Duncan v. Innotex, Inc.

          MEMORANDUM OPINION

          LILES C. BURKE UNITED STATES DISTRICT JUDGE.

          The 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)^[1] 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

         “Before 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 (quotation omitted).

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.

         Duncan's EEOC Charge

         The 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.^[2] 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.

         (Doc. 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

         This 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.

         The 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.^[3](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.

         The 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. § ...