Opinion
Civil Action No. 00-2269-GTV.
May 13, 2002
MEMORANDUM AND ORDER
This case is before the court on Shawnee County's Motion For Judgment N.O.V. (Doc. 99). For the reasons set forth below, the motion is denied.
I. Background
Plaintiff William P. Zander filed this suit alleging employment discrimination claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 1985, the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, the First and Fourteenth Amendments to the United States Constitution and the Kansas Acts Against Discrimination ("KAAD"), K.S.A. § 44-1001 et seq. The complete factual background in this case is set forth in the court's previous Memorandum and Order (Doc. 78) and it will not be repeated in full here.
On January 21, 1999, plaintiff filed a charge of discrimination with the Kansas Human Rights Commission ("KHRC") alleging Shawnee County ("the County") discriminated against him based on race and disability, and retaliated against him for opposing Title VII discrimination. On January 22, 1999, the EEOC sent defendants a "Notice of Charge" cover sheet that refers to plaintiff's KHRC charge dated January 21, 1999. The Notice of Charge dated January 22, 1999 states that the KHRC received a charge of employment discrimination under Title VII and the ADA. The charge itself states that plaintiff is a white man with a disability who is known for defending black co-workers. It further states that "because of this I have been subjected to continual retaliation in the form of harassment by white co-workers and supervisors, specifically Clyde Pasley, supervisor and Marvin Murray, crew leader." The charge also states that "on many . . . occasions I have been called `filthy stinking bastard,' had my clothes set on fire and was sprayed with WD-40, hydraulic oil, starter fluid, water, coffee and glass cleaner. The main people who abused me in this manner were Walter [Shaver] Joe Crow and Arthur Moore." Id. at 2. The charge further states that co-workers "attacked, insulted, abused and retaliated against [me] because of my disability and because of my association with an African American." Id.
During December 1999 to January 2000, the County suspended plaintiff for ten working days without pay because he had used County property to fax a complaint to the Human Resources Department regarding an unsafe work environment, sexual harassment and retaliation. The complaint also alleged that Shaver had sexually harassed a female employee.
On March 23, 2000, the EEOC issued plaintiff a right to sue letter. On June 6, 2000, plaintiff complained to the County that his civil rights were being violated. The next day the County fired plaintiff. Six months after his termination, on December 7, 2000, plaintiff filed another charge of discrimination with the KHRC. Specifically, he complained of discrimination on the basis of age, disability and retaliation, the last act of which allegedly occurred on June 7, 2000, the date of termination. He did not check the box to indicate that he was complaining of a Title VII violation.
Plaintiff filed this lawsuit on June 14, 2000. On October 28, 2001, the court granted summary judgment on some of the claims. At trial, the jury returned a verdict in favor of plaintiff on his Title VII retaliation claim. The Court then conducted a hearing to determine equitable remedies. On February 4, 2002, the Court directed the clerk to enter judgment in favor of plaintiff for $150,007.96 together with costs. See Doc. 96. The County now moves for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b). For reasons set forth below, the court overrules defendant's motion.
II. Legal Standards
In ruling on a renewed motion for judgment as a matter of law following a jury verdict, the court has three options available: allow the judgment to stand, order a new trial, or direct an entry of judgment in favor of the moving party. See Fed.R.Civ.P. 50(b)(1). Judgment as a matter of law is warranted only if "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). The jury's verdict must remain undisturbed if there is evidence, viewed in a light most favorable to the non-moving party, upon which the jury could have returned a verdict in favor of the non-movant. See Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1546 (10th Cir. 1996). The court must not weigh the evidence, pass on the credibility of witnesses, or substitute its own judgment for that of the jury. See Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1522 (10th Cir. 1997). Motions for new trial are regarded with disfavor and should "only be granted with great caution." United States v. Thornbrugh, 962 F.2d 1438, 1443 (10th Cir. 1992), vacated on other grounds by United States v. Abreu, 508 U.S. 935 (1993).
III. Analysis
In its motion for judgment as a matter of law, the County argues that plaintiff's claim that it retaliated against him for engaging in protected opposition to racial and sexual discrimination is procedurally barred under Title VII because plaintiff failed to exhaust his administrative remedies.
Exhaustion of administrative remedies is a prerequisite to bringing suit under Title VII. Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997). To exhaust administrative remedies, plaintiff must timely present his claims to the EEOC and receive a right-to-sue letter. The purpose of the exhaustion requirement is two-fold: to give notice of the alleged violation to the charged party and to give the EEOC an opportunity to conciliate the claim. Ingels, v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). "As a general rule, where charges are not brought before the EEOC, federal courts are without jurisdiction to hear them." Martin v. Nannie The Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993). When a defendant employer specifically denies that a plaintiff has exhausted his administrative remedies, the burden of proof rests with plaintiff to show that he has satisfied the requirement. See McBride v. Citgo Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir. 2002) (no jurisdiction to hear ADA claim where plaintiff did not exhaust administrative remedies with EEOC).
Plaintiff filed this lawsuit on June 14, 2000. The only exhausted EEOC charge in evidence is that of January 21, 1999, in which plaintiff alleged that co-employees and supervisors harassed him and engaged in continual retaliation against him, in part because of his disability and because he was known for defending black-co-workers. On March 23, 2000, the EEOC issued plaintiff a right to sue letter based upon the January 1999 EEOC charge.
The court also found that plaintiff exhausted his Title VII claim of same-sex harassment. A reasonable investigation into his January 1999 EEOC charges of harassment based on his disability and opposition to racial discrimination would have uncovered the sexual harassment allegations because the same individuals and same conduct were involved.
In its summary judgment motion, the County argued that plaintiff had failed to exhaust his administrative remedies as to his Title VII retaliation claim. Essentially the County asserted that plaintiff could not sue for any conduct that occurred after the EEOC issued the right to sue letter on March 23, 2000. Therefore, because the County did not terminate plaintiff until June 7, 2000, it asserted that the termination was not properly considered in this lawsuit.
This court noted, however, that "an act committed by an employer in retaliation for filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint." Jones v. Runyon, 91 F.3d 1398, 1401-02 (10th Cir. 1996); see also Ingels, 42 F.3d at 625; Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th Cir. 1988). The Tenth Circuit has stated that:
This is a sound rule, because the main functions of the requirement of an EEOC charge have already been fulfilled, and requiring a second trip to the state or federal administrative agencies to allege retaliation occurring during the pendency of a judicial proceeding would not achieve any purpose and would simply prolong and perhaps bifurcate the judicial proceeding. There are two purposes behind the requirement for administrative exhaustion in discrimination cases: 1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance. Butts [v. City of New York], 990 F.2d [1397] at 1401 [2d Cir. 1993]; Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989). In the retaliation context, notice has already been given and there is little likelihood that a second administrative complaint would lead to conciliation. Butts, 990 F.2d at 1402. "Indeed, requiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination." Butts, 990 F.2d at 1402.
Ingels, 42 F.3d at 625 (footnotes and some internal citations omitted).
The court ruled that because plaintiff asserted that the County suspended and then fired him in retaliation for opposing Title VII discrimination, including filing the 1999 EEOC charge, plaintiff did not have to file a separate EEOC charge to exhaust his claim of retaliatory termination.
The court notes that in Mosley v. Pena, 100 F.3d 1515, 1518-19 (10th Cir. 1996) the Tenth Circuit held that where the plaintiff filed a separate EEOC charge of retaliation, exhaustion of the underlying charge of discrimination did not exhaust her administrative remedies on the retaliation claim. This case is distinguishable from Mosley, however, because here, although plaintiff filed a separate EEOC charge of retaliation six months after he was terminated, the later charge did not include a charge of Title VII discrimination. Further, plaintiff filed this law suit one week after the termination. Thus, unlike in Mosley, plaintiff did not treat his Title VII retaliation claim as "distinct from the underlying claim." Mosley, 100 F.3d at 1518.
In its renewed motion for judgment as a matter of law, the County alternatively argues that, even if the January 1999 EEOC charge of Title VII discrimination exhausted plaintiff's administrative remedies as to the December 1999 suspension and June 2000 termination, as a matter of law the time lapse between the protected activity (the EEOC charge) and the adverse employment actions was too great to support a finding of a causal connection.
The County appears to acknowledge that plaintiff may have exhausted his administrative remedies as to the ten-day suspension. The suspension in December 1999 to January 2000 occurred before the EEOC issued the right to sue letter. Thus, if the suspension was discriminatory conduct reasonably related to the January 1999 charge, it should be considered exhausted. See Aramburu, 112 F.3d at 1409 (defendant's conduct that is reasonably related to allegations of discrimination raised in pending EEOC charge exhausted because assume investigation would unearth such conduct). The County argues, however, that the ten-day suspension does not constitute an adverse employment action necessary to sustain a jury finding of retaliation. The court believes a ten-day suspension is an adverse employment action. See Russell v. Bd. of Trustees Of The Univ. of Ill., 243 F.3d 336 (7th Cir. 2001) (five-day suspension with loss of pay and a finding that plaintiff falsified pay sheet was adverse employment action). The jury was allowed to hear and consider evidence of both the suspension and termination in rendering its verdict, and the court relied upon both to determine equitable damages. Therefore, if only the suspension was exhausted and properly before the jury and court, a new trial would be required.
In order to show the element of intentional retaliation, plaintiff must produce evidence that allows an inference of a retaliatory motive. This connection may be shown by protected conduct followed closely by adverse action. See O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). The County asserts that almost a year between the EEOC charge and the suspension, and eighteen months between the EEOC charge and termination, are insufficient to show causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (one and one-half month period between protected activity and adverse action enough to show causation, while three months, standing alone, is not sufficient).
The County overlooks the fact that plaintiff produced evidence at trial that the County suspended him in December 1999, a few days after he faxed the County's human resources department a complaint regarding Title VII harassment and retaliation for opposing such harassment. Further, he presented evidence that he filed a charge of sexual harassment with the KHRC on March 3, 1999; filed two union grievances in May, 2000; and filed internal complaints that his co-workers and supervisors continually harassed him for voicing opposition to Title VII race discrimination in July, 1999, and May, 2000. Finally, on June 6, 2000, he complained to County commissioners about Title VII discrimination. He was fired less than 24 hours later. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (unless termination very closely connected in time to protected activity, plaintiff must produce additional evidence beyond temporal proximity to establish causation).
Given the evidence of this course of conduct, plaintiff did not rely only upon the EEOC complaint filed in January, 1999, and his termination 18 months later, as evidence of causation. Rather, he presented evidence of a continuing course of conduct of retaliation for opposition to Title VII discrimination. The County presented evidence that it suspended him for ten days and then terminated his employment for legitimate, non-discriminatory reasons. The jury, however, was entitled to rely upon all of the evidence before it in reaching the conclusion that the County retaliated against plaintiff for opposing discrimination made unlawful by TitleVII, including but not limited to participating in an investigation or charge under Title VII.
IT IS, THEREFORE, BY THE COURT ORDERED that Shawnee County's Motion For Judgment N.O.V. (Doc. 99) is denied.
IT IS SO ORDERED.