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refusing to stay proceedings pending EEOC investigation where plaintiff also asserted claims that were not subject to EEOC exhaustion
Summary of this case from Harris v. Huawei Techs. USA, Inc.Opinion
Civil Action No. 3:03-CV-1766-D.
June 9, 2004
MEMORANDUM OPINION AND ORDER
In this action by plaintiff Carolyn Hayes ("Hayes") alleging federal- and state-law claims for race discrimination and retaliation, defendant MBNA Technology, Inc. ("MBNA") moves to dismiss for failure to state a claim on which relief can be granted. MBNA also moves to withdraw one ground of its motion to dismiss, and plaintiff moves to stay the case pending completion of an investigation by the Equal Employment Opportunity Commission ("EEOC"). For the reasons that follow, the court grants MBNA's motion to withdraw part of its motion to dismiss, grants in part and denies in part MBNA's motion to dismiss, and denies Hayes' motion to stay proceedings.
MBNA filed a pleading styled "partial withdrawal of its motion to dismiss," but the body of the document makes clear that it seeks the court's permission to do so and that the document should be deemed a motion.
I
Hayes, who is African-American, sues MBNA alleging claims for race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and Texas law.
Hayes also included state-law claims for negligent supervision and negligent hiring and retention, but she dismissed these counts by notice of dismissal. The court need not address any arguments that MBNA presents concerning these claims.
Hayes began her employment at MBNA in 1983 as a data entry operator and is currently employed as the Network Administrator at the company's Addison, Texas facility. According to her complaint, she worked in data entry until 1986 despite making numerous requests to be transferred to another department. In 1995 she was told that the company budget would not include African-Americans in "class participation" and later, in 1996, she was terminated from her permanent position and assigned temporary roles for departments that needed additional personnel. African-Americans were required to conduct mock interviews to apply for positions because the managers did not think they were qualified or knowledgeable to work in areas other than production. MBNA later assigned her to a position in the telecommunications department. A Caucasian executive in the MBNA Delaware branch office told Hayes that something was wrong if an employee was not promoted after receiving superior or excellent reviews over the course of two years. Despite receiving excellent reviews, Hayes was not promoted every two years and was denied a position in the Tape Library for which she had applied. MBNA denied Hayes another position for which she applied, and received a 2% raise in 1999, despite excellent reviews. She received a 4% raise, but not until 2002.
Because the court is deciding MBNA's motion under Fed.R.Civ.P. 12(b)(6), it accepts as true the well-pleaded facts alleged in Hayes' complaint and views them in the light most favorable to her. See Capital Parks, Inc. v. Southeastern Adver. Sales Sys., Inc., 30 F.3d 627, 629 (5th Cir. 1994) (citing O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir. 1985)).
Hayes filed a discrimination charge with the EEOC on May 9, 2003, and it dismissed her charge and issued a right to sue notice the same day. She then filed the instant suit.
MBNA moves to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of jurisdiction and under Rule 12(b)(6) for failure to state a claim on which relief can be granted.
II
The court turns first to MBNA's motion for partial withdrawal of its motion to dismiss and to Hayes' motion to stay proceedings.
A
MBNA moves to withdraw the component of its motion to dismiss in which it contends that the court lacks jurisdiction over Hayes' Title VII claims because the EEOC did not investigate her discrimination charge but issued a right to sue notice the same day she filed her charge. Hayes moves to stay this case for 190 days to allow the EEOC to conduct an investigation.
MBNA states that it seeks to withdraw this argument to avoid unnecessary delay and increased expenses that would be incurred by awaiting completion of the EEOC conciliation process before eventually litigating the Title VII claims and other causes of action that are not subject to EEOC exhaustion.
To decide whether MBNA should be permitted to withdraw its jurisdictional challenge, the court must first decide whether it calls into question the court's subject matter jurisdiction. Because this court is obligated, sua sponte if necessary, to note a lack of subject matter jurisdiction, see, e.g., In re Bowman, 821 F.2d 245, 246 (5th Cir. 1987), there is no practical difference between MBNA's questioning the court's subject matter jurisdiction by motion and the court's doing so in the absence of a motion. If the issue is not one of subject matter jurisdiction, however, the court can allow MBNA to withdraw this ground of its motion.
MBNA has failed to demonstrate that the argument it seeks to withdraw presents a challenge to the court's subject matter jurisdiction. MBNA contends that, under Fifth Circuit precedent, a Title VII plaintiff cannot file suit until 180 days have elapsed after filing a discrimination charge with the EEOC, and that this court lacks subject matter jurisdiction until the time period has expired. MBNA cites EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997), for the premises that a Title VII plaintiff's "private right of action does not arise until 180 days have passed from the filing of the charge[,]" id. at 469, and that "in the first 180 days after the charge is filed, only the EEOC is permitted to sue[,]" id. at 466. See D. Br. at 6-7. Although Hearst addressed the EEOC's exclusive jurisdiction over a Title VII case, see Hearst, 103 F.3d at 465 ("Congress also established a 180-day outer limit on the EEOC's exclusive jurisdiction"), it did not decide whether a court lacks subject matter jurisdiction over a lawsuit that a charging party initiates prematurely. Moreover, Hearst suggests that when, as here, the EEOC issues a right to sue notice, the charging party is permitted to file suit. The panel noted that the 180-day period does not "limit the period during which the charging party may sue, because the EEOC generally issues the `right to sue' notice not when 180 days pass but, as in this case, when the charging party requests one. . . . The 180-day limitation has become no limitation." Id. at 468 (citation omitted). The other case on which MBNA principally relies — Martini v. Federal National Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999) — specifically holds that "the 180-day waiting period is not jurisdictional." Id. at 1348 (emphasis added) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Accordingly, because MBNA has not advanced a viable subject matter jurisdiction challenge, the court grants its motion to withdraw this argument.
Hayes argues, of course, that the court does have subject matter jurisdiction.
B
Hayes moves the court to stay the case so that the EEOC can conduct an investigation. Although the court recognizes that one member of this court has stayed a case for this purpose, see White v. MBNA, No. 3:03-CV-1767-M (Lynn, J.), it discerns no compelling reason to do so here. MBNA has withdrawn its assertion that Hayes' Title VII claims are premature, discovery is under way, and Hayes also asserts claims that are not subject to EEOC exhaustion. The court therefore denies Hayes' motion to stay proceedings.
III
The court now turns to MBNA's motion to dismiss. MBNA first contends the court lacks jurisdiction over Hayes' Title VII claims based on demotions, hostile work environment, class-wide discrimination, and retaliation because she did not allege them in her EEOC charge.
A
Filing a charge with the EEOC is a condition precedent to filing a Title VII suit. 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. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970). The lawsuit that follows is limited in scope to the EEOC investigation that could reasonably be expected to grow out of the charge of discrimination. Young, 906 F.2d at 179 (citing Sanchez, 431 F.2d at 466). In other words, the complaint may encompass any kind of discrimination "like or related to" allegations contained in the EEOC charge. Sanchez, 431 F.2d at 466. Because a person filing an EEOC charge is usually not represented by counsel, 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).
Hayes maintains that MBNA's jurisdictional challenge should be evaluated under Rule 12(b)(6) rather than Rule 12(b)(1) because exhaustion of administrative remedies under Title VII is not a jurisdictional prerequisite to filing suit. The court agrees. See, e.g., Gates v. City of Dallas, 1997 WL 405144, at *1 (N.D. Tex. July 15, 1997) (Fitzwater, J.) ("Exhaustion of administrative remedies is a statutory condition precedent to maintaining a Title VII action in district court, not a jurisdictional prerequisite.").
B
To decide this question, the court must determine as a threshold matter whether Hayes is limited to what is contained within the four corners of the charge.
In Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994), the case on which Hayes relies and that MBNA maintains is factually distinguishable, the Fifth Circuit addressed the question whether a plaintiff had exhausted her gender-based disparate treatment claim. Id. at 1279. The defendant argued that although the plaintiff's EEOC complaint included claims of sexual harassment and retaliation, it did not include a separate allegation of disparate treatment on the basis of gender. Id. The panel held that the disparate treatment claim had been exhausted "because the EEOC investigation of that claim was a reasonable consequence of [the plaintiff's] EEOC complaint and supporting documentation." Id. at 1280. The court first examined her charge to discern the claims asserted. Based on principles of interpretation and the plaintiff's pro se status at the time she filed the complaint, it concluded that her statements to the EEOC presented a sufficient predicate to reasonably expect the agency would investigate a disparate treatment claim. Id. The panel then recited the relevant contents of her EEOC affidavit and observed that her questionnaire expanded on them. Id. The court concluded that these statements raised inferences that supported the plaintiff's claim of gender-based harassment and included an allegation that should have given EEOC investigators reasonable cause to examine the assertion. Id. The panel also held that, at the time of the plaintiff's EEOC complaint, the defendant apparently considered her to be claiming gender-based disparate treatment because, in answering the EEOC's request for information, it denied the existence of any evidence of such treatment and concluded her termination had nothing to do with her sex, which would have been a non sequitur had the plaintiff presented no colorable allegation of disparate treatment. The court also relied on evidence that the EEOC had investigated the plaintiff's gender-based disparate treatment claim, and specifically found that it lacked merit, as creating a strong inference that the claim had been presented. Id. at 1280-81. The panel then concluded that it was apparent from the statements of the plaintiff, the defendant, and the EEOC that the plaintiff had raised a gender-based disparate treatment claim sufficient to prompt an EEOC investigation and had exhausted her administrative remedies for that claim. Id. at 1281.
Since Clark was decided, it has been cited only once in a Fifth Circuit published opinion: a dissenting opinion that relied on its basic premise that a Title VII claim must be administratively exhausted as analogous authority in support of the argument being made in dissent. See Greater Slidell Auto Auction, Inc. v. Am. Bank Trust Co., 38 F.3d 180, 182 n. 1 (5th Cir. 1994) (dissenting opinion of Aldisert, J.) (citing Clark, 18 F.3d at 1279).
This court has relied on Clark to decide what documents should be consulted in determining whether a particular claim exceeded the scope of the EEOC charge and had not been administratively exhausted. In Porter v. McKinsey Co., No. 3:94-CV-1456-D (N.D. Tex. Jan. 30, 1996) (Fitzwater, J.), the court cited Clark for the premise that the plaintiff's attachment to her EEOC complaint could be considered in determining the scope of her charge, id., slip op. at 3 (citing Clark, 18 F.3d at 1280), and it held that it must examine the content of the attachment to determine whether her Title VII claims were of a type that could reasonably be expected to grow out of her EEOC documents, id. In deciding a summary judgment motion, the court relied on the plaintiff's EEOC charge and the attachment to discern the reasonable investigation that would have ensued. Id., slip op. at 3-4. The court held that the attachment indicated that she had adequately exhausted a disparate impact claim but not a sexual harassment claim. Id., slip op. at 4-5.
In Williams v. J.B. Parks Wholesale Florist, Inc., No. 3:95-CV-2599-D (N.D. Tex. Apr. 29, 1996) (Fitzwater, J.), the court cited Clark for the proposition that the affidavit attached to the EEOC charge could be considered in determining the scope of her charge, although it concluded that the affidavit did not support a retaliation claim, and that her EEOC charge and the intake questionnaire did not contain retaliation-type allegations. Id., slip op. at 10-11.
In Herman v. Bell Northern Research, Inc., 3:95-CV-1554-D, (N.D. Tex. July 2, 1996) (Fitzwater, J.), the court held that the factual statement that the plaintiff provided the EEOC could be considered in determining the scope of her charge, and it concluded that it was obligated to examine both the contents of her EEOC charge and the factual statement to determine whether her Title VII claims were the type that could reasonably be expected to grow out of her charge of discrimination. Id., slip op. at 3 (citing Clark, 18 F.3d at 1280). Relying on its earlier decision in Martin v. R.L. Polk Co., No. 3:93-CV-1961-D (N.D. Tex. Nov. 16, 1994) (Fitzwater, J.), the court held that the plaintiff had not exhausted a claim to which she had not referred either in her EEOC charge or in her three-page factual statement. Id., slip op. at 3-4.
In Martin the court cited Clark, but only for the premise that sex discrimination and sexual harassment claims are distinct. Martin, No. 3:93-CV-1961-D, slip op. at 3 (citing Clark, 18 F.3d at 1279 n. 4).
In Robb v. Helwig Son, Inc., No. 3:96-CV-2063-D (N.D. Tex. Sept. 25, 1997) (Fitzwater, J.), the court again cited Clark for the premise that the plaintiff's EEOC affidavit and intake questionnaire could be considered in determining the scope of her EEOC charge, and it held that it "must therefore examine both the contents of [plaintiff's] EEOC charge and intake questionnaire to determine whether her promotion claim is of a type that could reasonably be expected to grow out of her charge of discrimination." Id., slip op. at 4 (citing Clark, 18 F.3d at 1280; Sanchez, 431 F.2d at 466). The court held that neither the charge nor the intake questionnaire encompassed the claim.
In sum, in years past this court has relied on Clark to require that it consider a plaintiff's supporting affidavit and questionnaire, in addition to the EEOC charge itself, in deciding whether a claim has been administratively exhausted. Other district courts and judges of this court, however, have not read Clark to announce an unflinching rule that a court must in all circumstances consult not only the EEOC charge but the affidavit and questionnaire to determine whether a claim has been exhausted. They have concluded that documents other than the four corners of the EEOC charge are to be consulted only in limited circumstances.
Although the court had not cited Clark for some time, it did so recently in dicta in Stith v. Perot Systems Corp., 2004 WL 690884, (N.D. Tex. Mar. 12) (Fitzwater, J.), appeal docketed, No. 04-10442 (5th Cir. Apr. 23, 2004), for the principle that "[a] plaintiff's EEOC affidavit and intake questionnaire may also be considered in determining the scope of the EEOC charge." Id. at *6 n. 7 (citing Clark, 18 F.3d at 1280). As is apparent from the court's discussion below, this general statement is consistent with the conclusion the court reaches today.
In Johnson v. MBNA Hallmark Information Services, Inc., 2003 WL 21418670 (N.D. Tex. June 16, 2003) (Kinkeade, J.), Judge Kinkeade relied on McCray v. DPC Industries, Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996), and Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D. Tex. 1995), to hold that the questionnaire provided to the EEOC cannot be considered part of the discrimination charge. Id. at *2. The defendant in Johnson asserted that the plaintiff had only exhausted his failure-to-promote claim. Id. at *1. Judge Kinkeade agreed, holding that the charge alleged only one event of discrimination personal to the plaintiff. Id. at *2. Relying on McCray and Clemmer, he rejected the plaintiff's contention that a liberal reading of the charge and of the EEOC questionnaire broadened the scope of his allegations. Id. He also concluded that the plaintiff's reliance on Clark was misplaced, because Clark was factually distinguishable. Judge Kinkeade wrote:
In Clark, the Court held that the plaintiff's claim of disparate treatment based on gender not brought in the EEOC charge was a reasonable consequence of the sexual harassment and retaliation claims alleged in the charge. The Court considered the charge itself and supporting documentation, including the questionnaire, because the record showed the employer was aware of all of plaintiff's Title VII claims during the EEOC investigation, and that the EEOC actually investigated plaintiff's other claims as evidenced by its formal determination. Unlike here, the employer in Clark had notice of all plaintiff's claims during the administrative process. Conversely, the record in this case shows that MBNA did not receive the questionnaire until it was produced during discovery in this action, and that the EEOC investigated only the allegation in Johnson's EEOC charge. Johnson's claims of harassment, disparate treatment, and hostile work environment are not a reasonable consequence of the claims set forth in his EEOC charge; the facts considered in an investigation for those claims would be different from those considered in a claim for discrimination in failing to promote. Further, MBNA was never given the opportunity to comply with Title VII or engage in conciliation with the EEOC regarding these claims.Id. at *2-*3 (citations omitted).
In McCray the court rejected the plaintiff's reliance on an EEOC intake questionnaire, holding that "[i]ntake questionnaires and EEOC discrimination charges are two separate things[,]" and observing that "courts generally do not treat intake questionnaires as charges." McCray, 942 F. Supp. at 295. The court noted the reasoning of one court — that because there was no evidence the employer had access to the questionnaire, it could not have fulfilled the notification purpose of the EEOC — and held that the plaintiff had not exhausted his administrative remedies where he provided no evidence that the defendant ever had access to his questionnaire or otherwise received notice from the EEOC that he was asserting a claim for retaliation. Id.
In Clemmer the court declined to read Clark to permit a plaintiff to rely on an EEOC questionnaire to establish that she had exhausted Title VII reverse discrimination and sexual harassment claims that were not included in her EEOC charge, which was limited to age discrimination and retaliation for complaining about age discrimination. Clemmer, 882 F. Supp. at 610. The court reasoned that the questionnaire was only preliminary, filled out before speaking with an EEOC representative, not the formal charge of discrimination filed with the EEOC that provided the basis for the EEOC's investigation, and that the defendants never saw the questionnaire until it was produced in discovery. Id. The court noted that, while the Fifth Circuit "refuse[d] to limit the scope of a civil court complaint to the exact charge filed with the EEOC, it ha[d] not extended the scope of a Title VII suit any further than the scope of the EEOC investigation which could reasonably be expected to grow out of the administrative charge." Id. (citing Terrell v. United States Pipe Foundry Co., 644 F.2d 1112, 1123 (5th Cir. Unit B May 1981), vacated on other grounds, 456 U.S. 955 (1982); Sanchez, 431 F.2d at 465-66). Clemmer interpreted Clark to allow the gender-based disparate treatment claim asserted in that case, but not included in the EEOC charge, because the claim was a reasonable consequence of the sexual harassment and retaliation claims alleged in the EEOC charge and supporting documentation surrounding the investigation. Id. at 610-11 (citing Clark, 18 F.3d at 1280). The court distinguished the case before it from Clark, holding that the plaintiff's sexual harassment and reverse discrimination claims were not a reasonable consequence of the claims set forth in her EEOC charge, and the defendants were neither given notice of the claims nor the opportunity to conciliate them.
Judge Godbey considered the case before him in Moss v. MBNA Technology, Inc., 2004 WL 583565 (N.D. Tex. Mar. 24, 2004) (Godbey, J.), to present "essentially a replay of the arguments in [ Johnson] involving the same plaintiff's counsel, the same defendant, the same defense counsel, the same arguments, and the same result." Id. at *1. He followed Johnson to conclude that the plaintiff's EEOC questionnaire could not be considered part of the charge of discrimination. Id. He also held that Clark was factually distinguishable because the employer had actual knowledge of the content of the questionnaire during the EEOC investigation, whereas the employer in the case before him was not aware of the content of the questionnaire until after litigation began.
In Otokunrin v. MBNA Technology, Inc., 2004 WL 833599 (N.D. Tex. Apr. 16, 2004) (Fish, C.J.), Chief Judge Fish rejected a plaintiff's request that he consider the information contained in her EEOC questionnaire to expand the scope of her Title VII claims because the questionnaire was not part of the record. Id. at *5. Citing Clark, Chief Judge Fish recognized that the questionnaire could be construed as a charge under certain circumstances, but he held that the facts of the case did not permit such a construction where it was undisputed that the defendant did not have notice of allegations contained in the questionnaire until after the plaintiff filed her complaint. Id.
The court sees no reason not to follow the able decisions of its colleagues in Johnson, Moss, and Otokunrin. Moreover, considering that these cases are at least loosely related to the present suit — which is also brought against MBNA — principles of equal justice dictate that the court not steer a different course except for important reasons and if seriously convinced after careful consideration that the other rulings are legally wrong.
Accordingly, the court holds that, when determining whether a claim has been exhausted, the decision is to be based on the four corners of the EEOC charge, but the court may also consult related documents, such as a plaintiff's affidavit, her response to the EEOC questionnaire, and attachments to the response, when (1) the facts set out in the document are a reasonable consequence of a claim set forth in the EEOC charge, and (2) the employer had actual knowledge of the contents of the document during the course of the EEOC investigation. This test is subject, of course, to the established principles that the plaintiff's lawsuit may encompass any kind of discrimination like or related to the allegations contained in the EEOC charge, and that the court must not strictly construe the charge and require the complainant to allege every instance of discrimination.
With the foregoing test in mind, the court now considers MBNA's arguments.
Hayes argues that the Supreme Court's decision in Edelman v. Lynchburg College, 535 U.S. 106 (2002), supports a more expansive view of her EEOC charge than MBNA offers. In Edelman the Court addressed whether a discrimination charge that was not properly verified until after the time for filing the charge had expired was subject to dismissal as untimely, and it held that it was not. Nothing in the Court's analysis of Title VII or of the EEOC's pertinent regulation disturbs this circuit's exhaustion jurisprudence.
C
Hayes has not attempted in her response to demonstrate that she adequately asserted a demotion-based claim in her EEOC charge or in the attachments to her EEOC Charge Questionnaire. Although she states in her charge that she "ha[s] been denied promotions from January 1, 2000, continuing[,]" D. App. 1, she does not refer to demotions, which are discrete acts. If a person complains to the EEOC that she was denied a promotion, the EEOC could reasonably be expected to investigate why she did not get the higher position, not why she lost the job she held. Accordingly, the court holds that Hayes' demotion-based Title VII claims exceed the scope of her EEOC charge and are dismissed.D
The court now considers her hostile work environment claim. In Hayes' EEOC charge, she states that she has "been denied promotions from January 1, 2000, continuing[,]" that she has "been paid lower wages than other similarly situated employees[,]" and that she "believe[s] [she] [has] been discriminated against because of [her] race, Black, in violation of the Civil Rights Act of 1964, as amended." D. App. 1. She does not mention hostile work environment. Hayes responds that she provided the required information in the attachment to the EEOC questionnaire. She asserts that she described instances of harassment and hostile work environment when she stated that she could not get a job in Direct Promotions because MBNA was looking for Barbie and Ken figures, and it would be hard for her to get into the area. Hayes contends she also pointed out that, while being trained to use the computer in Print Services, a Caucasian manager insulted her by stating to the person training her that she was not to train anyone who would not be there permanently. She asserted that, because of her race, she was subjected to the stress of floating in and out of departments, without real stability, despite excellent performance reviews. According to Hayes, she "described a work environment where the company did not want to show African Americans how to do their job and no one wanted them in their department." P. Br. at 12.
Direct Promotions involved setting up a booth at a venue, such as a ballpark or amusement park, and soliciting applications for MBNA credit cards that carried a logo pertinent to the venue. See P. App. 3.
The court holds that the passages in question are not like or related to a claim of racially hostile work environment, and an EEOC investigation of such a claim could not reasonably be expected to grow out of such a charge. To understand why, it is helpful to focus on the elements required to prove a claim of racially hostile work environment and to compare them against the pertinent assertions in the attachment.
To establish a hostile working environment claim, the plaintiff must prove:
(1) she belongs to a protected group; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. For harassment on the basis of race to affect a term, condition, or privilege of employment, as required to support a hostile work environment claim under Title VII, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. In determining whether a workplace constitutes a hostile work environment, courts must consider the following circumstances: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002) (citations and internal quotation marks omitted). The EEOC would not consider allegations that a company once told an employee it was looking for Barbie and Ken figures, once said she was not to be trained because she would not be there permanently, and subjected the employee to floating in and out of departments, without real stability, as claiming that she had been subjected to a racially hostile work environment, i.e., one that was sufficiently severe or pervasive as to alter the conditions of her employment and create an abusive working environment. An investigation of a racially hostile environment would not reasonably grow out of such allegations. "A hostile environment claim embodies a series of criteria that express extremely insensitive conduct against [African-Americans], conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace." DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir. 1995) (addressing sexually hostile environment claim). "When the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' that is `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' Title VII is violated." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). The court therefore dismisses this component of her Title VII claim.
E
MBNA contends that Hayes' class-wide discrimination claim exceeds the scope of her EEOC charge. Hayes relies on the assertions in her attachment that African-Americans at MBNA were not treated fairly, that minorities were overlooked and not treated fairly, that no growth, no promotions, and no recognition were given to African-Americans, that they were paid less and held back on promotions, and that they were discriminated against in all areas concerning pay, promotions, and education.
The court concludes that the assertions are insufficient. Hayes must have provided some notice of the "collective or class-wide nature of the charge." Bettcher v. Brown Sch., Inc., 262 F.3d 492, 494 (5th Cir. 2001) (quoting Anson v. Univ. of Tex. Health Sci. Ctr., 962 F.2d 539, 540 (5th Cir. 1992)) (addressing in age discrimination case the conditions a plaintiff must satisfy before he can invoke the single filing rule and join a charge filed by another party). Although Hayes discussed company-wide discrimination against African-Americans on several grounds, she did not give the EEOC or MBNA notice that she was asserting class claims. See Otokunrin, 2004 WL 833599, at *5 ("The language in the charge is simply devoid of any indication of . . . class-wide discrimination. The charge clearly did not provide MBNA with any notice of th[is] claim." (footnotes omitted)); Naik v. MBNA Tech., Inc., 2004 WL 690850, at *4 (N.D. Tex. Mar. 30, 2004) (Lindsay, J.). Under these circumstances, MBNA would have to assume that she did assert a class claim, a premise this circuit rejects. See Anson, 962 F.2d at 543; Otokunrin, 2004 WL 833599, at *5 n. 6. This element of her Title VII claim is dismissed.
F
The court now turns to Hayes' retaliation claim. Hayes did not check the retaliation box on her EEOC charge, and she did not mention the word retaliation or explicitly assert retaliatory-type conduct in the attachment to her EEOC questionnaire. In her response to MBNA's motion, she makes no effort to show how she adequately raises retaliation. Accordingly, this claim is dismissed. See Perez v. MCI World Com Communications, 154 F. Supp.2d 932, 938 (N.D. Tex. 2001) (Buchmeyer, J.) ("Plaintiff did not check the `retaliation' box on the Charge, nor did she include any statements [in her charge or questionnaire] regarding retaliation. Therefore, Plaintiff failed to exhaust her administrative remedies for the claim of retaliation and this court does not have jurisdiction to entertain that claim.").
Although Hayes does not raise this point, the court addresses the principle recited in some of its opinions that a claim of retaliation ordinarily may be brought even though it was not contained in the EEOC charge. See, e.g., Grace v. Bank of Am., 2003 WL 23095993, at *3 (N.D. Tex. Dec. 23, 2003) (Fitzwater, J.); Duncan v. City of Dallas, Tex., 1997 WL 289090, at *2 (N.D. Tex. May 21, 1997) (Fitzwater, J.). This rule is inapposite in cases like this one.
This court's holdings — and the premise on which they rely — have their origin in Fifth Circuit precedent that traces back at least to Gupta v. East Texas State University, 654 F.2d 411 (5th Cir. Unit A Aug. 1981). In Gupta the panel held "that it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge[.]" Id. at 414; see Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5th Cir. 1991) ("[W]e have held that a district court has `ancillary jurisdiction' to hear a claim of retaliation, even though not filed with the EEOC, `when it grows out of an administrative charge that is properly before the court.'" (quoting Gupta, 654 F.2d at 414 (emphasis added)). In the present case, however, because Hayes does not mention retaliation at all, and since it appears that this is her initial EEOC charge, it follows that she cannot be alleging retaliation based on having filed this charge. See McCray, 942 F. Supp. at 295 ("The situation in Gupta is distinguishable from this case because McCray's retaliation claim does not grow out of a previously filed EEOC charge. The alleged retaliation about which McCray complains occurred before McCray ever went to the EEOC. . . . Where the alleged retaliation occurs before the initial EEOC charge is filed, a plaintiff must exhaust his administrative remedies on that claim.").
IV
The court now considers MBNA's contention that Hayes' Title VII and § 1981 claims are time-barred.
A
MBNA argues that Hayes' Title VII claims that arose before July 13, 2002 are precluded because they occurred more than 300 days before she filed her EEOC charge on May 9, 2003, and it contends that her § 1981 claims that accrued before August 7, 2001 are barred. Based on this reasoning, and using the longer two-year limitations period for § 1981, MBNA maintains that the following incidents asserted in ¶¶ 17-31 of Hayes' complaint are precluded by limitations: denial of requests made before 1989 to be transferred (Compl. ¶ 17); 1995 denial of request to participate in a class (Compl. ¶ 18); loss of a permanent position in 1996 or 1997 (Compl. ¶ 19); requirement that she complete a mock interview before applying for a position (Compl. ¶ 20); denial of position in Tape Library between 1997 and 1998 (Compl. ¶¶ 21-22); denial in 1999 of unidentified position for which she applied (Compl. ¶ 29); and a merit increase of 2% in 1999.
Hayes responds on various grounds that the record establishes a continuing violation exception to the statute of limitations under Title VII and § 1981 because MBNA engaged in illegal acts within the limitations period and there is a substantial nexus that links them with events before the limitations period.
B
The court must first decide whether MBNA can obtain dismissal of the claims at issue under Rule 12(b)(6) based on the affirmative defense of limitations. "It is well settled . . . that in order for a defendant to prevail on the basis of limitations at the pleadings stage, the plaintiff must normally plead himself out of court." Funches v. City of Dallas, 1999 WL 261842, at *2 (N.D. Tex. Apr. 28, 1999) (Fitzwater, J.) (citing Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995) (holding that "if a plaintiff pleads facts that show its suit barred by a statute of limitations, it may plead itself out of court under a Rule 12(b)(6) analysis")). Here, MBNA contends that Hayes has pleaded discrete acts that preceded the limitations period. "A complaint containing a built-in defense usually is vulnerable to a motion to dismiss for failure to state a claim upon which relief can be granted. . . . The pleader must be particularly careful not to plead dates showing that the statute of limitations has run on the claim." 5 Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1226, at 209-211 (2d ed. 1990) (footnotes omitted). If it is apparent on the face of her complaint that she is asserting discrete acts that are insufficient to establish a continuing violation, MBNA can obtain dismissal under Rule 12(b)(6); otherwise, it will have to await at least a motion for summary judgment.
C
"Although there is no definitive standard for what constitutes a continuing violation, the plaintiff seeking to invoke this doctrine must demonstrate more than a series of discrete discriminatory acts[.]" Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 352 (5th Cir. 2001). "[She] must show an organized scheme leading to and including a present violation, such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." Id. (quoting Huckabay v. Moore, 142 F.3d 233, 239 (5th Cir. 1998)). "[A] one-time employment event, including the failure to hire, promote, or train and dism[iss]als or demotions, is `the sort of discrete and salient event that should put the employee on notice that a cause of action has accrued.'" Id. (quoting Huckabay, 142 F.3d at 240). "`[D]iscrete adverse actions, although racially motivated, cannot be lumped together with the day-to-day pattern of racial harassment' and therefore, if otherwise untimely, cannot be saved by the continuing violation doctrine." Id. (quoting Huckabay, 142 F.3d at 240).
Hayes complains of acts that arguably are inherently discrete: the denial of requests made to be transferred; the denial of a request to participate in a class; loss of a permanent position in 1996 or 1997; the requirement that she complete a mock interview before applying for a position; the denial of a position in the Tape Library between 1997 and 1998; the denial in 1999 of an unidentified position for which she applied; and a merit increase of 2% in 1999. In her response to MBNA's motion, she does not dispute that the acts in question are by their nature discrete; instead, she maintains that they can be brought within the limitations period as part of a single hostile work environment continuing violation.
In the context of Title VII, the court has held that Hayes has not exhausted such a claim. Accordingly, MBNA is entitled to dismissal of these components of her Title VII claim based on limitations.
The court holds, however, that MBNA is not entitled to dismissal of these components of her § 1981 cause of action based on limitations because it is not apparent from the face of her complaint that she is asserting discrete acts that are not part of a continuing violation hostile work environment claim. "A hostile work environment claim is composed of a series of separate acts that collectively constitute one `unlawful employment practice.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (addressing Title VII and quoting 42 U.S.C. § 2000e-5(e)(1)). "It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. (addressing Title VII). Because the court cannot say from the face of Hayes' complaint that the acts in question are not component acts of a single, timely hostile work environment action, the court denies MBNA's motion to dismiss them as time-barred to the extent they are asserted under § 1981.
V
MBNA moves to dismiss for failure to state a claim on which relief can be granted Hayes' claims for hostile work environment, failure to hire, failure to promote, and demotions.
A
The court will consider together her actions based on hostile work environment, failure to promote, and demotions, although it need only address her hostile work environment and demotion claims in the context of § 1981, because she has not exhausted her Title VII claims.
The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. Dismissal of a claim on the basis of barebones pleadings is a precarious disposition with a high mortality rate. The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true. The district court may not dismiss a complaint under rule 12(b)(6) 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.Villegas v. Dallas Indep. Sch. Dist., 2003 WL 22573921, at *3 (N.D. Tex. Oct. 17, 2003) (three-judge court) (Fitzwater, J.) (citations, internal quotation marks, and brackets omitted). Having considered these components of Hayes' complaint, and viewing the allegations of Hayes' 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 holds under the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that it is unable to say that she can prove no set of facts, consistent with the allegations, that would entitle her to relief. Accordingly, the court denies MBNA's motion in this respect.
B
MBNA contends that Hayes' action for failure to hire must be dismissed because she does not allege that MBNA failed to hire her. Hayes has not responded to this argument directly, see P. Br. at 17 (referring to "claims for hostile work environment, failure to promote and demotion"), and the court concludes that she has failed to state such a claim and dismisses it.
VII
MBNA maintains that Hayes' Title VII or § 1981 claims that are based on decisions that do not constitute ultimate employment decisions must be dismissed. The court rejects this argument in part as moot and in part on the merits.
First, in the context of Title VII, the requirement of an ultimate employment decision relates to claims for retaliation, not discrimination. See, e.g., Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003); Burger v. Cent. Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999). Hayes does not have a viable Title VII retaliation claim because she did not exhaust it. This ground of MBNA's motion is denied as moot. Second, Title VII discrimination claims are not subject to the requirement of an ultimate employment decision. See Burger, 168 F.3d at 878 ("In the Fifth Circuit, only an `ultimate employment decision' by an employer can form the basis for liability for retaliation under Title VII." (emphasis added) (citing Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir. 1997)). Third, MBNA has not shown that this circuit's Title VII jurisprudence applies to a § 1981 cause of action, and it is clear that the Fifth Circuit's jurisprudence is based on how the Title VII anti-retaliation clause is framed. See, e.g., id. ("This understanding grows out of our court's reading of the term `discriminate' as used in § 2000e-3(a)."); Core v. Sprint/United Mgmt. Co., No. 3:96-CV-2265-D, slip op. at 9-10 (N.D. Tex. Oct. 24, 1997) (Fitzwater, J.) (rejecting contention that actions did not constitute adverse employment actions for which defendant could be liable under § 1981 because Fifth Circuit's Mattern decision applied to Title VII's anti-retaliation provision, "[t]he plain language of § 1981 . . . makes clear that both ultimate employment decisions and vague actions that interfere with `the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship' fall within its scope[,]" (citing 42 U.S.C. § 1981(b)), and holding that defendant had incorrectly applied the definition of "adverse employment action" in Mattern to plaintiff's § 1981 claim).
MNBA cites Wakefield v. State Farm Insurance Co., 75 F. Supp.2d 545 (N.D. Tex. 1999) (Maloney, J.), aff'd, 229 F.3d 1148 (5th Cir. 2000) (unpublished table decision). The court recognizes that Wakefield appears to address both the plaintiff's Title VII and § 1981 causes of action when discussing the fact that the plaintiff was not relying on ultimate employment decisions. See id. at 549. MBNA does not cite a decision of the Fifth Circuit, however, and the court respectfully disagrees that § 1981 claims must be based on ultimate employment decisions.
VIII
Finally, MBNA moves to dismiss the state-law claims asserted in counts 3 and 4 of Hayes' complaint because she does not identify the specific Texas laws that she contends MBNA violated. Hayes responds that, in these counts, she is alleging, inter alia, discrimination under Texas law (count 3) and disparate impact and emotional distress under Texas law (count 4).In alleging a cause of action, a plaintiff is not required to plead the statute under which she seeks to recover. Jaeger v. Raymark Indus., Inc., 610 F. Supp. 784, 787 (E.D. Wis. 1985) ("Although it may be better practice for a plaintiff to indicate in his complaint the state law on which he bases his claim, a plaintiff is not required to plead the specific state statute." (citing 5 Charles Alan Wright Arthur R. Miller, Federal Practice Procedure § 1253 (1st ed. 1969)). Texas recognizes claims for discrimination, see Tex. Labor Code Ann. § 21.051 (Vernon 1996), and disparate impact, see Tex. Labor Code Ann. § 21.122 (Vernon 1996). Texas also recognizes a claim for intentional infliction of emotional distress. See, e.g., Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam). Without suggesting that these claims — particularly a claim for intentional infliction of emotional distress asserted in an employment context — have merit, the court declines to dismiss them on the basis asserted and denies MBNA's motion in this respect.
"The essential ingredient of extreme and outrageous conduct required for such a claim has been narrowly construed in the employment context." Pilarcik v. Silicon Sys., Inc., No. 3:91-CV-1935-D, slip. op. at 6 (N.D. Tex. Apr. 21, 1993) (Fitzwater, J.) (citing Best v. GTE Directories Serv. Corp., No. 3:92-CV-0163-D, slip op. at 3 (N.D. Tex. Mar. 19, 1993) ("Establishing `extreme and outrageous' conduct in the employment context is very difficult.")). Under Fifth Circuit jurisprudence, an employer's deplorable conduct does not constitute "extreme and outrageous" conduct "except in the most unusual cases." Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir. 1994) (quoting Wilson v. Monarch Paper Co., 939 F.2d 1138, 1143 (5th Cir. 1991)).
* * *
MBNA's March 31, 2004 partial withdrawal of its motion to dismiss is granted, Hayes' March 31, 2004 motion to stay proceedings is denied, and MBNA's November 18, 2003 motion to dismiss is granted in part and denied in part.