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holding that the plaintiff's claim of sex discrimination was not within the scope of his E.E.O.C. charge describing race discrimination even though the two claims involved the same general conduct and individuals
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No. 1:03-cv-02009-JDT-TAB.
June 30, 2004
ENTRY ON PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE FIRST AMENDED COMPLAINT
I. Introduction.
Kyle Kilchrist filed this action alleging a single claim of race discrimination under Title VII of the Civil Rights Act of 1964, against his former employer, Eli Lilly and Company ("Lilly"). Kilchrist, an African-American male, asserts that Lilly engaged in racially discriminatory practices that caused a stress disorder and ultimately led to his resignation.
Kilchrist originally filed his complaint in the Marion Circuit Court. Lilly removed the action to this Court on December 18, 2003. Thereafter, Kilchrist filed a motion for leave to file an amended complaint. In his motion, Kilchrist seeks to join two individual Defendants, Mary Hinkley and Charles Feehan. Kilchrist also seeks to add numerous causes of action. Although listed in eight counts, Kilchrist's proposed amended complaint actually asserts claims for: (1) race discrimination pursuant to 42 U.S.C. § 1981; (2) gender discrimination pursuant to Title VII; (3) gender discrimination pursuant to 42 U.S.C. § 1981; (4) racial harassment pursuant to Title VII; (5) racial harassment pursuant to 42 U.S.C. § 1981; (6) retaliation pursuant to Title VII; (7) retaliation pursuant to 42 U.S.C. § 1981; (8) retaliation under "Indiana or Georgia law;" (9) constructive discharge "under either Indiana or Georgia common law;" (10) intentional interference with an employment relationship; (11) negligent retention "under Indiana and/or Georgia common law;" (12) negligent infliction of emotional distress under "either Indiana or Georgia common law;" and (13) intentional infliction of emotional distress under "either Indiana or Georgia common law."
The parties did not brief which state's law — Indiana or Georgia — controls. Therefore, the Court, at the present time, makes no finding in this regard.
Kilchrist does not identify which state's law upon which he purports to bring this action. The Court assumes that Kilchrist also seeks to bring his intentional interference claim under Indiana or Georgia law.
Lilly objects and argues that the addition of Kilchrist's claims for gender discrimination and retaliation under either Title VII or state law, and for negligent infliction of emotional distress under either Indiana or Georgia law, are futile. Thus, Lilly argues, Kilchrist's motion should be partially denied. Lilly's objections are well taken in several respects. Accordingly, as explained in more detail below, the Court GRANTS IN PART and DENIES IN PART Kilchrist's motion to amend his complaint.
II. Standard.
Amendment of pleadings is allowed as a matter of course once before a responsive pleading is served or otherwise only by leave of court or by written consent of the adverse party. Fed.R.Civ.P. 15(a). "Although leave to amend a complaint should be freely granted when justice so requires, the district court need not allow an amendment . . . when the amendment would be futile."Bethany Pharmacal Co., Inc. v. QVC, Inc., 241 F.3d 854, 860-61 (7th Cir. 2001) (internal citations omitted). Moreover, a new claim is futile if it would not withstand a motion to dismiss.Vargas-Harrison v. Racine Unified School Dist., 272 F.3d 964, 974 (7th Cir. 2001), citing Bower v. Jones, 978 F.2d 1004, 1008 (7th Cir. 1992).
III. Discussion.
A. The Scope of Kilchrist's EEOC Charge.
On January 14, 2003, Kilchrist submitted a charge to the Equal Employment Opportunity Commission ("EEOC") claiming "employment discrimination based on racial discrimination arising under Section 703(a)(2)(1) of Title VII of the Civil Rights Act of 1964." [Docket No. 16, Ex. A]. Thereafter, Kilchrist filed a lawsuit claiming race discrimination based on the facts outlined in his EEOC charge. Kilchrist wishes to amend his complaint to add, among other claims, causes of action for gender discrimination and retaliation under Title VII. Lilly asserts that Kilchrist has not exhausted his administrative remedies because Kilchrist's EEOC charge did not include allegations of gender discrimination or retaliation. [Docket No. 16, p. 3].
On this principle, Lilly is correct.
Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. This rule serves two purposes: affording the EEOC the opportunity to settle the dispute between the employee and employer, and putting the employer on notice of the charges against it. The only qualification to this principle applies to claims that are "like or reasonably related" to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charges. Those claims may also be brought.Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (internal citations omitted). Accordingly, the Court must determine which of Kilchrist's Title VII claims, if any, are like or reasonably related to his EEOC charge and that could reasonably evolve from an EEOC investigation of that charge. The Court finds that Kilchrist's gender discrimination and retaliation claims are futile because they are not "like or reasonably related to" Kilchrist's earlier charge of race discrimination, nor would they reasonably evolve from an EEOC investigation into that charge.
The Court can consider the facts alleged in the complaint as well as documents attached to or incorporated into a complaint when reviewing under a motion to dismiss standard. See Albany Bank Trust Co., v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). Accordingly, the Court can — and did — consider Kilchrist's EEOC charge in deciding this motion.
1. Title VII gender discrimination.
Kilchrist alleges that the amendment of his complaint to add gender discrimination is not a new charge but a legal refinement and reasonably related to his EEOC charge. Therefore, Kilchrist argues he should be considered to have exhausted his administrative remedies. [Docket No. 18, p. 10]. Moreover, Kilchrist argues that "whether or not the EEOC ignored or actually investigated his complaints from the perspective of gender discrimination, the content of his statements to the EEOC shows that he did indeed make complaints indicative of a claim for gender discrimination." [Docket No. 18, p. 12]. For example, Kilchrist argues that on three occasions he referred to discrimination because he was male. [Docket No. 18, p. 11]. In one such reference, he states in part, "Kilchrist has learned that during Hinkley's twelve (12) years in her current position that she has never recommended the advancement, nor, in fact, advanced or promoted and African-American male." [Id.]. In another, he alleges:
At one point after Kilchrist had succeeded in a work effort for Lilly, Hinkley stated to Kilchrist that "you are the most non-minority male I have ever met," though she did not let that comment or any feelings underlying said comment, prevent her from continuing her 12 year old pattern of failing to promote, and discriminating against African-American males. This comment by Hinkley demonstrated her animus against minorities.
[Docket No. 18, p. 11]. Moreover, Kilchrist argues, "Hinkley has `never had a good relationship with black men.'" [Id.].
Lilly responds that because Kilchrist did not check the box for "sex" on his EEOC charge, repeatedly characterized the charge as race discrimination, and narrowed his race discrimination claim in the charge, the Court should find that Kilchrist did not exhaust his administrative remedies. [Docket No. 23, p. 2]. Moreover, Lilly argues that Kilchrist did not allege facts in his EEOC charge that would support a claim for gender discrimination. [Docket No. 16, p. 3]. Thus, Lilly contends that because Kilchrist did not satisfy the "condition precedent to asserting such claim, i.e., exhaustion of remedy," his claim is futile. [Id.]. The Court agrees.
Contrary to his argument, Kilchrist's reference to "African-American males" and "black men" in his EEOC charge does not, by itself, put Lilly on notice of a gender discrimination claim. There are no specific facts alleging that Lilly discriminated on the basis of gender. Kilchrist's charge does not imply that women are treated better than men. See Ajayi v. Aramark Business Services, Inc., 336 F.3d 520, 528 (7th Cir. 2003) (holding that if plaintiff, "thought she had been subject to age discrimination, she could have, and should have said so in her charge. Without this basic information, there is simply no reason to think that any EEOC investigation would have uncovered the alleged age bias."). "An allegation of race discrimination is not `like or reasonably related to' an allegation of sex discrimination." Crawford v. Bank of America, 986 F. Supp. 506, 508 (N.D. Ill. 1997), citing Moore v. Allstate Ins. Co., 928 F. Supp. 744, 748 (N.D. Ill. 1996) ("Discrimination based on gender is entirely different from discrimination based on race."). Thus, while the EEOC charge and Kilchrist's proposed amendment describe the same general conduct and implicate the same individuals, Kilchrist's gender discrimination claim is not like or reasonably related to the allegations in his EEOC charge. See Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) (holding that because the plaintiff, in filing a complaint for sex discrimination, did not allege the conduct she considered discriminatory with "some degree of specificity" the charge "failed to serve its dual role of giving the defendant notice . . . and affording the EEOC an opportunity to investigate."). Kilchrist's claim of gender discrimination under Title VII is beyond the scope of his EEOC charge. As a result, this claim is futile. Accordingly, Kilchrist's motion to amend his complaint is DENIED as to Kilchrist's gender discrimination claim under Title VII.
Although Lilly did not object to Kilchrist's proposed § 1981 gender claim, that claim is also futile. "[C]laims of sex discrimination are not cognizable under section 1981. . . ."Friedel v. City of Madison, 832 F.2d 965, 967 (7th Cir. 1987), citing Runyon v. McCrary, 427 U.S. 160, 167 (1976);St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir. 1984). Accordingly, Kilchrist's motion is DENIED to the extent he seeks to add a sex discrimination claim pursuant to 42 U.S.C. § 1981.
2. Title VII retaliation.
Kilchrist also seeks to add a claim of retaliation under Title VII. Similar to his proposed gender bias claim, Kilchrist alleges that the retaliation claim is not a new claim but a legal refinement of his EEOC charge. [Docket No. 18, p. 10]. Thus, he contends that the retaliation claim is reasonably related to his original charge of race discrimination. [Id.].
Lilly again argues that Kilchrist's addition of the retaliation claim is futile because it is not like or reasonably related to his race discrimination charge. Moreover, Lilly contends that Kilchrist did not check the box for "retaliation" or allege facts of retaliation in his charge. [Docket No. 16, p. 3]. Accordingly, Lilly concludes, Kilchrist has not exhausted his administrative remedies. [Id.]. Again, Lilly is correct.
Kilchrist did not specifically raise retaliation in his EEOC charge. [Docket No. 16, Ex. A]. Moreover, there are no specific facts from which to infer retaliation. In order to have a "prima facie case for retaliation," a plaintiff must allege that he or she "engaged in protected activity, such as filing a charge of discrimination or other complaint of discriminatory activity."Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002). See also Steffan v. Meridian Life Ins. Co., 859 F.2d 534, 544 (7th Cir. 1988) (holding plaintiff's retaliation claims fell outside the scope of his EEOC charge by not giving a factual basis to support the claim in his charge).
There are no facts within the EEOC charge that state Kilchrist complained of discrimination to superiors during his employment and that Lilly retaliated against him because of the complaints. Nor are there any facts that Kilchrist made a charge to the EEOC, or otherwise engaged in protected activity, during his employment and that Lilly retaliated against him because of the charge.See Peters, 307 F.3d at 550 ("where the plaintiff's EEOC charge does not allege retaliation or that the plaintiff even engaged in some sort of protected activity, a claim for retaliation cannot lie."); Miller v. Am. Family Mutual Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000) ("An employee can honestly believe she is the object of discrimination, but if she never mentions it, a claim of retaliation is not implicated, for an employer cannot retaliate when it is unaware of any complaints."); Steffan, 859 F.2d at 255 (the plaintiff had no basis for a claim under Title VII retaliation when the plaintiff did not check the retaliation box on the charge form nor did the plaintiff's account of the facts include any reference to retaliatory conduct). Thus, while Kilchrist's EEOC charge and proposed amendment describe the same general conduct and implicate the same individuals, Kilchrist's retaliation claim is not like or reasonably related to the allegations in his EEOC charge. Accordingly, Kilchrist's motion to amend his complaint is DENIED as to his retaliation claim under Title VII.
"Section 1981 claims are not subject to the same charge-filing requirements as Title VII claims." Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 551 (7th Cir. 2002). Accordingly, Kilchrist's race and retaliation claims under 42 U.S.C. § 1981 are not barred by his failure to include those claims in his EEOC charge.
B. State Law Retaliation Claim.
Kilchrist also seeks to add a claim for retaliation under Indiana or Georgia law. [Docket No. 13]. In opposition, Lilly argues that Kilchrist's claim for retaliation under Indiana or Georgia law is futile and barred under each state's law. [Docket No. 16, pp. 3-4].
Kilchrist does not proffer any arguments in his reply brief that rebut Lilly's argument regarding the non-existence of a claim for retaliation under Indiana or Georgia law.
As Lilly correctly notes, under Indiana law there is no state-based claim for retaliation, unless it is a claim for retaliatory discharge, which is a limited exception to the employment at will doctrine. [Docket No. 16, p. 4]. There are three recognized exceptions to Indiana's employment at will doctrine. Coutee v. Lafayette Neighborhood Housing Servs. Inc., 792 N.E.2d 907, 911 (Ind.Ct.App. 2003). Kilchrist has not pleaded any of the three exceptions. Moreover, under Georgia law, there is no judicially recognized exception to employment at will "even when termination of employment is alleged to have been in retaliation for legitimate employee conduct." Robins Fed. Credit Union v. Brand, 507 S.E.2d 185, 187 (Ga.Ct.App. 1998).
The exceptions include: (1) adequate independent consideration; (2) contravention of a clear statutory expression of a right or duty (which has been limited to claims for worker's compensation or discharge for refusal to commit an illegal act); and (3) promissory estoppel. Coutee, 792 N.E.2d at 911.
Kilchrist is not required to plead facts or legal theories with any specificity; he need only describe his claim briefly and simply. Shah v. Inter-Continental Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002). However, "there must be sufficient facts pleaded to allow the court and the defendants to understand the gravamen of the plaintiff's complaint." Doherty v. City of Chicago, 75 F.3d 318, 326 (7th Cir. 1996). Even under the liberal notice pleading standards, a complaint must provide allegations of all the necessary elements under the relevant legal theory. See Bricker v. Federal-Mogul Corp., 29 F. Supp.2d 508, 512 (S.D. Ind. 1998) (holding that plaintiff's complaint for wrongful discharge was insufficient for failing to allege that he qualified for an exception to the employment-at-will doctrine). Accordingly, Kilchrist's motion to amend his complaint to include a state law claim for retaliation is DENIED. However, such denial is without prejudice to allow Kilchrist to renew this motion by pleading sufficient facts that allow the Court to infer a valid cause of action under Indiana or Georgia law.
C. Negligent Infliction of Emotional Distress Claim.
Finally, Kilchrist contends that Lilly breached the duty to provide a safe and productive workplace, free from discrimination, harassment and retaliation. [Am. Compl. ¶ 10.2]. Moreover, he contends he sustained emotional harm because of Lilly's breach. [Am. Compl. ¶ 10.3]. Therefore, Kilchrist alleges a claim for negligent infliction of emotional distress under either Georgia or Indiana law. Lilly argues that Kilchrist's claim for negligent infliction of emotional distress is futile under both Georgia and Indiana law. [Docket No. 16, p. 4].
Under Georgia law, in order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must meet the requirements of the impact rule. Georgia's impact rule has three elements: (1) a physical impact on the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff's mental suffering or emotional distress. Hang v. Wages Sons Funeral Home, Inc., 585 S.E.2d 118, 120 (Ga.App. 2003). However, Georgia law appears to carve out an exception to its "impact rule" in those cases where "malicious, willful or wanton" conduct is proved, despite a lack of physical injury or pecuniary loss. Id., citing Ryckeley v. Callaway, 412 S.E.2d 826, 828 (Ga. 1992) ("On the other hand, where the [defendant's] conduct is malicious, willful or wanton, recovery can be had without the necessity of an impact."). See also Nationwide Mut. Fire Ins. Co. v. Lam, 546 S.E.2d 283, 284 (Ga.App. 2001) ("a plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present, even if that injury is not physical.").
Kilchrist alleges that Lilly acted with malicious, willful or wanton misconduct that caused him to suffer pecuniary loss. [Docket No. 18, p. 19]. Lilly argues this claim is futile because Kilchrist has not alleged a physical impact. [Docket No. 16, p. 5]. But this allegation may meet Georgia's apparent exception to the impact rule. Therefore, at this stage justice requires that Kilchrist be given leave to amend his complaint in this respect.See Fed.R.Civ.P. 15(a). Accordingly, Kilchrist's motion to amend his complaint is GRANTED as to his claim for negligent infliction of emotional distress.
The modified impact rule in Indiana does not appear to provide an available avenue for redress as Kilchrist's amended complaint is now pleaded. However, because the parties have not argued/briefed which state's law applies, the Court grants Kilchrist's motion with respect to his claim for negligent infliction of emotional distress generally, leaving the possibly dispositive choice of law issue on this claim for another day.
V. Conclusion.
For the above-stated reasons, Kilchrist's motion for leave to amend is DENIED to the extent Kilchrist seeks to add claims for gender discrimination under Title VII and § 1981, and for retaliation under Title VII and under state law. Kilchrist's motion for leave to amend is GRANTED in all other respects. Within 20 days, Kilchrist shall file an amended complaint that complies with this entry.
SO ORDERED.