Opinion
No. 1:03-cv-01458-JDT-TAB.
February 25, 2004
ENTRY ON DEFENDANT'S PARTIAL MOTION TO DISMISS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Plaintiff, Mark Harsley, brings action against the Defendant, United Parcel Service, Inc. ("UPS"), under Title VII, alleging discriminatory discharge and failure to promote because of race, as well as retaliation. This matter is before the court on the Defendant's Motion to Dismiss the Plaintiff's claim that he was passed up for promotion on several occasions because of his race. The Defendant argues that Mr. Harsley's failure to promote claims should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because Mr. Harsley did not include the claims in his EEOC charge, and therefore, did not administratively exhaust the claims. The court holds as follows:
I. Background
Mr. Harsley is of African American race. (Am. Compl. ¶ 12.) He began his employment with UPS in Indianapolis, Indiana on August 4, 1984. ( Id. ¶ 1.) While employed by UPS, Mr. Harsley worked as the Operations Manager in several hubs owned and operated by the Defendant in Indianapolis. ( Id. ¶ 3.) On January 7, 2003, UPS relieved Mr. Harsley of his managerial duties ( Id. ¶ 13); his employment was terminated on January 30, 2003 ( Id. ¶ 16).The Complaint alleges that by no later than September of 2002, Mr. Harsley was qualified for promotion to staff level management at UPS. ( Id. ¶ 26.) Mr. Harsley sought promotion to staff level management on several occasions from August 2001 until he was terminated. ( Id. ¶ 27.) Mr. Harsley alleges that UPS terminated his employment on January 30, 2003, in order to deny him promotion to staff level management. ( Id. ¶ 28.)
On February 27, 2003, Mr. Harsley filed a charge with the EEOC against UPS, alleging race discrimination. He provided the following explanation:
I was employed at United Parcel Service from 080484 until 013003 when I was discharged from my Operation Manager position. The reason given for my discharge was conduct unbecoming a manager. I was up for promotion to a grade 18 position in 2003 before I was discharged. I feel that the action taken against me was to prevent me from being promoted. On 010703 a white female accused me [of] sexual harassment. Also on 010703 I was removed from service and walked out of the facility by security which had not been done before under same or similar circumstances. My manager did not follow normal operational procedure for when a sexual harassment complaint has been alleged like he did three months prior when a black female ac[c]used a white manager. There was no evidence gathered to support the allegation against me. I also feel that what happen[ed] to me was a form of retaliation because I had to write a letter to my district manager threatening legal action if I was not promoted to my last management position.
(Def.'s Ex., Charge of Discrimination.)
On May 15, 2003, Mr. Harsley amended his EEOC charge to include a claim of retaliation. On the May 15, 2003 charge, Mr. Harsley checked both the race and retaliation boxes and offered the following explanation:
I filed a Charge of Discrimination on February 27, 2003. In that Charge I indicated that I was discriminated against because of my race, black, and retaliated against. This Amended Charge of Discrimination incorporates all allegations in my initial Charge of Discrimination. However, the Amended Charge is to make clear that I am also alleging that I was retaliated against based upon my opposition to race discrimination. On my initial Charge of Discrimination I inadvertently failed to check the Retaliation box. . . .
(Def.'s Ex., Am. Charge of Discrimination.)
On or about August 29, 2003, Mr. Harsley received a Notice of Right to Sue. (Am. Compl. ¶ 9.) On October 6, 2003, Mr. Harsley filed a Complaint against UPS in this court, alleging discriminatory discharge and failure to promote based on race, and retaliation. Mr. Harsley filed an Amended Complaint on January 8, 2004. On November 26, 2003, the Defendant filed this motion to dismiss the failure to promote claim. Mr. Harsley filed a Response on December 10, 2003. UPS filed a Reply on December 24, 2003, and a Surreply was filed by the Plaintiff on December 29, 2003.
II. Discussion
The Defendant argues that Mr. Harsley cannot bring action against UPS for failure to promote because he did not include failure to promote claims in his EEOC charge. The Plaintiff argues that the EEOC charge includes explicit failure to promote charges, and even if it did not, the failure to promote claims are reasonably related to the EEOC charge so as to fall under the exception to the rule.
A. Are the Claims Included in the Charge?
Generally, a plaintiff may only bring claims under Title VII that were originally included in his EEOC charges. Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (citations omitted). There are two purposes for the rule: to allow the EEOC the opportunity to settle the dispute, and to put the employer on notice of the charges the plaintiff has made against it. Id.
Mr. Harsley's Complaint alleges that UPS discriminated against him on several occasions before and through the date of his termination by failing to promote him to staff level management. Mr. Harsley's Complaint asserts the following:
26. By no later than September of 2002, Harsley was qualified, based upon his education and work experience, for promotion to staff level management at UPS.
27. Harsley sought promotion to staff level management at UPS on several occasions from August of 2001 through his termination on January 30, 2003.
28. UPS terminated Harsley's employment on January 30, 2003, in order to deny him promotion to staff level management at UPS.
(Am. Compl. ¶¶ 26-28.)
In the EEOC charge, Mr. Harsley makes two references to UPS's failure to promote him to staff level management. He states: "I was up for promotion to a grade 18 position in 2003 before I was discharged. I feel that the action taken against me was to prevent me from being promoted."
The Defendant argues that there is only one employment decision included in the EEOC charge — discriminatory discharge. However, the court finds that Mr. Harsley's EEOC charge also includes a failure to promote claim based on the events of January 30, 2003. In the EEOC charge, Mr. Harsley argues that when UPS terminated Mr. Harsley's employment on January 30, 2003, because of his race, UPS also passed him over for a promotion for which he was qualified. Consequently, the January 30, 2003, termination is the basis for both a failure to promote claim and a discriminatory discharge claim.
However, Mr. Harsley's Complaint asserts more: the Complaint asserts that, "on several occasions," Mr. Harsley was bypassed for promotion because of race. But Mr. Harsley does not allege in his EEOC charge that on any other dates, besides the date of his termination from UPS, he was passed up for promotion because of race. The only denial of promotion alleged in the EEOC charge is the denial of promotion that occurred on January 30, 2003.
The Plaintiff concedes that he can only bring action on events that took place within 300 days from the date he filed a charge with the EEOC. (Pl.'s Surreply Br. Opp'n Def.'s Mot. Dismiss.) Thus, the failure to promote claims are limited to claims that occurred after May 3, 2002.
The Seventh Circuit has held that "`[a]llegations outside the body of the charge may be considered when it is clear that the charging party intended the agency to investigate the allegations.'" Vela v. Vill. of Sauk Vill., 218 F.3d 661, 664 (7th Cir. 2000) (quoting Cheek v. W. S. Life Ins. Co., 31 F.3d 497, 502 (7th Cir. 1994)); see also Sickinger v. Mega Sys., Inc., 951 F. Supp. 153, 157-58 (N.D. Ind. 1996) (examining charge questionnaire). The Plaintiff has attached to the Response Brief the EEOC questionnaire and accompanying attachment, which Mr. Harsley filled out on the same day he signed the EEOC charge. ( See Pl.'s Ex. 2.) The first question on the attachment asks: "What action was taken against you that you believe to be discriminatory? What harm, if any, was caused to you or others in your work situation as a result of that action?" ( Id.) Mr. Harsley's response does not include a claim that UPS did not promote him before his termination.
The second part asks: "Why do you believe this action was taken against you?" ( Id.) Mr. Harsley responded as follows:
. . . . A highly educated African-American with a distinguished work record, could not be ignored in the upcoming promotion cycle.
In January of 1999, I drafted a letter to Robert Alcorn citing the discriminatory practices that had led to my lack of promotion to middle management. The letter was clear in its message that legal action would be taken if this issue was not corrected. The matter was resolved nine months later amid much controversy.
Based on my last yearly performance review in January of 2002, I was classified as being 1 year away from being ready for promotion to upper level management. . . .
. . . . Terminating my employment in the manner in which this was handled served the dual purpose of destroying the leading candidate for promotion, while simultaneously striking fear in the hearts of other African-Americans.
( Id.)
The only reference Mr. Harsley makes to being passed up for a promotion, other than on the day of his termination, is his statement of the incident in 1999 when he drafted a letter, in which he alleged that he was not promoted to middle management because of his race. However, Mr. Harsley stated that the matter had been resolved. Although Mr. Harsley's statement in the questionnaire alleges that UPS schemed to prevent him from advancing in the company, he does not state anywhere in the questionnaire that UPS denied him a promotion because of race before his employment was terminated.
As admitted by the Plaintiff, Mr. Harsley's EEOC charge "listed two instances of conduct by UPS that he considered to be racially discriminatory." (Pl.'s Br. Opp'n Def.'s Mot. Dismiss at 3-4.) The first instance is the alleged discriminatory discharge that occurred on January 30, 2003. The second instance of conduct is the alleged failure to promote that took place concurrently with the termination. The EEOC charge and questionnaire do not mention that Mr. Harsley had ever been passed up for promotion because of race on any instances before he was terminated. Accordingly, the court finds that, although Mr. Harsley's Complaint alleges that "on several occasions from August 2001 until he was terminated," he was not promoted due to his race, the EEOC charge alleges only one incident of non-promotion, which took place on January 30, 2003.
B. Are the Claims Reasonably Related to the Claims in the Charge?
The Plaintiff argues that even if the court finds that the contested claims are not included in the charge, they should not be dismissed because they fall under the exception to the general rule. The exception to the general rules states that a plaintiff may also bring claims not included in an EEOC charge if the claims are "`like or reasonably related' to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charges." Sitar, 344 F.3d at 726 (citing Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976) (en banc)). "[D]ifferent claims may be so linked . . . where they are `so related and intertwined in time, people, and substance that to ignore the relationship for a strict and technical application of the rule would subvert the liberal remedial purposes of [Title VII].'" Id. (quoting Kristufek v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7th Cir. 1993)); accord Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 2002) ("`[T]he EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals.'" (quoting Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995))).Mr. Harsley's pre-January 30, 2003 failure to promote claims are not reasonable related to the claim of discriminatory discharge because they do not describe the same type of discriminatory conduct. In Sauzek v. Exxon Coal, Inc., 202 F.3d 913, 920 (7th Cir. 2000), the Seventh Circuit held that a plaintiff's failure to rehire claim was not reasonably related to the plaintiff's discriminatory termination claim. The Seventh Circuit explained that "[t]he reason for this is simple: an employer's decision to terminate a worker is a separate and distinct act from a subsequent decision not to rehire that employee during a recall. Because these two employment decisions are wholly independent, they cannot be reasonably related to one another." Id. (citing Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 764 (11th Cir. 1995)); see also Ritter v. Hill 'N Dale Farm, Inc., 231 F.3d 1039, 1045 (7th Cir. 2000) (holding that charge must include both discriminatory discharge and failure-to-rehire claims for plaintiff to bring action under both theories). Similarly, discriminatory discharge is a separate and distinct act from a claim of failure to promote. See Sickinger, 951 F. Supp. at 155 (holding that claim of failure to promote is a separate type of conduct from act of termination); see also Kirk v. Fed. Prop. Mgmt. Corp., 22 F.3d 135, 139 (7th Cir. 1994) (holding that refusing to train employee is not reasonably related to failure to promote); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (holding job transfer claim barred because EEOC charge only included claims of training, discharge, and sexual harassment).
However, Mr. Harsley's pre-January 30, 2003, claims of discriminatory non-promotion are reasonably related to his claim that, on January 30, 2003, he was denied promotion because of race. All of Mr. Harsley's claims of failure to promote implicate the same conduct: he alleges that UPS was "destroying [his] opportunities for advancement" by denying Mr. Harsley promotion to upper level management. Between May and January 2003, Mr. Harsley maintained a middle management position and aspired for promotion to the same type of position — upper management. It also appears that the same individual is implicated in the non-promotions, namely, Robert Alcorn. Mr. Alcorn terminated Mr. Harsley's employment on January 30, 2003, and simultaneously, refused him the promotion. In January 1999, Mr. Harsley accused Mr. Alcorn of refusing to promote him to a middle management position because of race. It is reasonable to infer that Mr. Alcorn also would have been responsible for promotion decisions made between May and January 2003.
Additionally, Mr. Harsley's claims relating to non-promotion between May and January 2003 could reasonably have grown out of an EEOC investigation of the charges. Mr. Harsley alleged in the EEOC charge that he was terminated because UPS did not want to promote him and elaborated in the questionnaire that there was a practice of discrimination in the promotion process. It was foreseeable that the EEOC would investigate other occasions on which Mr. Harsley was passed up for promotion.
III. Conclusion
For the foregoing reasons, the Defendant's Motion to Dismiss the Plaintiff's failure to promote claim is DENIED.ALL OF WHICH IS ORDERED.