Opinion
FILE NO. A4-03-041
September 29, 2003
REPORT AND RECOMMENDATION
Defendant Wal-Mart Stores, Inc., (Wal-Mart) moves for summary judgment, asserting that Plaintiff's claims are time-barred because a charge of discrimination filed with an administrative agency was not timely. The motion was assigned to this Court for preparation of this Report and Recommendation.
FACTS
Plaintiff Cheryl Stroklund (Stroklund) was formerly employed at Wal-Mart's Minot, North Dakota store. Her employment ended on January 13, 2001. On January 4, 2002, Stroklund filed a Charge of Discrimination; the charge was filed with the North Dakota Department of Labor (NDDOL) and simultaneously with the Equal Employment Opportunity Council (EEOC). Stroklund alleged discrimination based on disability.
Stroklund's charge of discrimination stated that, in November 2000, she had back pain as a result of a prior work-related injury, and that her physician imposed work restrictions and prescribed physical therapy. The charge further stated that Stroklund used some of her sick leave while undergoing physical therapy, and that when she was ready to return to work and called her department manager to ask about her work hours for the following week, the department manager told her that he and the store manager had decided that she should take a medical leave of absence.
Stroklund alleged in the charge that she did not want to take a medical leave of absence, but that she was told that if she did not return medical leave of absence forms within fifteen days of December 26, 2000, she would be considered to have voluntarily terminated her employment via job abandonment. Stroklund did not return the forms, and her employment at Wal-Mart was terminated on January 13, 2001. Stroklund then applied for unemployment compensation benefits, and her application was approved. Stroklund further alleged that, on March 16, 2001, Wal-Mart provided false information concerning the reason for her termination to a Job Service North Dakota Appeals Referee. The alleged false information was not identified. Nor was there an indication of whether the information affected Stroklund's receipt of unemployment compensation.
Stroklund filed the charge of discrimination 294 days after the date she alleged Wal-Mart provided false information to Job Service, and more than 300 days after her employment at Wal-Mart ended. The charge listed January 13, 2001 as the earliest date of discrimination, and March 16, 2001 (the date Wal-Mart provided information to Job Service) as the latest date of discrimination.
NDDOL issued its determination on Stroklund's discrimination charge on March 17, 2003. NDDOL concluded that Stroklund's charge was timely filed, but that Stroklund did not meet the statutory definition of an "individual with a disability." NDDOL terminated its processing of Stroklund's charge, and advised Stroklund that, because 294 days had passed before her charge was filed, she had six days left to initiate a lawsuit. Stroklund filed suit in Ward County, North Dakota, on March 21, 2003. Wal-Mart removed the case to federal court on April 11, 2003.
On June 26, 2003, the EEOC adopted NDDOL's findings, and issued a "right to sue" letter. The letter stated that Stroklund had ninety days from receipt of the letter to begin a lawsuit.
DISCUSSION AND ANALYSIS
The Complaint alleges discrimination based on disability, and based on age. It also alleges retaliation for Stroklund's use of sick leave benefits and for her refusal to accept an unpaid medical leave of absence. The complaint alleges violation of the North Dakota Human Rights Act, and of the Americans with Disabilities Act (ADA).
Wal-Mart alleges that no act of discrimination could have occurred after Stroklund's termination date (January 16, 2001), that Stroklund did not file the charge of discrimination within 300 days of her termination date, that NDDOL's finding that the charge was timely filed was erroneous, and that the erroneous finding of the administrative agency is not binding on the court. As to the age discrimination and retaliation issues, Wal-Mart alleges they were not included in the charge filed with NDDOL, and are consequently time-barred.
In response to the motion, Stroklund alleges simply that she had 90 days from her June 30, 2003 receipt of the EEOC "right to sue" letter to initiate litigation. (Doc. No. 14).
Timeliness
In addition to alleging violation of North Dakota's Human Rights Act, N.D. Cent. Code Chap. 14-02.4, the Complaint includes a single reference to the Americans with Disabilities Act. (Doc. No. 1, VI). The Human Rights Act prohibits an employer from discriminating, based on age or disability and other factors, in any term or condition of employment. N.D. Cent. Code § 14-02.4-03. It requires a person claiming an act of wrongdoing under the statute to file a complaint with NDDOL, or to bring an action in district court, within 300 days of the "alleged act of wrongdoing." N.D. Cent. Code § 14-02.4-19.
Neither Stroklund's Complaint, nor her response to this motion, specifies any act of wrongdoing alleged to have occurred after January 13, 2001, when her employment was terminated. Her NDDOL charge stated, "I applied for job insurance benefits and was approved. On 3/16/01, Wal-Mart representatives provided false information with regard to the reason I was terminated from employment to the Appeals Referee for Job Service North Dakota in an attempt to deny my job insurance benefits." (Doc. No. 10, Ex. 2). If Stroklund could establish an "act of wrongdoing" which occurred on March 16, 2001, her NDDOL charge would have been filed within 300 days of the act, and would have been timely.
Although it might be conceivable that some set of facts could establish "an act of wrongdoing" in connection with Wal-Mart providing information to Job Service, Stroklund has not made any factual showing on any such set of facts. She submitted no statement of material facts in dispute in response to this motion, as provided in Local Rule 7.1. She submitted no evidence of any kind to counter Wal-Mart's position that no act of wrongdoing could have occurred after January 13, 2001. It is well-established that a party opposing a motion for summary judgment cannot rest on pleadings alone, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial.Palesch v. Missouri Comm'n on Human Rights. 233 F.3d 560 (8th Cir. 2000).
NDDOL's determination included its statement that Stroklund had timely filed her charge. Wal-Mart asserts that an agency's factual finding is not binding on a court. In support of that position, Wal-Mart citesWhite v. Honeywell, Inc., 141 F.3d 1270 (8th Cir 1998). InWhite, the plaintiff alleged on appeal that the trial court had erroneously admitted evidence of the EEOC's finding of "no probable cause." The trial court had determined that the outcome of the agency decision was relevant to its impact on the plaintiff's damages. The trial court instructed the jury that it should not consider the agency findings to be binding, but that they could be considered as other evidence. Reversing on other grounds, the Eighth Circuit found no error in admitting evidence of the agency findings or in the court's instruction concerning those findings. The Court stated, "Given White's opportunity to discredit the agency determinations and the district court's cautionary instruction warning the jury not to consider the agency findings as binding, we conclude that the district court did not abuse its discretion by admitting the results of the EEOC charges in this case." Id. 141 F.3d at 1278.
White supports Wal-Mart's position that findings of the administrative agency are not binding on a court which later considers a discrimination claim which had been reviewed by the agency. Given that Stroklund submitted no evidence of any act of discrimination which occurred within the 300 days prior to filing of her NDDOL charge, and given that the NDDOL finding that her charge was timely is not binding on the district court, it is this Court's opinion that Stroklund's charge of discrimination was not filed within the time required by statute. Statements to the contrary by the administrative agencies, advising Stroklund that suit could still be filed, do not remedy the failure to file within 300 days of an act of wrongdoing.
Age Discrimination
The NDDOL charge included no mention of discrimination based on age. Stroklund's Complaint includes an allegation that she was the "subject of discrimination by Defendant due to a back disability and her age." (Doc. No. 1, VI). Allegations not included in the charge filed with the administrative agency are not within the jurisdiction of the district court. See, e.g., Mohr v. Dustrol, Inc., 306 F.3d 636, 644-45 (8th Cir. 2002).
Retaliation
The ADA prohibits retaliation. To establish a claim of retaliation under the ADA, a plaintiff must establish three elements: that the plaintiff engaged in statutorily protected activity, that there was an adverse action taken against the plaintiff, and that there was a causal connection between the adverse action and the protected activity.Foster v. Time Warner Entertainment Co. L. P., 250 F.3d 1189 (8th Cir. 2001). Although it might be conceivable to establish retaliation in connection with Wal-Mart providing information to Job Service in March 2001, Stroklund has not made any factual showing of retaliation. It is this Court's opinion that Stroklund's claim of retaliation cannot survive the motion for summary judgment.
RECOMMENDATION
For the reasons discussed above, it is this Court's opinion that Stroklund's charges of disability and age discrimination, and of retaliation, were not timely filed with the administrative agency. This Court therefore RECOMMENDS that Defendant's motion for summary judgment (Doc. No. 10) be granted.