Summary
holding that questionnaire did qualify as a charge
Summary of this case from Gordon v. Shafer Contracting Co.Opinion
No. 4:00CV205-DJS
December 18, 2001
ORDER
By her first amended complaint, plaintiff brings claims of sexual harassment/hostile environment sex discrimination and retaliation against her former employer. Count I asserts a claim of sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Count II asserts that defendant violated Title VII by retaliating against her for her opposition to unlawful discrimination. Counts III and IV assert parallel claims of sex discrimination and retaliation under the Missouri Human Rights Act ("MHPA"), § 213.010 R.S.Mo. et seq. The matter is now before the Court on defendant's motion to dismiss or for partial summary judgment and defendant's later-filed motion for summary judgment.
Motion to Dismiss or for Partial Summary Judgment: Timeliness
The first amended complaint alleges that plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Missouri Commission on Human Rights ("MCHR") on August 2, 1999. First Amended Complaint [Doc. #6], ¶ 8. Defendant's motion to dismiss or for partial summary judgment asserts that the timing of the filing of the administrative charge was sufficient to preserve only plaintiff's claim under Title VII relating to her termination from employment on October 22, 1998. Defendant cites the 300-day statute of limitations set forth in 42 U.S.C. § 2000e-5 (e)(1), which requires that a complainant's administrative charge of discrimination be filed with the EEOC:
within one hundred and eighty days after the alleged unlawful employment practice occurred . . ., except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency . . ., such charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier[.]
Because there exists a worksharing agreement between the EEOC and MCHR, so-called simultaneous filing with both agencies is possible. Neither party acknowledges here, however, that pursuant to § 2000e-5(c), a charge is not officially filed with the EEOC until "sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated."
As a result, where the state proceedings extend beyond a 60-day period, the EEOC "filing" is held for that time in "suspended animation" and is not officially filed in the statutory sense until the expiration of the initial 60 days. See Love v. Pullman Company, 404 U.S. 522, 526 (1972). In such "deferral" states, a would-be plaintiff must file his administrative charge within 240 days of the allegedly discriminatory practice to preserve his rights under Title VII; if he files between the 240th and 300th days, his EEOC charge is timely only if the state proceedings terminate before the expiration of the 300 days. See Mohasco v. Silver, 447 U.S. 807, 814 n. 16 (1980).
The Court's research discloses that, by the terms of a worksharing agreement with the EEOC, "a state agency may waive the 60-day deferral period and thereby `terminate' its proceedings so that the EEOC may immediately deem a charge filed and begin to process it." Shepherd v. Kansas City Call, 905 F.2d 1152, 1153 (8th Cir. 1990), citing EEOC v. Commercial Office Products Co., 486 U.S. 107, 114-15 (1988). Because the parties have overlooked the ramifications of the 60-day period altogether, neither has discussed or adduced any potentially relevant provisions in the worksharing agreement between the EEOC and Missouri's agency. The record does not contain evidence permitting a determination that the MCHR waived its initial investigation period. The EEOC's transmittal of the charge to the MCHR [Exh. B to defendant's motion to dismiss] is insufficient to reflect whether the MCHR has generally expressed such a waiver in the worksharing agreement, and even if so, the EEOC's document would not necessarily signify a correct application of the MCHR's waiver.
A 240-day period preceding the August 2, 1999 charge of discrimination reaches back to December 5, 1998. A 300-day period preceding the charge would extend back to October 6, 1998. The last allegedly discriminatory act by defendant was plaintiff's termination, which occurred on October 22, 1998, a date within the sixty-day window. Plaintiff's Exhibit H is a letter to plaintiff from the MCHR's Director of Operations which acknowledges the simultaneous filing accomplished by plaintiff's submission of her charge to the EEOC and indicates that "MCHR closed its case when it issued a Right-to-Sue letter to [plaintiff] on January 31, 2000, as you requested." The termination of the state administrative proceedings on January 31, 2000 is not within 300 days of the termination of plaintiff's employment. As a result, plaintiff's August 2, 1999 EEOC filing appears not to be timely to preserve her claim even as to her termination, much less as to events and occurrences preceding it, such as those she alleges constituted a hostile environment.
Plaintiff argues, however, based on her earlier communications with the EEOC, that equitable considerations require that her charge be considered timely. Plaintiff claims that EEOC personnel never told her that there existed a time limit for filing a charge of discrimination, that they told her that the submission of a questionnaire and explanatory written statement were sufficient to file a charge, and that in reliance on this information she submitted a questionnaire and written statement in October 1998 prior to her termination and again in July 1999. Both questionnaires were verified by plaintiff under penalty of perjury.
The record contains no other document purporting to constitute plaintiff's charge of discrimination. The EEOC's transmittal document [Exh. B to the motion to dismiss] states that plaintiff's charge was initially received by the EEOC on August 2, 1999. On this record, then, it appears that the EEOC treated the questionnaire dated July 3, 1999 and mailed in late July as plaintiff's charge. As plaintiff notes in her memorandum in opposition, "EEOC apparently proceeded on what she had presented, and did not require her to file a charge of discrimination on the usual charge form customarily used by the agency." Memo. in Opp. [Doc. #28] at p. 8.
So pleads the first amended complaint as well. See Doc. #6 at ¶ 8.
See Plaintiff's Affidavit [Doc. #28] at ¶ 10.
In response, defendant first argues that plaintiff is bound by the admission in her pleadings that her charge was filed on August 2, 1999. Avoiding a lengthy exploration of what constitutes a "judicial admission" and the circumstances in which such an admission is binding and not subject to amendment or withdrawal, the Court notes that ¶ 8, the relied-upon portion of the first amended complaint, states that "On August 2, 1999, plaintiff filed a timely charge of discrimination with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights." Plaintiff does not renege on the accuracy of this averment so much as argue that additional earlier conduct also either constitutes the filing of a charge or qualifies for equitable tolling of the statute of limitations for the filing of a charge.
Next defendant argues that the EEOC's Case Log [Exh. E to defendant's reply] indicates that the charge was received on August 2, 1999 and does not reflect receipt of any earlier-submitted documents at all. While this is so, it is contradicted by plaintiff's affidavit attesting to her mailing of a previous questionnaire in October 1998 and to her several phone calls to the EEOC in which the EEOC's receipt of the questionnaire was acknowledged. At best, a dispute of fact incapable of resolution at this time is created. Also possible is that plaintiff's earlier-submitted questionnaire was received but, perhaps consistent with the processing delay plaintiff attests she was advised of, the questionnaire was never "docketed" by the agency.
Finally, defendant argues that an intake questionnaire does not constitute a charge of discrimination. In cases involving "Intake Questionnaires" and "Charge Information Forms," the Eighth Circuit has repeatedly held that such a document does not constitute a "charge" for statute of limitations purposes where the document is not sworn or verified as required for a Title VII charge by 42 U.S.C. § 2000e-5 (b). See, e.g., Shempert v. Harwick Chemical Corporation, 151 F.3d 793, 796 (8th Cir. 1998); Diez v. Minnesota Mining and Mfg. Co., 88 F.3d 672, 675 (8th Cir. 1996); Hodges v. Northwest Airlines, Inc., 990 F.2d 1030, 1032 (8th Cir. 1993). These cases do not appear to be applicable to the instant facts, however, which involve two "Charge Questionnaires" which, as previously noted, are signed by plaintiff under penalty of perjury.
The final page of each questionnaire shows plaintiff's signature immediately under the legend: "I declare under the penalty of perjury that the information provided in this questionnaire is true and correct." The annotations on the final page of the form indicate that the form was introduced in December 1997, some time after the Intake Questionnaires and Charge Information Forms at issue in the Eighth Circuit case law. Under "Authority," the form itself cites § 2000e-5(b), which contains the verification requirement. Under the caption "Principal Purpose," the form indicates:
The purpose of this questionnaire is to solicit information in an acceptable form consistent with statutory requirements to enable the Commission to act on matters within its jurisdiction. When this form constitutes the only timely written statement of allegations of employment discrimination, the Commission will, consistent with 29 C.F.R. § 1601.12 (b) and 29 C.F.R. § 1626.8 (b), consider it to be a sufficient charge of discrimination under the relevant statute(s).
The referenced federal regulations describe the contents of a charge for purposes of Title VII and the Age Discrimination in Employment Act. Section 1601.12(b), applicable to Title VII claims, provides in part that:
Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein.
The Questionnaires submitted to the EEOC in this case meet the statutory requirements for an administrative charge of discrimination, and the case law relied upon by defendant is therefore distinguishable. Furthermore, the second of plaintiff's two Charge Questionnaires apparently was treated as a charge by the EEOC. For all these reasons, the Court concludes that the first Charge Questionnaire was equally sufficient to constitute an administrative charge. Plaintiff's sworn representations in her affidavit that she submitted the first Charge Questionnaire in the form shown in her Exhibit B, that she mailed it on October 13, 1998, and that in an October 15, 1998 telephone communication an EEOC representative acknowledged receipt, are all uncontradicted and must be taken as true for purposes of the instant motion.
The Court's statute of limitations analysis will proceed on the basis that plaintiff filed a charge of discrimination with the EEOC and the MCHR on October 15, 1998 and again on August 2, 1999. Such filings are timely to preserve her Title VII claims based on incidents occurring on or after December 19, 1997, which is 300 days prior to October 15, 1998.
As for plaintiff's claims under Missouri law, § 213.075.1 R.S.Mo. requires that an administrative charge be filed with the MCHR within 180 days of the alleged act of discrimination. Subsection 2 of the same statute provides that a charge filed with the EEOC is deemed filed with th MCHR on the same date that it is received by the EEOC. Based on its earlier determinations, the Court concludes that for purposes of the MHPA, plaintiff's first charge was filed on October 15, 1998, from which the 180-day limitations period would extend back to April 18, 1998. For all the foregoing reasons, defendant's motion to dismiss or for partial summary judgment will be denied.
Motion for Summary Judgment: Merits
Plaintiff was employed by ABB Combustion, of which defendant is the corporate successor. ABB's business was the production of uranium products for industrial use. Plaintiff's first position with ABB, as a health physics technician, was a union job. After several months, she was transferred to work as a chemist in the laboratory, which was not a union position.
As to the merits of plaintiff's claims, defendant first contends that plaintiff is unable to support the necessary prima facie case of retaliation. The retaliation claims require proof that: (1) plaintiff engaged in activity protected under Title VII and/or the MHRA; (2) she subsequently suffered an adverse employment action by the defendant; and (3) a causal connection existed between plaintiff's activity and the adverse action. Rheineck v. Hutchinson Technology, Incorporated, 261 F.3d 751, 757 (8th Cir. 2001); Evans v. Kansas City Mo. School Dist., 65 F.3d 98, 100 n. 3 (8th Cir. 1995).
Plaintiff's first amended complaint is entirely summary in its allegations concerning discriminatory and retaliatory acts. Defendant argues that plaintiff fails to demonstrate actionable adverse employment action, basing its contentions on the allegedly retaliatory conduct identified by plaintiff in her deposition. One species of such conduct consists of non-supervisory lab technicians Kitty White and Chris Casby telling plaintiff they were the "queen bitches" of the plant, that they were "barracudas," and that plaintiff should "watch out." Schlosser Depo. (Def. Exh. A), at 58, 77. The other allegedly retaliatory conduct testified to by plaintiff in deposition involves non-supervisory lab technician Debbie Walker screaming at plaintiff and telling her that plaintiff "enjoyed causing trouble." Id. at 68. Defendant correctly concludes that negative or even abusive responses from nonsupervisory co-workers in response to an employee's protected activity does not constitute actionable retaliation on the part of the employer. Plaintiff does not appear to dispute the point, as her memorandum in opposition to the motion does not rely upon or reference this conduct. Instead, plaintiff cites her selection for lay-off as the adverse conduct on which her retaliation claim is based.
Plaintiff's termination unquestionably constitutes an adverse employment action. Concerning it, defendant offers a different argument. Defendant contends that plaintiff is unable to meet the third element of the prima facie case of retaliation, namely a causal connection between her protected activity and her selection for lay-off. The only protected activity defendant references is plaintiff's complaint to ABB's Human Resources Department in April of 1995. Defendant urges the Court to determine as a matter of law that no causal connection is shown between this protected activity and plaintiff's termination over three years later on October 22, 1998.
In response, plaintiff cites multiple pages of her deposition testimony in support of her contention that her protected activity was not limited to the single Human Resources complaint defendant references. Memo. in Opp. [Doc. #32], p. 12. The cited testimony describes additional complaints to Human Resources or other supervisory authority as to allegedly discriminatory or sexually harassing behavior, those complaints occurring in 1995 up through as late as 1998. See e.g., Schlosser Depo. (Def. Exh. A), at 170, 204-207. Defendant's contentions limiting plaintiff's protected activity to a single occurrence three years prior to her lay-off cannot, therefore, support summary judgment. On the record presented here, the Court concludes that an adequate prima facie showing of retaliatory causal connection is made by plaintiff's several years of repeated protected activity in combination with her contention that the reason given for her layoff — that the "emissions spec work" was being "mothballed" — was pretextual in that she was no longer performing that type of work.
Next defendant seeks summary judgment on plaintiff's claims of sex discrimination, misconstruing them as claims of disparate treatment based on gender. Instead, plaintiff's claims of sex discrimination are of the hostile work environment variety. Only in its reply memorandum does defendant attempt an application of the correct hostile environment analysis. Plaintiff has had no opportunity to respond to this belated argument. For that reason, and because the Court is not persuaded as a matter of law that, if proved, all the harassing conduct asserted by plaintiff could not reasonably be found sufficiently severe or pervasive as to support relief, the Court rejects defendant's request for summary judgment as to plaintiff's hostile environment claims.
Finally, defendant argues that plaintiff is unable to adduce evidence reasonably rebutting its proffered nondiscriminatory motive for plaintiff's lay-off. Defendant apparently concurs in plaintiff's testimony that the proferred basis for her termination was the "mothballing" of the emissions spectroscopy testing work which she had previously performed. In May 1998, when management and the union agreed that "emissions spec" work would be performed by bargaining unit employees, plaintiff was offered the opportunity to join the bargaining unit and continue in her position. She declined to join the bargaining unit, but was not discharged from employment at that time. Plaintiff was laid off in October 1998. Defendant suggests that its failure to discharge plaintiff in May rebuts any inference that her October discharge was unlawfully motivated. In the Court's view, defendant's conclusion does not necessarily follow from its hypotheses, and does not address plaintiff's principal contention in support of a finding of pretext — that the proffered reason was inherently suspect because it did not address plaintiff's current employment status. Defendant also cites evidence that plaintiff herself considered her job in some jeopardy following her decision not to join the bargaining unit. This circumstance does not support a finding that plaintiff's termination was not pretextual, particularly because the reasons plaintiff was concerned were not those ultimately given for her lay-off. Defendant has failed persuasively to demonstrate the lack of a jury issue on the question. For all the foregoing reasons, defendant's motion for summary judgment on the merits of plaintiff's claims will be denied.
Accordingly,
IT IS HEREBY ORDERED that defendant's motion to dismiss and/or for partial summary judgment [Doc. #28-1 and #28-2] is denied.
IT IS FURTHER ORDERED that defendant's motion for summary judgment [Doc. #32] is denied.