Tonkin v. Shadow Management Inc
Filing
113
ORDER granting 105 Motion to Dismiss for Lack of Jurisdiction (Subject Matter), Judgment Notwithstanding the Verdict, and Relief Under Fed. Civ. R. P. 59, dismissing the plaintiff's retaliation claim and setting aside the $50,000 punitive award. Signed by Honorable Joseph F. Anderson, Jr. on 08/14/2014.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Jordan M. Tonkin,
C/A No. 3:12-cv-00198-JFA
Plaintiff,
vs.
Shadow Management, Inc., d/b/a
Platinum Plus,
Order
Defendant.
In this employment discrimination case brought under Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. 2000e et seq., Shadow Management, Inc., d/b/a Platinum Plus,
(“Defendant”) has filed a post-trial motion seeking to dismiss the retaliation claim for lack of
subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure;
judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure; and to alter
or amend judgment under Rule 59(e) of the Federal Rules of Civil Procedure. ECF No. 105.
Alternatively, Defendant moves pursuant to Rule 59(a) for a new trial on the retaliation claim.
Plaintiff responded in opposition, ECF No. 109, and the court heard oral arguments on August 5,
2014. For the reasons set out below, the court grants Defendant’s 12(b)(1) motion to dismiss the
retaliation claim for lack of subject-matter jurisdiction.
I.
BACKGROUND
Defendant operates a club known as Platinum Plus in Columbia, South Carolina, and
Jordan M. Tonkin (“Plaintiff”) worked there as a waitress/beer tub attendant for about two years.
On March 24, 2011, when no longer employed by the club, Plaintiff filed an administrative
charge with the Equal Employment Opportunity Commission, through the South Carolina
Human Affairs Commission (“EEOC charge”). In the EEOC charge, Plaintiff checked the box
for disability. In her statement of particulars, Plaintiff contended that,
I was involuntarily placed on maternity leave on September 25, 2010[,] before my
medical condition required it because management thought I was “too fat[.]”[] I
later learned that my employment was terminated.
I believe I was discriminated against because of my pregnancy in violation of the
South Carolina Human Affairs Law and the Pregnancy Discrimination Act
amendment to Title VII of the Civil Rights Act.
EEOC Charge, ECF No. 29–6 at 3.
After receiving a right-to-sue letter, Plaintiff filed a complaint on January 20, 2012,
asserting pregnancy discrimination under Title VII based on the allegations that she was
involuntarily forced to take maternity leave before it was medically necessary and eventually
terminated. According to the complaint, Defendant had placed Plaintiff on maternity leave on
September 25, 2010, and had told her she was not to return until after the birth of the baby,
whose estimated due date was March 14, 2011. The complaint also alleged that, by letter dated
January 21, 2011, Defendant’s attorney told Plaintiff’s attorney that Plaintiff’s employment with
Defendant was terminated. Pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e),
(g), DSC, the case was referred to a magistrate judge for pre-trial proceedings and a Report and
Recommendation (“Report”).
On January 15, 2013, Plaintiff filed a motion to amend the complaint, seeking to add a
claim for retaliation under Title VII. ECF No. 27. In the motion, Plaintiff argued that three
critical facts had been learned in discovery that caused her to believe she also was a victim of
retaliation. First, on December 19, 2010, three days after her attorney had advised Defendant of
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Plaintiff’s Title VII concerns,1 Plaintiff received a letter from Defendant’s payroll service
company dated November 27, 2010, which terminated Plaintiff’s account because of payroll
inactivity. This, Plaintiff argued, raised the inference that the letter had been back dated and sent
in response to the letter from Plaintiff’s counsel. Second, the dates on the incident reports
prepared by three different witnesses to an alleged parking lot incident, which Defendant contend
caused Plaintiff’s termination, were different from the date of actual incident. This too, Plaintiff
argued, suggested the possibility that the reports were back dated to support a termination in
retaliation for the letter from Plaintiff’s counsel. Third, Defendant’s general manager, Jason
Downing, testified in his deposition that he would have considered rehiring Plaintiff had she not
filed the instant lawsuit. In its opposition to the motion to amend, Defendant argued that
Plaintiff’s proposed amendment would be futile because she had failed to present any viable
retaliation claims. ECF No. 29. As part of that argument, without explicitly asserting lack of
subject-matter jurisdiction, Defendant also contended that Plaintiff had failed to administratively
exhaust her claim for retaliation deriving from any protected activity related to her attorney’s
letter to Defendant. At a hearing on March 7, 2013, the magistrate judge granted Plaintiff’s
motion to amend the complaint, which was filed on March 18, 2013. ECF No. 33.
The amended complaint asserted claims of pregnancy discrimination and retaliation
under Title VII. With respect to her retaliation claim, Plaintiff alleged that, after receiving the
letter from Plaintiff’s counsel, “Defendant became upset with Plaintiff for asserting her Title VII
rights.” Am. Compl. ¶ 18, March 18, 2013, ECF No. 33. Again the complaint alleged that
Defendant’s attorney told Plaintiff’s attorney, by letter dated January 21, 2011, that Plaintiff’s
employment with Defendant was terminated.
1
On December 16, 2010, Plaintiff’s attorney had hand-delivered a letter to Defendant seeking to resolve
the matter and threatening litigation.
3
Before the magistrate judge, Defendant moved for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. ECF No. 37. Defendant argued that Plaintiff had
failed to present any evidence to establish that Defendant discriminated against her because of
her pregnancy, and that Plaintiff’s retaliation claim was procedurally barred because she had
failed to exhaust her administrative remedies. Plaintiff responded in opposition. ECF No. 39.
On January 10, 2014, the magistrate judge issued a Report to this court wherein she
recommended that this court deny Defendant’s motion for summary judgment as to the
pregnancy discrimination claim and grant Defendant’s motion as to the retaliation claim. ECF
No. 45. The Report suggested that a genuine dispute over a material fact precluded summary
judgment on the discrimination claim. Furthermore, the Report opined that Plaintiff’s retaliation
claim failed as a matter of law because she had presented no evidence that she actually ever
sought re-employment with Defendant; thus, the Report found that Plaintiff had not shown that
she suffered any adverse action as a result of protected activity. The Report did not address
whether Plaintiff had exhausted her administrative remedies on the retaliation claim. Plaintiff
filed an objection, arguing that the Report incorrectly concluded that her retaliation claim failed
as a matter of law. ECF No. 47. Specifically, Plaintiff argued that she had shown an adverse
employment action because she was terminated after she had made known her Title VII claim.
Also, Plaintiff submitted that she was under no obligation to seek re-employment because she
had an unconditional right to return after the birth under Title VII.
Charged with making a de novo determination of those portions of the Report to which
specific objections were made, this court found that a genuine dispute of material fact existed
over when, if at all, Defendant took adverse action against Plaintiff. Therefore, in addition to the
discrimination claim, this court found that summary judgment was improper for the retaliation
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claim, and the case was set for trial on both claims under Title VII. The case was tried before a
jury starting on June 16, 2014, excluding the issues of compensatory back pay, which the parties
had agreed to have tried separately before this court. At the end of the trial, the jury returned a
verdict for Defendant on the discrimination claim and for Plaintiff on the retaliation claim,
awarding her $50,000 in punitive damages. Subsequently, Defendant filed thes post-trial motion
currently before the court, seeking to dismiss the retaliation claim for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure; judgment as a
matter of law under Rule 50; and to alter or amend judgment under Rule 59(e). ECF No. 105.
Alternatively, Defendant moves pursuant to Rule 59(a) for a new trial on the retaliation claim.
Because subject-matter jurisdiction presents a threshold matter, the court addresses it first.
II.
STANDARD OF REVIEW
Federal district courts are courts of limited jurisdiction. “Thus, when a district court
lacks subject matter jurisdiction over an action, the action must be dismissed.” United States ex
rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). A challenge to a court’s subjectmatter jurisdiction can be raised at any time, including after trial, and is properly considered on a
motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(h).
The burden of proving subject-matter jurisdiction rests with the plaintiff, the party asserting
jurisdiction. See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995). Unlike with a
facial attack on the existence of subject-matter jurisdiction, occurring early in litigation, a court
at this stage may consider evidence outside the pleadings and may resolve factual disputes
regarding jurisdiction. Id. In other words, with a factual attack on the existence of subjectmatter jurisdiction, this court is free to “satisfy itself as to the existence of its power to hear the
case.”
Id. (internal citation and quotation marks omitted).
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Only when “the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law” should the court grant the motion. Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
III.
ANALYSIS
Title VII prohibits an employer from retaliating against an employee for opposing
unlawful discrimination or for participating in Title VII processes. 42 U.S.C. § 2000e–3(a).
Before filing suit under Title VII, however, “a plaintiff must exhaust her administrative remedies
by bringing a charge with the EEOC.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th
Cir. 2000); see also 42 U.S.C. § 2000e–5(f)(1). Exhausting the administrative remedies is a
statutory prerequisite to invoking the jurisdiction of this court. Jones v. Calvert Group, Ltd., 551
F.3d 297, 300 (4th Cir. 2009) (“[A] failure by the plaintiff to exhaust administrative remedies
concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the
claim.”). The reasons for administrative remedies have been summarized as follows:
In enacting Title VII, Congress created an agency under whose jurisdiction there
would be an opportunity for the parties to resolve employment issues without
public litigation. The intent was that, by avoiding publicity, employees might be
spared embarrassment, and employers might be more willing to adjust their
employment practices if they were not subjected to the glare of public accusation
and recrimination. Congress . . . made it a condition precedent to the public
litigation of those claims that an employee must first seek administrative relief
through the EEOC. . . . The purposes underlying the administrative charge
requirement include giving the charged party notice of the claim, narrowing the
issues for speedier and more effective adjudication and decision, and giving the
EEOC and the employer an opportunity to resolve the dispute. If the EEOC finds
reasonable cause to believe that a violation has occurred it must attempt to
eliminate the practice through conciliation, conference, and persuasion before
commencing a lawsuit.
2 Barbara T. Lindemann & Paul Grossman, Employment Discrimination Law 1894 (4th ed.
2007).
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The Fourth Circuit Court of Appeals has considered the Congressional goals in enacting
the Title VII exhaustion requirement. See Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir.
2005). Rather than “a formality to be rushed through so that an individual can quickly file his
subsequent lawsuit,” Congress intended “the exhaustion requirement to serve the primary
purposes of notice and conciliation.” Id. By notifying an employer of the alleged discrimination
through the EEOC charge, the employer may investigate and possibly resolve the alleged
discriminatory actions on its own.
Id.
Additionally, “the exhaustion requirement initiates
agency-monitored settlement, the primary way that claims of discrimination are resolved.” Id.
Congress intended to “use administrative conciliation as the primary means of handling claims,
thereby encouraging quicker, less formal, and less expensive resolution of disputes.”
(internal citation and quotation marks omitted).
Id.
For these reasons, and others, “the
administrative process is an integral part of the Title VII enforcement scheme.” Id.
In its motion, Defendant argues that this court should dismiss Plaintiff’s retaliation claim
under Title VII because Plaintiff failed to exhaust her administrative remedies for that allegation,
thereby leaving this court without subject-matter jurisdiction. In considering the exhaustion of
administrative remedies, the Fourth Circuit has held that the allegations in the EEOC charge
determine the scope of a plaintiff’s right to file a federal lawsuit. Jones, 551 F.3d at 300. To
determine if a claim is encompassed in the charge so as to be maintained in a subsequent Title
VII lawsuit, a court may consider “[o]nly those discrimination claims stated in the initial charge,
those reasonably related to the original complaint, and those developed by reasonable
investigation of the original complaint.” Id. (quoting Evans v. Techs. Applications & Serv. Co.,
80 F.3d 954, 963 (4th Cir. 1996)). This inquiry attempts to strike a “balance between providing
notice to employers and the EEOC on the one hand and ensuring plaintiffs are not tripped up
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over technicalities on the other.” Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 594 (4th Cir.
2012).
Here, it is undisputed that Plaintiff checked the box for disability in her EEOC charge and
not the box for retaliation. Also, the narrative portion of Plaintiff’s charge lacked any discussion
related to retaliation. Thus, a claim for retaliation clearly was not “stated in the initial charge” so
as to satisfy the first path to exhausting administrative remedies under Evans. Thus, the court
turns to the second and third options.
Under the second option in Evans, this court recognizes that no single method exists for
measuring why one plaintiff’s claim is “reasonably related,” while another plaintiff’s claim falls
short. As a result, litigants are left with examples as to what allegations fall within these
parameters. Generally, the Fourth Circuit will bar a claim if the basis for the alleged harm
claimed differs between the administrative charge and the complaint. See Evans, 80 F.3d at 963–
64; see also Chacko, 429 F.3d at 509 (stating in dicta that a claim will “typically be barred if the
administrative charge alleges one type of discrimination—such as discriminatory failure to
promote—and the claim [in the complaint] encompasses another type—such as discrimination in
pay and benefits.”). A court also properly dismisses a claim when the complaint alleges a broad
pattern of misconduct, but the EEOC charge focused only on a discrete act. Id. In contrast,
however, a plaintiff satisfies the exhaustion requirement, for example, when “both the EEOC
charge and the complaint included claims of retaliation by the same actor, but involved different
retaliatory conduct,” Sydnor, 681 F.3d at 594 (citing Smith, 202 F.3d at 248), and when the
administrative charge and formal litigation concerned “discriminat[ion] in promotions” but
involved different aspects of the “promotional system.” Chisholm v. U.S. Postal Serv., 665 F.2d
482, 491 (4th Cir. 1981). The Fourth Circuit also has carved out a specific rule for certain
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retaliation claims, finding that a plaintiff need not exhaust her administrative remedies for
retaliation that grows out of an earlier EEOC charge. See Nealon v. Stone, 958 F.2d 584, 590
(4th Cir. 1992) (citations omitted). This rule recognizes that a plaintiff will be reluctant to report
to the EEOC again after her employer has taken action against her for filing the first charge. Id.;
see also Jones, 551 F.3d at 299, 305 (finding that the plaintiff exhausted the administrative
remedies by filing two separate EEOC charges and the second EEOC charge alleged ongoing
behavior, stating that “I am being forced to work in a hostile environment and subject to
differential treatment in retaliation for filing [the earlier EEOC charge]”).
Here, unlike in Nealon and its progeny, Plaintiff does not allege retaliation for having
filed an EEOC charge. Based on the pleadings and the trial, it is clear that the discovery process
led Plaintiff to believe that Defendant terminated her on January 21, 2011, for the specific
protected activity of sending the letter to Defendant on December 16, 2010, asserting her Title
VII rights.2 Because the discrete protected activity and discrete adverse action occurred before
Plaintiff filed her EEOC charge on March 24, 2011, the special rule carved out for some
retaliation claims in Nealon does not apply. Furthermore, it is clear that Plaintiff’s EEOC charge
and judicial complaint are not sufficiently similar to fit within the factual circumstances
described in the line of cases that include Sydnor, Smith, and Chisholm. Unlike in Smith, for
instance, the EEOC charge here includes no claims or descriptions of retaliation by any actor.
Instead, Plaintiff’s EEOC charge checked the disability box and described pregnancy
discrimination in her EEOC charge, without making any mention of retaliation discrimination.
In her amended complaint and at trial, Plaintiff described protected activity and adverse action in
her retaliation claim separately from the pregnancy discrimination claim. Therefore, Plaintiff’s
2
Notably, with agreement of both parties, the jury instructions stated that the jury could find retaliation
only if Plaintiff’s December 16, 2010, letter was the direct and only cause of Plaintiff’s termination.
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EEOC charge and complaint are not “reasonably related” so as to satisfy the second option
established in Evans.
Finally, while Plaintiff’s pregnancy retaliation discrimination claim
perhaps is similar to her pregnancy discrimination claim in its animus, the fact that Plaintiff
listed disability and described pregnancy discrimination in her EEOC charge would not lead the
EEOC to investigate retaliation discrimination, which is a distinct theory of liability. Therefore,
retaliation claim does not fit within the last option under Evans.
Having determined that Plaintiff’s retaliation claim neither was listed in her initial EEOC
charge nor falls within any recognized exceptions to listing it in the charge, the court finds that
exhausting the administrative remedies on the retaliation claim was a prerequisite to invoking the
jurisdiction of this court for that claim. Because the retaliation could have been raised in the
original EEOC charge, Plaintiff should have exhausted her administrative remedies before
commencing this lawsuit. See Wilson v. Dimario, 139 F.3d 897 (4th Cir. 1998) (per curiam)
(holding that the ruling in Nealon does not apply to an allegation of retaliation that occurred
before the filing of an administrative charge); see also Riley v. Tech. & Mgmt. Servs. Corp., Inc.,
872 F. Supp. 1454, 1459–60 (D. Md. 1995) (finding that when an act of retaliation occurred
before the filing of the EEOC charge and a plaintiff fails to allege retaliation, the retaliation
claim is not administratively exhausted), aff’d, 79 F.3d 1141 (4th Cir. 1996); see also McMillan
v. S.C. Dep’t of Corr., 16 F. Supp. 2d 635, 646 (D.S.C. 1997) (holding that when a charging
party could have raised allegations of retaliation at the time she filed her charge, exhaustion of
administrative remedies with respect to that charge is required), aff’d, 153 F.3d 721 (4th Cir.
1998). Here, Plaintiff did not allege retaliation at the time she filed her EEOC charge even
though the protected activity and adverse action were known to her at the time she filed the
charge. Were this court to allow Plaintiff to circumvent the administrative process, it would
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nullify the requirement that the claims asserted in court essentially be those presented to the
administrative body.
Because this court finds that it lacks subject-matter jurisdiction over
Plaintiff’s retaliation claim for failure to exhaust the administrative remedies, it will not address
Defendant’s remaining arguments.
II.
Conclusion
Accordingly, the court grants Defendant’s motion to dismiss Plaintiff’s retaliation claim
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. The jury having found for
Defendant on the pregnancy discrimination claim, and the court having determined that it lacks
subject-matter jurisdiction on the retaliation claim, the $50,000 punitive award is set aside and
the Clerk of Court shall enter judgment for Defendant.
IT IS SO ORDERED.
August 14, 2014
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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