Opinion
NO. 3:00-CV-2741-X
December 10, 2001
MEMORANDUM OPINION AND ORDER
Before the Court are Defendant John Ashcroft's Motion to Dismiss, filed September 28, 2001; Plaintiff's Response in Opposition to Defendant's Motion to Dismiss, filed October 17, 2001; Defendant John Ashcroft's Reply, filed October 31, 2001; and, Plaintiff's Surreply, filed November 16, 2001. After having considered the evidence, the parties' briefs, and the applicable law, the Court concludes that Defendant's Motion to Dismiss should be DENIED.
BACKGROUND
Plaintiff complains of discrimination in violation of Title VII, alleging that he was subjected to a hostile work environment based on his national origin, discriminated against regarding the terms and conditions of his employment, and retaliated against for his prior EEO activity. In his Motion to Dismiss, Defendant John Ashcroft contends that Plaintiff failed to exhaust his administrative remedies, thus depriving this Court of subject matter jurisdiction. More specifically, Defendant argues that this Court has no jurisdiction over the claims Plaintiff presented in his second and third administrative complaints.
Plaintiff is employed as a Special Agent in the Anti-Smuggling Unit, Investigations Branch, Dallas District Office, Immigration and Naturalization Service ("INS"). Plaintiff filed his first administrative complaint on February 10, 1997, alleging that Mr. Neil Jacobs, Plaintiff's second-line supervisor, discriminated against him on the basis of his national origin (Hispanic), and in retaliation for his participation in another person's EEO complaint. During his counseling interview on January 26, 1997, Plaintiff further complained of a hostile work environment. In response, the INS investigated the matter, and issued a Report of Investigation on April 20, 1999. On April 26, 1999, Plaintiff requested a Department of Justice Final Agency Decision.
On October 10, 2000, some three years after his initial complaint of discrimination, the Department of Justice issued its Final Agency Decision. During the investigation and resolution of his first complaint, however, Plaintiff claims he was subjected to additional discrimination. In response, Plaintiff filed a second administrative complaint on April 25, 1997, alleging that Jacobs subjected him to a hostile work environment because of his national origin (Hispanic), and in retaliation for the complaint he filed two months earlier.
The INS investigated Plaintiff's second complaint, and issued its Report of Investigation on March 3, 1998. The Department of Justice issued its Final Agency Decision on July 27, 1999, but Plaintiff failed to take any further action. He neither appealed the decision with the EEOC nor filed suit in a United States District Court within ninety days of the decision.
Plaintiff filed yet a third administrative complaint on February 10, 1998, again alleging that Jacobs made "bigoted, derogatory, offensive, and humiliating [sic] comments to all [H]ispanic employees." Def. App. at 26. This third administrative complaint alleged Jacobs made discriminatory remarks on July 3, 1997. The ultimate disposition of Plaintiff's third administrative complaint cannot be determined from the record.
After receiving the Final Agency Decision regarding his first administrative complaint, Plaintiff filed suit in this Court on December 19, 2000, well within the statutory time period for bringing such an action. The Defendant concedes that the Court has jurisdiction over the disparate treatment and reprisal claims that Plaintiff originally made in his first administrative complaint.
The Defendant contends, however, that Plaintiff's hostile work environment claim must be dismissed because Plaintiff failed to file suit within ninety days after he received the Final Agency Decision regarding his second administrative complaint. Defendant further contends that Plaintiff's second reprisal claim must be dismissed for the same reason. And finally, the Defendant argues that the allegations raised in Plaintiff's third administrative complaint should be dismissed because Plaintiff failed to consult an EEO counselor within forty-five days of the alleged discriminatory conduct. For the reasons stated below, the Court rejects Defendant's contentions and concludes that all of Plaintiff's claims are properly before the Court.
ANALYSIS A. Exhaustion
Title VII grants an aggrieved federal employee the right to file suit in federal district court. See 42 U.S.C. § 2000e-16(c). Before bringing suit, however, an employee must exhaust his administrative remedies against his federal employer. See Brown v. General Services Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Exhaustion of administrative remedies is a jurisdictional prerequisite to federal jurisdiction. National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir. 1994) ("[C]ourts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies.").
In order to exhaust their administrative remedies, federal employees must jump through more procedural hoops than employees who work in the private sector. An aggrieved employee must, prior to filing his administrative complaint, consult an EEO counselor within forty-five days of the date of the alleged unlawful employment practice to commence the administrative process. 29 C.F.R. § 1614.105 (1998). Only after the completion of an informal counseling period, may the aggrieved employee file an administrative complaint. Id. Finally, a federal employee must file his Title VII civil action within ninety days following the receipt of either a notice of final action on the administrative complaint by the agency, or by the EEOC on appeal from the agency's decision. 42 U.S.C. § 2000e-16(c).
B. Hostile Work Environment Claims
There are, however, a number of exceptions to this exhaustion requirement. For example, a Title VII cause of action may be based "not only on the specific allegations made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination." Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995) (citations omitted); see also Clark v. Kraft Foods, Inc., 18 F.3d 1278, 1280 (5th Cir. 1994); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). Moreover, the district court has jurisdiction over new acts of discrimination which occurred after the first complaint has been filed so long as the discriminatory acts are part of the same core grievance. See Ray v. Freeman, 626 F.2d 439, 443 (5th Cir. 1980) ("As long as allegations in the judicial complaint and proof are `reasonably related' to the charges in the administrative filing and `no material differences' between them exist, the court will entertain them.") (citations omitted); accord Wu v. Thomas, 863 F.2d 1543, 1547, (11th Cir. 1989) (holding plaintiff need not exhaust third administrative charge when allegations therein were "reasonably related" to a properly exhausted prior charge); Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th Cir. 1973) (concluding a "judicial complaint . . . may encompass any discrimination like or reasonably related to the allegations of the EEOC charge, including new acts occurring during the pendency of the charge.")
In Clark, the plaintiff filed an administrative charge with the EEOC alleging sexual harassment and retaliation, but did not include a separate allegation of disparate treatment on the basis of gender. The Fifth Circuit determined that the district court had jurisdiction over the disparate treatment claim because an EEOC investigation of that claim was a "reasonable consequence" of Clark's administrative charge and its supporting documentation. Clark, 18 F.3d at 1280. The Court further noted that the actual scope of the investigation does not determine whether the claim is exhausted. Clark, 18 F.3d at 1280. Instead, the scope is determined by the allegations in the charge one would reasonably expect the agency to investigate. Id.
In this case, Plaintiff's factual statements during his counseling interview provide the investigating agency sufficient information regarding a hostile work environment claim such that one would reasonably expect the agency to have investigated it. Notably, the form on which Plaintiff filed his administrative complaint does not contain a box for "hostile work environment." On January 26, 1997, however, Plaintiff complained to his EEO counselor that he had spoken with Jacobs "on many occasions concerning his comments about Hispanics that were offensive and out of place." PI. App. at 2. Plaintiff also stated that he believed "Mr. Jacob's attitude and negative comments have interfered with the careers and promotion possibilities of Hispanic agents in the Dallas office." Id. Even the Department of Justice Final Agency Decision, issued October 10, 2000, acknowledges that Plaintiff complained that Jacobs made "derogatory remarks toward Hispanics." Def. App. at 4. Based on the above, this Court concludes that Plaintiff's hostile work environment claim is "reasonably related" to the allegations he made in his first administrative complaint.
This Court likewise concludes that the allegations made in Plaintiff's second and third administrative charges are "reasonably related" to the allegations that he made in his first complaint. The second administrative complaint contained two charges of discrimination. In addition to the retaliation claim, discussed below, Plaintiff stated, inter alia, that he "heard that Mr. Jacobs . . . routinely made derogatory and bigoted remarks against Hispanic agents, and then excuse their behavior as mere joking." Def. App. at 17. Plaintiff's third complaint contained similar allegations, again accusing Jacobs of making "bigoted, derogatory, offensive, and humilliating [sic]" remarks. Def. App. at 26. The Court finds no material difference between these allegations and the allegations Plaintiff presented in his first administrative complaint. Accordingly, Plaintiff's hostile work environment claim is properly before the Court.
C. Retaliation Claims
The Fifth Circuit has long held that it is unnecessary for a plaintiff to his exhaust his administrative remedies prior to asserting a retaliation claim that grows out of an earlier charge of discrimination. See Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir. 1981). District Courts have "ancillary" jurisdiction to hear post-charge retaliation claims when the retaliation claim grows out of and earlier charge that has been properly exhausted. See Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5th Cir. 1991); Gottlieb v. Tulane University of Louisiana, 809 F.2d 278, 284 (5th Cir. 1987). The Fifth Circuit found strong practical reasons and policy justifications that counsel in favor of this rule. Specifically, the exhaustion of post-charge retaliation claims "would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII." Gupta, 654 F.2d at 414.
In Gupta, the plaintiff filed an EEOC charge of discrimination, and then timely filed a lawsuit after he exhausted his administrative remedies. Subsequent to his charge of discrimination, Gupta's employer notified him that his teaching contract would not be renewed. Gupta contended that this post-charge activity was in retaliation for his prior charge of discrimination. Gupta, however, neither amended his administrative complaint to include a charge of reprisal, nor did he file any additional complaint with the EEOC. The Fifth Circuit held that Gupta's subsequent retaliation claim grew out of his first administrative charge, and that the district court had ancillary jurisdiction over the claim. Id.
The Court believes that the facts of this case are indistinguishable from the facts of Gupta. The Defendant concedes, as it must, that Plaintiff properly exhausted his first administrative complaint. The retaliation charge, made in Plaintiff's second administrative complaint, specifically alleges that "Jacobs is retaliating against [Plaintiff] for having filed a[n] EEO complaint against him." Def. App. at 15. The second retaliation claim thus attaches to Plaintiff's properly exhausted administrative complaint and falls within the Court's ancillary jurisdiction.
D. Rule 12(b)(6) Motion to Dismiss
Finally, the Defendant moves to dismiss Plaintiffs disparate treatment and first retaliation claims pursuant to Rule 12. Defendant's motion is denied. Defendant's arguments in this regard will be revisited at the summary judgment stage after both parties have had an opportunity for full discovery.CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss is DENIED.
SO ORDERED