Opinion
Civil Action No. 5:00CV00021.
March 22, 2000.
Walter Franklin Green IV, GREEN O'DONNELL, HARRISONBURG, VA, for plaintiff.
J. Gary Lawrence, Jr., Thomas B. Kelly, Jr., FAGGERT FRIEDEN, P. C., CHESAPEAKE, VA, for defendant.
MEMORANDUM OPINION
This action concerns the plaintiff's allegations that his former employer violated his rights under Title VII of the Civil Rights Act. The plaintiff claims he was subjected to a hostile work environment when his supervisor made vulgar comments about his female co-employees, and then, when the plaintiff opposed the alleged hostile environment, the defendant retaliated by terminating his employment. On May 1, 2000, the defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The matter was referred to the presiding Magistrate Judge to set forth findings, conclusions, and recommendations for the disposition of the motion. See 28 U.S.C. § 636(b)(1)(B).
On August 17, 2000, the Magistrate Judge issued his Report and Recommendation. The Magistrate Judge recommended that the court deny the motion pursuant to Rule 12(b)(1); deny the motion pursuant to Rule 12(b)(6), as to the plaintiff's retaliation claim; and grant the motion pursuant to Rule 12(b)(6), as to the plaintiff's hostile work environment claim. On August 24, 2000, the defendant filed timely objections to the recommended denials of its motions pursuant to Federal Rule of Civil Procedure 72. The plaintiff filed no objections. The court has reviewed de novo those portions of the report or specified proposed findings or recommendations as to which objection was made. See id. § 636(b)(1); Fed.R.Civ.P. 72(b). For the reasons set forth below, the defendant's objections shall be overruled; the Magistrate Judge's recommended decision shall be accepted, and his report shall be adopted in part; and the defendant's motion to dismiss shall be granted in part and denied in part.
I.
As a preliminary matter, the court notes that the parties have submitted materials outside the pleadings in connection with the defendant's motion. Rule 12(b) provides: "If, on the motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . ." Fed.R.Civ.P. 12(b).
All of the additional materials are documents obtained from the Equal Employment Opportunity Commission that show the extent of the plaintiff's compliance with administrative and statute of limitations requirements. As such, they all relate only to the parties' 12(b)(1) arguments. Considering the additional materials to decide the 12(b)(1) arguments will not convert the entire motion into a motion for summary judgment, because, by its terms, the conversion rule only applies to motions made pursuant to Rule 12(b)(6). See id; see also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) ("In ruling on a Rule 12(b)(1) motion, the court may consider exhibits outside the pleadings."); Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1473 (4th Cir. 1991) ("Consideration of such material does not convert a Rule 12(b)(1) motion into one for summary judgment.") (internal quotation marks and citations omitted).
Only if the court considers the extraneous materials in deciding the defendant's 12(b)(6) arguments will the motion be converted. The court has complete discretion to decide whether to consider the additional materials, or to refuse to consider them and determine the motion under normal 12(b)(6) standards. See Finley Lines Joint Protective Bd. Unit 200, Broth. Ry. Carmen v. Norfolk Southern Corp., 109 F.3d 993, 996 (4th Cir. 1997). As the additional materials do not relate to the parties' 12(b)(6) arguments, it is not necessary to consider the materials in deciding those arguments.
When multiple motions are before the court, and only one of them is based on Rule 12(b)(6), the court may consider the extraneous materials for the purpose of deciding the other motions, while refusing to consider them for the purpose of deciding the Rule 12(b)(6) motion. By so doing, the court does not convert the Rule 12(b)(6) motion into a motion for summary judgment, because no materials outside the pleadings are considered in deciding that motion. The Fourth Circuit Court of Appeals so held in Wilson-Cook Medical, Inc. v. Wilson, 942 F.2d 247 (4th Cir. 1991):
The district court stated that it did not consider the affidavit material that spoke to the Rule 12(b)(6) motion. It accepted the proffered affidavits for purposes of the Rule 12(b)(2), 12(b)(3), 10(b) and 20(a) motions, but excluded them as related to the Rule 12(b)(6) motion. . . . [F]inding little distinction between a court specifically excluding affidavits and a court accepting but refusing to consider them, we are persuaded that the district court effectively excluded the affidavits relating to the Rule 12(b)(6) motion. We conclude that the motion to dismiss was not converted to a motion for summary judgment.Id. at 252. This is the course the court chooses to follow in this case. In deciding the Rule 12(b)(1) issues, the court shall consider the materials submitted outside the pleadings. In deciding the Rule 12(b)(6) issues, the court shall not consider the materials submitted outside the pleadings, and thus, shall not convert the Rule 12(b)(6) motion into a motion for summary judgment. With this framework in mind, the court turns to the defendant's motions.
II.
The defendant first moves the court to dismiss the plaintiff's complaint for lack of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). It argues: (1) the statute of limitations has run on both of the plaintiff's claims; (2) the hostile work environment claim is outside the scope of the EEOC charge; and (3) the plaintiff failed to satisfy the administrative prerequisites to this lawsuit. The Magistrate Judge found all three grounds to be without merit. The court agrees.
A.
The plaintiff was an employee of the defendant from July, 1995, through May 1, 1996, when he was terminated. On February 18, 1997 — 293 days after the termination of his employment the plaintiff filed with the EEOC a handwritten "Charge of Discrimination" ("First Charge"). At the bottom of the First Charge form, the defendant checked a box which states, "I want this charge filed with both the EEOC and the State or local Agency, if any." The Virginia Council on Human Rights ("VCHR") is the Virginia state agency authorized to grant or seek relief from unlawful employment practices. See Puryear v. County of Roanoke, 214 F.3d 514, 517 (4th Cir. 2000). Two days later, the EEOC sent a "Notice of Charge of Discrimination" ("First Notice") to the defendant, and pursuant to the plaintiff's request, to VCHR. Although the First Notice contains the language, "See enclosed Form 5, Charge of Discrimination," it appears that the First Charge may not have been sent at that time to VCHR or to the defendant. On July 22, 1997, the plaintiff filed a second "Charge of Discrimination" with the EEOC ("Second Charge"). There is no dispute that the Second Charge, and notice of the Second Charge ("Second Notice"), were sent to the defendant and to VCHR.
B.
First, the defendant argues that the statute of limitations has run on both of the plaintiff's claims. Generally, a Title VII charge of discrimination must be filed with the EEOC within 180 days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e)(1) (West 1994). Notice of the charge must be given to the defendant within ten days thereafter. See id. The limitations period for filing charges is extended to 300 days when "the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice . . . ." Id. The Magistrate Judge found that the plaintiff satisfied the filing and notice requirements. The defendant objected to both of these findings.
1.
The defendant's first statute of limitations argument relates to the time within which the plaintiff must have filed his charges. The defendant argues that the plaintiff did not "initially institute proceedings with a State or local agency," that the limitations period therefore was not extended to 300 days, and that the plaintiff failed to file any of his charges within the otherwise applicable 180-day period. The plaintiff does not dispute that none of his charges were filed within the 180-day period. He asserts that the period was extended to 300 days, and that the First Charge was filed within that 300-day period.
The First Charge was filed with the EEOC 293 days after the last alleged unlawful employment practice occurred (his termination). If filing the First Charge with the EEOC "initially instituted proceedings with a State or local agency," then the limitations period would have been extended to 300 days, and the First Charge would have been filed within that time. If the Second Charge constitutes the first "initiation" of proceedings with the State agency, then the plaintiff does not meet the limitations requirement, because the second charge was filed beyond both the 180-day and 300-day periods. Therefore, the first question presented is whether filing the First Charge with the EEOC "initially instituted proceedings with a State or local agency," triggering the 300-day period.
The defendant first claims that filing the First Charge with the EEOC did not "initially institute proceedings with a State or local agency," because the plaintiff did not file any charges with VCHR, and the EEOC never sent the First Charge to VCHR. The Fourth Circuit Court of Appeals recently rejected an identical argument. In Puryear v. County of Roanoke, 214 F.3d 514 (4th Cir. 2000), the defendant argued that the plaintiff "failed to `commence' any proceedings under state or local law . . . [because] [the plaintiff] only filed her charge with the EEOC." Id. at 518. The Fourth Circuit specifically held that it was the act of filing charges with the EEOC that "commences proceedings" with VCHR, and that "a claim received by one agency is deemed received by the other." Id. (emphasis added). Therefore, when the plaintiff filed the First Charge with the EEOC on February 18, 1997, that charge was deemed received by VCHR, whether or not the EEOC actually forwarded it to VCHR.
The defendant next contends that filing the First Charge with the EEOC did not "initially institute proceedings with a State or local agency," because the First Charge did not include allegations that the defendant violated any state laws. This argument also was rejected by the Fourth Circuit in Puryear. The court held that "[n]othing found in the terms of the [work-sharing agreement between EEOC and VCHR] requires a specific citation to state law," id. at 522, and that "to commence proceedings under Virginia law, a claimant need only make a sufficient allegation of discrimination in her statement of facts." Id. See also id. n. 13 (noting that "[the plaintiff's] explicit identification of federal law violations also identified a violation of state law"). In the case at bar, the plaintiff included eight handwritten pages detailing the hostile work environment and retaliation grounds for his charges of discrimination. The allegations of discrimination having been sufficiently described therein, the defendant's argument shall be rejected.
The defendant also claims that filing the First Charge with the EEOC did not "initially institute proceedings with a State or local agency," because "No charge signed and made under oath or affirmation was filed with anyone until 447 days after the date of the last claimed discriminatory event." (Def.'s Mot. at 6.) See 42 U.S.C. § 2000e-5(b) (West 1994) ("Charges shall be in writing under oath or affirmation"); 29 C.F.R. § 1601.9 (2000) (charges must be signed). The court does not understand this argument. The First Charge is signed, under the statement, "I declare under penalty of perjury that the foregoing is true and correct." The EEOC date-stamped the first charge February 18, 1997, 293 days after the date of the last claimed discriminatory event. Therefore, the First Charge was signed under oath, before the 300-day period expired. The defendant's argument is meritless and shall be rejected.
The defendant's advances a final "policy" argument that the 300-day extension should not be applied in this case. Citing no case law, the defendant argues that the extended filing period should not be invoked when the state agency would have no jurisdiction over a claim. The defendant asserts that VCHR does not have jurisdiction, first, because the plaintiff's claim is time-barred by the state statute of limitations: VCHR's filing period is 180 days, and VCHR does not have an extended filing period. The Supreme Court specifically rejected such an argument in EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988). In that case, the defendant also argued that the extended 300-day federal filing period was inapplicable because the complainant, who filed her claim 290 days after the last date of alleged discrimination, failed to file her charge within the state's 180-day limitations period. Noting that "[t]he Tenth Circuit rejected this argument below, as has every other Circuit to consider the question," id. at 123, the Supreme Court held that a complainant who files a discrimination charge that is untimely under state law nonetheless is entitled to the extended 300-day filing period under federal law. See id. at 122-25.
The defendant also argues that VCHR would not have had jurisdiction over the plaintiff's retaliation claim, because, the defendant contends, Virginia limits claims for unlawful discharge to employers with less than 15 employees, and the defendant has 1726 employees. Although the defendant cites no law, the Code of Federal Regulations does provide that the filing period is 180 days where the State or local agency has no subject matter jurisdiction over a charge. See 29 C.F.R. § 1601.13(a)(2) (2000). The question, therefore, is whether VCHR would have had subject-matter jurisdiction over the plaintiff's retaliation charge. As VCHR has jurisdiction to "investigate complaints alleging an unlawful discriminatory practice under a federal statute or regulation and attempt to resolve same through conciliation," Va Code Ann. § 2.1-717 (Michie Cumulative Supp. 2000), it would have had jurisdiction in this case to investigate the plaintiff's complaint alleging retaliation under Title VII.
For the reasons stated above, the court does not find persuasive any of the defendant's statute of limitations arguments relating to the time within which the plaintiff must have filed his charges. The Magistrate Judge's recommendations shall be accepted, and the defendant's objections overruled.
2.
The defendant's second statute of limitations argument actually relates to the adequacy of the notice it received of the plaintiff's charges of discrimination. The notice requirements are as follows. "[N]otice of the charge (including the date, place and circumstances of the alleged unlawful discrimination practice) shall be served upon the person against whom such charge is made" within ten days after the filing of the charge. 42 U.S.C. § 2000e-5(e)(1) (West 1994). "Where a copy of the charge is not provided, the respondent will be served with a notice of the charge within ten days after the filing of the charge. The notice shall include the date, place and circumstances of the alleged unlawful employment practice." 29 C.F.R. § 1601.14 (2000).
The defendant contends that it did not receive adequate notice of either the hostile work environment charge, or of the retaliation charge. On its face, the First Notice does not contain a charge of hostile work environment. Under "Basis of Discrimination," only the box next to "retaliation" was checked. Although there is no box for "hostile work environment," there is a box for "other," which was not checked. Nor does the First Notice, on its face, contain the date, place, and circumstances of any of the alleged unlawful employment practices. However, under "Circumstances of Alleged Violation," is written "See enclosed Form 5, Charge of Discrimination." Thus, the First Notice directed the defendant to review the "enclosed" charge of discrimination if it wished to know the circumstances of the violation. The First Charge contained a list of nine complaints, the first of which was, "Sexual Harassment — Hostile Environment." The First Charge also included eight handwritten pages detailing the circumstances of the alleged violations. The defendant essentially argues that, since the First Notice relied on the "enclosed" charge of discrimination to describe the hostile work environment claim and the circumstances of the alleged violations, but no charge of discrimination was enclosed, the First Notice failed to provide notice of the hostile work environment claim and the circumstances of any violation.
The defendant challenges only the adequacy of the First Notice, presumably because the Second Charge and Notice fell outside all applicable statutes of limitations.
The Magistrate Judge found that the defendant was on constructive notice of the matters contained in the charge, because it "could not simply bury its head in the sand to avoid knowing what was contained" therein. (Report Recommendation at 5.) The defendant objects that the burden should not have been placed on it to investigate, since the notice states "No action is required on your part at this time." This objection is unpersuasive. The statement, "No action is required on your part at this time," simply relates to whether the respondent is required to respond to the charge, to supplement the EEOC's file with the respondent's version of the events. That statement has nothing to do with whether the defendant reasonably should have investigated the charge further.
The notice requirements were satisfied in this case, because the defendant had constructive notice both of the hostile work environment charge, and of the circumstances surrounding the alleged violations. The First Notice states clearly, "For further inquiry on this matter, please use the charge number shown above." Any reasonable employer who receives a charge of discrimination that contains no enclosures, but which states, "See enclosed form," and which tells the employer how to make "further inquiry on this matter," would make a further inquiry about the enclosed form. In other words, the defendant had constructive notice of the enclosed form, i.e. the First Charge, which described in detail the hostile work environment charge and the circumstances surrounding the other alleged violations. The court accordingly rejects the defendant's argument concerning the adequacy of notice.
To summarize, the court finds that the plaintiff satisfied the statutory and regulatory requirements for filing his charges and serving notice upon the defendant. The defendant's first 12(b)(1) argument, that neither of the plaintiff's claims satisfied the applicable statutes of limitations, shall be rejected.
C.
The defendant's second 12(b)(1) argument is that the hostile work environment claim is outside the scope of the EEOC charge. As discussed above, the First Charge explicitly references and describes in detail the plaintiff's complaint of hostile work environment. The defendant ignores the First Charge, claiming that "the Plaintiff did not make a hostile work environment claim in the First Notice, Second Notice or the [Second] Charge." ( See Def.'s Mot. at 8.) It does so based on the same assumption rejected above, that it did not have adequate notice of the First Charge. For the same reasons expressed above, this argument also shall be rejected.
D.
The defendant's third 12(b)(1) argument is that the plaintiff failed to satisfy the administrative prerequisites to this lawsuit. The court also rejects this argument, as it essentially duplicates the defendant's prior arguments.
The court concludes that it has subject matter jurisdiction over the present action. Specifically, the court finds that the statute of limitations has not run on either of the plaintiff's claims; the hostile work environment claim is not outside the scope of the EEOC charge; and the plaintiff did not fail to satisfy the administrative prerequisites to this lawsuit.
III.
The defendant also moves the court to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss under Rule 12(b)(6), the court must determine "whether the complaint, under the facts alleged and under any facts that could be proved in support of the complaint, is legally sufficient." Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). The court must "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations . . . [but] need not accept the legal conclusions drawn from the facts . . . . [or] accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id. (citations omitted). The plaintiff alleges two claims in his complaint: (1) hostile work environment; and (2) retaliation. The defendant argues that the plaintiff's allegations are insufficient to state any claim upon which relief can be granted.
A.
The Magistrate Judge recommended dismissal of the plaintiff's hostile work environment claim, because his allegations of hostile work environment "are nothing more or less than a legal conclusion, particularly as to severity and pervasiveness." (Report Recommendation at 7.) The plaintiff did not object to this recommendation. After a careful review of the plaintiff's complaint, and no objection having been filed by the plaintiff within ten days of service of the Magistrate Judge's report upon the parties, the court adopts this part (Part II.A) of the report, except for its references to the EEOC documents (on which the court does not rely in deciding this 12(b)(6) motion). Therefore, the plaintiff's hostile work environment claim shall be dismissed.
B.
"To state a prima facie case of retaliation, a plaintiff must show that (1) the plaintiff engaged in a protected activity, such as filing a complaint with the EEOC; (2) the employer acted adversely against the plaintiff; and (3) the protected activity was causally connected to the employer's adverse action." Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir. 1997). The Magistrate Judge found that the plaintiff's complaint sufficiently alleged these elements. The defendant objects to this finding.
The court agrees with the Magistrate Judge. The plaintiff alleged: (1) "George Hartsook filed charges of discrimination with the Commission alleging violations of Title VII by Defendant," (Compl. ¶ 6); (2) "Defendant . . . [d]ischarg[ed] George Hartsook in retaliation for . . . his opposition to the sexual harassment created by district manager Bruce Jackson," (Compl. ¶ 7); and (3) "Defendant was . . . discharged for his opposition to Bruce Jackson's misconduct," (Compl. ¶ 8). These allegations state a claim for retaliation upon which relief can be granted. Therefore, the defendant's objection shall be overruled.
IV.
For the foregoing reasons, the court shall accept the Magistrate Judge's recommended decision. The defendant's 12(b)(1) motion shall be denied, because the statute of limitations has not run on either of the plaintiff's claims; the hostile work environment claim is not outside the scope of the EEOC charge; and the plaintiff did not fail to satisfy the administrative prerequisites to this lawsuit. The court shall grant the defendant's 12(b)(6) motion as to the hostile work environment claim, adopting in part the Magistrate Judge's report; and the court shall deny the motion as to the retaliation claim.
An appropriate Order this day shall issue.
ORDER
On May 1, 2000, the defendant filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). By order dated May 8, 2000, the court referred the above-captioned case to the presiding United States Magistrate Judge for proposed findings of fact and a recommended disposition. On August 17, 2000, the Magistrate Judge filed his Report and Recommendation. He recommended that the court deny the motion pursuant to Rule 12(b)(1); deny the motion pursuant to Rule 12(b)(6), as to the plaintiff's retaliation claim; and grant the motion pursuant to Rule 12(b)(6), as to the plaintiff's hostile work environment claim. On August 24, 2000, the defendant filed objections to the recommended denials of its motions pursuant to Federal Rule of Civil Procedure 72. The plaintiff did not file any objections. The court has reviewed de novo those portions of the report or specified proposed findings or recommendations as to which objection was made. See id. § 636(b)(1); Fed.R.Civ.P. 72(b). Upon thorough consideration of the Report and Recommendation, the parties' memoranda, the applicable law, and the documented record, and for the reasons stated in the accompanying Memorandum Opinion, it is accordingly this dayADJUDGED, ORDERED, AND DECREED
as follows:
1. The recommended decision of the Magistrate Judge's report of August 17, 2000, shall be, and it hereby is, ACCEPTED; and the report shall be ADOPTED IN PART;
2. The defendant's objections, filed August 24, 2000, shall be, and they hereby are, OVERRULED;
3. The defendant's Motion to Dismiss, filed May 1, 2000, shall be, and it hereby is, GRANTED IN PART and DENIED IN PART;
4. The plaintiff's hostile work environment claim shall be, and it hereby is, DISMISSED.
The Clerk of the Court hereby is directed to send a certified copy of this Order and the accompanying Memorandum Opinion to Magistrate Judge Crigler and all counsel of record.