Opinion
Civil Action No. 3:01-CV-2294-M
March 7, 2002
CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Under the authority of 28 U.S.C. § 636(b), the District Court referred Defendant's "Motion to Dismiss," filed December 21, 2001, and Plaintiff's "Motion of Continuance," filed January 14, 2002, to the United States Magistrate Judge for a recommendation for disposition of the motions. The conclusions and recommendation of the United States Magistrate Judge follow:
Factual and Procedural Background
Plaintiff, Agnes Jackson, was employed by Galleria Hotel Venture, Inc. d/b/a/ Westin Galleria Dallas. Plaintiff filed a charge with the EEOC, claiming sexual and racial discrimination. The EEOC investigated and sent Plaintiff a "right to sue" letter. Plaintiff, proceeding pro se, filed her complaint, listing as the defendant "Westin G. Hotel." Defendant Westin Galleria Dallas filed a motion to dismiss on December 21, 2001, claiming that (1) Plaintiff fails to name her employer in the body of the complaint and (2) Plaintiff failed to exhaust her administrative remedies with respect to her age and disability claims. Plaintiffs motion for continuance requests that (1) the Court not dismiss the complaint and (2) the Court allow her time to obtain an attorney to represent her. Defendant filed a response seeking an expeditious dismissal.
Standard of Review
A motion to dismiss for failure to state a claim under FED. R. Civ. P. 12(b)(6) is viewed with disfavor and is rarely granted. Lowrey v. Texas AM Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In ruling on such a motion, the court cannot look beyond the face of the pleadings. Baker, 75 F.3d at 196; Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999), cert. denied, 530 U.S. 1229 (2000). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Dismissal is warranted if a plaintiff has (1) been given the opportunity to plead her best case, (2) made specific and detailed allegations constituting her best case, and (3) still fails to state a claim. See Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986) (recognizing that dismissal is required if a plaintiff has had fair opportunity to make her case, but has failed); Morrison v. City of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (assuming that the specific allegations of the amended complaint constitute the plaintiffs best case).
Defendant's motion to dismiss should be denied in part and granted in part. In this case it appears that Plaintiff has exhausted her remedies with respect to her claims of racial and sexual discrimination under Title VII by filing a complaint with the EEOC and receiving a "right to sue letter." Nevertheless, it is true that Plaintiff (1) fails to name her employer in the body of the complaint, (2) fails to tell what the employer did or failed to do that gave rise to her cause of action, and (3) fails to state when such actions occurred. Plaintiff should be granted twenty days to amend her complaint to name her former employer and state her best case for sexual and racial discrimination against that employer.
Defendant seeks dismissal of Plaintiff's claims of age and disability discrimination because she failed to exhaust those claims with the EEOC. Defendant has attached a copy of Plaintiff's EEOC charge to its motion.
Defendant appears to base this ground for dismissal on Rule 12(b)(6). See D's Mot Dis at 2, which would limit Defendant to the allegations of Plaintiff's complaint pursuant to Hilliard v. Board of Pardons Paroles, 759 F.2d 1190, 1191 (5th Cir. 1985) ( per curiam) and preclude it from relying on the content of Plaintiff's EEOC charge. However, exhaustion of administrative remedies raises the issue of the Court's subject matter jurisdiction which is properly considered under Rule 12(b)(1). See Sanchez v. Standard Brands Inc., 431 F.2d 455, 466 (5th Cir. 1970). A Rule 12(b)(1) motion is not limited to the content of the Complaint. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Accordingly, the Court may consider the EEOC charge in deciding this part of Defendant's motion.
To proceed in an age discrimination in employment action in Texas, an individual first files an administrative charge within 300 days of the last act of discrimination. See Anson v. Univ. of Tex. Health Science Ctr., 962 F.2d 539, 540 (5th Cir. 1992). Similarly, the Americans with Disabilities Act (ADA) requires an employee to comply with the ADA's administrative prerequisites before commending an action in federal court for violation of the ADA. Dao v. Auchan Hypermarket, 96 F.3d 787, 788 (5th Cir. 1996). The ADA incorporates by reference the procedures applicable to actions under Title VII, 42 U.S.C. § 2000e, et seq. 42 U.S.C. § 12117(a). Plaintiff did not file an age or disability discrimination charge with the EEOC.
A Title VII action is limited in scope to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990) (citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). In other words, a complaint filed pursuant to Title VII may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. If an asserted claim is not "like or related to" an allegation contained in the EEOC charge, the court lacks subject matter jurisdiction over the claim. See id.
Plaintiffs EEOC charge refers entirely to sexual and racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. See D's Ex. 1. Title VII does not provide a cause of action for age or disability discrimination. See 42 U.S.C. § 20003-2(a)(2). Therefore, Plaintiff's age and disability related claims are not like or related to any claims that she could assert under Title VII. See e.g., Hansboro v. Northwood Nursing Home, Inc., 832 F. Supp. 248, 252 (N.D. Ind. 1993) (holding that a charge of sex discrimination filed with the EEOC would not confer jurisdiction for a claim of race discrimination, and that numerous courts have dismissed complaints alleging a different type of discrimination from that asserted in the EEOC charge.)
Accordingly, Defendant's motion to dismiss pursuant to FED. R. Civ. P. 12(b)(6), construed as a motion to dismiss pursuant to FED. R. Civ. P. 12(b)(1), should be granted to the extent Plaintiff claims age and disability discrimination, and these claims should be dismissed without prejudice.
With respect to Plaintiff's "Motion of Continuance," Plaintiff initiated this action on November 14, 2001. Plaintiff has had sufficient time to employ counsel. Accordingly, Plaintiff's "Motion of Continuance" should be denied except to the extent that Plaintiff should be permitted to file an amended complaint within twenty days of the date of the District Court's order if the District Court accepts this recommendation.
RECOMMENDATION
The Court recommends Defendant's Motion to Dismiss be denied in part and granted in part. Dismissal of Plaintiff's claims of sexual and racial discrimination should be denied and Plaintiff should be granted twenty days from the date of the District Court's order to amend her complaint to name her employer and state her claims against her employer for sexual and racial discrimination. Plaintiffs claims of age and disability discrimination should be dismissed without prejudice pursuant to FED. R. Civ. P. 12(b)(1) for failure to exhaust administrative remedies. Plaintiffs "Motion of Continuance" should be denied except to the extent that she should be granted twenty days to file an amended complaint.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).