United States District Court, M.D. Alabama, Eastern Division
SCOTT A. KETRING, Plaintiff,
AUBURN UNIVERSITY, Defendant.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE
a religious discrimination in employment action under Title
VII. Defendant Auburn University moved to dismiss Plaintiff
Scott A. Ketring's original complaint, claiming that
Plaintiff's hostile work environment claim (Count II) did
not arise out of his disparate treatment and retaliation
claims (Counts I and III) as stated in his EEOC charge. (Doc.
# 12.) Defendant also moved to dismiss specific allegations
that exceeded the scope of Plaintiff's EEOC
charge. Finally, Defendant sought dismissal of the
complaint as a shotgun pleading. Defendant's first motion
to dismiss attached two documents totaling eight pages:
Plaintiff's EEOC charge and the EEOC's request for
information from Defendant. (See Docs. # 12-1,
court granted Defendant's motion only on shotgun pleading
grounds and denied the rest with leave to reassert any
arguments relevant to the amended complaint. (Doc. # 27, at
5.) At the same time, though, the court suggested that
Defendant's administrative-exhaustion argument was one
for summary judgment. (Doc. # 27, at 5
(“Defendant's motion to dismiss the complaint for
exceeding the scope of the EEOC charge is accordingly denied
without prejudice to reassert this or any other argument
relevant to the amended complaint in a subsequent motion to
dismiss, or, if Defendant presents materials outside the
complaint, motion for summary judgment.” (emphasis
added)).) Plaintiff timely filed an amended complaint. (Doc.
now moves to dismiss Plaintiff's amended complaint in
part. (Doc. # 31.) Defendant's second motion appears to
abandon its argument that Plaintiff's hostile work
environment claim exceeds the scope of the EEOC charge.
Instead, the motion only seeks to strike specific
allegations Plaintiff never made before the
EEOC. Having attached only two documents and
eight pages in support of its first motion to dismiss,
Defendant's second motion now attaches over 800 pages
from the EEOC's investigative file. (See Docs. #
31-1, 32, 33.)
attaching outside materials to a motion to dismiss requires
the court to convert the motion into one for summary
judgment. See Fed. R. Civ. P. 12(d). That rule has a
few exceptions that are relevant here. First, if the court
properly takes judicial notice of the attached exhibits, it
can decide the motion to dismiss without converting it.
See Bryant v. Avado Brands, Inc., 187 F.3d 1271,
1276-79 (11th Cir. 1999). Second, the court can consider an
exhibit if it is “central to the plaintiff's
claim” and its authenticity is undisputed. Horsley
v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
may take judicial notice of EEOC documents such as the charge
of discrimination, the right to sue letter, and the intake
questionnaire, because they are records of a public agency.
See, e.g., Rogan v. Giant Eagle, Inc., 113
F.Supp.2d 777, 782 (W.D. Pa. 2000) (“It is clear to us
that under the legal applicable standard we may consider the
EEOC charge and related EEOC documents, including the letter
from the EEOC summarizing its investigation, the right to sue
letter, and the intake questionnaire, either as undisputed
documents referenced in the complaint or central to the
plaintiff's claim, or as information which is a matter of
public record, without converting this motion to one for
summary judgment.”); Gallo v. Bd. of Regents of
Univ. of Cal., 916 F.Supp. 1005, 1007 (S.D. Cal. 1995)
(“[T]he Court may consider both the EEOC right to sue
letter and the EEOC charge, either as referenced in the
complaint or as public records subject to judicial
Defendant cites no authority suggesting that the court can
take judicial notice of other parts of the over-800 page EEOC
investigative file, which includes documents more informal
than those listed above. (See, e.g., Doc. # 32-1, at
30-35 (letter from Plaintiff to university provost about
potential discrimination); Doc. # 32-1, at 36 (email from
university EEO director to Plaintiff about Plaintiff's
allegations); Doc. # 32-1, at 39-56 (unidentified documents
that appear to be Plaintiff's narrative summaries of
discriminatory acts); Doc. # 32-1, at 57-63 (emails from
another individual in Plaintiff's department complaining
of Dr. Keiley's discriminatory behavior and statements)).
fact, almost all the cases Defendant cites are summary
judgment cases in which both parties have a chance to point
to evidence. See, e.g., Abram v. Fulton Cty.
Gov't, 598 Fed.Appx. 672, 678 (11th Cir. 2015)
(deciding on appeal from summary judgment that plaintiff
failed to exhaust administrative remedies on her constructive
discharge claim); Minnifield v. City of Birmingham,
325 F.R.D. 450, 461 (N.D. Ala. 2018), appeal docketed sub
nom. Minnifield v. Boackle, No. 18-12778 (11th Cir. July
2, 2018) (deciding at summary judgment that plaintiff could
not claim disparate discipline because he failed to make that
allegation in his EEOC charge); Brown v. Huntsville City
Bd. of Educ., 324 F.R.D. 239, 249-50 (N.D. Ala. 2018)
(deciding at summary judgment that failure-to-promote
allegations were beyond the scope of the EEOC investigation
and therefore not properly before the court); Scott v.
Shoe Show, Inc., 38 F.Supp.3d 1343, 1355-58 (N.D.Ga.
2014) (deciding at summary judgment that discrimination
claims were not in the scope of the EEOC investigation).
But see Edwards v. Ambient Healthcare of Ga., Inc.,
674 Fed.Appx. 926, 931 (11th Cir. 2017) (affirming district
court's ruling that plaintiff's proposed amendment
would be futile because the new allegations did not appear in
her EEOC charge); Robinson v. Koch Foods of Ala.,
No. 2:13-CV-557-WKW, 2014 WL 4472611, at *2 (M.D. Ala. Sep.
11, 2014) (finding, on a motion to dismiss, no exhaustion on
claim that plaintiff was fired for filing an EEOC charge
because she had the opportunity to amend her charge before
suing but did not).
court is reluctant to decide at this stage that these
allegations exceed the scope of Plaintiff's EEOC charge.
There is no evidence that Defendant's exhibits represent
the full EEOC investigation. And Plaintiff has had no
opportunity to present his own evidence as to the scope of
the “actual investigation triggered by the EEOC charge,
” which is the key question in “determining the
permissible scope of a judicial complaint of employment
discrimination.” Smith v. Sentry Ins., 674
F.Supp. 1459, 1467 (N.D.Ga. 1987); see Freeman v. Koch
Foods of Ala., 777 F.Supp.2d 1264, 1276 (M.D. Ala. 2011)
(“[T]he scope of an EEOC charge is determined by the
extent of a reasonable investigation by the EEOC.”).
“A judicial complaint . . . may include any allegations
investigated by the EEOC, even if the investigation was
broader than the EEOC charge triggering the investigation
because the EEOC has had the opportunity to effect voluntary
compliance with the law prior to the filing of a civil
action.” Scott, 38 F.Supp.3d at 1356 (citing
Smith, 674 F.Supp. at 1467).
represents that he “and his representatives had
communications with the EEOC [that] are not reflected in the
file” (Doc. # 35, at 4), and he “has had no
opportunity to bring forth evidentiary material outside of
the complaint to support the extent of the EEOC's
investigation” (Doc. # 35, at 5). Without evidence that
Defendant's exhibits reflect the full extent of the
investigation, the court cannot assume from those exhibits
that the EEOC never investigated the allegations Defendant
seeks to dismiss. It must give both parties the chance to
present evidence on this issue.
court is also unconvinced that these documents fall into the
second exception to the conversion rule. Though Plaintiff
does not challenge any specific document as inauthentic,
Plaintiff disputes that Defendant's exhibits reflect the
full scope of the EEOC's investigation. The court
therefore cannot decide whether Plaintiff's allegations
exceed the scope of the investigation without giving
Plaintiff an opportunity to present his own evidence on the
court will therefore order Defendant to show cause why the
court should not convert its motion to dismiss into one for
summary judgment following “notice to the parties and
an opportunity for mutual discovery.” Adinolfe v.
United Techs. Corp., 768 F.3d 1161, 1168 (11th Cir.
2014); see Fed. R. Civ. P. 12(d) (stating that when
the court intends to convert, it must give the parties
“a reasonable opportunity to present all ...