Cheek v. Western and Southern Life Ins. Co.

Decision Date01 August 1994
Docket NumberNo. 93-1840,93-1840
Citation31 F.3d 497
Parties65 Fair Empl.Prac.Cas. (BNA) 727 Loretta CHEEK, Plaintiff-Appellant, v. WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert J. Palmer, May, Oberfell & Lorber, Michele Ryan and Kevin Maloney, Law Students (argued), South Bend, IN, for plaintiff-appellant.

Kathleen K. Brickley (argued), Janilyn S. Brouwer, Barnes & Thornburg, South Bend, IN, for defendant-appellee.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Loretta Cheek brought an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e-2(a), against her former employer, Western and Southern Life Insurance Company (Western-Southern). The district court entered summary judgment in favor of Western-Southern. Cheek appeals, and we affirm.

BACKGROUND

Western-Southern employed Cheek as an insurance sales representative from May 22, 1989, to November 8, 1990. On May 7, 1990 Cheek took disability leave from Western-Southern because of injuries she suffered in a fall at work on January 1, 1990. Pursuant to its policy of providing employees 26 weeks of temporary disability leave, Western-Southern notified Cheek that her employment would be terminated if she did not return to work on or before November 8, 1990. Because she had not yet recovered from her injuries, Cheek was unable to return to work by that date. Western-Southern terminated her employment.

On September 24, 1990, before the termination of her employment, Cheek filed a charge against Western-Southern with the Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. Sec. 2000e-5(b); 29 C.F.R. Sec. 1601.7. Cheek claimed that from September 1989 until May 4, 1990, she had been "constantly intimidated by" her sales manager, Greg Petsovich, and that she had been forced to pay her clients' insurance premiums, while three male sales representatives had been neither "intimidated" nor required to pay their clients' insurance premiums. The EEOC investigated Cheek's claims and, on December 26, 1991, issued Cheek a letter of determination. See 42 U.S.C. Sec. 2000e-5(f)(1); 29 C.F.R. Sec. 1601.19(a). The letter stated, in pertinent part:

Examination of the evidence establishes that [Cheek] was not discriminated against as alleged.... The investigation disclosed no evidence which would indicate that [Cheek] was forced to pay for the insurance premiums of her clients, or that male Sales Representative [sic] were treated better than she. Witness testimony did not support [Cheek's] allegations that she was treated any different than other male employees in her department. The investigation did not establish that [Cheek's] alleged treatment created an environment so hostile that would be considered intimidating.... [T]he evidence obtained during the investigation does not establish a violation of the statute.

* * * * * *

[Cheek] may only pursue this matter further by filing suit against [Western-Southern] ... in Federal District Court within 90 days of [Cheek's] Receipt of this letter. Therefore, if a suit if [sic] not filed within this 90 day period, [Cheek's] Right to Sue will be lost.

On March 23, 1992, Cheek brought suit against Western-Southern. In her complaint, Cheek alleged that: Western-Southern unlawfully discriminated against her because of her sex (count I); Western-Southern breached the employment contracts it had entered into with her in May 1989 and January 1990 by changing her sales route (count II); and that Western-Southern's district manager, Norman Crady, created a hostile work environment by sexually harassing her and her female co-workers (count III).

The district court granted Western-Southern's motion for summary judgment, finding that Cheek failed to exhaust her administrative remedies with respect to the claims of sex discrimination and sexual harassment. In addition, the court found that the breach of contract claim was barred by two provisions in the parties' employment contracts. By these provisions Cheeks agreed

[n]ot to commence any action or suit relating to [her] employment by Western-Southern until ten days after service upon the Chairman, President or Secretary of a written statement of the particulars and amount of [her] claim.

She further agreed

[n]ot to commence any action or suit relating to [her] employment with Western-Southern more than six months after the date of termination of such employment, and to waive any statute of limitation to the contrary.

The court found that Cheek had neither served Western-Southern with ten days' notice of her intention to bring suit relating to her employment, nor commenced her suit within six months after the date of her discharge. This appeal followed.

DISCUSSION

We review the grant of summary judgment de novo. Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1388 (7th Cir.1993). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We view the record and all justifiable inferences drawn from it in the light most favorable to the party against whom judgment was entered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). This rule serves the dual purpose of affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion, id. at 44, 94 S.Ct. at 1017, and of giving the employee some warning of the conduct about which the employee is aggrieved. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992); Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989). Although the rule is not jurisdictional, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392, 102 S.Ct. 1127, 1131, 71 L.Ed.2d 234 (1982), it is a condition precedent with which Title VII plaintiffs must comply. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir.1985). For allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would frustrate the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge.

Nevertheless, because most EEOC charges are completed by laypersons rather than by lawyers, a Title VII plaintiff need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in her complaint. Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir.1992). The test for determining whether an EEOC charge encompasses the claims in a complaint therefore grants the Title VII plaintiff significant leeway: all Title VII claims set forth in a complaint are cognizable that are " 'like or reasonably related to the allegations of the charge and growing out of such allegations.' " Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) (en banc) (quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971)), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). Thus the test of Jenkins is satisfied if there is a reasonable relationship between the allegations in the charge and the claims in the complaint, and the claim in the complaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge. The second part of the test is difficult to apply because it requires speculation as to what the EEOC might or might not discover in the course of an investigation. Nevertheless, we need not so speculate in this case, because Cheek fails to satisfy the first part of the test.

A. Unlawful Sex Discrimination

In determining whether Cheek's claim of sex discrimination is reasonably related to the allegations in her EEOC charge, we initially examine the factual allegations in the body of the charge. Schnellbaecher, 887 F.2d at 127. Cheek alleged in her charge that:

From September 1989, and on till [sic] May 4, 1990, I was being constantly intimidated by Greg Petsovitch, [sic] Staff Manager, and was forced to pay for my client's insurance premiums.

* * * * * *

I believe I have been discriminated against because of my sex (female) and that Respondent may have violated my Title VII Rights because:

To my knowledge Mr. Greg Smith, Mr. Randy Morris, and Mr. Larry Leine, also male representatives, are not being intimidated, or asked to pay for their clients' insurance premiums, whereas I was.

Cheek also checked the "sex discrimination" box on the EEOC charge form (the form also includes boxes for discrimination based on race, color, religion, national origin, age, and retaliation). She claimed in count I of her complaint that Western-Southern unlawfully discriminated against her on account of her sex by transferring her from her original sales route to a less-lucrative sales route and by engaging in a pattern or practice of transferring women sales representatives to unprofitable sales routes.

Both the EEOC charge and count I of the complaint thus assert forms of sex discrimination. But the issue before us is whether the claims in count I of the complaint are "like or reasonably related to" the allegations in the EEOC charge. We hold that they are not. Because an employer may discriminate on the basis of sex in numerous ways, a claim of sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not alike or reasonably related just because they both...

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