APIRE v. WHOLE FOODS MARKET GROUP INC
Filing
23
DECISION AND ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS denying 13 Motion to Dismiss By JUDGE D. BROCK HORNBY. (jib)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM A. APIRE,
PLAINTIFF
V.
WHOLE FOODS MARKET GROUP,
INC.,
DEFENDANT
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CIVIL NO. 2:15-CV-479-DBH
DECISION AND ORDER ON DEFENDANT’S
PARTIAL MOTION TO DISMISS
The defendant Whole Foods Market Group, Inc. (Whole Foods) has moved
to dismiss four Title VII civil rights counts in the plaintiff Apire’s First Amended
Complaint on the basis that the plaintiff failed to file a timely administrative
charge.1 Title VII of the Civil Rights Act requires that a plaintiff file a timely
administrative charge as a condition to bringing suit. 42 U.S.C.A. § 2000e-5(e)(1)
(2009 & Supp. 2015); see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109 (2002); Frederique-Alexandre v. Dep’t of Nat. & Envtl. Res. P.R., 478 F.3d
433, 437 (1st Cir. 2007). I DENY the defendant’s motion.
Because Maine is a so-called deferral state,2 the plaintiff was entitled to
file his documents with the Maine Human Rights Commission (MHRC), and that
The Equal Employment Opportunities Commission (EEOC) did issue the plaintiff a right-to-sue
letter.
2 A deferral state is a state that has its own employment discrimination law and its own
enforcement agency. See 42 U.S.C.A. § 2000e-5(c); 14A C.J.S. Civil Rights § 536. In a deferral
state, although a complainant may simultaneously file his complaint with both the state agency
1
is what he did.
The MHRC concluded that the plaintiff had filed sufficient
documents to amount to a timely charge. Def.’s Partial Mot. to Dismiss at Ex. 2,
3 (ECF No. 13) (“Def.’s Mot.”). But the parties agree that federal law applies to
Equal Employment Opportunities Commission (EEOC) charges in determining
whether what the plaintiff filed with the MHRC was sufficient. See Def.’s Mot. at
n.4; Pl.’s Mem. in Opp’n to Def.’s Partial Mot. to Dismiss at 4-5 (ECF No. 18)
(“Pl.’s Opp’n”).3
Title VII itself “does not define the term charge.” Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 395 (2008). But an EEOC regulation lists a number
of elements that a “charge should contain.” 29 C.F.R. § 1601.12(a) (2015). Then
subsection (b) of that regulation states:
Notwithstanding the provisions of paragraph (a) of this
section, a charge is sufficient when the Commission receives
from the person making the charge a written statement
sufficiently precise to identify the parties, and to describe
generally the action or practices complained of. A charge may
be amended to cure technical defects or omissions, including
failure to verify the charge, or to clarify and amplify
allegations made therein.
Such amendments and
amendments alleging additional acts which constitute
unlawful employment practices related to or growing out of
(here, the Maine Human Rights Commission) and the EEOC, the EEOC must defer to the state
officials to allow them a reasonable time—not less than sixty days, unless proceedings under
state law have been terminated earlier—to remedy the alleged violation, which “encourage[s] the
maximum degree of effectiveness in the State and local agencies.” 29 C.F.R. § 1601.13 (2015);
42 U.S.C.A. § 2000e-5(c), (d); see Mohasco Corp. v. Silver, 447 U.S. 807, 821-22 (1980). “After
the expiration of [this] exclusive processing period, the [EEOC] may commence processing the
allegation of discrimination.” 29 C.F.R. § 1601.13.
3 The First Circuit has not yet answered the question whether a District Court Judge may defer
to a state agency’s determination regarding whether a complainant has filed sufficient
information to amount to a timely charge when a complainant brings his federal claims to federal
court after exhausting the state procedure, see Aly v. Mohegan Council, Boy Scouts of Am., 711
F.3d 34, 44 (1st Cir. 2013), and the parties have not briefed this issue. Because I conclude that
the documents submitted by the plaintiff are sufficient under Supreme Court and First Circuit
precedents and the EEOC regulations (and because the procedures under federal law are nearly
identical to the state procedures in Maine), I need not address this issue. Cf. Edelman v.
Lynchburg Coll., 535 U.S. 106, 114 (2002) (“Because we so clearly agree with the [agency], there
is no occasion to defer and no point in asking what kind of deference, or how much.”).
2
the subject matter of the original charge will relate back to
the date the charge was first received. . . .
29 C.F.R. § 1601.12(b) (emphasis added). The Supreme Court ruled that this
subsection—allowing a late verification to relate back to an earlier filed
document—was “an unassailable interpretation” under Title VII, Edelman v.
Lynchburg Coll., 535 U.S. 106, 118 (2002), but it did so without finding it
necessary to rule whether the EEOC generally deserved discretion in its
regulations interpreting what constitutes a “charge,” id. at 114. Later, however,
in Federal Express Corp. v. Holowecki, the Supreme Court did defer to the EEOC
in interpreting comparable charging regulations in an Age Discrimination in
Employment Act (ADEA) case, but it added one requirement. 552 U.S. at 392,
395, 402 (dealing with 29 C.F.R. §§ 1626.8(b), 1626.6).
In Holowecki, the
Supreme Court stated:
We conclude as follows: In addition to the information
required by the regulations, i.e., an allegation and the name
of the charged party, if a filing is to be deemed a charge it
must be reasonably construed as a request for the agency to
take remedial action to protect the employee’s rights or
otherwise settle a dispute between the employer and the
employee.
Id. at 402. The filing provisions of the ADEA and Title VII are virtually the same,
“the former having been patterned after the latter.” Aly v. Mohegan Council, Boy
Scouts of Am., 711 F.3d 34, 42 n.1 (1st Cir. 2013) (internal quotation marks
omitted).
Whole Foods does not focus its argument on whether the documents that
the plaintiff Apire did timely file in this case satisfied the criteria of 29 C.F.R.
§ 1601.12(b) and Holowecki. What the plaintiff—pro se at the time—filed was a
3
completed MHRC Intake Questionnaire and an attached statement.4 The thrust
of Whole Foods’s argument is that any filings the plaintiff did make in a timely
fashion were insufficient because the MHRC warned the plaintiff repeatedly that
he needed to do more than file the completed Intake Questionnaire. See Def.’s
Mot. at 2-3.
Specifically, the “Instructions for Intake Questionnaire” stated:
“Completing this Intake Questionnaire does not mean that a Complaint of
Discrimination has been filed”; and “A COMPLAINT OF DISCRIMINATION IS
FILED WITH THE MAINE HUMAN RIGHTS COMMISSION WHEN A SIGNED,
NOTARIZED COMPLAINT FORM IS RECEIVED BY THE COMMISSION. SIGNED,
NOTARIZED COMPLAINTS MUST BE RECEIVED BY THE COMMISSION WITHIN
THREE HUNDRED (300) DAYS OF THE ALLEGED ACT OF DISCRIMINATION.”
Def.’s Mot. at Ex. 6. Moreover, on October 8, 2013, an MHRC Intake Officer
mailed the plaintiff completed draft complaint discrimination forms for him to
review and have notarized, telling him in the cover letter: “a complaint must be
filed within 300 days of the date of the alleged discrimination”; and that it was
“imperative” that he return the documents “as soon as possible.”5 Def.’s Mot. at
I am not sure that, in moving to dismiss, the defendant has furnished a complete record of
what the plaintiff filed administratively. The defendant has attached to its motion Exhibit 1,
which purports to be a completed Intake Questionnaire received by the MHRC on August 23,
2013, with an attached typed statement. But the typed statement ends at the bottom of page
four in mid-sentence. It appears that there should be a carry-on page or pages. Further, the
Executive Director’s letter to the plaintiff’s attorney on August 5, 2014, references an online
intake form that the plaintiff filed on July 30, 2013. See Def.’s Mot. at Ex. 2. This document
has not been submitted to the court.
5 The defendant also refers to an August 23, 2013, MHRC email to the plaintiff’s lawyer
concerning the need to submit a notarized complaint, but the record does not disclose when the
lawyer actually agreed to represent the plaintiff. The MHRC Executive Director’s letter of
August 5, 2014, states:
[O]n August 23, 2013, we received a phone call from Complainant asking if we
could forward his intake to [this lawyer]; we did so via email that day. In the Case
Controller’s August 23, 2013 email to you, we asked you if you would be
submitting a complaint or if Complainant would prefer that we draft one for him.
4
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Ex. 8.
The plaintiff failed to do so until his lawyer filed completed verified
complaint forms on May 27, 2014. See Def.’s Mot. at Ex. 4.
It is sound policy that the MHRC warns people (often without lawyers) who
are trying to assert their rights what the MHRC wants them to file, and its advice
is designed to ensure that there can be no issue later over adequacy of the filings.
But in determining whether this federal civil rights lawsuit is barred, I measure
what the plaintiff did file against the federal EEOC regulation and Supreme Court
requirements, not the warnings that the MHRC gave to the plaintiff.
The
completed Intake Questionnaire with the attached typed statement satisfied all
of section 1601.12(b) and Holowecki, but for the verification requirement.6 As
stated in section 1601.12(b) and the Supreme Court in Edelman v. Lynchburg
College, that requirement can be satisfied later, as it was in this case.
The Supreme Court has recognized that the requirements for a charging
document amount to a “permissive standard,” and may allow “a wide range of
documents [to] be classified as charges. But this result is consistent with the
design and purpose of the ADEA.” Holowecki, 552 U.S. at 402. The same is true
We heard nothing back from you or your client until October 7, 2013, when
Complainant himself called here.
Def.’s Mot. at Ex. 2. I cannot tell from this exchange that the lawyer had yet undertaken to
represent the plaintiff. The Executive Director’s letter goes on to state that “[o]n October 8, the
Intake Officer spoke with the Complainant and obtained additional details relating to his claim,”
and then mailed to him a complaint form alleging unlawful discrimination and asking that it be
notarized. Id. If anything, that course of events suggests that the plaintiff was not yet
represented by counsel. “We heard nothing thereafter until we received the complaint you
[counsel] filed on behalf of Complainant on May 27, 2014.” Id. In any event, legal representation
earlier would not change my conclusion. I measure what the plaintiff timely filed against the
criteria of section 1601.12(b) and Holowecki, and I conclude that the plaintiff’s filings are
sufficient.
6 The completed Intake Questionnaire states: “I WISH TO FILE A COMPLAINT AGAINST” and
there the plaintiff filled in the defendant’s name and relevant supervisor, thus satisfying
Holowecki. The information in the completed Intake Questionnaire and the typed attachment
“is sufficiently precise to identify the parties” and “describe[s] generally the action or practices
complained of.” 29 C.F.R. § 1601.12(b).
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of Title VII. See id. (“The ADEA, like Title VII, sets up a remedial scheme in which
laypersons, rather than lawyers, are expected to initiate the process.” (internal
quotation marks omitted)). The Supreme Court has also pointed out that pro se
litigants confront lesser pleading standards even in formal litigation. Id.; see id.
at 403 (“The system must be accessible to individuals who have no detailed
knowledge of the relevant statutory mechanisms and agency processes. It thus
is consistent with the purposes of the [ADEA] that a charge can be a form, easy
to complete, or an informal document, easy to draft.”); see also Oscar Mayer &
Co. v. Evans, 441 U.S. 750, 756 (1979) (noting the “common purpose” of Title
VII and the ADEA).
The defendant relies heavily on a pre-Holowecki case from this court,
Frank v. L.L. Bean, Inc., No. Civ. 04-221-P-S, 2006 WL 47557 (D. Me. Jan. 9,
2006), report and recommendation adopted, No. Civ. 04-221-P-S, 2006 WL
462339 (D. Me. Feb. 23, 2006). In Frank, the MHRC claimed never to have
received even a completed Intake Questionnaire, although Frank claimed she
had sent one.
Id. at *6.
The MHRC dismissed Frank’s later complaint as
untimely, the EEOC followed suit, and the Magistrate Judge ultimately granted
the employer’s motion for summary judgment. Id. at *6-7, 10. But here, the
MHRC distinguished Frank in ruling that this plaintiff’s documents were timely
filed. See Def.’s Mot. at Ex. 3 (letter from MHRC’s Executive Director to defense
counsel denying the defendant’s motion for reconsideration of the Commission’s
ruling as to the timeliness of the complaint). In any event, as I stated at the
beginning of this opinion, the parties agree that I must apply federal law and I
do so. Following Holowecki and the Code of Federal Regulations, I conclude that
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Frank is no longer persuasive.7 My decision is consistent with the more recent
First Circuit case, Aly v. Mohegan Council, Boy Scouts of America, 711 F.3d 34
(1st Cir. 2013). There, in a Title VII case, the First Circuit said that in Holowecki,
the [Supreme] Court attempted to resolve a dispute among
the lower courts regarding whether the filing of an intake
questionnaire may constitute the filing of a “charge” for
purposes of the Age Discrimination in Employment Act
(ADEA) if all other filing requirements are met. The Court
granted deference to the EEOC’s filing requirements,
concluding that,
[i]n addition to the information required by the
regulations, . . . if a filing is to be deemed a
charge it must be reasonably construed as a
request for the agency to take remedial action
to protect the employee’s rights or otherwise
settle a dispute between the employer and the
employee.
In applying this rule, the Court looked at the label and
wording of the questionnaire at issue, noting that
[d]ocuments filed by an employee with the
EEOC should be construed, to the extent
consistent
with
permissible
rules
of
interpretation, to protect the employee’s rights
and
statutory
remedies.
Construing
ambiguities against the drafter may be the
more efficient rule to encourage precise
expression in other contexts; here, however,
the rule would undermine the remedial scheme
Congress adopted.
It would encourage
individuals to avoid filing errors by retaining
counsel, increasing both the cost and
likelihood of litigation.
Id. at 42 (alteration in original) (footnote omitted) (citation omitted) (quoting
Holowecki, 552 U.S. at 402, 406). The First Circuit in Aly proceeded to uphold
the district court’s ruling that a completed Interview Form was sufficient to
qualify as a valid initial charge and, after the plaintiff in that case cured the
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The defendant’s citation of pre-Edelman or pre-Holowecki cases generally is not helpful.
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technical verification defect to “relate back” to the original complaint, that the
Interview Form met the timeliness requirement.8 Id. at 42-43. Its reasoning
applies with equal force to this plaintiff’s completed Intake Questionnaire with
attached typed statement.
Accordingly, the defendant Whole Foods’s motion to dismiss Counts 1
through 4 of the plaintiff Apire’s First Amended Complaint is DENIED.9
SO ORDERED.
DATED THIS 4TH DAY OF MAY, 2016
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
In Aly, the First Circuit stated: “In Holowecki, the Court deemed a complaint insufficient to
constitute a charge where said complaint was not labeled a ‘Charge of Discrimination,’ and its
wording indicated that its purpose was to facilitate ‘pre-charge filing counseling.’” Aly, 711 F.3d
at 43 (quoting Holowecki, 552 U.S. at 405). In contrast, the First Circuit found the Interview
Form in Aly sufficient because it “referred to the filing employee as a ‘Complainant’ and contained
wording referring to the Form itself in the present tense as an ‘employment complaint . . . being
filed against the Respondent . . . .” Id. at 44. In this case, the form the plaintiff signed said “I
wish to file a complaint against” and named the defendant, as well as a particular supervisor,
and the plaintiff signed the form as the “Complaining Party.” Def.’s Mot. at Ex. 1. This satisfies
Aly. Moreover, in light of the First Circuit’s decision in Aly, I do not find persuasive Nelson v.
South Carolina Lottery Commission, No. 3:14-cv-00056-MGL, 2014 WL 6473510 (D.S.C.
Nov. 18, 2014), another decision relied on by the defendant in its motion.
9 I do not reach the plaintiff’s argument that although he alleges throughout his First Amended
Complaint that the defendant terminated him on July 30, 2013, the time limitation period did
not actually start to run until he received his official termination letter on August 1, 2013.
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