Opinion
Case No. 01-2440-JWL.
February 25, 2002.
MEMORANDUM ORDER
Plaintiff, appearing pro se, filed suit against defendant alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant has moved to dismiss plaintiff's complaint in its entirety based on plaintiff's alleged failure to file timely his charge of discrimination with the Equal Employment Opportunity Commission. In the alternative, defendant moves to dismiss several of the claims set forth in plaintiff's complaint as those claims are not reasonably related to the claims set forth in his charge of discrimination. As set forth in more detail below, the court grants in part and denies in part defendant's motion.
For some reason, defendant has filed two separate motions to dismiss (docs. #9 and #11). A comparison of the motions, however, reveals that the motions are identical in form and content.
In response to defendant's motion to dismiss, plaintiff requests the court enter default judgment against defendant for failing to respond timely to plaintiff's complaint. In that regard, plaintiff asserts that he served defendant on December 14, 2001 and that defendant's motion to dismiss was filed more than 20 days after the date of service. See Fed.R.Civ.P. 12(a)(1)(A). Defendant, however, has presented evidence in the form of affidavits demonstrating that plaintiff's service was ineffective, that defendant nonetheless voluntarily accepted service on December 21, 2001 and that its motion to dismiss was filed within 20 days thereafter. Thus, plaintiff's request for default judgment is denied.
Under Title VII a plaintiff must file an administrative charge with the EEOC within 300 days after the alleged act of discrimination. Goodwin v. General Motors Corp., 275 F.3d 1005, 1009 (10th Cir. 2002) (citing Martin v. Nannie the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993)); 42 U.S.C. § 2000e-5(e)(1). The record before the court reveals that plaintiff filed his charge of discrimination on May 7, 2001. Plaintiff indicated on the charge that the "latest date of discrimination" was January 8, 2000. On its face, then, plaintiff's charge manifests that it was filed more than 300 days after the alleged discriminatory acts.
Defendant asserts in its motion that plaintiff filed his charge on June 2, 2001. The copy of the charge in the court's file, however, shows only the May 7, 2001 date.
In his complaint, however, plaintiff alleges that acts of discrimination occurred as late as December 2000. Moreover, in his response to the motion to dismiss, plaintiff refers the court to his EEOC intake questionnaire. Plaintiff's verified EEOC questionnaire reveals that alleged acts of discrimination occurred as late as January 2001. Thus, it is at least possible that plaintiff intended his EEOC charge to state that the latest act of discrimination occurred in January 2001 as opposed to January 2000. For this reason, the court is not prepared to grant defendant's motion to dismiss on this basis. See Martin, 3 F.3d at 1415-16 (reversing grant of summary judgment where plaintiff introduced sufficient facts to raise triable issue on statute of limitations question). If, however, defendant wishes to conduct discovery limited to the issue of when the latest acts of discrimination occurred, then defendant should make such a request of the magistrate judge in connection with the scheduling of the case.
Next, defendant contends that plaintiff's EEOC charge is insufficient to preserve all the issues raised in his suit. As a general rule, where charges are not brought before the EEOC, federal courts are without jurisdiction to hear them. See id. at 1416 n. 7. However, a complaint may include any claims not listed in the administrative charge as long as such claims are "reasonably related" to the allegations in the charge. See Simms v. Oklahoma ex rel. Dep't of Mental Health Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999). According to defendant, while plaintiff in his complaint alleges disability discrimination, color discrimination and harassment, plaintiff did not include these allegations in his EEOC charge.
In response, plaintiff states that he did not intend to assert a claim of disability discrimination, but merely intended to allege that he was assigned positions on the basis of his race that he was not capable of performing due to a back injury. In any event, as neither plaintiff's charge nor his verified questionnaire contain any allegations concerning disability discrimination, the court would not have jurisdiction over such a claim. Thus, defendant's motion to dismiss is granted as to any claim of disability discrimination. See Freeman v. State of Kansas, No. 97-2531-JWL, 1998 WL 259899, at *5 (D.Kan. Apr. 10, 1998) (dismissing complaint to the extent it alleged disability discrimination as such claims were not reasonably related to complaints of race discrimination contained in charge).
The court, however, denies defendant's motion insofar as it seeks to dismiss any claim of color discrimination. As another district court judge has recognized:
Frankly, to the uninitiated (which most charging parties are), the difference between race discrimination and color discrimination is imperceptible. Actually, it is virtually imperceptible to this court. . . . [A]fter reviewing the materials Plaintiff appended to his charge, I have no doubt that his allegations of race and color discrimination are not only reasonably related but indistinguishable.Ofudu v. Barr Laboratories, Inc., 98 F. Supp.2d 510, 515 (S.D.N.Y. 2000) (denying motion to dismiss claims of color discrimination); accord Ciancio v. Gorski, No. 98-CV-0714E(SC), 1999 WL 222603, at *2 (W.D.N.Y. Apr. 14, 1999) (finding that claim of color discrimination is sufficiently similar to race discrimination claim that the exercise of jurisdiction over color discrimination claim is appropriate). A review of plaintiff's verified questionnaire and his response to defendant's motion reveals that plaintiff's color and race discrimination claims are indistinguishable. Indeed, plaintiff even describes his race as "Black" in his charge of discrimination. In short, there is simply no distinction between plaintiff's claims of color and race discrimination. The motion to dismiss, therefore, is denied. Cf. Davis v. Quebecor World, No. 01-C-8014, 2002 WL 27660, at *1-2 (N.D.Ill. Jan. 10, 2002) (dismissing color discrimination claim and concluding that such claim was not reasonably related to race discrimination claim as color discrimination arises only when the "particular hue of the plaintiff's skin is the cause of the discrimination").
Of course, as plaintiff's claims of color and race discrimination are identical claims, plaintiff would not be permitted to recover damages under both claims.
Finally, the court denies defendant's motion with respect to plaintiff's harassment claim. While it is true that plaintiff's charge is devoid of any allegations of racial harassment, his verified questionnaire contains numerous allegations of racial harassment. See Reese v. Owens-Corning Fiberglas Corp., 31 F. Supp.2d 908, 914 (D.Kan. 1998) (holding that the court, in analyzing the scope of an EEOC charge, may consider statements contained in an affidavit filed in support of the charge and collecting cases). The record, however, does not reflect whether defendant had notice of the allegations contained in the questionnaire and the absence of such notice might ultimately bear on whether plaintiff is permitted to assert such claims. See Park v. Howard Univ., 71 F.3d 904, 908-09 (D.C. Cir. 1995) (rejecting plaintiff's argument that intake questionnaire should be construed as having adequately raised harassment claim for exhaustion purposes where charge itself raised only discrimination claims; questionnaire was unverified and there was no evidence that the charged party "ever had access to the questionnaire, so it could not have fulfilled the purpose of the required administrative charge"). Without knowing whether defendant had notice of plaintiff's allegations of harassment, the court cannot grant defendant's motion to dismiss plaintiff's racial harassment claim. Defendant may renew its motion in this regard if it is able to present evidence that it had no notice of plaintiff's racial harassment claim.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motions to dismiss (docs. #9 and #11) are granted in part and denied in part. The motion is granted with respect to plaintiff's claim of disability discrimination and is otherwise denied.
IT IS SO ORDERED.