Burrell v. Truman Medical Center, Inc.

• Decision Date: 27 September 1989
• Docket Number: No. 89-0280-CV-W-3.,89-0280-CV-W-3.
• Citation: 721 F. Supp. 230
• Parties: Ressia R. BURRELL, Plaintiff, v. TRUMAN MEDICAL CENTER, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

721 F. Supp. 230

Ressia R. BURRELL, Plaintiff, v. TRUMAN MEDICAL CENTER, INC., et al., Defendants.

No. 89-0280-CV-W-3.

United States District Court, W.D. Missouri, W.D.

September 27, 1989.

Ressia R. Burrell, Kansas City, Mo., pro se.

W. Perry Brandt, Jan Fink Call, Kansas City, Mo., for defendants.

ORDER

ELMO B. HUNTER, Senior District Judge.

Ressia Burrell brings this suit against the Truman Medical Center ("TMC") and five of its employees alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Before the Court is a Motion to Dismiss plaintiff's complaint filed by individual defendants John Miers, Sherrell Tyree, Cleo R. Smith, Donald G. Brevold and Stewart Grant (the "individual defendants"). The individual defendants move for dismissal of the claims against them arguing (1) that they are not "employers" subject to Title VII litigation, and (2) that they were not named in plaintiff's charge of discrimination filed with the EEOC and therefore cannot be sued. In addition, the individual defendants request an Order imposing sanctions against plaintiff pursuant to Rule 11, Fed.R.Civ.P. Also pending before the Court is plaintiff's "Affidavit in Support of Pro Se Request to Disqualify Judge for Bias or Prejudice."

I. The Motion to Dismiss

In order to prevail on this Motion to Dismiss, the individual defendants must establish that plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In passing on the motion, the Court should construe the allegations in the complaint in favor of the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and assume the allegations therein are true. Gardner v. Toilet Good Ass'n., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1957). Thus, the facts of the instant case must be stated as follows.

In August of 1984, plaintiff was sexually harassed by Cleo Smith, who was then serving as Director of Data Processing for TMC. Plaintiff filed a grievance with the Personnel Department of TMC on August 8, 1984, which was internally resolved. According to plaintiff, Cleo Smith then began discriminating against her in retaliation for having filed the grievance regarding the sexual harassment. She discussed the problem with Sherrell Tyree, the Director of Personnel for TMC, on August 18, 1984. Sherrell Tyree assured plaintiff that the harassment and retaliation would stop. Plaintiff admits that she did not suffer further acts of retaliation for approximately two years.

Apparently Donald Brevold replaced Cleo Smith as the Director of Data Processing for TMC in June of 1986. Plaintiff maintains that Donald Brevold began to discriminate against her in retaliation for her 1984 sexual harassment grievance. Plaintiff contends that Donald Brevold learned about plaintiff's previous grievance from Sherrell Tyree. On September 16, 1987, plaintiff filed a charge with the EEOC alleging that she was being discriminated against in retaliation for her 1984 grievance. She claims that the acts of retaliation became so severe that she was forced to seek hospitalization. She was allegedly unlawfully discharged on January 14, 1988.

The individual defendants contend initially that John Miers and Stewart Grant should be dismissed from this action because plaintiff's complaint does not contain any allegations relating to these two employees. The Court agrees that plaintiff fails to make any allegations of wrongdoing against John Miers and Stewart Grant. Consequently, plaintiff's complaint against these two employees must be dismissed for failure to state a claim upon which relief can be granted.

The remaining individual defendants maintain that they are not proper parties under Title VII which prohibits discrimination by employers. Title VII defines the term "employer" to include "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person...." (emphasis added) 42 U.S.C. § 2000e(b) (1974). It is not contested that TMC is an employer for the purposes of Title VII. Thus, the individual defendants may be sued pursuant to Title VII if they qualify as statutory "agents" of TMC.

The Court must liberally construe the definition of "employer" to effectuate EEOC's remedial purpose. Baker v. Stuart Broadcasting Co., 560 F.2d 389, 391 (8th Cir.1977). Courts have generally held that to be an "agent" for the purposes of 42 U.S.C. § 2000e(b), an individual must be a supervisory or managerial employee of a Title VII employer, to whom the responsibility for making some employment decisions has been delegated. York v. Tenn. Crushed Stone Ass'n., 684 F.2d 360, 362 (6th Cir.1982). See Mason v. Twenty-Sixth Judicial Dist. of Kansas, 670 F.Supp. 1528, 1532 (D.Kan.1987) ("agent" includes supervisory or managerial employees to whom some employment decisions have been delegated by employer); Hendrix v. Fleming Companies, 650 F.Supp. 301, 302 (W.D.Okla.1986) ("employer" includes an officer, director, or supervisor of a Title VII employer, or an employee otherwise involved in managerial decisions); McAdoo v. Toll, 591 F.Supp. 1399, 1406 (D.Md.1984) ("those individuals who are charged with the responsibility of making — or contributing to — employment decisions...."); Thompson v. Intern. Ass'n. of Machinists and Aerospace Workers, 580 F.Supp. 662, 669 (D.D.C.1984) (individuals are subject to suit as "agents" under § 2000e(b) based on their participation in the decision making process that forms the basis of plaintiff's charge of discrimination); Jeter v. Boswell, 554 F.Supp. 946, 953 (N.D.W.Va.1983) (individual responsible for making the complained of personnel decision is subject to suit as employer); Spirt v. Tchrs. Ins. and Annuity Ass'n., 475 F.Supp. 1298, 1308 (S.D.N.Y.1979), aff'd in relevant part, 691 F.2d 1054 (2d Cir.1982) ("employer" controls some aspects of an individual's compensation, terms, conditions or privileges of employment); see also I A. Larson, Employment Discrimination § 5.34 (1989) ("... the statute also imposes liability on the particular hiring officer or other person who actually made or carried out the discriminatory employment action ... managers with direct control over the effected employee are uniformly found to be agents for the purposes of Title VII.").

The individual defendants assert briefly in their Motion to Dismiss that they do not qualify as statutory "agents" under Title VII. However, they have failed to document their employment status on the record. Plaintiff, on the other hand, alleges in her complaint that the individual defendants served as Directors of TMC divisions during the relevant time period involved in this case. Thus, it appears the individual defendants qualify as supervisory or managerial employees of TMC. Furthermore, Sherrell Tyree's position as Director of Personnel indicates she had responsibility for employment decisions. Assuming plaintiff was employed in the data processing department, it can be inferred that Cleo Smith and Donald Brevold, as Directors of Data Processing, controlled aspects of plaintiff's employment at TMC. The Court is hesitant to find on the current record that plaintiff can prove no set of facts tending to establish that the individual defendants are statutory employers under Title VII. Thus, the Court denies the motion of the individual defendants to dismiss plaintiff's complaint on this ground, without prejudice to their right to file an appropriate motion with proper factual documentation at a later stage in these proceedings.

The individual defendants contend that even if they meet the statutory definition of an "employer" under Title VII, they cannot be sued because they were not named in plaintiff's charge of discrimination filed with the EEOC. The statute provides that "a civil action may be brought against the respondent named in the charge...." (emphasis added) 42 U.S.C. § 2000e-5(f)(1). As a general rule, a complainant must file a charge against a party with the EEOC before the complainant can sue that party in federal court under Title VII. Hawkins v. Allis-Chalmers Corp., 527 F.Supp. 895, 896 (W.D.Mo. 1981). The dual purpose of this procedural filing requirement is to notify the person charged with the asserted violation and to facilitate conciliation. Stith v. Manor Baking Co., 418 F.Supp. 150, 156 (W.D.Mo. 1976).

Several exceptions to the general rule have been recognized.¹ Plaintiff encourages the Court to adopt a policy-based exception to the procedural filing rule developed by the Third Circuit in Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir.1977), appeal after remand, 629 F.2d 248 (3d Cir.1980), vacated on other grounds sub nom. Retail, Wholesale & Department Store Union v. G.C. Murphy Co., 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981). The Glus court enumerated four factors to be considered in determining whether jurisdiction exists over Title VII defendants who were not named in the plaintiff's EEOC complaint. These factors include:

(1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interests of a named are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceeding resulted in actual prejudice to the interests of the unnamed party; (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 888.² The Court need not decide whether to adopt the...