Opinion
No. 4:18-CV-0362
08-13-2018
BECKY BARRICK, Plaintiff, v. WEIS MARKETS, INC., Defendant.
()
MEMORANDUM OPINION
I. BACKGROUND
On February 13, 2018, Plaintiff, Becky Barrick, hereinafter "Ms. Barrick," filed a one-count complaint alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 against Defendant, Weis Markets, Inc., hereinafter "Weis Markets." On April 13, 2018, Defendant filed its first motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The bases for the motion were two-fold. The Defendant argued that substantively Ms. Barrick had failed to state a claim and further argued that she had failed to exhaust her administrative remedies.
ECF No. 1.
Plaintiff then filed an amended complaint, purportedly to cure the deficiencies identified in the first motion to dismiss. The amended complaint failed to cure the deficiencies and Weis Markets filed a renewed motion to dismiss on the same two bases. This second motion to dismiss is the subject of the instant Memorandum Opinion. The matter has now been fully briefed and is ripe for consideration and disposition.
ECF No. 10.
ECF No. 12.
II. DISCUSSION
A. Motion to Dismiss Standard
When considering a motion to dismiss for failure to state a claim upon which relief may be granted, a court assumes the truth of all factual allegations in a plaintiff's complaint and draws all inferences in favor of that party; the Court does not, however, assume the truth of any of the complaint's legal conclusions. If a complaint's factual allegations, so treated, state a claim that is plausible - i.e., if they allow the court to infer the Defendant's liability - the motion is denied; if they fail to do so, the motion is granted.
Phillips v. Cnty. Of Allegheny, 616 F.3d 224, 228 (3rd Cir. 2008).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See also Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3rd Cir. 2016).
Id.
Additionally, as is relevant here, a plaintiff in an employment discrimination case does not need to establish a prima facie case in her complaint. The United States Court of Appeals for the Third Circuit clarified this point recently, stating "a complaint need not establish a prima facie case in order to survive a motion to dismiss."
Connelly, 809 F.3d at 788.
B. Facts Alleged in the Amended Complaint
The facts alleged in the amended complaint, which I must accept as true for the purposes of this motion, are as follows.
The substantive allegations
"In or around July of 2012, Ms. Barrick was hired by Defendant as a Pharmacist; she was thereafter promoted to Pharmacy Supervisor, which position she held at all times material to this complaint." "Upon information and belief, Defendant employed five (5) pharmacy supervisors (including Ms. Barrick) during Ms. Barrick's employment. Three (3) of those pharmacy supervisors were male." "Throughout Ms. Barrick's tenure of employment, she performed her job to Defendant's satisfaction, which was reflected in her regular employee evaluations." "On or about January 1, 2016, Defendant hired a new Director of Pharmacy Operations, Crystal Osunde." "Early on, Ms. Osunde held Ms. Barrick to different standards than the male pharmacy supervisors and targeted Ms. Barrick on account of her sex." "At Ms. Barrick's mid-year evaluation, Ms. Osunde identified Ms. Barrick and another pharmacy supervisor, John Chakan, as underperformers." "As a result of this evaluation, Ms. Barrick was placed on a corrective action plan (CAP)." "Mr. Chakan was not placed on a CAP." "While on the CAP, Ms. Osunde regularly threatened to fire Ms. Barrick and frequently told her that her termination was simply a matter of time, whereas Ms. Osunde did not similarly threaten Mr. Chaken's employment." "Believing that Ms. Osunde would carry out her threats and unable to continue working in that environment, Ms. Barrick left her employment on or about January 31, 2017."
Amended Complaint, ECF No. 10 at ¶ 15.
Id. at ¶ 16.
Id. at ¶ 17.
Id. at ¶ 18.
Id. at ¶ 19.
Id. at ¶ 20.
Id. at ¶ 21.
Id. at ¶ 22.
Id. at ¶ 23.
Id. at ¶ 24.
The allegations as to exhaustion
On July 25, 2017, Ms. Barrick filed a complaint with the Equal Employment Opportunity Commission hereinafter "EEOC." A representative from the EEOC contacted Ms. Barrick's attorney via e-mail to advise that an "executed Charge Form 5" was needed. On October 11, 2017, counsel provided the representative with "an executed signature page, explaining that, because of printing issues, Ms. Barrick's Charge Form 5 had been cut in two pages, leaving the signature section on a separate page." The representative responded to counsel's email with the following, "I need a copy of the entire charge please, not just the signature page." "Undersigned counsel responded to [the representative's email], with a copy of the original Charge Form 5, asking 'Any chance this [the original Charge Form 5], in combination with the signature page, would work?'" The representative responded by email that "the documents provided would suffice as a properly executed and filed Charge Form 5." The EEOC issued Ms. Barrick a Right to Sue Letter on November 15, 2017.
Id. at ¶ 7.
Charge Form 5 is the operative document at issue here. It is the document that puts both the EEOC and the employer on notice that the employee is filing a charge of discrimination. It is the document that must be 'verified,' defined herein, typically by the employees signature.
Amended Complaint, ECF No. 10 at ¶ 8.
Id. at ¶ 9.
Id. at ¶ 10.
Id. at ¶ 11.
Id. at ¶ 12.
Id. at ¶ 13.
The exhibits attached to the amended complaint
The exhibits attached to the amended complaint are curious. I have attached them in their entirety, in the same order as Plaintiff. Plaintiff filed two separate pages of two EEOC Form 5 forms, both partially incomplete. First, counsel attached the signature of an EEOC Form 5, with nothing else, just the portion of the page with a signature. Next, counsel attached the first page of EEOC Form 5, with no signature. From counsel's attachments, it is clear that there is no single verified EEOC Form 5 as requested by the EEOC representative and as required by EEOC regulations. What Plaintiff has attached are two, partially completed EEOC Form 5s.
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ECF No. 10-1 at 1.
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ECF No. 10-2 at 1.
C. Analysis
The Equal Opportunity Employment Commission is the administrative body which has been "empowered" by Congress to, inter alia, investigate a charge of discrimination filed by an aggrieved employee who has alleged discrimination under the Americans with Disabilities Act. This statutory provision also requires that a charge "be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires."
The statutory "oath or affirmation" requirement is colloquially referred to as "verification," as this is the term used by the EEOC in its administrative regulations. Specifically, the regulations require that a charge of discrimination "be in writing and shall be verified," with "verified" defined as "sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury."
Here, the email chain between Plaintiff's counsel and the representative from the EEOC belies the contentions of Plaintiff in her amended complaint. Plaintiff asserts that she properly filed a verified charge with the EEOC and was duly provided with a Right to Sue Letter, which implies that the EEOC conducted an investigation and that Weis Markets had the ability to defend before the EEOC. The email chain shows that this is not the case. Defendant attached the full email chain, and other documents, to its motion to dismiss, as it had filed a Freedom of Information Act request with the EEOC.
"Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself." Typically, to consider materials outside the complaint, it must be converted to a motion for summary judgment. However, "[c]onsideration of materials outside the complaint is not entirely foreclosed on a 12(b)(6) motion." It is permissible to consider full text of documents partially quoted in complaint. It is also permissible to consider documents relied upon by plaintiff in drafting the complaint and integral to the complaint. "However, before materials outside the record may become the basis for a dismissal, several conditions must be met." "For example, even if a document is "integral" to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document." It must also be clear that there exist no material disputed issues of fact regarding the relevance of the document. In this matter, I find that these conditions have been met, and will consequently consider Defendant's attachments. They read, as follows:
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
See id. and Fed. R. Civ. P. 12(d).
Faulkner, 463 F.3d at 134.
San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 808-09 (2d Cir.1996).
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991).
Faulkner, 463 F.3d at 134.
Id, See also e.g., Kaempe v. Myers, 367 F.3d 958, 965 (D.C.Cir.2004); Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001).
Faulkner, 463 F.3d at 134.
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ECF No. 12-3 at 41.
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Id.
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Id. at 40-1.
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Id. at 41.
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Id.
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Id.
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Id.
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Id. at 15.
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Id. at 14.
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Id.
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Id.
The EEOC file also contains a Dismissal and Notice of Rights Form 161:
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ECF No. 12-3 at 12.
"It is axiomatic that a private litigant who filed a sworn charge and was subsequently issued a right to sue letter can maintain a Title VII lawsuit." "A private litigant who initially filed an unsworn charge but subsequently verified the charge while the EEOC proceedings were pending can also maintain a Title VII lawsuit." It is clear to this Court that Ms. Barrick never filed a verified charge, despite being given the opportunity to do so, resulting in the EEOC's dismissal of the action.
Bacon v. Allstate Ins. Co., No. 93 C 1701, 1995 WL 360736, at *4 (N.D. Ill. June 14, 1995).
Id.
The manner in which courts in this Circuit dispose of unverified claims lies on a continuum. On one end of the spectrum, are cases in which the plaintiff has taken no action to verify his or her claim. One such case is Danley v. Book-of-The-Month-Club, Inc. On the other end of the spectrum are cases with extraordinary fact patterns where the facts presented justify permitting the civil action to proceed. One case on that end of the spectrum is Buck v. The Hampton Township School District.
921 F. Supp. 1352 (M.D. Pa. 1996) (Caldwell, J.) (Affirmed without opinion at 107 F.3d 861 (3d Cir. 1997).
452 F.3d 256, 261 (3d Cir. 2006).
In Danley, the plaintiff sent correspondence to the EEOC indicating that she sought to file a formal complaint against her employer. Danley submitted no further documentation to the EEOC, and no action was taken by the EEOC until it issued its standard right to sue letter. The Honorable William W. Caldwell, of this Court, held, as a matter of first impression in this Circuit, that "a private litigant cannot maintain a Title VII claim where his or her EEOC charge was not verified prior to the EEOC's issuance of a right to sue letter." Judge Caldwell based this conclusion on two factors. First, it comports with the plain language of the statute. Second, the purpose of verification is to protect the employer from responding to frivolous charges, a protection that is lost upon issuance of the right to sue letter.
Danley, 921 F. Supp at 1353.
Id.
Id.
Id. at 1354.
Id, see also Vason v. City of Montgomery, 240 F.3d 905, 907 (11th Cir. 2001) (holding that even where plaintiff requested the immediate issuance of a right to sue letter, regardless, the statute mandates that charges be made under oath or affirmation and because it is undisputed that Appellant's charge was not under oath or affirmation, and that plaintiff never attempted to amend it to correct this error, the matter must be dismissed).
In Buck, the United States Court of Appeals for the Third Circuit stated that equitable considerations apply to excuse an unverified EEOC charge "only in the most unusual cases." The Third Circuit explicitly stated that "we expect that the cases in which [Buck] applies to be few and far between."
Buck, 452 F.3d at 265.
Id.
Buck filed her Intake Questionnaire with the EEOC. The EEOC asked her to attend a meeting with it, but instead of attending the meeting, Buck's attorney filed a detailed, eight-page charge of discrimination. The EEOC notified Buck's employer of the Notice of Charge of Discrimination and enclosed a copy of her eight-page letter. Not only was the employer notified of the charge of discrimination, but it defended the charge.
Id. at 259.
Id.
Id.
Id.
The Third Circuit explained that although Buck did not comply with the technical verification requirements, equitable considerations demand that a complainant should not inadvertently forfeit his or her rights. "[T]he statutory verification requirement 'has the object of protecting employers from the disruption and expense of responding to a claim unless a complainant is serious enough and sure enough to support it by oath subject to liability for perjury.'"
Id. at 264.
Id. citing Edelman v. Lynchburg Coll., 535 U.S. 106, 113, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002).
Ms. Barrick's situation is simply not comparable to the extraordinary circumstances and corresponding outcome of Buck. Despite the EEOC providing Ms. Barrick with multiple opportunities to cure the deficiencies in the unverified EEOC Charge Form 5, she failed to comply with either the letter or spirit of the law, and failed to exhaust her administrative remedies. Accordingly, Weis Market's motion to dismiss for a failure to exhaust administrative remedies must be granted.
Finally, it is important to note that dismissal is appropriate here, rather than providing leave for Plaintiff to again amend her complaint, because "[w]hen the EEOC has issued its right to sue letter and closed its file, it is not possible for a plaintiff to verify a previously unsworn charge."
Danley, 921 F.Supp. at 1354.
EEOC regulations require complainants to verify their administrative allegations, meaning that they are "sworn to or affirmed" before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgments, or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. §§ 1601.3(a), 1601.9. Administrative regulations, however, also allow for amended verification: if an initial EEOC filing is unverified, a complainant can later swear an oath that "relates back" to confirm the allegations in the initial filing. 29 C.F.R. § 1601.12(b). No statutory provision or EEOC regulation sets a deadline for filing an amended charge containing a verification. However, issuance of a right-to-sue letter normally terminates the processing of an administrative charge. See 29 C.F.R. §§ 1601.28(a)(3), 1601.12(b); see also EEOC Right to Sue Letter ("The Commission's processing of this charge has been concluded.").
Because it is not possible for Ms. Barrick to now amend her claim to verify it, which renders amending the complaint futile, the matter has been procedurally defaulted and dismissal is required. Although there is a "liberal pleading philosophy of the federal rules" a court may dismiss an amended complaint in its entirety with prejudice because another opportunity for amendment would be futile. "Futility" means that the complaint, as amended, would fail to state a claim upon which relief could be granted.
Maillet v. TD Bank U.S. Holding Co., 981 F. Supp. 2d 97, 99 (D. Mass. 2013).
Maillet v. TD Bank U.S. Holding Co., 981 F. Supp. 2d 97, 99 (D. Mass. 2013).
See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). --------
III. CONCLUSION
Defendant's Motion to Dismiss pursuant to Rule 12(b )(6) is granted. An appropriate Order follows.
BY THE COURT:
s/ Matthew W . Brann
Matthew W. Brann
United States District Judge