Goodaker v. Heartside Food Solutions, Llc

BRIEF in Opposition to 16 MOTION to Dismiss for Lack of Jurisdiction Pursuant to Rule 12

N.D. Ind.September 9, 2016

UNITED STATES DIRSTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ARETHA GOODAKER, ) Plaintiff, ) ) v. ) CASE NO. 3:15-cv-00530-RL-CAN ) HEARTSIDE FOOD SOLUTIONS, LLC, ) Defendant. ) PLAINTIFF’S BRIEF IN SUPPORT OF ITS RESPONSE TO MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) I. INTRODUCTION Defendant’s Motion to Dismiss pursuant to Rule 12(b)(1) is not proper as Plaintiff has exhausted all her administrative remedies and Plaintiff’s Complaint is based on Indiana retaliatory law which does not require her to exhaust all her administrative remedies. When determining whether a claim should be dismissed due to lack of subject matter jurisdiction, “a court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Delagrange v. Matthews, No. 1:04-cv-454-TS, 2006 U.S. Dist. LEXIS 65122 *6 (N.D. Ind. Sept. 12, 2006) (quoting Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003)). The facts are that Plaintiff did file a claim with the EEOC. The EEOC performed a limited investigation into Plaintiff’s claim and determined that they would not be of assistance, but rather Plaintiff could pursue this matter legally if she chooses. The reasonable inference the Court must draw is that upon receiving her notice of right to sue, Plaintiff had gone through the necessary preliminary steps prior to seeking judicial review. Therefore, the granting of Defendant’s Motion to Dismiss would prejudice Plaintiff from bringing her claim to light. USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 1 of 11 2 Under Indiana retaliatory laws, Plaintiff may bring a retaliatory claim without exhausting her administrative remedies if the Court has jurisdiction over other claims within the Complaint. A court may exercise jurisdictional review over certain retaliatory claims when those claims there are other claims in the complaint that do not require exhaustion of administrative remedies. Austin Lakes Joint Venture v. Avon Util., Inc., 648 N.E.2d 641, 646 (Ind. 1995). Plaintiff has plead in her complaint claims that are within the Court’s jurisdiction, specifically that Defendant treated Plaintiff unfavorably once Defendant learned of Plaintiff’s disability and Plaintiff was terminated based on her disability. Therefore, the Court does have jurisdiction and may proceed on this matter. Finally, if the Court finds that Defendant’s Motion to Dismiss is proper, Plaintiff requests that the Court either order the EEOC to reopen Plaintiff’s claim or dismiss without prejudice. II. RELEVANT FACTS Plaintiff worked for Defendant from approximately November 11, 2014, through April 16, 2015. (Docket #7, ¶ 4). On March 18, 2015, Plaintiff informed Defendant, via her manager Shannon Olson, that Plaintiff had medical limitations which needed to be accommodated for her disability. (see Exhibit 1 ¶ 5). Specifically, Plaintiff was informed by her doctor that she should not be on her feet for longer than six hours at a time. Upon Defendant receiving this information, Defendant informed Plaintiff that Defendant could not accommodate Plaintiff’s needs. (see Exhibit 1 ¶ 6). Plaintiff was terminated on April 16, 2015. (see Exhibit 1 ¶ 7). Plaintiff completed an Intake Questionnaire with the EEOC on April 16, 2015. (see Exhibit 2). On April 28, 2015, the EEOC notified Defendant that Plaintiff had filed a charge of discrimination under the Americans with Disabilities Act. (see Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1) Exhibit 1, Hearthside 000010). The EEOC sent a letter on May 13, 2015, to Plaintiff stating first that the Defendants were considered the Respondents, and secondly that USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 2 of 11 3 Plaintiff needed to review the summary on the attached EEOC Form 5, sign and date the charge in the bottom and return the signed charge to the office. (see Exhibit 3). The EEOC completed a limited investigation into Plaintiff’s case from April 28, 2015, through July 30, 2015, by interviewing the Defendant’s employees, but failing to interview any witnesses provided by the Plaintiff. Plaintiff received a letter from the EEOC of Dismissal and Notice of Right to Sue on July 30, 2015. (see Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1) Exhibit 1, Hearthside 000002-000005 and 000023-000033). In the letter from EEOC to Plaintiff, the EEOC states: “The EEOC is closing its file on this charge for the following reason: The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.” (see Exhibit 3). Furthermore, the letter states that Plaintiff may file a lawsuit against the respondent under federal law based on this charge. (see Exhibit 3). On October 29, 2015, Plaintiff initiated this lawsuit in Indiana State Court. In Plaintiff’s Complaint, Plaintiff states that the “action challenges the retaliatory discharge and unfavorable treatment of the plaintiff by the defendant in violation of the Americans with Disabilities Act and the laws and Constitution of the State of Indiana.” (Plaintiff’s Complaint ¶ 1). Defendant filed their Notice of Removal on November 11, 2015, based on the presumption that Plaintiff is seeking recovery under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (Defendant’s Notice of Removal ¶ IV). III. ARGUMENT A. PLAINTIFF HAS EXHAUST ALL HER ADMINSTRATIVE REMEDIES Fed. R. Civ. P. 12(b)(1) states that a party may assert the defense that a court lacks subject matter jurisdiction.. Failure to exhaust administrative remedies is a procedural error and not a USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 3 of 11 4 jurisdictional error. Alkhalidi v. Ind. Dep’t of Corr., 42 N.E.3d 562, 565 (Ind. Ct. App. 2015). See also First American Title Insurance Co. v. Robertson, 19 N.E.3d 757, 760 (Ind. 2014) and Kennedy v. Town of Gaston, 923 N.E.2d 988, 994 (Ind. Ct. App. 2010). The purpose behind exhaustion of administrative remedies is “(1) to permit an agency to exercise its discretion and expertise; (2) to develop technical issues and a factual record prior to judicial review; (3) to prevent circumvention and agency procedures; and (4) to avoid unnecessary judicial review by allowing agencies to correct errors.” Alkhalidi at 565. (citing Brett v. Goshen Community School Corporation, 1998 U.S. Dist. LEXIS 17908 (N.D. Ind. Oct. 6, 1998)). In Williams v. Potter, the court found that the plaintiff had not exhausted all her administrative remedies and that the case should be dismissed due to failure to state a claim for which relief may be granted. Williams v. Potter, 2008 U.S. Dist. LEXIS 74543, 2008 WL 4449549 (N.D. Ind. Sept. 25, 2008). The plaintiff had filed her claim with the EEOC, to which she received a denial and instructions for the appeal process. Id. The court found that because she was not issued a “right-to-sue” letter, and because she withdrew her appeal, she had abandoned her administrative remedies. Id. The court states that “Title VII does not authorize the filing of suit until the plaintiff has exhausted all his administrative remedies, 42 U.S.C. §2000e-16(c), which means not until he has received a right-to-sue letter from the EEOC, signifying that the EEOC will not provide him with any relief”. Id. In Gray v. Morrison Management Specialist, Inc.¸ the court granted defendant’s motion for summary judgment based on the plaintiff failing to verify her claim with the EEOC, that the defendant had not had an opportunity to respond to the charges and because the defendant did not have proper notice of what charges the plaintiff was asserting against defendant, 2010 U.S. Dist. LEXIS 128061 (N.D. Ind. 2012). In Gray, the plaintiff filed her claim with the EEOC, but never USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 4 of 11 5 sent in her verified charging sheet. Id. The defendant filed for summary judgment claiming that they did not have proper notice of the charges against them which would provide them an opportunity to prepare a defense because no charging information or intake forms were attached to the complaint. Id. The court granted defendant’s motion for summary judgment and dismissed the case without prejudice to allow the plaintiff to correct her errors. Id. The court in Gray distinguished their set of facts from Buck v. Hampton Twp. Sch. Dist.., 452 F.3d 256 (3d Cir. 2006). In Buck, the court found that a federal court is not divested entirely of its ability to hear a case if a verification form is not submitted as the verification requirement is not a prerequisite for a suit. Buck, at 262. Even though this is a minority view, Buck distinguished itself because the defendants had adequate information on which the claim was raised with the EEOC. Id. While there has been some debate on whether failure to exhaust administrative remedies is a jurisdictional bar, recent case law suggests that it is not a jurisdictional bar. Williams at 11; Mosely v. Board of Education of City of Chicago, 434 F.3d 527, 532 (7th Cir. 2006). Here, the Motion to Dismiss filed by the Defendant was filed pursuant to Fed. R. Civ. P. 12(b)(1) rather than a motion for summary judgment, as argued in Gray. This case can be distinguished as there are different standards between these two types of motions. Summary judgment looks to whether there is a genuine issue of material fact in dispute whereas a motion to dismiss pursuant to Rule 12(b)(1) looks to whether a court has subject matter jurisdiction over an action. Fed. R. Civ. P 56, Fed. R. Civ. P. 12. “When considering a motion to dismiss for lack of subject matter jurisdiction, a court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Delagrange v. Matthews, No. 1:04-cv-454-TS, 2006 U.S. Dist. LEXIS 65122 *6(N.D. Ind. Sept. 12, 2006). (quoting Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 701 (7th Cir. 2003)). USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 5 of 11 6 The Court in this matter must accept as true all the well-pleaded factual allegations and draw all reasonable inferences in favor of the Plaintiff. Plaintiff received a Notice of Right to Sue on July 30, 2015. In this letter the EEOC states that they are unable to conclude that a violation occurred and that the letter does not certify that Defendants (respondents of the EEOC claim) are in compliance with the law. Plaintiff has exhausted her administrative remedies by filing a claim with the EEOC. The EEOC informed Defendant that Plaintiff had filed an employment discrimination against Defendant. While the EEOC notice to Defendant stated that they did not have to take any action at that time, the EEOC did do a preliminary investigation to determine whether they felt Plaintiff had a case. The EEOC worked on this matter from April 28, 2015, through July 30, 2015. Once the EEOC sent Plaintiff the Notice of Right to Sue, the EEOC made it clear that they made an inquiry into the claim and decided to let Plaintiff bring suit. The inference the Court must accept as true is that the EEOC relinquished their interest in Plaintiff’s claim that she may seek other judicial review. The EEOC investigation into this matter meets all the purposes of exhausting administrative remedies as laid out in Alkhalidi. The EEOC was able to exercise its discretion and decided they did not want to take part in the claim. The EEOC developed technical issues and a factual record prior to judicial review during the course of the investigation as exhibited by their log. Plaintiff filed her claim with the EEOC prior to the Court to prevent circumvention and agency procedures. Finally, by filing with the EEOC, Plaintiff sought to avoid unnecessary judicial review by allowing agencies first attempt to resolve the issue. When the EEOC could not resolve the issue, they sent a notice of right to sue which allows the Plaintiff to seek the Court’s judicial review. Finally, Defendant had adequate notice of the claim which allowed them to prepare a defense. Defendant was first put on notice when the EEOC sent Defendant the letter on April 28, USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 6 of 11 7 2015. The EEOC further supported the notice of the complaint upon interviewing the Defendant’s employees. Defendant was put on notice again when Plaintiff filed this lawsuit. In Plaintiff’s Complaint, Plaintiff makes a plain statement that Plaintiff is suing based on Defendant retaliating against Plaintiff rather than accommodating Plaintiff’s disability. Defendant were again put on adequate notice when they filed their Freedom of Information Request to obtain the EEOC’s file on Plaintiff’s claim. Under the Buck analysis, Defendant was put on adequate notice to formulate a defense to Plaintiff’s claims. Despite Plaintiff’s procedural error of failing to send in a verified Charge of Discrimination, Defendant was still given notice of what was being plead against them, thus precluding any argument that Defendants were not aware of the claims filed against them as in Gray. This Court should find that Plaintiff has exhausted all her administrative remedies. By filing her claim with the EEOC and the EEOC relinquishing their authority to exercise discretion over the claim, the EEOC opened Plaintiff’s opportunity to seek other judicial review. The Court must accept the inference that once Plaintiff received their Notice of Right to Sue, that the EEOC relinquished this authority and Plaintiff had the right to bring this lawsuit. Therefore, the Court should deny Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1). B. PLAINTIFF IS NOT REQUIRED TO HAVE EXHAUSTED HER ADMINISTRATIVE REMEDIES. In Plaintiff’s first paragraph of her Complaint, she alleges “This action challenges the retaliatory discharge and unfavorable treatment of the plaintiff by the defendant in violation of the Americans with Disabilities Act and the laws and Constitution of the State of Indiana.” (see Exhibit 1 ¶ 1). When Defendant’s removed this case to Federal Court, Defendant claims the Federal Court has jurisdiction due to Plaintiff requesting relief pursuant to 42 U.S. C. § 12101 et seq. (see Exhibit 4). However, in Plaintiff’s Complaint, Plaintiff specially requests relief pursuant to Ind. R. Trial USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 7 of 11 8 P. 57. (see Exhibit 1 §V). Under Indiana retaliatory laws, Plaintiff is not required to exhaust her administrative remedies prior to seeking judicial review. “If at least one of the issues involved in the case is within the jurisdiction of the trial court, the entire case falls within its jurisdiction, even if one or more of the issues are clearly matters for exclusive administrative or regulatory agency determination. Where at least one of the issues or claims is a matter for judicial determination or resolution, the court is not ousted of subject matter jurisdiction by the presence in the case of one or more issues which arguably are within the jurisdiction of an administrative or regulatory agency.” M.C. Welding & Machining Co. v. Kotwa, 845 N.E.2d 188, 193 (Ind. Ct. App. 2006), (citing Austin Lakes Joint Venture v. Avon Util., Inc., 648 N.E.2d 641, 646 (Ind. 1995). In M.C. Welding the court found that because the plaintiff claimed that the discrimination was based off plaintiff’s exercise of his statutory rights rather than his filing a complaint with the appropriate agency. Id. The court stated that as long as there is jurisdiction over one of the claims, the court may exercise primary jurisdiction over all the claims, even when a plaintiff has not exhausted all administrative remedies. Id. In this case, Plaintiff has alleged that she was terminated based on a lack of accommodation by Defendant regarding her disability. Plaintiff also alleged that because she exercised her statutory right under the Americans with Disabilities Act, Defendant treated her unfavorably and this unfavorable treatment lead to her termination. As such, her actions as similar to the facts in M.C. Welding. Based on the complaint, the Court has jurisdiction over at least one of Plaintiff’s claims which would give the Court jurisdiction over all the claims. Therefore, the Court should deny Defendant’s Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) as Plaintiff was not required under Indiana law to exhaust her administrative remedies prior to seeking judicial review. USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 8 of 11 9 C. IF THE COURT FINDS THAT DEFENDANT’S MOTION SHOULD BE GRANTED, PLAINTIFF REQUESTS THE COURT TO ORDER THE EEOC TO REOPEN PLAINTIFF’S CLAIM. Pursuant to 29 CFR § 1601.12 (a), “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.” EEOC regulations provide that amendments to perfect or add to a charge relate back to the date the charge was first received. 29 C.F.R. § 1601.12(b). The Supreme Court in Edelman v. Lynchburg College, 535 U.S. 106 (2002), upheld EEOC’s interpretation that 29 C.F.R. § 1601.12(b) which permits a charge to be verified after expiration of the applicable limitations period. Here, Plaintiff proceeded with her option to seek judicial review prior to verifying her charge with the EEOC. Plaintiff took this action based on a Notice of Right to Sue sent to her by the EEOC. If the Defendant is claiming that they did not have enough notice of the claim prior to the Plaintiff receiving the Right to Sue Letter, then the EEOC must complete a greater investigation into the claims. The EEOC had completed only a limited investigation by interviewing the Defendant’s employees, but failing to interview any witnesses provided by the Plaintiff. If the Court should find that Defendant’s Motion to Dismiss be proper, Plaintiff would request that the Court order the EEOC to reopen their case so that the EEOC may complete their investigation and Plaintiff may verify the charge. Based on the ruling in Edelman, this filing would relate back to the date Plaintiff originally filed her claim with the EEOC on April 16, 2015, which would be considered timely filed. Therefore, if the Court finds that Defendant’s Motion to Dismiss is proper, Plaintiff’s request that the Court order the EEOC to reopen Plaintiff’s claim. USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 9 of 11 10 D. ALTERNATIVELY, IF THE COURT FINDS DEFENDANT’S MOTION TO DISMISS PROPER AND WILL NOT ORDER THE EEOC TO REOPEN PLAINTIFF’S CLAIM, PLAINTIFF REQUESTS THE COURT TO DIMSMISS WITHOUT PREJUDICE OR REMAND TO STATE COURT. Should the Court finds that Defendant’s Motion to Dismiss is proper at this time and declines to order the EEOC to reopen Plaintiff’s Claim, Plaintiff request that the Court dismiss without prejudice. By dismiss the action without prejudice, the Court would be allowing Plaintiff to correct any procedural errors without barring Plaintiff from being heard on the merits. Furthermore, as this is the first time Plaintiff has brought this suit against Defendant, the Court should dismissed without prejudice. Finally, the Court may remand to state court if the Court does not wish to dismiss the case all together. IV. CONCLUSION For all the reasons stated above, Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) should be denied as Plaintiff has exhausted all her administrative remedies and is not required to exhaust her administrative remedies. However, should the Court grant Defendant’s Motion, Plaintiff requests the Court order the EEOC to reopen Plaintiff’s claim. If the Court will not order the EEOC to reopen Plaintiff’s claim, then we request the Court remand to state court or Dismiss without prejudice. Respectfully Submitted, By: ___________________________ Bruce Carr, #15676-64 CARR, CARR, & CHELOVICH, LLC P.O. Box 350 Westville, IN 46391 (219) 595-3363 USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 10 of 11 11 CERTIFICATE OF SERVICE I hereby certify that the foregoing Plaintiff’s Response to Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1) was filed electronically on ______ __, 2016 and that service of same on all counsel of record will be made by the Court’s CM/ECF system as follows: Tina M. Bengs tina.bengs@ogletreedeakins.com I further certify that service was made on the following non-registered ECF counsel of record by placing copies of the forgoing Plaintiff’s Response to Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(1) in envelopes properly addressed to them and with sufficient first-class postage pre-paid: None ________________ Bruce Carr USDC IN/ND case 3:15-cv-00530-RL-MGG document 24 filed 09/09/16 page 11 of 11