Opinion
Civil Action No. 3:OO-CV-2427-G
February 13, 2002.
MEMORANDUM ORDER
Before the court are the following motions: (1) the motion of the defendants, Centex Corporation d/b/a Centex Homes, CTX Mortgage Company, and Centex Financial Services, Inc. (collectively, "Centex"), for partial summary judgment on certain aspects of the claims made against them by the plaintiffs Valerie Alfred ("Alfred"), Willie Blanks ("Blanks"), Lola Bynum ("Bynum"), Rhonda Corbray ("Corbray"), Nanette Dial ("Dial"), Danielle Edwards ("Edwards"), Creston Henderson ("Henderson"), Sylvia Porras ("Porras"), and Juanita Velazquez ("Velazquez") (collectively, "the plaintiffs"); (2) the motion of Centex in the alternative for summary judgment on the Title VII claims asserted by plaintiffs Edwards and Porras on the ground that those claims are barred by limitations; and (3) the motion of Centex to sever the claims of any remaining plaintiffs for failure to properly join them and because joint trial of those claims would risk unfair prejudice to Centex. For the reasons discussed below, the motion for partial summary judgment is denied, and the motion to sever is denied without prejudice.
I. BACKGROUND
The plaintiffs, nine former and current employees of Centex, filed this suit alleging that Centex discriminated against them because of their race — Black — or national origin — Hispanic — in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. § 1981. Plaintiffs' Second Amended Complaint ("Complaint")¶¶ 1, 7, 14-20; Defendants' Brief in Support of Motion for Partial Summary Judgment and Motion to Sever ("Motion") at 2; Plaintiffs' Brief in Support of Response to Defendants' Motion for Partial Summary Judgment and Motion to Sever ("Response") at 1. The plaintiffs claim that they were systematically excluded from opportunities to advance, were denied promotions, and were treated differently than other non-minority employees. Response at 1. The plaintiffs began complaining to the Equal Employment Opportunity Commission ("the EEOC") in 1996, and a number of the plaintiffs attempted to file formal charges with the EEOC in the latter part of 1996. Id. In early 1997, representatives of the EEOC convened a group meeting with the plaintiffs, which resulted in an investigation that continued over a three year period and culminated in the issuance of right to sue letters on three separate charges. Id. One of those charges, the subject of the instant motion, was made by Bynum (the "Bynum charge"). Id. at 1-2. The plaintiffs contend that this charge was also made on behalf of the other eight plaintiffs in this case. Id. Centex maintains, however, that it was merely an individual charge, not a proper third-party charge. Motion at 3-4. Thus, Centex argues, the remaining plaintiffs did not exhaust their administrative remedies as required by Title VII, and summary judgment should be granted on all Title VII claims brought by the six "non-filing" plaintiffs. See, e.g., id. at 1-2. The Bynum charge, styled "Ms. Lola M. Bynum, Et Al," was granted a right to sue on August 7, 2000. Appendix in Support of Defendants' Motion for Partial Summary Judgment and Motion to Sever ("Defendants' Appendix") at 12-13; Appendix in Support of Plaintiffs' Response to Defendants' Motion for Partial Summary Judgment and Motion to Sever ("Plaintiffs' Appendix") at 36-37; Motion at 11.
The plaintiffs allege that each of them was a party to one or more of the three charges filed with the EEOC in 1996 and 1997 and that these charges were investigated by the EEOC until August of 2000, when the EEOC issued notices of right to sue. Response at 2. Further, the plaintiffs assert that the evidence establishes that each of the plaintiffs cooperated with the EEOC and complied with the EEOC's request for information. Id. The plaintiffs claim that they wanted to be included within the charge filed by Bynum and that all of their conduct was consistent with an intent to make a claim with the EEOC culminating in this suit, which was filed pro se in November 2000. Id.
Due to agency error on the part of the EEOC, the investigative file relating to the Bynum charge, which contains evidence regarding the plaintiffs' exhaustion of administrative remedies, was lost by the EEOC through no fault of the plaintiffs. Id. at 2-3; Deposition of Gloria Smith ("Smith Dep.") at 89-90, located in Plaintiffs' Appendix at 179-80; Affidavit of Janet v. Elizondo ("Elizondo Aff.") ¶ 2, located in Plaintiffs' Appendix at 245. According to the plaintiffs' attorney, David Bell ("Bell"), and his secretary, Carolyn Hall ("Hall"), a third party certification of charge was sent to the EEOC through the U.S. Mail, but because the file has been lost, there is no way to establish whether the certification was received by the EEOC. Response at 2, 4; Affidavit of David Bell ("Bell Aff.") at 1-2, Plaintiffs' Appendix at 27-28; Affidavit of Carolyn Hall ("Hall Aff.") at 1, Plaintiffs' Appendix at 38. Centex points out, however, that the third party certification form appended to the plaintiff's complaint as Exhibit 1 is not signed by the charging party, is undated, and lacks any identifying charging number. Motion at 3; Complaint, Exhibit 1.
II. ANALYSIS A. Evidentiary Burdens on Motion for Summary Judgment
Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving parties are entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. Civ. P. 56(c).
The disposition of a case through summary judgment "reinforces the purpose of the Rules, to achieve the just, speedy, and inexpensive determination of actions, and, when appropriate, affords a merciful end to litigation that would otherwise be lengthy and expensive." Fontenot v. Upjohn Company, 780 F.2d 1190, 1197 (5th Cir. 1986).
Once the movants make this showing, the nonmovants must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. To carry this burden, the "opponent[s] must do more than simply show . . . some metaphysical doubt as to the material facts." Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, the nonmovants must show that the evidence is sufficient to support a resolution of the factual issue in their favor. Anderson, 477 U.S. at 249.
While all of the evidence must be viewed in a light most favorable to the motion's opponents, Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress Company, 398 U.S. 144, 158-59 (1970)), neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movants' summary judgment burden. Little v. Liquid Air Corporation, 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 506 U.S. 825 (1992). Summary judgment in favor of the movants is proper if, after adequate time for discovery, the motion's opponents fail to establish the existence of an element essential to their case and as to which they will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
B. Failure to Exhaust Administrative Remedies
A plaintiff must exhaust administrative remedies prior to filing suit under Title VII. See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997) (citation omitted), cert. denied, 523 U.S. 1136 (1998); Randel v. United States Department of the Navy, 157 F.3d 392, 395 (5th Cir. 1998). Centex brings the instant motion for summary judgment on the basis that none of the plaintiffs other than Alfred, Dial, and Bynum properly exhausted administrative remedies. Motion at 2-3.
In an earlier ruling on Centex's motion to dismiss in this case, the court granted Centex's request to move for partial summary judgment on the issue of exhaustion of administrative remedies. The controversy over whether the nine plaintiffs exhausted their administrative remedies with the EEOC results from agency errors on the part of the EEOC. The EEOC has admitted to losing the investigative file associated with the Bynum charge, No. 310972407, and has not been able to locate it. Response at 3; Smith Dep. at 13, 89-90, Plaintiffs' Appendix at 120, 179 80; Elizondo Aff. ¶ 2, Plaintiffs' Appendix at 245. Furthermore, the EEOC concedes that the loss of the file was not due to any fault on the part of the plaintiffs in this action. Smith Dep. at 89-90, Response App. at 179-80.
Plaintiffs Alfred, Dial, and Bynum are properly named in charges filed with the EEOC. Motion at 11. The remaining six plaintiffs maintain that they have satisfied the exhaustion requirement because they were included in the charge filed by Bynum on their behalf. Id. at 1-2; Response at 4-5. Centex contends these six plaintiffs have failed to exhaust their administrative remedies, however, because they can offer no proof (1) that the requisite certification notifying the EEOC of the plaintiffs' thirdparty status was ever submitted to the agency, (2) that the EEOC received authorization from the non-filing plaintiffs, or (3) that the EEOC processed and investigated the charge as a third-party charge. Motion at 2. To the contrary, Centex points out, when the EEOC ultimately issued a notice of right to sue, it did not draft it as a proper third-party notice and did not forward it, as EEOC regulations require, to the aggrieved parties, but only to Bynum and her counsel. Id.
In November 1996, plaintiffs Alfred and Dial filed charges with the EEOC. Response at 4, Plaintiffs Appendix at 199-200. On June 25, 1997, after a preliminary investigation by the EEOC, Bynum filed a charge with the EEOC. Response at 4; Plaintiffs' Appendix at 36-37. This charge was initially developed through an investigation conducted by a number of individuals within the EEOC, including Gloria Smith ("Smith"). Response at 4; Smith Dep. at 58-59, Plaintiffs' Appendix at 15 6-57.
The evidence shows that Smith drafted the Bynum charge as a third-party charge, based upon her investigation into the complaints of the nine plaintiffs in this case, and styled the charge "Lola Bynum, et al.," signifying that it was a third-party charge. Response at 4; Smith Dep. at 85, Response App. at 175. Accordingly, in the summer of 1997, Smith submitted a blank form 151, Third-Party Certification of Charge, to Bell, counsel for the plaintiffs. Response at 4; Bell Aff. ¶ 3, Plaintiffs' Appendix at 27-28. Upon receipt of this form, Bell avers that he transmitted it to plaintiffs Alfred, Blanks, Bynum, Corbray, Dial, Edwards, Henderson, Porras, and Velasquez, requesting that each sign his name, address, and telephone number on the form. Response at 4; Bell Aff. ¶ 3, Plaintiffs' Appendix at 27-28.
Bell testified that on or about August 13, 1997, he transmitted a copy of the completed Third-Party Certification Charge form, along with a completed Agreement to Represent and Statement of Representation, to Gloria Smith at the EEOC, Dallas District Office. Response at 4; Bell Aff. and exhibits thereto, Plaintiffs' Appendix at 28, 31-35. The filing of this form, together with other documents identifying the Bynum charge, is confirmed and supported by the affidavits of Bell and his secretary, Hall. Response at 4. Hall's affidavit confirms that she physically mailed the letter and that she was never subsequently made aware that the letter had not been received by the EEOC and/or that the letter was returned to Bell's office undelivered. Id. at 4-5, Hall Aff. at 1, Plaintiffs' Appendix at 38. In August 2000, Bell, counsel for all nine plaintiffs, received a notice of right to sue in connection with the Bynum charge. Response at 5; Bell. Aff. at 2-3, Plaintiffs' Appendix at 28-29. The notice of right to sue was also sent to counsel for Centex and to Bynum, the alleged third-party charge representative. Response at 5; Elizondo Aff. ¶ 3, Plaintiffs' Appendix at 245.
1. Centex's Grounds for Summary Judgment
The crux of Centex's motion for partial summary judgment is that several of the plaintiffs have failed to exhaust their administrative remedies. Specifically, Centex alleges that because the plaintiffs cannot prove that a third-party certification of charge was received by the EEOC, six of the nine plaintiffs were not made a part of the charge made by Bynum. The EEOC admits that the misplacement of this file is its own error. Further, it is undisputed that if the file had not been misplaced, the parties could simply look to the contents of the file to determine whether or not the third-party certification of charge was received by the EEOC.
The court has considered the various objections of both parties and, after reviewing the purportedly objectionable materials along with the rest of the evidence, concludes that none of those materials was necessary to this ruling.
In various situations, courts have affirmed the principle that errors committed by the EEOC to the detriment of complainants bringing EEOC charges cannot, as a matter of equity, be allowed to deny the complainants relief under Title VII. See, e.g., Franks v. Bowman Transportation Company, 495 F.2d 398, 404-05 (5th Cir.) (holding that the statute of limitations should toll where the EEOC failed to notify the plaintiff of his right to sue), cert. denied, 419 U.S. 1050 (1974); Beverly v. Lone Star Lead Construction Corporation, 437 F.2d 1136, 1138 (5th Cir. 1971) ("To hold that an administrative failure by an agency lacking enforcement power itself [the EEOC], can deprive the plaintiff of his right to sue, the main weapon of the Title VII arsenal, would exalt form over substance."); Deyo v. City of Deer Park, 664 F.2d 518, 523 (5th Cir. 1981) (holding that a plaintiff does not bear responsibility for the EEOC's failure to heed a statutory directive); McKee v. McDonnell Douglas Technical Services Company, Inc., 700 F.2d 260, 264-65 (5th Cir. 1983) (holding that the EEOC had wrongfully refused to accept the complainant's charge of discrimination).
Our circuit has recently said, albeit in a slightly different context, that "[t]he purpose of exhaustion is to give the agency the information it needs to investigate and resolve the dispute between the employee and the employer. . . . Good faith effort by the employee to cooperate with . . . the EEOC and to provide all relevant, available information is all that is required to demonstrate an exhaustion of administrative remedies." Barnes, 118 F.3d at 409. Judged by this standard, it appears that all of the plaintiffs made a good faith effort to supply the EEOC with all available information relevant to their complaints. Since the plaintiffs are "not culpable for any failure that might require excuse," Deyo, 664 F.2d at 523, they have raised a triable issue that, in the circumstances of this case, they satisfied the exhaustion requirement.
See also Beverly v. Lone Star Lead Construction Corporation, 437 F.2d 1136, 1139 (5th Cir. 1971) ("the requirement of resort to the [EEOC] was designed to give a discriminator opportunity to respond to persuasion rather than coercion, to soft words rather than the big stick of injunction; . . . the requirement was not designed to serve as a screen to prevent frivolous complaints from reaching the courts.").
2. Was the Bynum Charge Drafted as a Third Party Charge?
A charge of discrimination under Title VII may be made individually or on behalf of other aggrieved persons. See 29 C.F.R. § 1601.7. Specifically, § 1601.7(a) states in pertinent part:
(a) A charge that any person has engaged in or is engaging in an unlawful employment practice within the meaning of Title VII . . . may be made by or on behalf of any person claiming to be aggrieved. A charge on behalf of a person claiming to be aggrieved may be made by any person, agency, or organization. The written charge need not identify by name the person on whose behalf it is made. The person making the charge, however, must provide the Commission with the name, address and telephone of the person on whose behalf the charge is made. During the Commission investigation, Commission personnel shall verify the authorization of such charge by the person on whose behalf the charge is made. Any such person may request that the Commission shall keep his or her identity confidential . . .
It is clear, therefore, that a charge may be made on behalf of an aggrieved third party, and that the charge is not required to identify the names of the aggrieved third parties. See Id. The evidence offered by the plaintiffs shows that the EEOC was provided with the identities of the third parties and that the charge was authorized by those parties. Bynum testified in her deposition that she spoke with the other plaintiffs regarding their participation in the charge she filed. Deposition of Lola Bynum ("Bynum Dep.") at 57-58, Plaintiffs' Appendix at 71-72. Further, Smith, the EEOC supervisor who conducted the preliminary investigation and prepared the Bynum charge, testified that she personally confirmed that the plaintiffs consented to being part of the Bynum charge. Response at 7; Smith Dep. at 48, 78, 91, 96, Plaintiffs' Appendix at 148, 168, 181, 184. Additionally, plaintiffs Blanks, Corbray, Edwards, Henderson, Porras and Velazquez attest to the facts that they attended the meeting, that they consented to being a part of the Bynum charge, and that they signed form 151, Third-Party Certification of Charge. Response at 7, Plaintiffs' Appendix at 1-26.
One of the issues raised by Centex is that the Bynum charge does not state on its face that it is a "third-party" charge. However, Smith testified in her deposition that the Bynum charge was drafted by her as a third-party charge. Smith Dep. at 58, 60, Plaintiffs' Appendix at 156, 158. Moreover, Smith stated that the styling of the charge as "Lola Bynum, et al." indicates that the charge was drafted as a third-party charge rather than as a class charge. Smith Dep. at 85, Plaintiffs' Appendix at 175. On further questioning regarding this point, Smith responded that a class charge would not be styled with the person's name followed by "et al." and that under the practice and custom of the Dallas EEOC office, the "et al." designation would only be used with a third-party charge. Smith Dep. at 98-99, Plaintiffs' Appendix at 186-87. Thus, the court concludes, a reasonable jury could find, based on the summary judgment evidence in the record, that the Bynum charge was drafted as a third-party charge rather than a class charge as argued by Centex.
3. Did the EEOC Receive a Third-Party Certification from the Plaintiffs?
As for the question of whether the Third-Party Certification was sent to the EEOC, section 1601.7(a) requires the person making a third-party charge to provide the EEOC with the name, address and phone number of the aggrieved party on whose behalf the charge is made. 29 C.F.R. § 1601.7(a). The EEOC representative is then required to contact the aggrieved party to confirm his/her authorization for the charge. Id. The court agrees with the plaintiffs, Response at 8, that it is reasonable to infer from this procedure that the aggrieved party is not required to meet with the EEOC investigator personally, but that contact via mail or telephone will suffice. The regulations further provide that in the event the investigative file does not contain the contact information of the aggrieved party, a document entitled Third Party Certification of Charge (Form 151) may be utilized to gather the identifying and contact information pertaining to the aggrieved party. Response at 9; EEOC Compliance Manual, Section 2.7(d), Defendants' Appendix at 96. The plaintiffs contend that a Form 151 was individually signed by each plaintiff and that their names, addresses, and phone numbers were each documented on the form. Response at 9; Plaintiffs' Appendix at 1-26 (affidavits of Blanks, Corbray, Edwards, Henderson, Porras, and Velazquez). However, because the EEOC has lost the investigative file relating to the Bynum charge, no one can prove that Form 151 was or was not received by the EEOC. Response at 9; Elizondo Aff. ¶ 2, Plaintiffs' Appendix at 245. In light of the foregoing, the court finds that the plaintiffs have introduced enough evidence that a reasonable jury could find that the EEOC did receive the Form 151.
4. Did the Notice of Right to Sue Issued by the EEOC Apply to the Six Non-Filing Plaintiffs?
Finally, there is the issue of whether the notice of right to sue issued by the EEOC to Bynum applies to all of the plaintiffs. It is undisputed that on or about August 7, 2000, the EEOC issued a notice of right to sue in connection with the Bynum charge. Response at 9, Bell Aff. at 3, Plaintiffs' Appendix at 29, 36; Bynum Dep. at 65-66, Plaintiffs' Appendix at 76-77. Additionally, in their affidavits, plaintiffs Blanks, Corbray, Edwards, Henderson, Porras and Velazquez acknowledge that they either received or were made aware of the notice and that they understood that the notice applied to them and that they had a limited period of time in which to file suit. Response at 10; Plaintiffs' Appendix at 1-26. Accordingly, each of the plaintiffs, acting pro se, joined in the filing of the plaintiffs' original complaint in this case. Response at 10.
Although Centex counters that the EEOC did not indicate on the notice of right to sue that the notice was intended for all of the plaintiffs, the court finds — viewing the summary judgment evidence in the light most favorable to the non-movants — that the plaintiffs have met their burden of showing a genuine issue for trial and that a reasonable jury could find that the EEOC issued a notice of right to sue to all of the plaintiffs, not just to Bynum.
C. Failure to Comply with Statute of Limitations
In the alternative, Centex moves for summary judgment against Porras and Edwards on the ground that their claims are barred by limitations. The plaintiffs contend that this part of the motion is in violation of the court's September 6, 2001 memorandum order, which limited the scope of a preliminary motion for summary judgment to the issue of exhaustion of remedies. While the court agrees with the plaintiffs that statute of limitations grounds were not briefed in the defendants amended motion to dismiss or the plaintiffs' response, such a basis does technically fall within the ambit of exhaustion of remedies. However, the court does not believe that such a motion was contemplated in its earlier ruling. Further, the court also has not yet issued a scheduling order which would allow for the general discovery the plaintiffs claim they need to respond to this issue. Therefore, the court grants the plaintiffs' motion to strike this alternative basis for summary judgment, in order to allow the plaintiffs a reasonable opportunity to conduct discovery regarding this issue. This issue may be raised again by the defendants after such discovery has occurred.
D. Motion to Sever the Claims of the Remaining Plaintiffs
Centex brings a motion to sever the claims of the remaining plaintiffs from the claim brought by Alfred because (1) the claims were not properly joined, and (2) a trial combining the claims of all plaintiffs would cause undue prejudice to the defendants. Motion at 22-27. The court, however, concludes that such a motion is premature. As stated earlier, the court has not yet issued a pre-trial scheduling order which would allow the parties to proceed with general discovery in this case, and the court agrees with the plaintiffs, Response at 16-17, that such discovery is necessary in order for the plaintiffs to properly respond to Centex's motion to sever. Thus, this motion will be denied without prejudice to its renewal at a later time.
III. CONCLUSION
For the reasons discussed above, Centex's motion for partial summary judgment on certain aspects of the claims asserted against them by the plaintiffs is DENIED. Centex's alternative motion for summary judgment as to the claims against them by plaintiffs Edwards and Porras is STRICKEN without prejudice to its renewal after discovery has occurred. Centex's motion to sever the claims of the remaining plaintiffs from those brought by Alfred is DENIED without prejudice.
SO ORDERED.