Opinion
Civil Action No. 3:03-CV-1294-D
December 23, 2003
MEMORANDUM OPINION AND ORDER
This is an action by plaintiff Brenda Grace ("Grace") to recover from defendant Bank of America ("BOA") for race and age discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1983, and for retaliation under Title VII. BOA moves under Fed.R. CIV. P. 12 (b)(6) to dismiss for failure to state a claim on which relief can be granted. For the reasons that follow, the court grants the motion in part and denies it in part.
Although Grace cites 42 U.S.C. § 1981 in her complaint and asserts that her action is brought under § 1981, see Compl. ¶ 3, she does not explicitly allege such a claim. BOA does not view the complaint as asserting a § 1981 cause of action because it moves to dismiss Grace's entire lawsuit, see D. Br. at 16, but does not specifically address a § 1981 claim. The court likewise has not construed her complaint as asserting this cause of action.
I
Grace alleges that BOA repeatedly failed to promote her because of her age and race, subjected her to a hostile work environment based on her age, and later suspended her and terminated her employment after 23 years of service because of her age and race. She also contends that BOA retaliated against her for opposing its unlawful policies and practices.
Grace refers in her complaint to being the victim of deferential treatment, see Compl. ¶¶ 22, 26, but she likely means differential treatment.
BOA moves to dismiss under Rule 12(b)(6). It contends that Grace's race-based disparate impact claim and her retaliation claim exceed the scope of her Equal Employment Opportunity Commission ("EEOC") discrimination charge, she fails to aver that she is a member of a protected class, and she asserts no factual allegations to support her race discrimination claim. Regarding age discrimination, BOA asserts that her disparate impact and hostile work environment claims exceed the scope of her charge, which was limited to race discrimination, Title VII does not provide a cause of action for age discrimination, she fails to aver that she is a member of a protected class, and she asserts no factual allegations to support her age discrimination claim. As to Grace's § 1983 cause of action, BOA maintains that Grace alleges no facts to show that BOA is a state actor or that BOA acted under color of state law.
II
Grace's § 1983 claim need not long detain the court. In response to the part of BOA's motion that addresses her § 1983 cause of action, Grace states only the following: "Grace does not claim Defendant acted under the color of law. Defendant misunderstands Plaintiff's statement." P. Resp. at 13. It is well settled that "[s]action 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law." Colson v. Grohman, 174 F.3d 498, 504 n. 2 (5th Cir. 1999) (citations omitted). "To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994) (citing cases). Grace fails to satisfy the second element. Moreover, it is unclear how BOA, a private entity, could have been acting under color of state law in the circumstances of this employment dispute. Accordingly, Grace's § 1983 claim is dismissed.
III A
BOA moves to dismiss Grace's age discrimination claim on the ground, inter alia, that Title VII does not create a cause of action for age discrimination. While BOA is undoubtedly correct, the court may not dismiss her age discrimination claim on this basis. See Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir. 1987) (per curiam). Grace maintains in her response that she is asserting her age discrimination claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. See P. Resp. at 11. Although this contention is contrary to what she asserts in her complaint, see Compl. ¶ 3 (alleging that "[t]his is an action . . . under Title VII . . . for . . . [a]ge [d]iscrimination"), the age discrimination count of her complaint explicitly states that the claim is brought under Title VII, see id. at caption that precedes ¶¶ 25-28, and she at one point in her responses states that she "asserts both her race discrimination and age discrimination claims under Title VII[,]" P. Resp. at 1-2, Doss controls and dictates that BOA's motion be denied in this respect.
B
The court may, however, dismiss Grace's age discrimination claim on the ground that she did not exhaust it before the EEOC. BOA points out in its motion to dismiss that Grace's "Charge referenced in Grace's complaint does not reference age discrimination much less a disparate impact theory." D. Br. at 13.
Assuming arguendo that BOA did not adequately raise this ground as a basis for dismissal, the court may take this action sua sponte. See Coates v. Heartland Wireless Communications, Inc., 55 F. Supp.2d 628, 633 (N.D. Tex. 1999) (Fitzwater, J.); Foreman v. Dallas County, Tex., 990 F. Supp. 505, 510 (N.D. Tex. 1998) (Fitzwater, J.) (three-judge court). "Even if a party does not make a formal motion, the court on its own initiative may note the inadequacy of the complaint and dismiss it for failure to state a claim as long as the procedure employed is fair." 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 301 (2d ed. 1990) (citations omitted). If Grace has grounds to contend that BOA did not adequately raise this ground for dismissal and that she properly exhausted her ADEA claim, she may promptly move the court for relief from this part of its memorandum opinion and order.
As the court explains in more detail below concerning Title VII, a person who brings a lawsuit under the ADEA must first exhaust her administrative remedies by filing a charge with the EEOC. See Julian v. City of Houston, Tex., 314 F.3d 721, 725 (5th Cir. 2002) ("a person seeking relief under the ADEA must first file an administrative charge with the EEOC.") Grace's EEOC charge does not allege that she was discriminated against based on her age, the "age" box is not checked as a "cause of discrimination," and the charge neither mentions her age nor asserts an act of discrimination that suggests in any way that it was related to her age. See D. App. 1. The race discrimination claim that is included in the charge is not sufficiently like or related to her age discrimination claim that it would likely be within the scope of the EEOC investigation that could reasonably be expected to grow out of the charge. As Chief Judge Fish held in Patton v. Fujitsu Technology Solutions, Inc., 2002 WL 31498996 (N.D. Tex. Nov. 7, 2002) (Fish, C.J.):
Unlike Title VII, however, the ADEA does not require the plaintiff to obtain a right-to-sue notice from the EEOC before filing suit. See Julian, 314 F.3d at 725.
The court may consider the contents of Grace's EEOC charge because BOA has included it in the appendix that accompanies its motion to dismiss. "[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). "In so attaching, the defendant merely assists the plaintiff in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated." Id. at 499. The requirement that the document be included in an appendix rather than attached to BOA's motion is imposed by N.D. Tex. CIV. R. 7.1(i)(1).
Patton's original charge of discrimination, as presented to the EEOC on November 28, 2001, alleged race as the only basis of discrimination. The original charge made no mention of age-based discrimination, nor did it provide any factual allegations that would reasonably lead the EEOC to investigate a claim of age discrimination. Patton's ADEA claim, therefore, could not "reasonably be expected to grow out of" the race discrimination claim alleged in his original charge. Rather, it is simply a "separate and distinct" basis of recovery. Consequently, Patton's allegations of age discrimination in his amended EEOC charge are not sufficiently "like or related to" the timely filed racial discrimination claim and Patton must, therefore, independently exhaust his administrative remedies on that claim prior to pursuing it in this court.Id. at *5 (citations omitted).
Even had Grace exhausted her ADEA claim, she would not be entitled to relief under the ADEA based on a disparate impact theory. See Smith v. City of Jackson, Miss., ___ F.3d ___, 2003 WL 22671061, at *3, *9 (5th Cir. Nov. 13, 2003).
Accordingly, the court dismisses Grace's ADEA claim for failure to exhaust her administrative remedies.
IV A
The court next considers together whether Grace's race-based disparate impact claim and her retaliation claim exceed the scope of her EEOC charge. BOA maintains that Grace did not exhaust her administrative remedies concerning these claims because she complains only about her suspension and termination and not about disparate impact or retaliation. Concerning her disparate impact claim, Grace argues that she provided the necessary information to the EEOC, which decided what to include in the charge, she was not expert in how the charge should be written, and she suffered greater harm than is included in the charge. Regarding retaliation, Grace maintains that she alleged retaliation to the EEOC. She also posits that, under this court's decision in Duncan v. City of Dallas, Tex., 1997 WL 289090 (N.D. Tex. May 21, 1997) (Fitzwater, J.), her claim should not be dismissed because she has a pending Title VII cause of action.
B
Before bringing a claim in federal court under Title VII, a party alleging race discrimination must first file a charge of discrimination with the EEOC. See Young v. City of Houston, Tex., 906 F.2d 177, 179 (5th Cir. 1990). This requirement serves the dual purposes of affording the EEOC and the employer an opportunity to settle the dispute through conciliation and giving the employer some warning as to the conduct about which the employee is aggrieved. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). In the Fifth Circuit, a Title VII action is limited in scope to the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Young, 906 F.2d at 179 (citing Sanchez, 431 F.2d at 466). A complaint filed pursuant to Title VII may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. If an asserted claim is not "like or related to" an allegation contained in the EEOC charge, the court lacks subject matter jurisdiction over that claim. Id. Because a person filing an EEOC charge is usually not represented by counsel, however, the court must not strictly construe the EEOC charge and require the complainant to allege every instance of discrimination. See Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993).
C
The court considers first Grace's claim of disparate impact. In her charge, Grace asserted that BOA discriminated against her by suspending her and terminating her employment. See D. App. 1. The court therefore concludes that her disparate impact claim exceeds the scope of her EEOC charge, which says nothing about disparate impact. The court reached a similar conclusion in Mack v. Nestle Foods Corp., No. CA3-88-0373-D (N.D. Tex. Mar. 21, 1989) (Fitzwater, J.):
[A] claim for disparate impact is not "like or related to" the plaintiff's EEOC charge nor could it reasonably be expected to grow out of the underlying charge of discrimination. The underlying charge and investigation focused on [plaintiff's] allegation of discrimination based on his age. His new-found claims of disparate impact upon all persons between 40 and 70 years of age are completely outside the scope of his EEOC charge and of reasonable investigation. Any investigation whether [plaintiff's] demotion was a result of disparate treatment would not have encompassed this subsequent claim of adverse impact. Because plaintiff's EEOC allegation and investigation relate only to his discharge, his new claims of adverse impact are outside the scope of a reasonable EEOC investigation and must be dismissed.Id., slip op. at 3.
The court now turns to Grace's claim of retaliation. Her EEOC charge neither mentions retaliation nor is the retaliation box checked. Nevertheless, a claim of retaliation ordinarily may be brought although it was not contained in the EEOC charge. See Duncan, 1997 WL 289090, at *2. Because the court is declining to dismiss Grace's Title VII claim in its entirety, see infra § V, it concludes that her retaliation claim cannot be dismissed based on her failure to include it in the EEOC charge.
V
BOA moves to dismiss the remaining components of Grace's Title VII race discrimination claim (i.e., disparate treatment) on the ground that she has failed adequately to plead it.
"`[T]he motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'" Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357, at 598 (2d ed. 1990)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam) (Rule 12(c) decision) (citing Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990)). "In analyzing the complaint, [the court] will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Id. (citing Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996)). "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. (citing Doe, 81 F.3d at 1401). "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).
Under the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and viewing the allegations of Grace's complaint in the light most favorable to her for purposes of deciding the motion to dismiss, see, e.g., Royal Bank of Canada v. FDIC, 733 F. Supp. 1091, 1094 (N.D. Tex. 1990) (Fitzwater, J.), the court is unable to say that Grace can prove no set of facts, consistent with the allegations, that would entitle her to relief. The court therefore denies the motion to dismiss except to the extent it has granted it above.
* * *
BOA's October 23, 2003 Rule 12(b)(6) motion to dismiss is granted in part and denied in part.
SO ORDERED.