrative charge, and look[s] slightly beyond its four corners, to its substance rather than its label." Id. A s an initial matter, we note that "[a] discriminatory act alleged in a lawsuit but n o t included in an EEOC charge is not `like or related to' acts that are alleged in an E E O C charge simply because both are based on the same type of discrimination." T u rn e r, 2008 W L at *8. In order for a particular "alleged discriminatory act to fall w ith in the scope of an EEOC charge, there must be some factual relationship b e tw e e n the act and the acts described in the charge, beyond the fact that both in vo lve the same employer and the same general type of discrimination." Id. A recent Supreme Court decision held that an EEOC "Intake Questionnaire," c o n s titu te s a "charge" for the purposes of the ADEA when "it [can] be reasonably c o n s tru e d as a request for the agency to take remedial action to protect the e m p lo ye e 's rights or otherwise settle a dispute between the employer and the e m p lo y e e . " Fed. Express Corp. v. Holowecki, -- U.S. --, 128 S.Ct. 1147, 1158 (2 0 0 8 ); see also Beckham v. Nat'l R.R. Passenger Corp., 590 F. Supp. 2d 82 , 86 (D .D .C . 2008) (noting that "because of the similarities between the statutory scheme o f the ADEA and Title VII concerning exhaustion of administrative remedies," H o lo w e c k i's holding concerning the interpretation of "charge" should be applied in

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th e Title VII context) (citing Grice v. Balt. County, Civ. No. 07-1701, 2008 W L 4 8 4 9 3 2 2 , at *4 n. 3 (D.Md. Nov. 5, 2008). In Holowecki, the Supreme Court implied that a completed Intake Q u e s tio n n a ire , without more, could not be reasonably construed as a request for the a g e n c y to take remedial action. See 128 S.Ct. at 1159 ("W e r e the Intake

Q u e s tio n n a ire the only document before us we might agree its handwritten s ta te m e n ts do no request action." Id.). The Supreme Court ultimately found that the In ta k e Questionnaire constituted a charge, however, because it was "supplemented w ith a detailed six-page affidavit" asking the agency to "[p]lease force [the defendant] to end their age discrimination plan so we can finish out our careers absent the u n fa irn e s s and hostile work environment . . . ." Id. at 1159-60. In the instant matter, to determine which Title VII causes of action Plaintiff has e xh a u s t e d , W ils o n urges this Court to look not only to the substance of his a d m in istra tive charge signed on February 7, 2005, but also to: (1) a "Charging Party S u s p e n s io n Questionnaire" signed on December 21, 2004, (2) a "Charge Q u e s tio n n a ire " signed on December 21, 2004, (3) documents which appears to be s u m m a rie s by W ils o n regarding conversations and/or events that occurred at KCS, (4 ) EEOC submissions of his co-plaintiffs, and (5) EEOC documentation and c o r r e s p o n d e n c e regarding his co-plaintiffs. [Doc. 268]. None of the documents a tta c h e d to Plaintiff's Opposition to Defendant's Motion for Summary Judgment can p ro p e rly be construed as requests for the agency to take remedial action. See 5 of 9

H o lo w e c k i, 128 S. Ct. at 1159. The "Charging Party Suspension Questionnaire" and "C h a rg e Questionnaire" were both submitted to the EEOC prior to W ils o n filing his form a l administrative charge--a charge he signed under the penalty of perjury a s s e r tin g that the contents therein were true and correct. [Doc. 207, Ex. A]. Thus, a n y claims stated in the Questionnaires that are not included in W ils o n 's Charge of D is c rim in a tio n , or that cannot reasonably be expected to grow out of his charge, s h o u ld be considered waived. See Novitsky v. American Consulting Engineers, L .L .C ., 196 F.3d 699, 702 (7th Cir. 1999) (stating that under Title VII, "it is the charge ra the r than the questionnaire that matters. Only the charge is sent to the employer, a n d therefore only the charge can affect the process of conciliation."). W ils o n has a ls o failed to show why the Court should consider the documents that appear to be s u m m a rie s from W ils o n concerning conversations and/or events that took place at K C S . These documents do not indicate the addressee or recipient, are not dated o r signed, and do not indicate whether they were ever submitted to or received by th e EEOC to aide in the investigation of Wilson's administrative complaint. F u rth e rm o re , none of these documents include, explicitly or implicitly, a request for th e agency to take remedial action. R e g a rd in g the EEOC submissions of W ils o n 's co-plaintiffs and the EEOC d o c u m e n ta tio n and correspondence relating to his co-plaintiff's, W ils o n has not id e n tifie d any authority that would permit this Court to consider those documents as re q u e s ts by Plaintiff W ils o n for the agency to take remedial action. Consequently, 6 of 9

th e Court may only look to the substance of Wilson's Charge of Discrimination to d e te rm in e whether W ils o n exhausted his administrative remedies as to his Title VII c la im s of hostile work environment, retaliation, and denial of transfer. B. P la in tiff's Charge of Discrimination

P la in tiff argues that his claims of hostile work environment, retaliation, and d e n ia l of transfer are not exhausted because they are "like or related to" the a lle g a tio n s contained within his administrative charge and/or are within the scope of a reasonable investigation of his charge. However, "THE PARTICULARS" section o f Plaintiff's Charge of Discrimination makes no reference to his claims of hostile w o rk environment, retaliation, or denial of transfer. It states simply and in its entirety: O n November 5, 2004, I was informed that I would be s u s p e n d e d without pay for 45 days. On October 14, 2004, I was removed from service pending investigation. In or a b o u t May 2004, I was denied the opportunity for p ro m o tio n to conductor. I was told that I was suspended due to violation of R e s p o n d e n t's General Responsibilities Rule 1.6 and 1.13 to my attitude, insubordinate, discourteous, and u n c o o p e ra tive behavior. When I asked Dave Ebbrecht, G e n e ra l Superintendent (my supervisor), if I could possibly m o ve up to conductor ranks, he said that it would not be a problem. In a subsequent conversation after I had ta lk e d with Vice President Jerry Heavin, Dave told me that h e would not recommend me for anything. Specifically, he to ld me that he would not put his problem (me) on anyone a n d that I did not know what "chain of command" was and th a t I was stupid for going over his head.

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I believe that I have been discriminated against because o f my race, Black, in violation of Title VII of the Civil Right A c t of 1964, as amended. [C h a rg e of Discrimination, Doc. 207, Ex. A]. In addition, under the heading

"D IS C R IM IN A T IO N BASED ON," Plaintiff checked only the box labeled "Race." Id. T h e Court finds that the investigation which could reasonably be expected to g ro w out of the plain language of Plaintiff's EEOC Charge--alleging only failure to p ro m o te and discriminatory suspension--would not include an investigation of c la im s of hostile work environment, retaliation, or denial of transfer. Plaintiff's claims o f discrimination based on race arise from two isolated incidents--the failure to p ro m o te him to conductor in May 2004 and his suspension in November 2004. See e .g., Esukpa v. John Eagle Sports City Toyota, 2006 W L 2371329, *2 (N.D. Tex. A u g . 15, 2006) (finding that the investigation that can reasonably be expected to g ro w out of a charge alleging only discriminatory discharge based on race and age w o u ld not include an investigation of claims of failure to promote, retaliation, h a ra s s m e n t, or hostile work environment); Chambers v. Principi, 2006 W L 2255261, *3 (S.D. Miss., Aug. 7, 2006) (stating that "where the EEOC alleges only one theory o f discrimination," "a plaintiff cannot advance additional grounds of discrimination in h e r court action related to that charge"). Accordingly, Defendant's motion to dismiss W ils o n 's Title VII hostile work environment, retaliation, and denial of transfer claims fo r failure to exhaust administrative remedies is GRANTED.

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III. CONCLUSION A c c o rd in g ly, IT IS ORDERED THAT the foregoing motion [Record Document 2 0 7 ] be and is hereby GRANTED. IT IS FURTHER ORDERED THAT Plaintiff W ils o n 's request for sanctions be a n d is hereby DENIED. Nothing in the argument submitted by Plaintiffs' counsel in s u p p o rt of the claim for sanctions leads this Court to believe that Defendant u n re a s o n a b ly multiplied the motion practice and proceedings in this case. IT IS FURTHER ORDERED THAT each party shall bear its own costs with re s p e c t to the briefing of the instant motions. T h u s done and signed, in Shreveport, Louisiana, this 16th day of September, 2009.

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