Opinion
Case No. 7:01CV5009
May 28, 2002
ORDER
This matter is before the court on Defendant U.S. Bancorp's (hereafter "Bancorp") motion to dismiss or strike Counts II and III of Milagros G. O'Neal's (hereafter "O'Neal") complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), Filing No. 3. After a careful review of the record, briefs, and relevant law, I conclude that Bancorp's motion should be granted.
O'Neal, a Filipino person, was employed by Bancorp as a Universal Teller in Scottsbluff County, Nebraska, on March 3, 1996. On April 1, 2000, O'Neal applied for a promotion to the position of Teller Coordinator. She did not receive the promotion. The promotion was given to a non-Filipino, Eva Royce Requejo, whom O'Neal alleges had less seniority and experience and was less qualified for the position. On or about October 2, 2000, O'Neal applied a second time for the same position. Again, O'Neal was denied the promotion and Tracy Bloom, a non-Filipino person, was given the position. Allegedly, Ms. Bloom had less seniority and experience and was not as qualified as the O'Neal. O'Neal was told she did not receive the promotion because she allegedly had violated security procedures. O'Neal claims she had not been informed of any security problems prior to the second denial of promotion.
O'Neal then filed a claim of national origin discrimination with the Nebraska Equal Opportunity Commission (NEOC), and alleged that she was denied these two promotions because of her accent. Filing No. 1, Ex. B. On or about May 25, 2001, O'Neal received a Dismissal and Notice of Rights indicating that the Equal Employment Opportunity Commission (EEOC) had adopted the findings of the state agency and outlining O'Neal's rights to sue. Filing No. 1, Ex. B.
On August 20, 2001, O'Neal filed suit in this court alleging three causes of action: (1) discriminatory promotion practices in violation of Title VII, 42 U.S.C. § 2000e(2)(a); (2) hostile work environment in violation of Title VII, 42 U.S.C. § 2000e-(a); and (3) harassment, discrimination and hostile work environment in violation of Neb. Rev. Stat. § 48-1101, Nebraska Fair Employment Practices Act. Bancorp filed a motion to dismiss or strike. Filing No. 3.
Bancorp argues that O'Neal failed to allege any issues in her complaint to the EEOC/NEOC regarding hostile work environment or harassment. O'Neal argues that this court should not make such a determination at the motion to dismiss stage, and that this determination should be made at the summary judgment stage.
A motion to dismiss may be granted where it appears that a plaintiff can prove no set of facts which would entitle him or her to relief. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986); Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The allegations set forth in the complaint must be viewed in the light most favorable to the plaintiff. Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995).
O'Neal's argument is without merit. Upon review of the charge of discrimination, it is clear that O'Neal filed her grievance with regard to the failure-to-promote claim. Nothing in the record suggests otherwise, and O'Neal does not argue that the NEOC/EEOC investigated any type of hostile work environment or harassment claim. On the contrary, O'Neal states in her brief that this court does not have the facts reviewed by the EEOC/NEOC, does not have the investigator's notes that "might" show if a hostile work environment claim was investigated, and does not have the "commission determination" from the NEOC. While all of this is true, O'Neal fails to argue what information, if any, might be available to show that this hostile work environment/harassment claim was investigated. O'Neal does not state any facts to support allegations of hostile work environment/harassment in her Complaint. Asking this court to speculate that something might emerge prior to the summary judgment stage will not merit denial of the motion to dismiss.
A plaintiff must give notice of all claims of discrimination in his or her administrative complaint and must exhaust all administrative remedies before bringing a cause of action in court. Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994); Stuart v. General Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). The exhaustion requirement is met if the allegations in a complaint are like or reasonably related to the charges brought before the EEOC/NEOC. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir. 1994). "A district court only has jurisdiction to hear Title VII claims that [are] included in an EEOC charge." Wilson v. Fairfield Republic Co., 143 F.3d 733, 739 (2d Cir. 1998).
Courts have held that hostile work environment or harassment claims must be raised separately from claims of discrimination in order to be properly exhausted. Manse v. Union Elec. Co., 961 F. Supp. 1296, 1303-04 (E.D.Mo. 1997) (hostile work environment claim distinct from substantive claim); Van Nguyen v. Dobbs Int'l Servs., Inc., 94 F. Supp.2d 1043, 1051 (W.D.Mo. 2000) (harassment claim distinct, so dismissed for failure to exhaust administrative remedies); Tart v. Hill Belan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994) (race harassment separate claim from discrimination charge); Kientzy v. McDonnell Douglas Corp., 1990 WL 482348*1, 1 (E.D.Mo. 1990) (court granted defendant's motion to dismiss count dealing with hostile work environment where charge to EEOC dealt with termination); Schwebach v. Board of Regents of University of Nebraska, 112 F. Supp.2d 908, 915 (D.Neb. 2000) (Judge Lyle E. Strom dismissed hostile work environment claim, noting that plaintiff's EEOC charge alleged only a claim for retaliation under Title VII and Fair Employment Practices Act).
I find no reasonable relationship between O'Neal's failure-to-promote charge and her hostile work environment/harassment claims. O'Neal failed to file a charge of hostile work environment/harassment with the EEOC/NEOC. As such, O'Neal failed to exhaust her administrative remedies or receive a right-to-sue letter with regard to the hostile work environment/harassment claims. Therefore, O'Neal's claims for hostile work environment/harassment alleged in Counts II and III of her Complaint shall be dismissed.
Bancorp further argues that O'Neal's failure-to-promote claim in Count III must be dismissed. Count III alleges state violations of the Nebraska Fair Employment Practices Act (NFEPA), Neb. Rev. Stat. Sec. § 48-1101, et seq. To the extent that the third cause of action alleges hostile work environment or harassment, those claims are dismissed as previously set forth herein.
To the extent that the third cause of action alleges discriminatory promotion, and I note that it is unclear whether O'Neal is alleging this claim in her third cause of action, Bancorp contends that O'Neal is required to file the Nebraska claim prior to the dismissal of the EEOC/NEOC charge. Neb. Rev. Stat. § 48-1119(4). Bancorp further argues that this claim can only be pursued in Nebraska state court. Lampman v. McCook Public Schools, 54 F. Supp.2d 945, 946 (D.Neb. 1999); but see, Hassler v. Alegent Health, 2002 WL 814722*2 (D.Neb. May 1, 2002) (wherein Judge Richard Kopf, disapproving Lampman, finds the NFEPA provisions do not preclude filing in federal court). In the case at hand, the dismissal by the EEOC/NEOC occurred before O'Neal filed her NFEPA claim. See Filing No. 1, Complaint, ¶¶ 7, 9, 12; Filing No. 1, Ex. B, Notice of Dismissal. O'Neal admits that she has exhausted her administrative remedies. Filing No. 1, ¶ 12. O'Neal argues that there is no evidence that the NEOC "dismissed" the charge. O'Neal asks this court to wait until the summary judgment stage to determine if the state court action has been timely filed. However, O'Neal offers no argument that would allow this court to conclude that the case was timely filed. After reviewing the statute and relevant case law, I agree that O'Neal has not timely filed the state court cause of action. See Hassler, 2002 WL 814722*2 (plaintiff failed to file suit prior to dismissal by NEOC, so summary judgment granted); Riggs v. County of Banner, 159 F. Supp.2d 1158, 1170-71 (D.Neb. 2001) (suit under § 48-1119(4) must be filed prior to dismissal of NEOC determination charge). O'Neal's failure-to-promote claim in the third cause of action is not properly before this court as it was not timely filed, and, therefore, the state law claim must be dismissed.
IT IS ORDERED that Defendant's motion to dismiss (Filing No. 3) is hereby granted, and Counts II and III of Plaintiff's complaint are hereby dismissed. Count I of Plaintiff's complaint shall proceed accordingly.