Opinion
CASE NO. 8:03CV254
January 5, 2004
MEMORANDUM AND ORDER ON MOTION TO DISMISS
This matter is before the Court on the Defendant's Motion to Dismiss the Plaintiff's Second and Third Causes of Action (Filing No. 4). The Defendant, Werner Enterprises, Inc. ("Werner"), has submitted a brief, reply brief, and index of evidence in support of its motion (Filing Nos. 5, 11, and 18). The Plaintiff, Wanda L. Bennett ("Bennett"), has submitted a brief and index of evidence in opposition (Filing Nos. 9 and 10).
For the reasons stated below, the Motion to Dismiss the Plaintiff's Second and Third Causes of Action will be granted.
STANDARD OF REVIEW
Bennett's Second and Third Causes of Action allege that she was terminated because of her sex in violation of 42 U.S.C. § 2000e et seq . ("Title VII"), and Neb. Rev. Stat. § 48-1101 et seq . (the Nebraska Fair Employment Practices Act, "NFEPA"). Werner moved to dismiss Bennett's Second Cause of Action, under Fed.R.Civ.P. 12(b)(1) and (6), for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted. Werner moved to dismiss Bennett's Third Cause of Action, under Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. Because both parties have submitted matters outside the pleadings which will not be excluded by the Court, the Motion to Dismiss will be treated as one for summary judgment and disposed of as provided in Fed.R.Civ.P. 56 .
The Court must examine the record in the light most favorable to the nonmoving party in the context of a summary judgment motion. U.S. ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d 765, 767 (8th Cir. 2002). The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). The proponent need not, however, negate the opponent's claims or defenses. Id. at 324-25.
In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id. at 586.
Summary judgment is "properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp., 477 U.S. at 327. Nevertheless, the Court's function is not to weigh the credibility and persuasiveness of evidence in the context of a motion for summary judgment. Kampouris v. St. Louis Symphony Soc'y, 210 F.3d 845, 847 (8th Cir. 2000).
FACTS
Bennett was hired by Werner in July of 1994. On January 14, 2001, Bennett was told that Werner's Director, Marty Kemp, and its Human Resources Director, Doug Pedersen, had eliminated her position as a Customer Service Manager. Bennett was then 48 years old. After Bennett's termination, the duties of her former position were performed by a 28-year-old female employee and a 28-year-old male employee. Bennett applied for other positions with Werner after notification of her termination, but was advised that there were no openings in the two departments in which she had experience. Within two weeks after Bennett's termination, Werner hired two new male employees and one new female employee, all under the age of 35, for positions in one of the departments in which Bennett had prior experience. (Complaint, Filing No. 1, at ¶¶ 14-21; Nebraska Equal Opportunity Commission Charge of Discrimination ("NEOC"), Exhibit A to Filing No. 5.) In June of 2001, Bennett filed a Charge of Discrimination with the NEOC, alleging that she was subjected to discrimination on the basis of her age in violation of Neb. Rev. Stat. § 48-1004 of the Nebraska Act Prohibiting Unjust Discrimination in Employment Because of Age ("NAPUDEBA"), and the federal Age Discrimination in Employment Act of 1967 ("ADEA"). Specifically, Bennett alleged that she was terminated because of her age, replaced by younger employees, and not rehired because of her age. Nothing in the NEOC Charge of Discrimination alleged any discrimination on the basis of sex or in any way placed Werner on notice that any allegation of sex discrimination should be inferred. (Filing No. 5, Exhibit A). On June 15, 2001, the NEOC submitted a Request for Production of Documents to Werner, pursuant to NAPUDEBA. Nothing in the Request for Production sought any information from Werner regarding any alleged sex discrimination or in any way put Werner on notice that allegations of sex discrimination had been raised by Bennett. (Filing No. 18, Exhibit D). On November 15, 2002, the NEOC issued its determination pursuant to NAPUDEBA, finding reasonable cause that discrimination occurred as alleged by Bennett. Specifically, the NEOC rejected Werner's contention that Bennett's age was not a factor in her termination. The NEOC found that many employees terminated by Werner were in the protected age group and were replaced with younger employees, and that the average age of employees who replaced the terminated employees was 20 to 15 years younger than that of the terminated employees. (Filing No. 18, Exhibit C). On February 12, 2003, the United States Equal Employment Opportunity Commission ("EEOC") issued its determination under the ADEA, finding reasonable cause that Bennett was discharged because of her age in violation of the ADEA. (Filing No. 18, Exhibit E). Bennett contends that she received her notice of her right to sue "on or about April 26, 2003." (Complaint, Filing No. 1, ¶ 10).
DISCUSSION
Title VII With respect to Bennett's claim of sex discrimination under Title VII, Werner contends that Bennett failed to exhaust her administrative remedies and, therefore, this Court lacks subject matter jurisdiction over the claim, and it is not a claim upon which relief can be granted.Exhaustion of administrative remedies is a jurisdictional prerequisite to a Title VII action. Alexander v. Gardner-Denver Co. , 415 U.S. 36 (1974). To exhaust administrative remedies, an individual must (1) timely file a charge of discrimination with the EEOC, or authorized state or local agency, setting forth the facts and nature of the charge, and (2) receive notice of the right to sue. 42 U.S.C. § 2000e-5(b), (c), and (e); Nichols v. American Nat'l Insur. Co. , 154 F.3d 875, 886 (8th Cir. 1998). The completion of that two-step process constitutes exhaustion only as to those allegations set forth in the administrative charge and those claims that are reasonably related to such allegations. Faibisch v. University of Minnesota , 304 F.3d 797, 803 (2002).
Exhaustion of administrative remedies entitling a claimant to bring a cause of action under Title VII "requires a claimant to give notice of all claims of discrimination in the administrative complaint." Tart v. Hill Behan Lumber Co. , 31 F.3d 668, 671 (8th Cir. 1994). An administrative charge of discrimination serves the essential purposes of providing the charged party with notice of the allegations, and permitting the administrative agency to perform its investigatory and conciliatory role. Williams v. Little Rock Municipal Water Works , 21 F.3d 218, 223 (8th Cir. 1994). In Williams , the court upheld a district court's grant of summary judgment to a defendant employer on a charge of race discrimination when it was apparent that the plaintiff's administrative charge was based on retaliation and did not encompass allegations of race discrimination. Id. In Roark v. City of Hazen , 189 F.3d 758 (8th Cir. 1999), the court upheld a district court's dismissal of a plaintiff's Title VII claims of retaliation and discrimination during the course of his employment because they had not been presented in his administrative complaint. Id . at 761. In Dorsey v. Pinnacle Automation Co. , 278 F.3d 830 (8th Cir. 2002), the court upheld a district court's dismissal of a plaintiff's hostile-work-environment claims, because they were not included in his administrative charge of age discrimination. While the court noted that "the administrative complaint must be construed liberally in order to further the remedial purposes of applicable legislation," and a "plaintiff `may seek relief for any discrimination that grows out of or is reasonably related to the substance of the allegations in the administrative charge,'" a civil suit should not be allowed "to encompass allegations outside the ambit of the predicate [administrative] charge." Id . at 838. In opposition to the Motion to Dismiss, Bennett presents a written statement which she contends that she brought to the NEOC in June of 2001, at the time of her "intake interview." (Filing No. 10, Item A). The written statement contains some allegations which can fairly be interpreted to encompass issues of sexual harassment in the form of a hostile work environment. In Russell v. TG Missouri Corp. , 340 F.3d 735 (8th Cir. 2003), a plaintiff contended that her "Initial Complainant Interview" with the Missouri Commission on Human Rights included allegations of retaliation and, therefore, such allegations should be considered as "reasonably related to" or "growing out of" the allegations of discrimination in her administrative charge. The court found that the Initial Complaint Interview document was "not a part of the administrative complaint or charge" and was "irrelevant to the question of whether Russell exhausted her administrative remedies," because "exhaustion of administrative remedies requires a claimant to give notice of all claims of discrimination in the initial administrative complaint or charge." Id. at 747. Russell's retaliation claim was, therefore "barred as a matter of law." Id. at 748.
Regardless of whether Bennett's written statement was given to an NEOC investigator, discussed with an investigator, or placed in the NEOC file, the NEOC's charge and its investigation did not encompass allegations of sex discrimination or sexual harassment. At no time was Werner placed on notice that sex discrimination or sexual harassment were included in Bennett's charge of discrimination, and Bennett did not exhaust her administrative remedies with respect to any such allegations. Accordingly, Werner's Motion to Dismiss Bennett's Title VII sex discrimination claim for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), and for failure to state a claim under Fed.R.Civ.P. 12(b)(6), will be granted.
NFEPA
With respect to Bennett's claims of sex discrimination under NFEPA, Werner contends that the claims are time-barred by the 300-day statute of limitations in Neb. Rev. Stat. 48-1118 (Reissue 1998), and, therefore, Bennett has failed to a state claim under NFEPA upon which relief can be granted.
Neb. Rev. Stat. § 48-1118(2) provides:
A written charge of violation of the Nebraska Fair Employment Practice Act shall be filed within three hundred days after the occurrence of the alleged unlawful employment practice and notice of the charge, including a statement of the date, place, and circumstances of the alleged unlawful employment practice, shall be served upon the person against whom such charge is made within ten days thereafter.In Goolsby v. Anderson , 549 N.W.2d 153 (Neb. 1996), the Nebraska Supreme Court held that Neb. Rev. Stat. § 20-148 provides an independent cause of action for violations of NFEPA. Section 20-148 provides:
Any person or company . . . who subjects or causes to be subjected any citizen of this state . . . to the deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska, shall be liable to such injured person in a civil action. . . .A plaintiff suing under § 20-148 may, therefore, bring a cause of action to enforce the rights secured by NFEPA without first exhausting administrative remedies prescribed by the Act. Id . at 157; Parrish v. Immanuel Medical Center , 92 F.3d 727, 734 (8th Cir. 1996). Whether an action for employment discrimination is brought under § 20-148 or § 48-1101, et seq. , however, the applicable statute of limitations is 300 days as provided in §§ 48-1118(2). Adkins v. Burlington Northern Santa Fe Railroad Co. , 615 N.W.2d 469, 473 (Neb. 2000); Hassler v. Alegent Health , 198 F. Supp.2d 1108, 1111 (Neb. 2002).
Bennett's employment was terminated on January 15, 2001. As discussed above, she did not exhaust her administrative remedies with respect to her allegations of sex discrimination, as mandated by § 48-1118(2). On July 1, 2003, Bennett brought her NFEPA sex discrimination claims in this Court under §§ 48-1101, et seq . Even if Bennett had filed her NFEPA sex discrimination claims under § 20-148, avoiding the requirement of exhaustion of administrative remedies, the claims would still be time-barred by the applicable 300-day statute of limitations. Werner's Motion to Dismiss Bennett's NFEPA sex discrimination claims, for failure to state a claim Fed.R.Civ.P. 12(b)(6), will be granted.
IT IS ORDERED:
1. Defendant's Motion to Dismiss Plaintiff's Second and Third Causes of Action (Filing No 4) is granted;
2. Plaintiff's Second and Third Causes of Action in the Complaint are dismissed.