United States District Court, S.D. Alabama, Southern Division
ORDER
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on defendant's Partial
Motion to Dismiss (doc. 6). The Motion has been briefed and
is now ripe for disposition.
I.
Background.
Plaintiff,
Ebony Payne, filed a Complaint (doc. 1) against her former
employer, Navigator Credit Union, on January 8, 2019. On its
face, the Complaint sets forth causes of action for
retaliation under the Family and Medical Leave Act (Count
One), disability discrimination under the Americans with
Disabilities Act (“ADA”) (Count Two) and
retaliation under the ADA (Count Three). As pleaded, the
Complaint includes factual allegations that (i) Navigator
placed Payne on a performance improvement plan and suspended
her employment approximately one day after approving her
request for intermittent medical leave to receive treatment
for pancreatic cancer; and (ii) Navigator terminated
Payne's employment the very next day after she notified
Navigator that she had been diagnosed with incurable cancer
for which she would require surgery, with a two-month
recovery time. On that basis, Count Three alleges,
“Defendant terminated Plaintiff because of her request
for reasonable accommodation in the form of leave under the
FMLA.” (Doc. 1, ¶ 74.) Thus, the theory animating
Payne's ADA retaliation claim is that Navigator
terminated her employment for engaging in protected activity
by requesting medical leave as a reasonable accommodation for
her disability (cancer).
Defendant
now moves to dismiss Count Three on the ground of failure to
exhaust administrative remedies. Simply put, Navigator's
position is that Payne failed properly to submit her ADA
retaliation claim to the Equal Employment Opportunity
Commission (“EEOC”), and that she is therefore
barred from pursuing such a claim in these judicial
proceedings. In her signed Charge of Discrimination dated
January 24, 2018, Payne checked only the
“Disability” box, not the
“Retaliation” box. The word
“retaliation” is nowhere to be found in the
narrative portion of the Charge, which contains the following
relevant excerpts:
“On or about September 14, 2017, I was diagnosed with
pancreatic cancer. On or about September 26, 2017, I was
approved for intermittent leave pursuant to the Family
Medical Leave Act.
“On or about October 26, 2017, I was put on probation
… as a result of utilizing an improper loan procedure
… almost (1) year prior. … On or about December
13, 2017, I informed Mr. Sheamon McCants …, my Direct
Supervisor, that my cancer was incurable, but that a doctor
had agreed to perform surgery in February 2018. I advised Mr.
McCants that this surgery would require approximately two (2)
months of recovery time. Mr. McCants related this information
to Ms. Mims [Navigator's Chief Operations Officer], who
informed Ms. Judy Lee …, the Human Resources Director.
The very next day, in a meeting with Mr. McCants, Ms. Mims,
and Ms. Lee, Respondent terminated my employment for
allegedly violating Respondent's code of ethics policy by
taking an application from an indirect dealer, although I had
been trained to take applications from indirect dealers.
During the meeting regarding my termination, Mr. McCants
stated, ‘So let me get this right, we can't take
indirect dealers' applications?' I believe
Respondent's stated reason for the termination of my
employment was merely a pretext for disability
discrimination.
“Based on the foregoing, I believe I have been
subjected to disparate terms and conditions of employment,
because of my disability, in violation of the Americans with
Disabilities Act of 1990, as amended (the
“ADA”).”
(Doc. 1, Exh. A, at 1-2.) The Charge lists the latest day of
discrimination as December 14, 2017, the date on which
Navigator terminated Payne's employment.
II.
Analysis.
The
governing legal standard is well-settled and uncontested.
“An employee must exhaust administrative remedies
before filing a complaint of discrimination under Title VII
of the Civil Rights Act and Title I of the Americans with
Disabilities Act.” Stamper v. Duval County School
Board, 863 F.3d 1336, 1339 (11th Cir. 2017)
(citations omitted). “The first step down the path to
exhaustion is filing a timely charge of discrimination with
the [EEOC].” Id. at 1340 (citations and
internal marks omitted). To effectuate the exhaustion
requirement, the Eleventh Circuit has held that a
“plaintiff's judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.”
Gregory v. Georgia Dep't of Human Resources, 355
F.3d 1277, 1280 (11th Cir. 2004) (citations
omitted). What that means is that “judicial claims are
allowed if they amplify, clarify, or more clearly focus the
allegations in the EEOC complaint, but … allegations
of new acts of discrimination are inappropriate.”
Id. at 1279-80 (citation omitted).
Thus, a
plaintiff's failure to check a particular box on her EEOC
Charge form is neither dispositive nor conclusive as to the
exhaustion requirement. Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 463 (5th Cir. 1970)
(“[W]e decline to hold that the failure to place a
check mark in the correct box is a fatal error.”);
see also Rolin v. Escambia County Bd. of Educ., 752
F.Supp. 1020, 1023 (S.D. Ala. 1990) (“it is not
dispositive that the plaintiff did not check the box next to
‘sex' in the section of the EEOC charge which
directs the complainant to check the base(s) of the alleged
discrimination”). Rather, “it is well established
that the scope of an EEOC complaint should not be strictly
interpreted.” Sanchez, 431 F.2d at 465
(citation and internal quotation marks omitted); see
generally Batson v. Salvation Army, 897 F.3d 1320, 1327
(11th Cir. 2018) (“we have been extremely
reluctant to allow procedural technicalities to bar claims
brought under discrimination statutes”) (citations and
internal marks omitted). “The proper inquiry …
is whether [plaintiff's] complaint was like or related
to, or grew out of, the allegations contained in her EEOC
charge.” Gregory, 355 F.3d at 1280. The
Eleventh Circuit has consistently applied that standard in
examining whether particular judicial claims satisfy the
exhaustion requirement under Title VII and the ADA. See,
e.g., Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1307 n.5
(11th Cir. 2018) (“Although
Hornsby-Culpepper did not allege a race claim in her EEOC
charge, she could still bring a race discrimination claim in
her civil complaint provided that it was reasonably related
to the allegations in her EEOC charge.”); Chanda v.
Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir.
2000) (“A Title VII action … may be based not
only upon the specific complaints made by the employee's
initial EEOC charge, but also upon any kind of discrimination
like or related to the charge's allegations, limited only
by the scope of the EEOC investigation that could reasonably
be expected to grow out of the initial charges of
discrimination.”) (citations and internal quotation
marks omitted).
Here,
the parties are in agreement that the foregoing principles
govern Navigator's Motion to Dismiss. They simply diverge
as to whether the ADA retaliation claim set forth in Count
Three of the Complaint is reasonably related to the
allegations set forth in the narrative portion of Payne's
EEOC Charge. The sole premise of Navigator's Motion to
Dismiss is that a retaliation claim would not reasonably be
expected to grow out of the allegations in Payne's EEOC
Charge. As defendant summarizes its position, “A claim
for disability discrimination is distinct from a retaliation
claim with separate elements for each cause of action, and
vague allegations that could give rise to a claim of
retaliation are not sufficient.” (Doc. 6, at 6.) By
contrast, plaintiff argues that the narrative section of her
EEOC Charge “put the EEOC on notice of an ADA
retaliation claim. Plaintiff's Charge included the
necessary factual basis for the claim, such that it was
within the scope of the EEOC's investigation and could
reasonably be expected to grow out of the Charge.”
(Doc. 12, at 9-10.)
Upon
careful examination of the text of the EEOC Charge, the Court
concludes that plaintiff has the better argument. Although
Payne's Charge did not expressly identify a retaliation
action, it did specify that she was disciplined shortly after
requesting intermittent medical leave for cancer treatments,
and that she was fired one day after informing her supervisor
that her cancer was incurable and that she was scheduled for
surgery from which she would require two months of recovery
time. To be sure, these factual allegations were presented in
the context of an administrative charge grounded in ADA
discrimination, not ADA retaliation. However, the identical
factual predicate underlies, supports, and reasonably lends
itself to each theory. Again, the Charge alleges that
Navigator discriminated against Payne based on a disability
by placing her on probation shortly after approving her
intermittent medical leave for pancreatic cancer treatments,
and by firing her one day after she notified Navigator that
her cancer was incurable and that she would require two
months off to recover from surgery. Under any ...