Opinion
No. 00-1579, SECTION: "G"(4).
December 6, 2000.
MEMORANDUM AND ORDER
Background
Plaintiff, Andrea Mills, was employed by IT Corporation as an "Assistant Engineer/Scientist" for a period of approximately seven months when she was discharged on July 19, 1999. In her original complaint, which she filed pro se on May 26, 2000, she alleges that IT Corporation "create[d] and maintain[ed] a hostile work environment" because of her gender and race. She alleges that the "hostile work environment" was created through "harassment, low pay, and lay off, and by other such actions too numerous to list in their entirety . . . " She further alleges that she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). A copy of a Notice of Right to Sue from the EEOC, referring to Charge No. 270-A0-0400, was mailed to plaintiff on February 29, 2000, and is attached to the complaint.
Although the complaint is stamped as filed on July 19, 2000, a review of the record, including the back of the first page of the complaint and the handwritten amendment to the date on the Application for Appointment of Attorney reflect that the complaint was filed on May 26, 2000, when plaintiff hand-delivered it to the Clerk's office for filing.
Plaintiffs Complaint, Paragraph 4.
Plaintiff's original complaint was amended subsequent to the enrollment of her appointed counsel. There is nothing in the Amended Complaint which reflects whether it is intended as a substitution of the first complaint, or whether it is intended solely to supplement the original allegations. In the Amended Complaint, plaintiff alleges that the basis for her termination was the elimination of her position. She claims that defendant's failure to reassign her to another position violated company policy which directs that employees be reassigned when "lay-offs in their previous assignments take place." She claims that she was discriminated against "because of her gender in the terms and conditions of her employment and in her termination . . . . " She further claims that defendant retaliated against her for filing charges with the EEOC. She does not specify the date of the charges filed, does not describe their substance, and does not attach copies of the charges.
Plaintiffs Amended Complaint, Paragraph 12.
Plaintiffs Amended Complaint, Paragraph 16.
Before me is defendant's motion to dismiss the plaintiff's complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Procedure.
Discussion
A motion to dismiss under Rule 12(b)(6) is "viewed with disfavor and is rarely granted." Kaiser Aluminum Chemical Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986) However, a plaintiff must plead specific facts, not mere conclusory allegations. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
Defendant argues in its first memorandum that the plaintiff's complaint should be dismissed because she failed to file her complaint within ninety days of receipt of a notice of right to sue from the EEOC. It is correct that 42 U.S.C. § 2000e-5(f)(1) requires a plaintiff to assert her complaint under 42 U.S.C. § 2000 (e), et seq, within ninety days of receipt from the EEOC of a notice of right to sue. However, as discussed at footnote 1, the plaintiff filed her complaint on May 26, 2000, within the ninety day period. Defendant, while not directly conceding that the complaint was filed on May 26, has apparently abandoned its initial position after reviewing the record. However, defendant continues to assert that the plaintiff's complaint must be dismissed as untimely, for the reason that the allegations in the plaintiff's complaint and amended complaint were not alleged in EEOC Charge No. 270-A0-0400.
Plaintiff has filed the following three EEOC charges in connection with her employment at IT Corporation:
1. Charge No. 270-99-1517 (July 13, 1999). Plaintiff alleges that defendant discriminated against her on the basis of her race and sex, by restricting her to trailer work as opposed to field work, and by denying her an assigned work vehicle. A copy of EEOC Charge No. 270-99-1517 is attached to the defendant's supplemental memorandum, as Exhibit "A."
2. Charge No. 270-99-1689 (August 12, 1999). Plaintiff alleges that defendant discharged her on July 19, 1999, in retaliation for filing EEOC Charge No. 270-99-1517. A copy of EEOC Charge No. 270-99-1689 is attached to the defendant's supplemental memorandum, as Exhibit "B."
3. Charge No. 270-A0-0400 (December 12, 1999). Plaintiff alleges that she was denied reinstatement to her prior position although other employees with whom she had worked on the terminated project were transferred to a different job site. She claims that the failure to reinstate her and assign her to a different job site is in retaliation for her prior EEOC charges, and because of her sex. She does not, in this charge, allege discrimination on the basis of race. A copy of EEOC Charge No. 270-A0-0400 is attached to the defendant's supplemental memorandum, as Exhibit "E."
I have included in my review not only documents attached to the complaint, but documents attached to the defendant's motion to dismiss and supporting memorandums. This review of documents that are not part of the complaint has been approved by the Fifth Circuit, where the documents are referred to in the complaint and they assist the court in making the determination of whether a claim has been stated. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 499 (5th Cir. 2000). The EEOC charges were referred to in the plaintiffs complaint, and plaintiff has made no objection to them.
On August 19, 1999, two separate right to sue letters were issued to plaintiff by the EEOC in connection with the first two charges. These letters are attached to defendant's supplemental memorandum as Exhibits "C" and "D." The third right to sue letter, issued in connection with the third charge, was mailed on February 29, 2000. This letter is attached to plaintiff's original complaint. It is also attached to the defendant's supplemental memorandum, as Exhibit "F."
Clearly, plaintiff is precluded from asserting any of the claims she asserted in her first two EEOC charges, since more than ninety days elapsed between her receipt of the right to sue letters in connection with these charges and the filing of this lawsuit. Thus, she may not assert any claim under 42 U.S.C. § 2000(e), et seq for race discrimination, discrimination in the terms and conditions of her employment, hostile work environment, or retaliatory discharge. The only claims which she may assert here are those asserted in her third charge, EEOC Charge No. 270-A0-0400.
The basis of the plaintiff's third EEOC charge is that she was denied "reinstatement" (which I interpret to mean, "rehire") in retaliation for the filing of her first two charges and/or because of her sex. Although she also complains that she should have been reassigned rather than discharged, these allegations are repetitive of the allegations plaintiff made in connection with her discharge, which was the subject of the second EEOC claim which she failed to pursue timely. Thus, the third EEOC charge must be read as an allegation of failure to rehire.
Plaintiff fails to make any allegations in either her complaint or amended complaint filed in this court that would state a cause of action for failure to rehire. At the very least, in order to state a cause of action for failure to rehire, she would have to allege with adequate specificity that since her termination, defendant has had a position open for which she is qualified, that she applied for the position, and that she was not considered or hired because she made prior EEOC charges, and/or because of her sex.
There is nothing in the record to suggest that plaintiff in fact applied for a position with the defendant after she was terminated, and that the defendant failed or refused to rehire her. Nevertheless, I will grant to plaintiff until December 28, 2000 to amend her complaint to allege facts that would state a cause of action, consistent with the claims in her third EEOC charge, for failure to rehire because of her sex and/or in retaliation for her prior charges. Failure of plaintiff to file her amended complaint on or before December 28, 2000, will result in my granting defendant's motion to dismiss for failure to state a claim.
Accordingly,
IT IS ORDERED, that plaintiff may amend her complaint on or before December 28, 2000, to state a claim; failure to do so will result in the granting of defendant's motion to dismiss.