Opinion
CIVIL ACTION No. 00-2061-CM
August 27, 2001
MEMORANDUM AND ORDER
Plaintiff was employed by defendant Forrest T. Jones Company, Inc. through a temporary employment agency, defendant Today's Staffing, Inc. Following the conclusion of his work assignment, plaintiff initiated a lawsuit against these defendants (Case No. 99-2283-KHV) alleging a variety of employment discrimination claims. Plaintiffs claims were dismissed because plaintiff had failed to present his claims to the EEOC before filing suit in federal court. Plaintiff then filed a charge of discrimination with the EEOC and thereafter filed this case, alleging that defendants discriminated against him in violation of the Civil Rights Act of 1964 (Title VII). This matter is before the court on defendants' motions to dismiss (Doc. 13 31). I. Standards
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957);Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989), The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). II. Discussion
Defendants argue that plaintiffs case should be dismissed because plaintiff has failed to exhaust his administrative remedies. The court lacks jurisdiction to entertain a Title VII claim not previously filed with the EEOC. Seymore v. Shawyer Sons, Inc., 111 F.3d 794, 799 (10th Cir. 1997). However, claims that are reasonably related to claims included in the EEOC charge may be asserted. Harrell v. Spangler, 957 F. Supp. 1215, 1219 (D. Kan. 1997). The purpose of the exhaustion requirement is to provide notice of alleged violation to the charged party and give the agency information which it needs to investigate and resolve the dispute between the employer and the employee. Seymore, 111 F.3d at 799.
In this case, plaintiff filed a charge of discrimination with the EEOC. In that charge, plaintiff checked only the box marked "sex" discrimination. In the narrative portion of his charge, plaintiff similarly asserted only gender related discrimination:
I believe that I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, by being sexually harassed by one of the company's supervisor's.
She harassed me and other employees who worked for the company, males and females.
Plaintiffs complaint in this lawsuit, however, fails to mention sex discrimination. Rather, in filling out a pre-preprinted complaint form, plaintiff checked only the line designated "race or color" in response to a question asking about the type of alleged discriminatory conduct and further wrote in the space provided that he was black. Plaintiff left the line designated "sex" blank. When asked in the complaint to provide the facts surrounding his claim of discrimination, plaintiff wrote, "By being harassed by the company employee, by being ignored when complaining about the harassment."
Plaintiff's status at the time he filed his complaint was pro se. Approximately three months later, counsel entered an appearance on plaintiffs behalf.
Nothing in the complaint itself refers to sexual discrimination. Plaintiff argues that he did (or at least intended to) allege sexual discrimination in his complaint because he attached to his complaint the underlying EEOC charge form, which explicitly references sex discrimination. Significantly, plaintiff never refers in his complaint to the attached EEOC charge. Moreover, attaching a document to a complaint does not absolve plaintiff from, nor can it serve as a substitute for, properly pleading a cause of action for sexual discrimination pursuant to Fed.R.Civ.P. 8(a). While the federal rules require only notice pleading, a plaintiff must at least notify the adverse party of the claim. Plaintiffs complaint in this case fails to notify defendants of any claim for sex discrimination. Rather, plaintiffs complaint asserts a claim only for race discrimination.
Plaintiff also contends that his complaint should not be dismissed because he refers in the affidavit portion of his EEOC charge to race. The court first notes that allegations of race discrimination are fundamentally different from sex discrimination and, as such, are not considered to be reasonably related. Williams v. Kan. Gas Elec. Co., 805 F. Supp. 890, 900 (D. Kan. 1992) (concluding that a plaintiffs claim of sex discrimination is not reasonably related to a charge of race discrimination for administrative exhaustion purposes). However, in Clark v. Chrysler, 673 F.2d 921, 930-31 (7th Cir. 1982), the Seventh Circuit held that a Title VII lawsuit could allege sex discrimination where the plaintiff had checked only the box designated "race" on her EEOC charge but where there was something in the narrative portion of the charge to justify an inference of sex discrimination. Thus, in this case, the court must determine whether there was something in the narrative portion of plaintiff's EEOC charge to justify an inference of race discrimination.
Plaintiff contends that, because he referred to his race and that of others in his EEOC affidavit, he should not be excluded from alleging racial motive in this lawsuit. At the same time, plaintiff admits that the gravamen of his EEOC allegations relate to sexual, rather than racial, discrimination and harassment. In reviewing plaintiffs EEOC affidavit, the court found reference to plaintiffs racial identity only where plaintiff responded to a question on the affidavit form. In the narrative portion, plaintiff did refer to the racial identity of several others, but significantly omitted any reference to the race of the alleged "harasser," Vicki Shoemaker. More importantly, plaintiff states in his EEOC affidavit that two other employees told him that they did not like or were tired of Ms. Shoemaker's conduct. One of those employees, Cheryl Close, was a white female, and the other, Pearl Jones, was a black female. Such a statement negates any inference of racial discrimination by alleging instances where both whites and blacks were being sexually harassed. It appears from the face of the affidavit that plaintiff simply referred to the race of his fellow employees for identity purposes. The court finds that there are no statements in the narrative portion of plaintiffs EEOC charge to justify an inference of race discrimination.
Having determined that plaintiffs complaint states a claim only for racial discrimination and that plaintiffs EEOC charge alleges only sexual harassment, the court concludes that it lacks jurisdiction over the dispute and hereby dismisses plaintiffs complaint for failure to exhaust his administrative remedies as required by Title VII. IT IS THEREFORE ORDERED that defendants' motions to dismiss (Doc. 13 31) are granted. This case is hereby dismissed in its entirety.