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holding that there was no evidence that unsigned letters by plaintiff were ever received by the EEOC and therefor would not be considered "charges" under the EEOC regulations
Summary of this case from Cooper v. Arkansas State Highway Transp. DeptOpinion
Civil Action No. 3:01-CV-1777-P
June 20, 2002.
MEMORANDUM OPINION AND ORDER
Now before this Court are the following:
1. Defendant's Motion to Dismiss Plaintiffs' (sic) Original Petition and Brief in Support, filed October 12, 2001;
2. Plaintiffs' (sic) Motion in Response to Defendant's Motion to Dismiss, filed October 25, 2001;
3. Defendant's Reply Brief in Support of its Motion to Dismiss, filed November 9, 2001;
4. Plaintiffs' Motion for Leave to Amend Original Petition, filed November 21, 2001;
5. Defendant's Response in Opposition to Plaintiffs' Motion for Leave to Amend Original Petition, filed February 8, 2002; and
6. Plaintiffs' Brief in Support of its Motion for Leave to Amend Original Petition, filed February 13, 2002.
After reviewing the motions, the parties' briefing, the attachments, and the relevant law, the Court hereby GRANTS Defendant's Motion to Dismiss and DENIES Plaintiff's Motion for Leave to Amend Original Petition.
BACKGROUND
Plaintiff Ronald Broadus ("Broadus" or "Plaintiff") filed his Original Petition in a pro se capacity on September 10, 2001. Broadus, an African American male, alleged employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, by his employer Aegis Communications Group, Incorporated ("Aegis" or "Defendant").
Plaintiff is currently an employee of Aegis and has worked there since approximately 1991. Pl.'s 1997 letter. In 1995 and 1997 Plaintiff sent complaint letters to the CEO of Aegis. He purportedly also forwarded those letters to the Equal Employment Opportunity Commission ("EEOC"). Plaintiff pleads that in 1997 he was removed from his position as an Administrative Assistant and suffered a pay reduction in retaliation for the 1995 letter. Plaintiff also alleges that in 2000 he was overlooked for two promotions in retaliation for his continued actions to alert Defendant to his claims of employment discrimination. Orig. Pet. ¶ X.
Plaintiff further provides allegations of company-wide discrimination and attempts to bring a class action suit on behalf of himself and eight additional parties. Plaintiff alleges that Anglo Americans and African Americans in the same positions at Aegis receive disparate salaries. Plaintiff also alleges that Defendant, between January 2000 and May 2001, terminated sixteen African Americans and forced another eight to resign. Orig. Pet. ¶ VI.
Plaintiff now asks the Court to grant him leave to amend his Original Petition to join eight additional parties and to add a claim under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 ("ADEA"). Meanwhile, Defendant asks the Court to dismiss Plaintiff's Original Petition.
DISCUSSION
A. Standard for Dismissal Under Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." A district court cannot dismiss a complaint or any part of it, for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A motion to dismiss under 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M University System, 117 F.3d 242, 247 (5th Cir. 1997). In deciding if the plaintiff has stated a claim, the Court must accept all well-pleaded facts as true and resolve every doubt in favor of the plaintiff. Id., 117 F.3d at 247. It is further emphasized that while pro se pleadings are construed liberally, each pro se plaintiff bears the burden "to plead specific facts and proper jurisdiction, pursuant to Rule 8 of the Federal Rules of Civil Procedure." Martin v. United States Post Office, 752 F. Supp. 213, 218 (N.D. Tex. 1990).
B. Defendant's Motion to Dismiss
Defendant moves to dismiss under Rule 12(b)(6) on five bases: (1) Plaintiff failed to attach a copy of the proposed amended pleading to the Motion for Leave to Amend Original Petition under Local Rule 15.1; (2) Plaintiff failed to file or institute an administrative charge with the EEOC within 300 days of the alleged discrimination; (3) Proposed Co-Plaintiffs failed to exhaust available administrative remedies because they did not obtain right-to-sue letters from the EEOC; (4) the Proposed Co-Plaintiffs cannot be certified as a class; and (5) the EEOC has no authority to issue a right-to-sue letter before 180 days have passed since the filing of charges without attempting investigation.
This Court need only address the second basis for dismissal. A Title VII plaintiff in Texas making a claim under 42 U.S.C. § 2000e-5 (e)(1) must file a "charge" of discrimination with the EEOC no more than 300 days after the alleged discrimination occurred. Webb v. Cardiothoracic Assocs. Of N. Tex., P.A., 139 F.3d 532, 537 (5th Cir. 1998).
Although Plaintiff allegedly sent letters to the EEOC in 1995 and 1997, the first verified charge was filed with the EEOC in October 2001. While the Supreme Court's recent decision in Edelman specifically applied related-back verification under EEOC regulation 29 C.F.R. § 1601.12 (b) (2002), this Court finds Plaintiff's 1995 and 1997 letters insufficient to be considered as "charges" under the same regulation or the statute. Edelman v. Lynchburg, 122 S.Ct. 1145, 1148 (2002). The 1995 and 1997 letters address perceived "nepotism, unfairness, and possibly discrimination," but neither letter names specific parties or alleges specific acts of discrimination against Plaintiff. Both letters are addressed to Defendant, not to the EEOC, and both letters are unsigned. There is no evidence that these letters were ever received by the EEOC, even when viewing the record in the light most favorable to Plaintiff. For these reasons, the Court finds Plaintiff's letters insufficient to form any basis for related-back verification.
EEOC regulation 29 C.F.R. § 1601.12 (b) (2002) provides that "a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to verify charge, or to clarify and amplify allegations made therein. Such amendments and amendments alleging additional acts which constitute unlawful employment practices related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received."
One additional issue in this case is the significance of the delayed notice to the employer of the filed charges. Although the Supreme Court did not reach this issue in Edelman, it noted there was some factual support for the argument that Edelman's unverified letter should not be treated as a charge because neither he nor the EEOC treated it as one. Id., 112 S.Ct. at 1152. Plaintiff alleges that he thought the EEOC had contacted his employer regarding his complaint. Pl's Mot. in Resp. to Def.'s Mot. to Dismiss at 2. However, the inactivity of both Plaintiff and the EEOC after the writing of these letters indicates that neither Plaintiff nor the EEOC considered the letters as filed charges. The Court is disinclined to treat Plaintiff's letters otherwise at this time.
Based on these facts, Plaintiff's Title VII and ADEA causes of action are limited to events occurring in the time period 300 days prior to October 22, 2001, the date on which official charges were filed with the EEOC. Therefore, the time period under consideration begins on or about December 27, 2000. In Plaintiff's attachment to the charges filed with the EEOC, Plaintiff places the date of his denied promotions in November of 2000. Furthermore, the record indicates that the remainder of Plaintiff's allegations of discrimination against him occur prior to that date. Therefore, this Court finds no well-pleaded allegations in Plaintiff's complaint or in Plaintiff's filed charges concerning events within the statute of limitations.
C. Plaintiff's Motion to Amend
Plaintiff also requests leave to join eight additional plaintiffs ("Proposed Co-Plaintiffs") to his lawsuit. Defendant asks that Proposed Co-Plaintiffs be barred from joining Plaintiff's suit because they did not obtain individual right-to-sue letters from the EEOC, and therefore they have not exhausted the administrative remedies available to them. Under Title VII, a plaintiff may file a charge of discrimination on behalf of another, or multiple plaintiffs seeking to join their claims may invoke the single filing rule. However, no charges were filed with the EEOC on behalf of the Proposed Co-Plaintiffs. Furthermore, in order to invoke the single filing rule, at least one plaintiff must have filed a timely charge with the EEOC. As this Court has found no such charge to exist here, Proposed Co-Plaintiffs have no suit to join.
In addition, Plaintiff requests leave to file a class action lawsuit as a means of joining the Proposed Co-Plaintiffs. This Court finds that suggestion wholly without merit. First, a total of nine co-plaintiffs would not satisfy the numerosity requirement of Fed.R.Civ.P. 23(a), the rule governing the filing of class actions. See General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980) (class of fifteen insufficient); Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 715-716 (5th Cir. 1994) (class of eleven insufficient). Second, Plaintiff has not plead with enough specificity to establish a common question of law or fact across the proposed class. "If broad discrimination is the only common denominator in the class, this does not satisfy the commonality requirement." Zachery v. Texaco Exploration and Prod., 185 F.R.D. 230, 238 (W.D. Tex. 1999). Third, Plaintiff's claims are atypical of the proposed class alleging racial discrimination because Plaintiff includes individual claims of age discrimination and retaliation. Fourth, Plaintiff cannot fairly and adequately protect the proposed class as class representative or class counsel. This is in accordance with the general principle that "in federal court a party can represent himself or be represented by an attorney, but cannot be represented by a nonlawyer." Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir. 1998). This Court finds no grounds on which Plaintiff's lawsuit could be certified as a class action.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiff has not plead a claim for which relief can be granted. Accordingly, the Court hereby GRANTS Defendant's Motion to Dismiss and DENIES Plaintiff's Motion for Leave to Amend.