Opinion
1:02-cv-1876-SEB-VSS
March 12, 2004
ENTRY GRANTING DEFENDANT BORGWARNER'S MOTION FOR JUDGMENT ON THE PLEADINGS
Defendant BorgWarner Diversified Transmission Products, Inc. ("BorgWarner"), has moved for judgment on the pleadings on Counts I and III of Plaintiff Michael L. Lankford's ("Lankford") amended complaint. Counts I and III allege sex harassment and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., respectively. BorgWarner argues that Lankford failed to exhaust his administrative remedies before filing suit, and therefore, that the amended complaint fails to state claims against it upon which relief may be granted. For the reasons explained below, we GRANT BorgWarner's Motion for Judgment on the Pleadings.
In addition, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant John Turner ("Turner") moves to dismiss Count II of the amended complaint, in which Lankford alleges a state law claim of defamation against him. However, because we grant judgment on the pleadings in favor of BorgWarner on Lankford's Title VII claims, the only claims for relief over which we have original jurisdiction, we decline to exercise supplemental jurisdiction over the remaining state law claim and therefore DISMISS it WITHOUT PREJUDICE so that Lankford may proceed with it, if he chooses, in the proper state court forum.
Factual Background
Plaintiff Lankford, an Indiana resident, is an employee of Defendant BorgWarner, at its Muncie, Indiana facility. Am. Compl. ¶¶ 5-6; 11. Lankford, a male, began his employment with BorgWarner in March 1983.Id. ¶ 11. At all times relevant to this lawsuit, Lankford alleges that he met or exceeded BorgWarner's legitimate performance expectations. Id. ¶ 12.
Beginning on or about September 1, 2000, and continuing through the present, Lankford claims that his co-workers have subjected him to unwelcome harassment, which "include[s] derogatory remarks and the posting of signs of a sexual nature." Am. Compl. ¶ 13; Pl.'s Resp. p. 3. Although Lankford allegedly complained of the harassment to BorgWarner pursuant to its Anti-Harassment Policy, BorgWarner failed to conduct a meaningful investigation of Lankford's complaints and to take remedial measures to end the harassment. Id. ¶¶ 15-16. In addition, Lankford claims that a co-worker, Defendant Turner, an Indiana resident, "published defamatory communications suggesting criminal conduct and sexual misconduct[,] which harmed Lankford's reputation and excited derogatory feelings and opinions about Lankford." Id. ¶ 18.
On May 30, 2002, Lankford filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), checking the boxes for "sex" and "disability" in response to the question "cause of discrimination based on" and stating the particulars as follows:
I was hired in March 1983 and am currently classified as a floater. On May 8, 2002, I exercised my seniority to transfer from the afternoon to day shift in the same position and department. On May 20, 2002, I was transferred back to afternoon shift because of my restrictions. For the last several months, I have been subjected to harassment about my sexual orientation. In April 2002, I submitted a Cost Attack Team Report suggestion which was implemented and was denied all eligible prizes by Bill Miller, Day Shift Manager. I believe I am being discriminated against in being subjected to harassment and denied prizes because of my sexual orientation in violation of Title VII of the Civil Rights Act of 1964, as amended. I further believe I am being discriminated against in my transfer back to afternoon shift because of disability and perceived sexual orientation in violation of the Americans with Disabilities Act of 1990 and Title VII of the Civil Rights Act of 1964, as amended.
Def.'s Br., Ex. A. Lankford has not pursued his disability claim under the ADA against BorgWarner.
In his brief, Lankford refers to a "Charge Questionnaire," or a sworn affidavit that he submitted in conjunction with his EEOC Charge, in which Lankford explicitly incorporated a chronology that he prepared detailing the harassment he endured, his reports of the harassment to management, and the lack of remedial action taken by BorgWarner. Pl.'s Resp. p. 3; 7. However, no such Charge Questionnaire was ever filed with the Court.
The EEOC issued Lankford a Right to Sue Notice on September 5, 2002. Lankford filed a Complaint in this Court on December 4, 2002, which he subsequently amended on May 8, 2003. Lankford brings two claims against BorgWarner: one for hosfile environment sexual harassment and one for discrimination on the basis of sex, both in violation of Title VII of the Civil Right Act of 1964, as amended, 42 U.S.C. § 2000e et seq. In addition, Lankford states a claim for defamation against Turner, over which this Court may exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
Legal Analysis Standard of Review
BorgWarner has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) on the grounds that Lankford has failed to state a claim upon which relief may be granted. Where, as here, the parties submit no evidence outside the pleadings, a motion for judgment on the pleadings is reviewed under the standard of a Rule 12(b)(6) motion to dismiss. Gustafson v. Jones, 117 F.3d 1015, 1017 (7th Cir. 1997); Gutierrez v. Peters, 111 F.3d 1364, 1368 (7th Cir. 1997).
Because Lankford did not attach his EEOC charge as an exhibit to his complaint, BorgWarner attached a copy of the EEOC charge to its motion for judgment on the pleadings. Documents a defendant attaches to a motion to dismiss or a motion for judgment on the pleadings may be considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim. See Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993); Risk v. Ford Motor Co., 48 F. Supp.2d 1135, 1137 (S.D. Ind. 1999). Thus, as Lankford's EEOC charge is referred to in Paragraph 7 of his amended complaint and central to his claim, we consider it as part of the pleadings.
A party moving to dismiss a case pursuant to Rule 12(b)(6) must show that the pleadings themselves fail to provide a basis for any claim for relief under any set of facts. Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915 (1987). As a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Owner-Operator Indep. Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp.2d 948, 950-51 (S.D. Ind. 2001) (quoting 5A Charles A. Wright and Arthur R. Miller, Federal Practice Procedure: Civil § 1357). On a Rule 12(b)(6) motion, we treat all well-pleaded factual allegations as true, and we construe all inferences that reasonably may be drawn from those facts in a light most favorable to the party opposing the motion, Lankford in this case. Szumny v. Am. Gen. Fin., 246 F.3d 1065, 1067 (7th Cir. 2001); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001).
Scope of EEOC Charge
As the Seventh Circuit established in Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994), a Title VII plaintiff cannot bring claims in a lawsuit that were not included in his EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). This rule serves the dual purpose of affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion, id. at 44, and of giving the employer some warning of the conduct about which the employee is aggrieved. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992). Although the rule is not jurisdictional, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982), it is a condition precedent with which Title VII plaintiffs must comply. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir. 1985). Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would frustrate the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge. Cheek, 31 F.3d at 500.Nevertheless, because most EEOC charges are completed by laypersons rather than by lawyers, a Title VII plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in his complaint. Taylor v. Western Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992). The test for determining whether an EEOC charge encompasses the claims in a complaint grants the Title VII plaintiff significant leeway: a Title VII claim set forth in a complaint is cognizable if it is "like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc). In order for the claim in Lankford's complaint to be like or reasonably related to his EEOC charge, there must be a factual relationship between them. This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals, Cheek, 31 F.3d at 501: see also Gawley v. Ind. Univ., 276 F.3d 301, 313-14 (7th Cir. 2001).
BorgWarner argues that Lankford's claims against it must fail because they are beyond the scope of his EEOC charge. Count I of the amended complaint alleges that "BorgWarner unlawfully harassed Lankford and created and/or allowed the existence of a hosfile work environment on the basis of Lankford's sex, male," in violation of Title VII. Am. Compl. ¶ 19. Count III claims that BorgWarner discriminated against Lankford in the terms, conditions, and privileges of his employment because he is a man. Specifically, Lankford asserts that BorgWarner did not apply its anti-harassment policy to Lankford in the same manner as BorgWarner applies the policy to its female employees. Am. Compl. ¶ 27. To compare, although Lankford checked the "sex discrimination" box on the EEOC charge form, the text of his EEOC charge alleges (1) harassment and denial of incentive prizes based on sexual orientation, and (2) discriminatory transfer based on disability and/or perceived sexual orientation. Def.'s Br. Ex. A.
Although the amended complaint and the EEOC charge both allege that BorgWarner harassed and discriminated against Lankford, the amended complaint asserts harassment and discrimination on the basis of sex while the EEOC charge describes harassment and discrimination on the basis of sexual orientation. A claim of discrimination based on sex is not reasonably related to, nor may it be expected to grow out of, a charge of discrimination based on sexual orientation. Courts draw a clear distinction between charges of discrimination based on sexual orientation and those based on sex, including same-sex sexual harassment. Sexual orientation, unlike sex, is not a characteristic protected by Title VII. Spearman v. Ford Motor Co., 231 F.3d 1080, 1084-85 (7th Cir. 2000) ("`The phrase in Title VII prohibiting discrimination based on sex' means that `it is unlawful to discriminate against women because they are women and against men because they are men.' In other words, Congress intended the term `sex' to mean `biological male or biological female,' and not one's sexuality or sexual orientation.") (internal citations omitted). Thus, harassment and discrimination based on sexual orientation, though morally reprehensible, are not actionable under Title VII. Id.; Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001),cert. denied, 534 U.S. 1155 (2002); Norris v. Diakin Drivetrain Components, 46 Fed. Appx. 344, 346 (6th Cir. 2002).
Lankford checked the "sex discrimination" box on his EEOC charge form. Simple technicalities, however, such as what boxes are checked on the EEOC form do not necessarily control the scope of a subsequent complaint. Noreuil v. Peabody Coal Co., 96 F.3d 254, 259 (7th Cir. 1996). The textual particulars of Lankford's EEOC charge state explicitly that: (1) he has been "subjected to harassment about [his] sexual orientation;" (2) he has been "subjected to harassment and denied prizes because of [his] sexual orientation; and (3) he is "being discriminated against in [his] transfer back to [the] afternoon shift because of [his] disability and perceived sexual orientation." Def.'s Br., Ex. A.
Lankford argues that we should interpret liberally the allegations in his EEOC charge because he is not a lawyer and would not have known what facts to include to best support the legal theories he now raises. Lankford, however, does not provide factual details of his harassment in either his EEOC charge or his amended complaint. Although Lankford's brief makes reference to a fact-laden affidavit filed in conjunction with the EEOC charge, he has not made this affidavit part of the record. Thus, we cannot consider it.
As a general rule, we may not consider matters outside the pleadings on a motion to dismiss or a motion for judgment on the pleadings. However, a plaintiff need not put all of the essential facts in the complaint. He may supplement the complaint by affidavit or brief in order to defeat a motion to dismiss so long as the facts are consistent with the allegations of the complaint. Help At Home Inc. v. Medical Capital, L.L.C., 260 F.3d 748, 752-53 (7th Cir. 2001) (citing Hrubec v. Nat'l R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992)).
It is not uncommon for sexual harassment and other manifestations of sex discrimination to be accompanied by homophobic epithets. Doe by Doe v. City of Belleville, III, 119 F.3d 563, 593 (7th Cir. 1997), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), (collecting cases). However, because Lankford's EEOC charge explicitly states that he suffered harassment and discrimination because of his sexual orientation, and because Lankford has not alleged any facts in support of an alternative interpretation of this plain language (e.g., that he was a target of same-sex sexual harassment), we must take his EEOC charge at face value. See Risk v. Ford Motor Co., 48 F. Supp.2d 1135, 1139 (S.D. Ind. 1999) (Barker, C.J.) ("In deciding a motion to dismiss, the Court is obliged neither to ignore any facts set forth in the pleadings that undermine the plaintiff's claim nor to assign any weight to unsupported conclusions of law.") Lankford's allegations in his EEOC charge were, pure and simple, that BorgWarner harassed and discriminated against him because of his sexual orientation.
We conclude that Lankford's claim of sex harassment in Count I and the claim of sex discrimination in Count III of the amended complaint are not "like or reasonably related to," and cannot be expected to grow out of, the allegations of harassment and discrimination on the basis of sexual orientation made in the EEOC charge. Norris, 46 Fed. Appx. at 346. There is no set of facts that would make harassment and discrimination based on sexual orientation actionable under Title VII. As Counts I and in of the amended complaint are beyond the scope of Lankford's EEOC charge, we find that Lankford has not exhausted his administrative remedies. We therefore GRANT BorgWarner's Motion for Judgment on the Pleadings with regard to Counts I and ffi of Lankford's amended complaint.
The claim of discrimination on the basis of sex in Count III of Lankford's amended complaint also fails because it is based on conduct different from that alleged in Lankford's EEOC charge. Contrast Cheek, 31 F.3d at 501. The only adverse employment actions described in Lankford's EEOC charge were a transfer back to the less desirable afternoon shift and a denial of incentive prizes. Nowhere in the EEOC charge does Lankford mention any discriminatory application of BorgWarner's anti-harassment policy as alleged in Count III. In order for claims in an EEOC charge and a complaint to be "like or reasonably related," they must be factually related, i.e., they "must at a minimum describe the same conduct and implicate the same individuals." Id. (emphasis in the original). Because Count III of Lankford's amended complaint implicates conduct different from his EEOC charge, it exceeds the scope of the EEOC charge and must therefore be dismissed for failure to exhaust administrative remedies. See Prizevoits v. Ind. Bell Tel. Co., Inc., 882 F. Supp. 787, 791 (S.D. Ind. 1995) (Barker, CJ.) (noting that "[d]ifferent claims of sex discrimination are not necessarily reasonably related to each other").
Supplemental Jurisdiction of Defamation Claim
Lankford's remaining claim for relief is a state law defamation claim against Defendant Turner. Turner has moved to dismiss this claim. However, because we have granted BorgWarner's motion for judgment on the pleadings on Lankford's Title VH claims, the only claims for relief over which we have original jurisdiction, we decline to exercise supplemental jurisdiction over this remaining state law claim. We therefore dismiss it without prejudice. See England v. ENBI Indiana, Inc., 102 F. Supp.2d 1002, 1015 (S.D. Ind. 2000) (Barker, J.); Young v. Easter Enters., Inc., 915 F. Supp. 58, 72 (S.D. Ind. 1995) (Barker, J.).Pursuant to 28 U.S.C. § 1367(c), a district court may decline to exercise supplemental jurisdiction where it "has dismissed all claims under which it has original jurisdiction." In addition, a presumption exists that the district court should relinquish jurisdiction over pendent claims where all claims under which the court has original jurisdiction are disposed of prior to trial. Alonzi v. Budget Construction Co., 55 F.3d 331, 334 (7th Cir. 1995); Brazinski v. Amoco. Petroleum Additives Co., 6 F.3d 1176, 1182 (7th Cir. 1993). Accordingly, we DISMISS WITHOUT PREJUDICE Count II of Lankford's amended complaint to allow him to proceed with it, if he chooses, in the proper state court forum.
Conclusion
For the foregoing reasons, we find that Lankford's claims of sex harassment and sex discrimination, in Counts I and III of the amended complaint, respectively, are not "like or reasonably related to" the allegations of harassment and discrimination on the basis of sexual orientation made in his EEOC charge. Because the claims in Lankford's amended complaint are beyond the scope of his EEOC charge, we find that Lankford has failed to exhaust his administrative remedies. Accordingly, Lankford has not stated a claim upon which relief may be granted by this Court, and we therefore GRANT BorgWarner's motion for judgment on the pleadings with respect to Counts I and III of his amended complaint. In addition, we decline to exercise supplemental jurisdiction over Lankford's remaining state law defamation claim against Turner and herebyDISMISS it WITHOUT PREJUDICE
It is so ORDERED.