Summary
denying motion to dismiss based on a lack of identity of interest because the record was not fully developed and the court could not adequately apply either of the two accepted tests
Summary of this case from Equal Emp't Opportunity Comm'n v. Bass Pro Outdoor World, LLCOpinion
Case No. C2-02-843
July 7, 2003
OPINION AND ORDER
This matter is before the Court for consideration of the Defendants' Motions to Dismiss Plaintiff's Complaint (Doc. #8 and #13). For reasons stated below, Defendants' motions are denied.
I.
Plaintiff, Jackalynne A. Fletcher ("Plaintiff"), who is proceeding without the assistance of counsel, brings this action against her former employer, the Columbus Board of Education and individual Defendants Edward P. Johnson, Paulus West, and Mae Welch ("Defendants"). As the Court construes the Complaint, the Plaintiff alleges that the Defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. by discriminating against her because of her sex. In addition, the Plaintiff alleges disability discrimination, breach of contract and negligence. The Court has jurisdiction predicated upon 28 U.S.C. § 1331 and § 1367.
The Plaintiff was employed as former Department Chair, Team Academy Lead Teacher, and Acceleration Academy Coordinator by the Columbus City Schools. ( Plaintiff's Reply at 1). The Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 25, 2001, alleging gender discrimination. The EEOC identified this charge as No. 22A-A1-3817. The EEOC then sent Plaintiff a right to sue letter for this charge on May 10, 2002. ( Comp. at ¶ 2). The Plaintiff received the letter from the EEOC on May 25, 2002. ( Id.). She then submitted the complaint, a copy of the right to sue letter, and a motion to proceed in forma pauperis to this Court on August 23, 2002. The motion to proceed in forma pauperis was granted on August 27, 2002 and the complaint was filed on that same day.
The Defendants move to dismiss the Plaintiff's complaint for lack of subject matter jurisdiction under 12(b)(1) of the Federal Rules of Civil Procedure. The individual Defendants Edward P. Johnson, Paulus West, and Mae Welch filed a supplemental motion to dismiss instanter on June 4, 2003. (Doc. #13). The Court considers each motion, in turn.
II.
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may file a motion to dismiss based on a "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). The defendant has the burden of proving jurisdiction when subject matter jurisdiction is challenged under Rule 12(b)(1). Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986). In the context of a rule 12(b)(1) motion "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King and Spalding, 467 U.S. 69, 73 (1984).
III.
The Defendants contend that the Plaintiff's complaint should be dismissed because it was not filed within ninety (90) days after receiving the right to sue letter from the EEOC, as required by 42 U.S.C. § 2000e-5(f)(1). The Plaintiff contends that her filing of the complaint was timely and within the statutory period.
The Defendants cite Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984) in support of their motion to dismiss. In that case, the Plaintiff submitted a right to sue letter to the Court and was instructed to file a complaint within 90 days of the receipt of the right to sue letter from the EEOC. She failed to do so and the Court held her suit was barred by the statute of limitations. The facts in Baldwin County Welcome Center are distinguishable from the present case because the Plaintiff herein submitted a motion for in forma pauperis status together with her complaint to the Court prior to the expiration of the 90 day statute of limitations requirement.
This Court recently addressed a similar issue in Simmons v. Ohio Civil Service Emp. Assoc., No. C2-00-1208, 2003 WL 2007029 (S.D. Ohio April 10, 2003). Simmons involved a pro se filing of a race and disability discrimination complaint. The Defendant moved to dismiss on numerous grounds, one being failure to exhaust administrative remedies prior to bringing unfair representation claim. The Court held regarding this claim:
As a prerequisite to a suit, an employee must first file a charge with the EEOC for alleged violation of Title VII or the Americans with Disabilities Act. 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a). Additionally, an employee must initiate his or her civil actions within 90 days of receipt of a Right to Sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Truitt v. County of Wayne, 148 F.3d 644, 646 (6th Cir. 1998) (Title VII); 42 U.S.C. § 12117(a); Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)(ADA), cert denied, 533 U.S. 951, 121 S.Ct. 2594, 150 L.Ed.2d 752 (2001). The requirement for filing a civil action within 90 days of receipt of an EEOC Right to Sue letter is not a "jurisdictional prerequisite to suit in federal court, but a requirement that, like the statute of limitations, is subject to waiver, estoppel and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, (1982). In the Sixth Circuit, if a claimant moves to proceed in forma pauperis, the statute of limitations for filing a claim under Title VII is equitably tolled during the pendency of the plaintiff's motion. Truitt, 148 F.3d at 647-648. After the court decides in forma pauperis petition, the court may set a reasonable time for filing the complaint. Id. at 648. Further, the court may set a reasonable time for filing the complaint where the remainder period is unreasonably short. Id.Simmons, 2003 WL 2007029 at *3
The Plaintiff in Simmons submitted an in forma pauperis application and complaint to the Court prior to the expiration of the 90 day period. The complaint, however, was not filed with the Court until the in forma pauperis request was granted, which was after the 90 day period had expired. Under Truitt, the Plaintiff's in forma pauperis motion suspended the tolling of the time period until after the motion was granted or denied
The same result applies in the present case. Although Plaintiff's complaint was not filed until August 27, 2002, 94 days after the Plaintiff's receipt of the EEOC notice, Plaintiff submitted her application to proceed in forma pauperis, together with her complaint on August 23, 2002. Under Truitt, 148 F.3d at 647-648, Plaintiffs motion to proceed in forma pauperis suspended tolling of the 90 day period for the four days during the pending motion. Because the motion was ultimately granted, the filing of the complaint relates back to August 23, 2002 date of submission, making it timely filed. Defendants' motion to dismiss is therefore without merit.
IV.
The Court now considers Defendants' supplemental motion to dismiss instanter. The Individual Defendants argue that they should be dismissed because they are not named in the charge filed by the Plaintiff (Doc. #13). The Court observes that Plaintiff has failed to file a response to the motion.
Title VII provides that "it shall be an unlawful employment practice for an employer" to discriminate against an employee for any one of several reasons, including gender. 42 U.S.C. § 2000e-2(a). An "employer" is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees . . . and any agent of such person." 42 U.S.C. § 2000e(b). The word "agent" is not defined but has been interpreted to include individuals who act in "supervisory position[s] and exercise significant control over the plaintiff's hiring, firing or conditions of employment." Pierce v. Commonweath Life Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994). Thus, although an individual cannot be held personally liable under Title VII, see Wathen v. General Elec. Co., 115 F.3d 400, 404-05 (6th Cir. 1997), an individual may be sued under Title VII in his or her official capacity as an employer. Dyer v. Radcliffe, 169 F. Supp.2d 770, 774 (S.D. Ohio 2001).
In this case, it is unclear whether the individually named defendants are sued in their official or personal capacities. As stated above, to the extent Plaintiff sues them personally, the Title VII claim is without merit. To the extent Plaintiff sues them in an official capacity, it is unclear based on the present record, whether the Defendants satisfy the statutory definition of "employer." In addition, under Title VII, a complaint may only "be brought against the respondent named in the charge" of discrimination. 42 U.S.C. § 2000e-5(f)(1). Thus, to the extent Defendants are sued in their official capacities, it becomes necessary to address the effect of Plaintiff's failure to name them in the EEOC charge.
The filing of an EEOC charge against any party is a necessary prerequisite to suit. It is well-settled that a party not named in an EEOC charge may not be sued under Title VII unless there is a clear identity of interest between it and a party named in the EEOC charge or that it has unfairly prevented the filing of an EEOC charge. See Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083 (6th Cir. 1984); E.E.O.C. v. McLean Trucking Co., 525 F.2d 1007 (6th Cir. 1975); Thornton v. East Texas Motor Freight; 497 F.2d 416 (6th Cir. 1974); Eggleston v. Chicago Journeymen Plumbers, 657 F.2d 890, 908 (7th Cir. 1981); LeBeau v. Libbey-Owens-Ford Co., 484 F.2d 798 (7th Cir. 1973); Glus v. G. C. Murphy, 562 F.2d 880, 888 (3d Cir. 1977).
An identity of interest is generally found where the unnamed party has been provided with adequate notice of the charge under circumstances which afford him an opportunity to participate in conciliation proceedings aimed at voluntary compliance. Romain v. Kurek, 836 F.2d 241 (6th Cir. 1987). This test follows the two main purposes requiring that defendants be named in an EEOC charge. The first is to give notice of the suit against the defendant; the second is to allow the person to participate in conciliation efforts directed at securing voluntary compliance with the Act. Eggleston, 657 F.2d at 905.
The Sixth Circuit has adopted a test used by the Third Circuit for determining whether an identity of interest exists. The test is as follows:
(1) [W]hether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint;
(2) [W]hether, under the circumstances, the interests of a named are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings;
(3) [W]hether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party;
(4) [W]hether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977). The test looks at the relationship between the named and unnamed parties, the time the charge is filed, and the conciliation efforts that occur.
In Romain v. Kurek, 836 F.2d 241 (6th Cir. 1987), the Court affirmed the district courts decision to "analyze the identity of interest question under the frameworks set out in both Eggleston and Glus." ( Id. at 246). The Sixth Circuit found in that case that failure to name a temporary restaurant manager in an employment discrimination charge precluded the plaintiff waitress' claim against an unnamed temporary manager under Title VII.
In Cameron v. Board of Educ. of Hillsboro, Ohio, City School Dist., 795 F. Supp. 228 (S.D. Ohio 1991) a teacher filed a charge with the EEOC against the Hillsboro Board of Education for claims arising under Title VII. The Plaintiff's complaint named two individuals who were not identified on the charge. The two individuals held the positions of superintendent and head teacher. In applying the Romain analysis for the idenity of interest exception, the court held because of their respective positions, the individual defendants had an identity of interest with the named defendant. In reaching this conclusion, the court also took into consideration that the plaintiff was proceeding without counsel.
The present case is similar to the Cameron case because it involves a discrimination claim by a pro se Plaintiff against a school district and its employees. In this case, there is no information in the complaint or in the parties' memoranda that identifies the official capacity relationship that Edward Johnson or Paulus West hold in relation to the Defendant, Columbus Public Schools. Thus, the Court is unable to apply the Glus and Eggleston analysis to these Defendants. Consequently, at this juncture, the Defendants' motion to dismiss any official capacity Title VII claim is denied without prejudice to renewal upon further development of the record.
The Court notes that it appears Plaintiff will file an amended complaint in light of the stipulation obtained from counsel to file a motion to amend. (Doc. #14).
As to Defendant Mae Welch, the Court observes that Plaintiff alleges a claim of negligence, not gender discrimination, against her. Therefore, it was not necessary for Welch to have been included in the EEOC charge.
V.
For the reasons stated above, the Defendants' Motions to Dismiss (Doc. #8) and (Doc. #13) are DENIED.
IT IS SO ORDERED.