Opinion
Case No. 03-4069-SAC
August 27, 2003
MEMORANDUM AND ORDER
This case comes before the court on three motions: defendants' motion to transfer the case to Wichita; defendant Carl McGuire's motion to dismiss him as a party from the case; and defendants' motion to dismiss plaintiff's claims of sexual harassment. Plaintiff, acting pro se, opposes all three motions. Motion to transfer
Defendant seeks to transfer the case to Wichita, claiming it is the most convenient forum. Plaintiff disagrees.
Defendant's motion is apparently brought pursuant to 28 U.S.C. § 1404(a), which provides that "for the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
In support of its motion, defendant cursorily states only the following:
Plaintiff resides in Emporia. Plaintiff was employed by the defendant in Emporia. The defendant's principal place of business is in Wichita. Defendant's counsel is in Wichita. There is no connection by witness residence, the events leading up to this complaint or otherwise between this case and Topeka.
Dk. 9.
Plaintiff's response shows that she lives in Emporia. It states that Topeka is more convenient for her because it is closer to Emporia than Wichita is; that the events of the case have no connection to Wichita; that one of plaintiff's key witnesses resides in Topeka; that plaintiff is attempting to locate counsel in Topeka; and that defendant has some property in Topeka as well as in Emporia, where the events giving rise to this lawsuit occurred.
Based upon the assertions in these pleadings, the court denies defendant's motion to transfer the case, finding that defendant has failed to show that the case should be transferred for the convenience of parties and witnesses, or in the interest of justice. Accordingly, the plaintiff's choice of forum will be honored. Motion to dismiss individual defendant
Defendant Carl McGuire seeks to be dismissed from this case, contending that as an individual, he is not a proper party defendant in this Title VII action. The court agrees.
Under Title VII, statutory liability is borne solely by employers, not individual supervisors. It is well established that `under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate.' Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996). See Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993). The intent of the statute is not merely to relieve individuals from payment of monetary damages, it is also to relieve them from the hardship of litigating discrimination claims. See Butler v. City of Prairie Village, Kan. 172 F.3d 736, 744 (10th Cir. 1999).
Plaintiff errs in relying on a case from another jurisdiction which reflects a minority viewpoint. See id. (stating Tenth Circuit's position is "consistent with the majority of federal circuit and district courts that have considered the issue of individual supervisor liability under Title VII and the ADEA.") In accordance with the Tenth Circuit's rule that personal capacity suits against individual employees are not available under Title VII, plaintiff's Title VII claims against defendant Carl McGuire in his individual capacity are dismissed.
Plaintiff contends that she is bringing suit against Carl McGuire solely in his capacity as General Manager for A.G. Hospitality. But a suit against an individual in his official capacity is really "only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. at 165 (quoting Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690, n. 55 (1978)). Because plaintiff's claims against Carl McGuire in his official capacity are redundant of plaintiff's claims against her employer, they shall be dismissed. See generally Gallardo v. Board of County Comm'rs, Kearny County Kan., 1995 WL 106366, at *2 (D. Kan. Jan. 11, 1995).
Motion to dismiss sexual harassment claim
Defendants additionally seek to dismiss plaintiff's claim of sexual harassment because plaintiff failed to exhaust her administrative remedies on this claim. Defendants tacitly concede that plaintiff properly exhausted her administrative remedies on her claim of race discrimination.
Plaintiff has filed a pleading dated August 13, 2003, in response to defendant's reply memorandum. Under D.Kan. Rule 7.1(b), parties are permitted to file a dispositive motion, a response to the motion, and a reply by the movant. The rules do not permit a surreply. Accordingly, the court has disregarded the pleading dated August 13, 2003.
Both parties agree, and the record reflects, that on the EEOC charge of discrimination, only the "race" box is checked as the cause of discrimination. The court finds that plaintiff's failure to mark other boxes creates a presumption that she was not asserting other claims. See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998) ("Although her failure to mark the box for sex discrimination is not dispositive . . . it certainly creates a presumption that she was not asserting claims represented by boxes not checked.") (citations omitted).
The burden rests on plaintiff to rebut the presumption that she was not asserting claims other than a race discrimination claim. Plaintiff points to the following documents in support of her contention that sexual harassment claims should be included: 1) the text of plaintiff's EEOC charge; 2) the EEOC questionnaire; and 3) correspondence predating her EEOC charge. These documents are addressed below. Text of EEOC charge
Other than her dates of employment, the only facts alleged in plaintiff's EEOC charge are as follows:
During my employment, I was verbally abused by my immediate supervisor. I reported the verbal abuse but each time I was counseled regarding my actions as though I was doing the abuse. On one occasion I was told that the employees did not like me and only saw me as a "nigger" coming to rob them.
Dk.1 (Petition), Exhibit 2, p. 1.
The court finds that the controlling presumption was not rebutted by the language above because the prose plaintiff used to describe her claim did not clearly set forth a sexual harassment claim. No mention is made of the traditional indicia of sexual harassment. Although plaintiff does raise the issue of "verbal abuse," a reasonable reader would understand that her mention of "verbal abuse" was merely an allegation which, in its context, related to and was made in support of her complaint of race discrimination. See Gunnell, 152 F.3d at 1260.
EEOC questionnaire
A more difficult issue is whether the court should look beyond the EEOC charge itself to the intake questionnaire plaintiff submitted to the EEOC. Plaintiff's EEOC "charge questionnaire" is dated September 16, 2002, approximately two months before the filing of her EEOC charge, and was signed by plaintiff under penalty of perjury. See Dk. 1, Complaint, attachment, last page. On that questionnaire, plaintiff checked only the "race" box in response to the initial question relating to the cause of her harm, and left all other boxes, including the one for "sexual harassment" blank. See questionnaire, p. 2. On the following pages of that questionnaire, however, plaintiff checked the boxes for harassment and retaliation, and provided a narrative in support of each. See questionnaire, pp. 5-6.
The Tenth Circuit has previously upheld a court's refusal to consider an EEOC information sheet, which it noted is similar to an EEOC intake questionnaire, in determining whether a plaintiff exhausted her administrative remedies. In Welsh v. City of Shawnee, 182 F.3d 934, 1999 WL 345597, at *5 (10th Cir. June 1, 1999), the Tenth Circuit agreed that the district court lacked subject matter jurisdiction over two sexual harassment claims because they were not included in the charge of sex discrimination filed with the EEOC. Its rationale follows:
[T]he formal charge is the key document in getting the Title VII [and ADEA] process rolling. By statute and regulation, it must be in writing and signed under oath or affirmation, see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.9, and it must describe the practices complained of, see id. § 1601.12(b). It therefore is the primary, and usually the only, place to which courts look to determine whether a plaintiff timely and properly exhausted her claims before the EEOC. Because it is the only document that must be sent to the charged party, it is the only document that can satisfy the notice requirement.See Bland v. Kansas City, Kansas Community College, __ F. Supp.2d __, 2003 WL 21674455, *2-3 (D. Kan. 2003) (rejecting a contention that a claim not on the EEOC charge was exhausted because it was included in an intake questionnaire).
The court believes that the Circuit would reject plaintiff's reliance on her intake questionnaire for exhaustion purposes. See generally Lewis v. Herrman's Excavating, Inc., 2000 WL 33407060, *3 (D. Kan. 2000) (citing Welsh in support of court's rejection of plaintiff's assertion that retaliation described in the questionnaire should be sufficient to state the claim before the EEOC). Although plaintiff's intake questionnaire is signed by plaintiff under oath, unlike the controlling documents at issue in Welsh and Bland, and plaintiff's submission of the completed questionnaire itself may be some indication that at some point she intended the EEOC to investigate her sexual harassment allegations, the court finds her subsequent formal charge, containing only allegations of race discrimination, to be controlling. See Welsh at *5 (finding subsequent formal charge effectively negated the information sheet).
The present case illustrates the problems inherent in relying on an intake questionnaire or other document, rather than the language of the charge itself. Plaintiff's intake questionnaire included not only assertions of race discrimination and sexual harassment, but allegations of retaliation as well. Plaintiff seeks to proceed in court only upon the first two claims, but would necessarily contend that defendant was adequately put on notice of her intent to proceed on her claim of retaliation as well. Such an approach would create great uncertainty on the part of the employer as to what claims it is expected to defend, and on the part of the EEOC as to what claims it is obligated to investigate, defeating the primary purposes served by the EEOC charge. The court believes that reliance upon the EEOC charge, rather than upon the intake questionnaire or other extraneous information, best serves the purposes for which the charge is made.
The court includes herein the letters dated July 10, 2003 from the Emporia Human Relations Commission, the letter dated July 15, 2003 from the Kansas Human Rights Commission, and the letter dated September 25, 2002 from plaintiff's attorney to plaintiff's employer, all as attached to Dk. 22.
Other correspondence
Plaintiff asserts that defendant was on notice of her sexual harassment claim, as referenced in a letter dated October 2, 2002, to plaintiff's attorney. This letter, dated more than one month before plaintiff submitted her EEOC charge, has no bearing on the scope of any investigation conducted by the EEOC, which was not triggered until plaintiff filed the EEOC charge. The charge simply did not put either the EEOC or plaintiff's former employer on notice of any claim related to sexual harassment.
Although equitable considerations may or may not require a court to look outside the formal charge in certain circumstances, see Welsh, 1999 WL 345597, at *5, no such circumstance has been shown sufficient to take this case outside the general rule set forth in Welsh. Plaintiff does not allege that the EEOC refused to accept a charge, affirmatively misled her, or was negligent. Compare Early v. Bankers Life Casualty Co., 959 F.2d 75, 80-81 (7th Cir. 1992). Rather, plaintiff contends that she "has no explanation or understanding as to why" the EEOC charge did not include sexual harassment. Dk. 22, p. 3. Plaintiff does not allege that she is illiterate, and her pleadings would reveal that she is not. Even if plaintiff had been acting pro se at the time she filed the EEOC charge, anyone reading it would realize that it did not include allegations of sexual harassment. Under these circumstances, the court rejects plaintiff's attempt to reach beyond the body of her charge for exhaustion purposes.
Exception to the Exhaustion Requirement
The Tenth Circuit has adopted a limited exception to the exhaustion rule for Title VII claims when the unexhausted claim is for discrimination which is "like or reasonably related to" the discrimination alleged in the EEOC charge. See Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir. 1999). Pursuant to this exception, a court may consider claims not expressly included in an EEOC charge where the conduct alleged in the unexhausted claim would "fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." Martin v. Nannie the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993).
Plaintiff's unexhausted sexual harassment claim is not, however, reasonably related to her claim of race discrimination. See Crawford v. Bank of America, 986 F. Supp. 506, 508 (N.D. Ill., 1997) (finding allegation of race discrimination not like or reasonably related to sexual harassment); Lee v. Junior College Dist., 1995 WL 363723 (E.D. Mo. Mar 08, 1995) (same). There is no reason to believe that conduct constituting sexual harassment would have fallen within the scope of the EEOC's investigation of plaintiff's charge of race discrimination.
Because plaintiff has failed to exhaust her administrative remedies relating to any charge other than race discrimination, the court lacks subject matter jurisdiction over her claims of sexual harassment.
IT IS THEREFORE ORDERED that defendants' motion to transfer (Dk. 9) is denied; that defendant McGuire's motion to dismiss him as a party defendant (Dk. 4) is granted; and that defendants' motion to dismiss plaintiff's claims of sexual harassment (Dk. 20) is granted.