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, the facts of which have been discussed in two of the
court's previous orders (Docs. # 27, 39). Defendant moved
to dismiss Plaintiff's amended complaint in part,
attaching over 800 pages from the EEOC's investigative
file to show that some of Plaintiff's allegations must be
dismissed because they were not investigated by the agency.
(Doc. # 31.)
of Plaintiff's representations that: (1) he “and
his representatives had communications with the EEOC [that]
are not reflected in the file” (Doc. # 35, at 4); and
(2) 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), the court ordered Defendant to show cause why its motion
to dismiss should not be converted to one for summary
judgment under Federal Rule of Civil Procedure 12(d). (Doc. #
39.) Defendant responded, noting that Plaintiff has not
requested a hearing on the propriety of judicial notice and
has only made conclusory statements that the file is
incomplete. (Doc. # 40, at 4.) Plaintiff was afforded an
opportunity to reply and explain his representations about
the scope of the EEOC's investigation, (Doc. # 39, at 7),
but failed to do so.
that the file is a public record whose accuracy cannot
reasonably be questioned, see Fed. R. Evid.
201(b)(2); Bryant v. Avado Brands, Inc., 187 F.3d
1271, 1280 (11th Cir. 1999) (holding “that the district
court was authorized at the motion to dismiss stage to take
judicial notice of relevant public documents required to be
filed with the SEC”), and that Plaintiff has given no
reason to question the file's completeness, the court
will take judicial notice of the EEOC's investigative
file attached to the motion to dismiss. Defendant's
motion to dismiss with the judicially noticed EEOC file
attached (Doc. # 31) is therefore ripe for decision. The
motion is due to be granted in part and denied in part.
“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. Ga.
Dep't of Human Res., 355 F.3d 1277, 1280 (11th Cir.
2004) (quoting Alexander v. Fulton Cty., Ga., 207
F.3d 1303, 1332 (11th Cir. 2000)). “[J]udicial 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 (quoting Wu
v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989)).
“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 v. Shoe Show, Inc., 38
F.Supp.3d 1343, 1356-57 (N.D.Ga. 2014) (citing Smith v.
Sentry Ins., 674 F.Supp. 1459, 1467 (N.D.Ga. 1987)).
Paragraphs 59-63 and 77-78 were not investigated by the
EEOC and must therefore be
paragraphs allege that a non-Mormon was chosen over Plaintiff
as Director of the Marriage and Family Therapy program at
Auburn and that Plaintiff's salary is substantially less
than that of non-Mormons in his department. (See
Doc. # 30, at 11, 14.) Plaintiff does not dispute that the
EEOC never investigated these allegations. Instead, Plaintiff
argues that, because these allegations “do not form the
basis for his claims for relief, but instead constitute
circumstantial evidence of discrimination and
retaliation, ” they should not be dismissed. (Doc. #
35, at 2.) But Plaintiff cites no authority stating that
allegations intended to serve as circumstantial evidence of
his claims need not be first investigated by the EEOC.
Moreover, Plaintiff incorporates these allegations by
reference into his disparate treatment claim. (Doc. # 30, at
14-15 ¶ 80.)
the allegations in paragraphs 59 through 63 and 77 through 78
are “allegations of new acts of discrimination, ”
they are due to be dismissed from the amended complaint.
Paragraphs 69 and 70 were not investigated by the EEOC
and must therefore be dismissed,
but paragraphs 71 and 72 will remain.
paragraphs allege retaliatory actions Professor Francesca
Adler-Baeder took against Plaintiff because of his
religious-discrimination complaints. (See Doc. # 30,
at 12-13.) These allegations are incorporated into
Plaintiff's retaliation count. (Doc. # 30, at 18 ¶
the filing of an EEOC charge leads to retaliation, a
plaintiff normally need not exhaust his administrative
remedies before bringing a judicial claim for retaliation.
See Baker v. Buckeye Cellulose Corp., 856 F.2d 167,
169 (11th Cir. 1988) (“[I]t is unnecessary for a
plaintiff to exhaust administrative remedies prior to urging
a retaliation claim growing out of an earlier charge; the
district court has ancillary jurisdiction to hear such a
claim when it grows out of an administrative charge that is
properly before the court.” (quoting Gupta v. East
Texas State Univ., 654 F.2d 411, 414 (5th Cir. Unit A
Aug. 1981)). But that rule “do[es] not apply where the
retaliatory action occurs after the filing of the first EEOC
charge but long enough before the filing of the lawsuit to
give the plaintiff an opportunity to amend or to file a new
EEOC charge to add a retaliation claim.” Robinson
v. Koch Foods of Ala., No. 2:13-CV-557-WKW, 2014 WL
4472611, at *2 (M.D. Ala. Sep. 11, 2014) (citing Duble v.
FedEx Ground Package Sys., Inc., 572 Fed.Appx. 889, 893
(11th Cir. 2014)).
of Professor Adler-Baeder's retaliatory actions are
undated in the amended complaint. In paragraph 69, Plaintiff
alleges that, “[s]ince being denied full professorship
and challenging department head Joe Pittman, full Professor
Francesca Adler-Baeder has refused to speak to or even look
at Plaintiff, ” and that, “[i]n the past,
Adler-Baeder has made comments to Plaintiff about the Mormon
Church and questioned him about his beliefs.” (Doc. #
30, at 12 ¶ 69.) In paragraph 70, Plaintiff alleges that
“Adler-Baeder replaced Plaintiff's name [on two
projects he worked on] with that of a graduate student
friend, leaving Plaintiff as second and/or third
author.” (Doc. # 30, at 12 ¶ 70.) Plaintiff does
not dispute that these undated allegations were not
investigated by the EEOC, and gives the court no reason to
think that he could not have included them in a new or
Plaintiff fails to show that he had no opportunity to include
these undated allegations in a new or amended EEOC charge,