United States District Court, N.D. Alabama, Eastern Division
C. BURKE UNITED STATES DISTRICT JUDGE.
plaintiff, Sabrina Duncan, filed a complaint alleging five
Title VII claims against her former employer, Innotex, Inc.
Before the Court is Innotex's partial motion to dismiss
the plaintiff's second amended complaint. (Doc. 31).
Innotex's motion seeks to dismiss Count II (sexual
harassment), Count III (retaliation), Count IV (retaliatory
hostile environment), and Count V (retaliatory
discharge) of Duncan's Second Amended
Complaint (Doc. 30). According to Innotex, Duncan failed to
administratively exhaust these claims and therefore may not
pursue them in this Court
a potential plaintiff may sue for discrimination under Title
VII, she must first exhaust her administrative remedies.
See Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th
Cir.1999). The first step down this path is filing a timely
charge of discrimination with the [Equal Employment
Opportunity Commission]. See 42 U.S.C. §
2000e-5(b) (1994); Alexander v. Fulton
County, 207 F.3d 1303, 1332 (11th Cir.2000).”
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317
(11th Cir. 2001). However, a subsequent complaint in federal
court is constrained by the EEOC charge that preceded it. The
Eleventh Circuit has held:
The purpose of exhaustion is to permit the department the
first opportunity to investigate the alleged discriminatory
or retaliatory practices, and a plaintiff's judicial
complaint is thereby limited by the scope of the
investigation that can reasonably be expected to grow out of
the administrative charge of discrimination or retaliation.
See Gregory v. Georgia Dep't of Human Res., 355
F.3d 1277, 1279-80 (11th Cir.2004). The proper inquiry is,
therefore, whether the plaintiff's judicial complaint was
like or related to, or grew out of, the administrative
allegations. See id. at 1280. Judicial claims are
allowed if they “amplify, clarify, or more clearly
focus” the charges made before the agency, and, given
that we are reluctant to allow procedural technicalities to
bar Title VII claims, the scope of the administrative charges
should not be strictly construed. See id. at 1279-80
Basel v. Sec'y of Def., 507 Fed.Appx. 873,
875-76 (11th Cir. 2013). In the present case, Duncan filed a
timely “Charge of Discrimination”
(“Charge”) with the EEOC who ultimately
determined that the information provided in the Charge did
not establish a violation of Title VII. The EEOC then
notified Duncan that she could file a lawsuit against
Innotex. However, Innotex argues that Counts II-V of
Duncan's complaint were not within the scope of her
Charge and, therefore, may not be raised in her present
complaint. Accordingly, this Court must determine the scope
of Duncan's EEOC Charge and decide whether her Second
Amended Complaint is “like or related to, or grew out
of” the Charge. Id.
record before this Court contains two separate Charges of
Discrimination submitted by Duncan to the EEOC. One Charge
was stamped as being received by the EEOC on June 21, 2017,
and contains the following:
I was hired by the above-named employer on April 23, 2015 as
a[n] Office Helper. I performed my duties in a satisfactory
manner. On May 16, 2017 I was terminated by Ms. Lisa
Paserilla who told me I was being terminated because I was
standing for 15 minutes without helping the team. It's my
belief that this was a pretext for discriminating against me
because of my sex. At the time of the termination, I was the
supervisor for my team. Ms. Paserilla terminated me to
replace me with a male employee who she favored over me. Mr.
James Michael Hanson has less experience than me and replaced
me in the duties of supervising.
I believe that I have been discriminated against because of
my sex (female) in violation of Title VII of the Civil Rights
Act of 1964, as amended.
14-2). Duncan wrote “(see additional)”
at the end of this section. The record also contains nine
additional pages, both typed and handwritten, that bear the
same stamp indicating that they were received by the EEOC on
June 21, 2017. (Doc. 14-4). The second Charge of
Discrimination form in the record was stamped as received by
the EEOC on June 28, 2017. (Doc. 6-1). This form contains
identical language to the charge referenced above but does
not contain any handwritten notes or attachments. Both forms
were signed by Duncan under the following declaration:
“I declare under the penalty of perjury that the above
is true and correct.” (Docs. 6-1, 14-2).
In her response to Innotex's motion to dismiss, Duncan
explained that the language on the June 21, 2017, form was
drafted by someone from the EEOC after she spoke with them
over the telephone. Duncan claims that she was instructed to
make any necessary corrections to the form and mail it back
to the EEOC, which she did. According to Duncan, she sent the
nine additional pages to the EEOC with the understanding that
they would be included in the Charge. The June 28, 2017,
form, Duncan says, was mailed back to her from the EEOC.
Duncan claims that she also signed it and then returned it to
the EEOC. However, Innotex argues that the June 28, 2017,
form is the operative Charge and that this Court should not
consider the nine additional pages that the EEOC received on
June 21, 201
Court finds that both forms, as well as Duncan's notes,
are due to be considered as part of Duncan's EEOC Charge.
In arguing that the Court should not consider Duncan's
notes that were attached to the June 21, 2017, form, Innotex
cites to several cases in which courts declined to accept
allegations contained in an EEOC intake questionnaire as a
part of the Charge. See e.g., Shi v.
Montgomery, 679 Fed. App'x 828, 833 (11th Cir.
2017)(finding that a plaintiff's intake questionnaire was
not a charge within the statutory requirements of 42 U.S.C.
§ 2000e-5(b)). However, the reason that courts have
refused to accept such questionnaires as a part of the charge
is the fact that the statements on the questionnaires are not
made under oath or affirmation, a requirement of 42 U.S.C.A.
§ 2000e-5, which provides that “[c]harges shall be
in writing under oath or affirmation and shall contain such
information and be in such form as the Commission
requires.” See also 29 C.F.R. § 1601.9
(“A charge shall be in writing and signed and shall be
verified.”). As noted above, both of Duncan's
charges were verified and signed under penalty of perjury.
Duncan also wrote “see additional” on
the June 21, 2017, form and submitted additional notes that
were received by the EEOC the same day. Accordingly, this
Court finds that the forms and Duncan's additional notes
constitute a part of the Charge.
record also contains a letter that Duncan's attorney sent
to the EEOC in which he responded to Innotex's position
statement regarding Duncan's charge.(Doc. 14-6). The
letter contains additional allegations and a greater amount
of detailed facts that closely mirror the allegations in
Duncan's Second Amended Complaint. Duncan argues that
this letter should also be considered a part of her EEOC
Charge. This Court disagrees.
letter is dated December 19, 2017, several months after
Duncan submitted her initial charges in June. The letter is
signed only by Duncan's attorney, and was not made under
oath. As noted, the law requires that EEOC charges be made
under oath or affirmation. See 42 U.S.C.A. §