358 F.Supp. 870 (D.Colo. 1973), Civ. A. C-4489, Latino v. Rainbo Bakers, Inc.
|Docket Nº:||Civ. A. C-4489.|
|Citation:||358 F.Supp. 870|
|Party Name:||Carolyn J. LATINO, Plaintiff, v. RAINBO BAKERS, INC., Defendant.|
|Case Date:||April 09, 1973|
|Court:||United States District Courts, 10th Circuit, District of Colorado|
Hodges, Kerwin, Otten & Weeks, by Arthur E. Otten, Jr., and Richard W. Breithaupt, Denver, Colo., for defendant.
Gellenthien & Cooter, by Carl W. Gellenthien, Pueblo, Colo., for plaintiff.
OPINION AND ORDER
ARRAJ, Chief Judge.
This matter is before the court on defendant's motion to dismiss the action or to strike an exhibit attached to the complaint. The complaint here alleges that defendant, plaintiff's former employer, has violated Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (1970), by discriminating against plaintiff on the basis of her sex. The motion to dismiss is grounded upon the fact that the prior complaints which she filed with the Equal Employment Opportunity Commission (EEOC) and the Colorado Civil Rights Commission asserted only that defendant discriminated against her because of her national origin. Defendant maintains that the discrepancy between the various charges is fatal to the present action. The argument is that the provisions of 42 U.S.C. § 2000e-5 prevent plaintiff from alleging in her district court complaint a basis for discrimination different from the basis alleged in her complaint before the appropriate state and federal administrative agencies.
In support of its argument, defendant cites Fix v. Swinerton, 320 F.Supp. 58 (D.Colo.1971). There the plaintiff, having properly filed complaints before the EEOC and the Colorado Civil Rights Commission, brought an action in this court charging employment discrimination. The complaint filed with the court asserted that the grounds for discrimination were plaintiff's religion and national origin, but the complaint and investigation before the administrative agencies had been limited to discrimination because of plaintiff's national origin. Judge Chilson thus granted a motion to strike the claim of discrimination on the basis of religion, holding that this ground could not be asserted for the first time in the district court.
The difference between this case and Fix is that, in Fix, the charge of religious discrimination had never been presented to the EEOC, and the Commission had not considered or passed upon the issue. Here, although plaintiff did not initially charge...
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