Summary
dismissing plaintiff's claims because the facts stated in EEOC charge were not related to the claims in plaintiff's suit
Summary of this case from Williams v. KS Mgmt. Servs.Opinion
Civil Action No. 3:03-CV-1509-G.
April 16, 2004
MEMORANDUM ORDER
Before the court is the motion of the defendant MBNA Technology, Inc. ("MBNA") to partially dismiss this case for lack of subject matter jurisdiction, pursuant to FED. R. CIV. P. 12(b)(1), and for failure to state a claim upon which relief can be granted, pursuant to FED. R. CIV. P. 12(b)(6). For the following reasons, MBNA's motion is granted in part and denied in part.
I. BACKGROUND
The plaintiff, Aletha Otokunrin ("Otokunrin"), an African-American female, brings this action against her employer MBNA, alleging that MBNA discriminated against her based on her race. See Complaint for Monetary Damages and Other Relief (Discrimination) and Demand for Jury Trial ("Complaint") ¶¶ 7, 13. Otokunrin alleges, inter alia, that MBNA discriminated against her in compensation, promotions, demotions, and evaluations, and that MBNA generally denied her "equal terms and conditions of employment." See id. ¶¶ 9, 78.On April 3, 2003, Otokunrin filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Charge of Discrimination, attached to Appendix of Evidence in Support of Defendant's Partial Motion to Dismiss ("Defendant's Appendix") as Tab 2. This charge was transmitted to the Texas Commission on Human Rights ("TCHR") on the same day. See EEOC Charge Transmittal, attached to Defendant's Appendix as Tab 1. The very next day, April 4, 2003, the EEOC issued to Otokunrin a Notice of Right to Sue. See Notice of Right to Sue (Dismissal), attached to Complaint as Exhibit A. Otokunrin has not received a right-to-sue notice from the TCHR, however.
On July 3, 2003, Otokunrin filed this case against MBNA. See generally Docket Sheet. Her complaint asserts, among other things, violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Texas Commission on Human Rights Act, TEX. LAB. CODE ANN. § 21.001, et seq. (Vernon 1996) ("TCHRA"), and the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("Section 1981"). See Complaint ¶ 8. On July 28, 2003, MBNA filed the instant motion to dismiss some of Otokunrin's claims for lack of subject matter jurisdiction or for failure to state a claim. See generally Defendant's Partial Motion to Dismiss; Defendant's Brief in Support of Its Partial Motion to Dismiss ("Defendant's Motion"); see also Plaintiff's Response to Defendant's Motion for Partial Dismissal ("Plaintiff's Response"); Defendant's Reply in Support of Its Partial Motion to Dismiss ("Defendant's Reply").
II. ANALYSIS 1. Subject Matter Jurisdiction A. The Legal Standard
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise jurisdiction over cases only as expressly provided by the Constitution and laws of the United States. See U.S. CONST. art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377. Federal law gives the federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Moreover, a party seeking relief in a federal district court bears the burden of establishing the subject matter jurisdiction of that court. United States v. Hays, 515 U.S. 737, 743 (1995); McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936); Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811 (1994).
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the dismissal of a case for lack of jurisdiction over the subject matter. See FED. R. CIV. P. 12(b)(1). A motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction must be considered by the court before any other challenge because "the court must find jurisdiction before determining the validity of a claim." Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (internal citation omitted); see also Ruhrgas AG v. Marathon Oil Company, 526 U.S. 574, 577 (1999) ("The requirement that jurisdiction be established as a threshold matter . . . is inflexible and without exception") (citation and internal quotation marks omitted). On a Rule 12(b)(1) motion, which "concerns the court's `very power to hear the case . . . [,] the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" MDPhysicians Associates, Inc. v. State Board of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). In ruling on a motion to dismiss under Rule 12(b)(1), the court may rely on: "1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts." MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990) (citing Williamson, 645 F.2d at 413).
B. Exhaustion of Administrative Remedies
MBNA contends that this court lacks jurisdiction over both Otokunrin's Title VII claims and her TCHRA claims because she failed to exhaust administrative remedies with respect to those claims. Defendant's Motion at 5; Defendant's Reply at 1-3. One fundamental requirement for every action brought under Title VII or the TCHRA is that the plaintiff must exhaust administrative remedies prior to filing a judicial complaint. See Hubbard v. RaceTrac Petroleum, Inc., No. 3:97-CV-1670-G 1998 WL 318819 at *3 (N.D. Tex. Jun. 8, 1998) ("A plaintiff must exhaust administrative remedies prior to filing suit under Title VII and the TCHRA."). A plaintiff's failure to exhaust administrative remedies deprives the court of jurisdiction over Title VII claims, see Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997), cert. denied, 523 U.S. 1136 (1998), and over TCHRA claims. See Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991).
i. Authorizing a Private Right of Action Under Title VII and TCHRA
MBNA contends that Otokunrin failed to exhaust her administrative remedies with respect to her Title VII causes of action because the EEOC failed to fulfill its statutory duty to investigate all charges of discrimination. See Motion at 7-9; Reply at 1-3. The court disagrees.
In 42 U.S.C. § 2000e-5, Congress established the procedure for recovering damages from an unlawful employment practice. A complainant must first file a charge with the EEOC; this charge commences an investigation by the EEOC to determine whether "there is reasonable cause to believe that the charge is true." 42 U.S.C. § 2000e-5(b). "The [EEOC] shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." Id. If the EEOC determines after investigation that there is no reasonable cause to believe that an unlawful employment practice has occurred, the EEOC dismisses the charge, see id. at § 2000e-5(b), and issues a letter informing the aggrieved party that it has the right to sue in federal district court (a "right-to-sue notice"). See 29 C.F.R. § 1601.19(a). If, however, the EEOC determines that there is reasonable cause to believe that an unlawful employment practice has occurred, the EEOC first endeavors to eliminate the "unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). If 180 days have passed since the filing of a charge without the EEOC having filed a civil action or having entered into a conciliation agreement, the EEOC must issue a right-to-sue notice. 42 U.S.C. § 2000e-5(f)(1). Whether it comes following a dismissal of the charge or a 180-day lapse of time, a right-to-sue notice terminates further EEOC processing of a charge. See 29 C.F.R. § 1601.28(a)(3). This notice is a prerequisite to suit by a person claiming to be aggrieved.
Section 2000-e-5(b) provides that the EEOC "shall" investigate the charge and "shall" make a reasonable cause determination.
42 U.S.C. § 2000e-5(f)(1) provides that a complainant may file a civil action if the EEOC has dismissed the charge or if "within one hundred and eighty days from the filing of such charge . . ., the [EEOC] has not filed a civil action . . .".
In this case, the EEOC issued the right-to-sue notice only one day after Otokunrin filed her charge of discrimination. Otokunrin filed her EEOC charge on April 3, 2003, see EEOC Charge Transmittal, and the EEOC issued an early right-to-sue notice on April 4, 2003. Notice of Right to Sue (Dismissal) at 2. MBNA originally contended in its motion that this court was without jurisdiction to address Otokunrin's claims because the EEOC did not have the authority to issue her a private cause of action without first conducting an investigation. Defendant's Motion at 7-9. But cf. Plaintiff's Response at 5-6. Since filing its motion, however, MBNA filed a document asking the court to allow it "to withdraw the portion of its motion based on the EEOC's failure to investigate." See Defendant's Partial Withdrawal of Its Motion to Dismiss/Notice of Supplemental Authority ("Withdrawal") at 5. By withdrawing this portion of its motion, MBNA asserts that the "litigation can proceed to resolution in a more expeditious manner" and avoid "unnecessary delay." Id. at 2. Irrespective of these arguments, this court must be vigilant to ensure that it has subject matter jurisdiction over Otokunrin's claims, addressing the issue sua sponte if necessary. See In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999).
Consistent with the position taken by several judges in the Northern District of Texas, the court concludes that the EEOC's failure to investigate over a 180-day period before issuing a right to sue letter does not impair Otokunrin's ability to seek redress under Title VII. See, e.g., Naik v. MBNA Technology, Inc., No. 3:03-CV-1272-L, 2004 WL 690850 at *4 (N.D. Tex. Mar. 30, 2004) (Lindsay, J.) ("[R]equiring Naik to return to the EEOC makes no legal sense, serves no legitimate purpose, and causes unnecessary further delay."); Moss v. MBNA Technology, Inc., No. 3:03-CV-1429-N, 2004 WL 583565 at *1 (N.D. Tex. Mar. 24, 2004) (Godbey, J.) ("[T]he EEOC's failure to investigate for 180 days before issuing a right to sue letter should not impair Moss's ability to seek redress"); Memorandum Opinion and Order, Christle v. MBNA Technology, Inc., No. 3:03-CV-1376-H, at 3-4 n. 2 (N.D. Tex. Sept. 2, 2003) (Sanders, J.) ("A plaintiff's exhaustion of administrative remedies in a Title VII case is not dependent on the EEOC's performance of an investigation."); but see Order, White v. MBNA Technology, Inc., No. 3:03-CV-1767-M (N.D. Tex. Mar. 11, 2004) (Lynn, J.) (denying MBNA's motion to dismiss without prejudice and staying the case for 190 days "to allow the EEOC to investigate Plaintiff's charge as envisioned by the Title VII statutory scheme."). Plaintiffs, such as Otokunrin, "should not be made the innocent victims of a dereliction of statutory duty on the part of the [EEOC]." Carr v. Conoco Plastics, Inc. 423 F.2d 57, 62 (5th Cir.), cert. denied, 400 U.S. 951 (1970). Hence, the court holds that Otokunrin's Title VII claims are not premature and, for the reasons stated, declines to dismiss them for lack of subject matter jurisdiction.
The court does not have subject matter jurisdiction over Otokunrin's TCHRA claims, however. The TCHRA "requires the exhaustion of state remedies as a jurisdictional prerequisite." Jones v. Grinnell Corporation, 235 F.3d 972, 974 (5th Cir. 2001). Under the TCHRA, "a complainant must first exhaust [her] state administrative remedies and request a right to sue letter from the TCHR before filing a civil action." Id. at 975. An EEOC right-to-sue notice cannot substitute for a TCHR right-to-sue notice because "federal-state cooperation does not extend to the exhaustion of administrative remedies." See id. at 975. No evidence exists in the record that Otokunrin received a TCHR right-to-sue notice for purposes of filing a civil action. Accordingly, any civil action regarding Otokunrin's claim under the TCHRA is precluded by her failure to exhaust state administrative remedies, and this court has no authority to entertain such a claim.
ii. Alleging Claims Not Found in the EEOC Charge
To the extent Otokunrin bases her Title VII causes of action on allegations of discrimination that were not contained in her charge, MBNA contends that Otokunrin has failed to exhaust her administrative remedies. See Motion at 10-13; Reply at 4-7. Specifically, MBNA asserts that Otokunrin's Title VII allegations of demotions, hostile work environment, denial of educational opportunities, and class-wide discrimination have not been exhausted before the EEOC. Motion at 10. The court agrees.A condition precedent for bringing suit on an employment discrimination claim under Title VII is the timely filing and exhaustion of an EEOC charge. See 42 U.S.C. § 2000e-5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002), cert. denied, 537 U.S. 1200 (2003). "The scope of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Department of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000) (citing Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990)).
When Otokunrin filed her charge with the EEOC, she did not include any allegations of demotions, hostile work environment, denial of educational opportunities, or class-wide discrimination. Otokunrin complained only of being denied promotions and of retaliation. See EEOC Charge, attached to Defendant's Appendix as Tab 2. The following is the entire statement made in her charge:
On or around June 7, 2002, I was denied a promotion to the position of Desk Top Technician. Around March 10, 2003, I was given a job title charge [sic] to Senior Technician Resource Specialist, however, I have not received a promotion in job duties or pay.
I believe I have been discriminated against because of my race, Black and retaliated against for filing a lawsuite [sic] alleging discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended.
EEOC Charge, Defendant's Appendix. The language in the charge is simply devoid of any indication of demotions, hostile work environment, denial of educational opportunities, and/or class-wide discrimination. The charge clearly did not provide MBNA with any notice of these claims.
A demotion is a "discrete and salient" event that Otokunrin was required to allege separately in her EEOC charge. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001); see also Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (stating that a one-time employment event, such as a demotion, is a discrete event "that should put the employee on notice that a cause of action has accrued"); Brown v. Dr. Pepper/Seven Up, Inc., No. 3:99-CV-0156-P, 2000 WL 370669 at *10 (N.D. Tex. Apr. 11, 2000).
Otokunrin did not allege in her EEOC charge that she suffered a hostile work environment. The specific claims of failure to promote and retaliation do not support jurisdiction over claims for a racially hostile work environment. See Johnson v. MBNA Hallmark Information Services, Inc., No. 3:02-CV-0177-K, 2003 WL 21418670 at *2 (N.D. Tex. Jun. 16, 2003).
Otokunrin did not allege denial of educational opportunities in her EEOC charge. See Kirk v. Federal Property Management Corporation, 22 F.3d 135, 139 (7th Cir. 1994) (rejecting the plaintiff's argument that his racial discrimination claim for denial of educational opportunities related to and arose out of the allegations in his EEOC charge concerning failure to promote).
Otokunrin's EEOC charge makes no mention of class-wide discrimination. See, e.g., Anson v. University of Texas Health Science Center at Houston, 962 F.2d 539, 543 (5th Cir. 1992) ("Failure to require some notice of class claims in the charge would require employers to treat all individual charges as potential class actions.") (citation omitted); Naik, 2004 WL 690850 at *4-*5 (denying the plaintiff's claims of class-wide discrimination that were not alleged in the EEOC charge); Memorandum Opinion and Order, Christle v. MBNA Technology, Inc., No. 3:03-CV-1376-H, at 6-7 (N.D. Tex. Sept. 2, 2003) (same).
Otokunrin urges the court to consider the information contained in her EEOC questionnaire to expand the scope of her Title VII claims. See Response at 3. Because no questionnaire is a part of the record, however, the court cannot consider it. See Naik, 2004 WL 690850 at *5 n. 6. Furthermore, even though the questionnaire may be construed as a charge under certain circumstances, see Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280-81 (5th Cir. 1994), the circumstances of this case do not permit such a construction. It is undisputed that MBNA did not have notice of allegations contained in the questionnaire until after Otokunrin filed her complaint. See McCray v. DPC Industries, Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996) (finding that the questionnaire did not constitute a charge because the charged party did not have notice of the allegations contained therein); Clemmer v. Enron Corporation, 882 F. Supp. 606, 610 (S.D. Tex. 1995) (same); see also Johnson v. MBNA Hallmark Information Services Company, Inc., No. 3:02-CV-0177-K, 2003 WL 21418670 at *2-*3 (N.D. Tex. Jun. 16, 2003). Thus, the court concludes that the questionnaire cannot be construed as a charge in the instant case.
Clark is factually distinguishable from this case. The employer in Clark, during the course of the EEOC's investigation of the claims, responded to a request for information about disparate treatment of female employees. The Court of Appeals therefore concluded that the employer was on notice of such a claim, though it was not mentioned in the plaintiff's EEOC charge. See Clark, 18 F.3d at 1280-81. In this case, by contrast, MBNA was unaware of the contents of the EEOC questionnaire until after this suit was commenced.
Even when the allegations contained in the charge are liberally construed, Otokunrin's claims for demotions, hostile work environment, denial of educational opportunities, and/or class-wide discrimination do not fall within the scope of an investigation that could reasonably be expected to grow out of Otokunrin's charge of discrimination filed on April 3, 2003. Therefore, the court must dismiss these Title VII claims.
2. Failure to State a Claim A. The Legal Standard
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." There are two primary principles that guide the court's determination of whether dismissal under Rule 12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of her claims that would entitle her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Thompson v. Goetzmann, 337 F.3d 489, 495 (5th Cir. 2003); see also Southern Christian Leadership Conference v. Supreme Court of the State of Louisiana, 252 F.3d 781, 786 (5th Cir.) (motions to dismiss for failure to state a claim are viewed with disfavor and are rarely granted), cert. denied, 534 U.S. 995 (2001). Second, the court must accept all well-pleaded facts as true and view them in the light most favorable to the nonmovant. See Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir. 2002); Brown v. Nationsbank Corporation, 188 F.3d 579, 585-86 (5th Cir. 1999), cert. denied, 530 U.S. 1274 (2000).
B. Section 1981 Claims
Having determined that the court does have jurisdiction over Otokunrin's failure to promote and retaliation charges under Title VII, but does not have jurisdiction over her TCHRA claims or her Title VII claims not found in the EEOC charge, the court addresses MBNA's Rule 12(b)(6) motion only as it applies to Otokunrin's claims under 42 U.S.C. § 1981.
Section 1981, which prohibits racial discrimination, states in pertinent part:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981 (a). Claims of discrimination under Section 1981 must concern ultimate employment decisions. See Felton v. Polles, 315 F.3d 470, 486 (5th Cir. 2002). These are decisions that would significantly change an employee's employment status — "`such as hiring, granting leave, discharging, promoting, and compensating.'" Mattern v. Eastman Kodak Company, 104 F.3d 702, 707 (5th Cir.) (quoting Dollis v. Rubin, 77 F.3d 777, 782 (5th Cir. 1995)), cert. denied, 522 U.S. 932 (1997).
1. Hostile Work Environment
MBNA argues that Otokunrin's hostile work environment claim under Section 1981 must be dismissed because she has not set forth sufficient allegations to establish her claim. See Defendant's Motion at 15-16; Defendant's Reply at 10. Specifically, MBNA contends "the factual allegations in the Complaint do not show that [Otokunrin] was subjected to harassment so severe and pervasive that it altered the terms and conditions of her employment." Defendant's Motion at 16. The court disagrees.
Hostile work environment harassment occurs when unwelcome harassment based upon race unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). To be actionable, the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive working environment. Id. at 67; see also Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). To establish that an employer's conduct constitutes severe or pervasive harassment, the plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment. Harris, 510 U.S. at 21. Circumstances to be considered include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23; Ramsey, 286 F.3d at 268.
To establish a prima facie case for a hostile work environment, Otokunrin must prove that: (1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; and (4) the harassment affected a term, condition, or privilege of employment. Frank v. Xerox Corporation, 347 F.3d 130, 138 (5th Cir. 2003); see also Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir. 2001). The analysis is the same whether under Title VII or Section 1981. Foley v. University of Houston System, 355 F.3d 333, 340 n. 8 (5th Cir. 2003).
At the pleading stage, a plaintiff need not establish a prima facie case of discrimination. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12 (2002). The purpose of the pleading is to "`give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests,'" id. at 512 (quoting Conley, 355 U.S. at 47), and "a general indication of the type of litigation involved; the discovery process bears the burden of filling in the details." 5 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE § 1215 (2d ed. 1990) at 138-143.
In this case, Otokunrin's complaint alleges, inter alia, that MBNA treated her differently than other non-African Americans who held similar employment positions when it came to compensation, promotions, and demotions; withheld educational opportunities from her; and consistently ignored her complaints of discrimination. See Complaint ¶¶ 15-25. In trying to establish her claim, Otokunrin gives specific dates and the details of incidents of alleged discrimination, and provides the names of the individuals who treated her differently. No greater specificity is required to overcome a motion under FED. R. CIV. P. 12(b)(6). Other federal district courts have uniformly refused to dismiss hostile work environment claims, on a Rule 12(b)(6) motion, based on the alleged failure to show sufficiently "severe or pervasive" conduct. See, e.g., Long v. Pizza Hut (Store # 635008), Civ. A. No. 03-0738, 2003 WL 23019186 at *4 (W.D. Pa. Nov. 5, 2003) (Caizza, Magistrate J.); Forbes v. State University of New York at Stony Brook, 259 F. Supp.2d 227, 234 (E.D.N.Y. 2003); Wait v. Beck's North America, Inc., 241 F. Supp.2d 172, 179 (N.D.N.Y. 2003); Pagan v. New York State Division of Parole, No. 98 Civ. 5840 (FM), 2002 WL 398682 at *4*5 (S.D.N.Y. Mar. 13, 2002) (Maas, Magistrate J.); Scannell v. Bel Air Police Department, 968 F. Supp. 1059, 1064 (D. Md. 1997). Although it remains to be seen whether Otokunrin will be able to prove hostile work environment harassment, her allegations are sufficient to state a claim.
2. Age and Disability Discrimination
In her complaint, Otokunrin alleges that MBNA violated Section 1981 by "denying promotions to [her] and other qualified non-white employees on the basis of their race, color, age, and disabilities." Complaint ¶ 70. To the extent that Otokunrin asserts separate claims for age and disability discrimination under Section 1981, her claims must fail as a matter of law. See, e.g., Laird v. Texas Commerce Bank-Odessa, 707 F. Supp. 938, 940 (W.D. Tex. 1988) (barring the plaintiff employee's claims for age and sex discrimination under Section 1981 because the statute applies only to race discrimination); Davies v. Polyscience, Inc., 126 F. Supp.2d 391, 393 (E.D. Pa. 2001) (finding that Section 1981 "liability does not extend to discrimination based on disability.").
3. Allegations Time-Barred Under Section 1981 ?
MBNA maintains that certain allegations brought by Otokunrin pursuant to Section 1981 are time-barred and should be dismissed. See Defendant's Motion at 18-19; Defendant's Reply at 8-9. Specifically, MBNA asserts that the two-year statute of limitations applicable to Section 1981 claims bars Otokunrin's allegations that she was not sent to attend a disaster recovery drill and that she was denied certain educational opportunities. Defendant's Motion at 19. MBNA also asserts that certain allegations of Otokunrin's, for discrimination in evaluations and discrimination in assignments, should be dismissed because they do not constitute ultimate employment decisions. See id. at 19-21. The court disagrees.
Section 1981 claims are subject to the two-year statute of limitations period applicable to tort actions under Texas law. See Price v. Digital Equipment Corporation, 846 F.2d 1026, 1028 (5th Cir. 1988) (per curiam) (citing Goodman v. Lukens Steel Company, 482 U.S. 656 (1987)). The filing and processing of an EEOC charge pursuant to Title VII does not toll the running of the limitations period under Section 1981. See Taylor v. Bunge Corporation, 775 F.2d 617, 618-19 (5th Cir. 1985) (per curiam) (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465-66 (1975)).
According to her complaint, Otokunrin was not permitted to attend a "Disaster Recovery" drill on or about September 5, 1985. Complaint ¶¶ 14-15.
According to her complaint, Otokunrin was denied the opportunity to take "additional classes." Complaint ¶ 17. Otokunrin does not, however, specify the exact date on which she was denied this opportunity, but alleges she reported the discrimination "[a]round July 7, 2001." Id. ¶ 18.
Otokunrin's alleges that MBNA "has engaged in a pattern and practice of race discrimination . . . [including] Discrimination in Evaluations. . . ." Complaint ¶¶ 9, 9(e).
MBNA construes Otokunrin's complaint to allege discrimination in assignments, because Otokunrin was "not sent to go on the Disaster Recovery Drill." See Defendant's Motion at 21; see also Complaint ¶ 15.
A careful review of Otokunrin's Section 1981 claim convinces the court that this claim generally satisfies the liberal pleading standard of the federal rules. Otokunrin has alleged that MBNA violated Section 1981 through a pattern and practice of:
(1) paying Plaintiff and other non-white employees less than comparable white employees,
(2) denying promotions to Plaintiff and other qualified non-white employees on the basis of their race . . .,
(3) denying Plaintiff and other non-white employees equal terms and conditions of employment, including but not limited to differing performance standards, training opportunities for advancement within MBNA, and policies relative to pay raises,
(4) retaliating against Plaintiff for making allegations of discrimination and,
(5) for [sic] subjecting Plaintiff to a hostile work environment.
Complaint ¶ 70; see also Plaintiff's Response at 7. The specific allegations that MBNA wishes to excise — denial of training opportunities, discrimination in evaluation, and discrimination in assignments — are only a portion of the factual allegations used to support Otokunrin's Section 1981 claim. Although these allegations, if alleged as separate claims, might indeed be time-barred or fail to be ultimate employment decisions, they constitute merely components of Otokunrin's otherwise adequately-pled Section 1981 claim. On the basis of the facts alleged by Otokunrin in her complaint, it is not clear beyond doubt that she is not entitled to relief under Section 1981. See Conley, 355 U.S. at 45-46. Consequently, the court denies MBNA's motion to dismiss these allegations for failure to state a claim.
III. CONCLUSION
For the reasons set forth above, MBNA's partial motion to dismiss is GRANTED in part and DENIED in part. The court has jurisdiction over Otokunrin's Title VII claims for denials of promotion and retaliation ( see Counts 4, 6, and 7); MBNA's motion with respect to these claims is DENIED. However, because Otokunrin has failed to exhaust administrative remedies with respect to her Title VII claims for demotions, hostile work environment, denial of educational opportunities, and class-wide discrimination ( see Counts 4, 6, and 7), and her TCHRA claims ( see Counts 3 and 4), MBNA's motion to dismiss these claims, pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject matter jurisdiction is GRANTED.
Otokunrin has made sufficient allegations regarding MBNA's discriminatory conduct in violation of Section 1981 ( see Count 5) to survive MBNA's Rule 12(b)(6) motion to dismiss this claim. Accordingly, MBNA's motion to dismiss this claim is DENIED.
To the extent that Otokunrin asserts separate claims for age and disability discrimination under Section 1981, however, those claims are dismissed.