Connor v. Wti

• Decision Date: 01 October 1999
• Docket Number: No. Civ.A. G-99-224.,Civ.A. G-99-224.
• Citation: 67 F.Supp.2d 690
• Parties: Anna M. CONNOR, Plaintiff, v. WTI, a division of TIC United Corp., Defendant.
• Court: U.S. District Court — Southern District of Texas

67 F.Supp.2d 690

Anna M. CONNOR, Plaintiff, v. WTI, a division of TIC United Corp., Defendant.

No. Civ.A. G-99-224.

United States District Court, S.D. Texas, Galveston Division.

October 1, 1999.

Ted C. Litton, Royston Rayzor Vickery and Williams, Houston, TX, for Ted Litton, mediator.

David P. Salyer, McLeod Alexander Powel and Apffel, Galveston, TX, for Anna M. Connor, plaintiff.

ORDER DENYING MOTION TO DISMISS

KENT, District Judge.

Plaintiff Connor brings this action against her former employer, WTI, alleging sexual discrimination and unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1991, as well as civil battery and malice claims under Texas state law. Now before the Court is Defendant's Motion to Dismiss for Failure to State a Claim, filed August 5, 1999. For the reasons stated below, Defendant's Motion to Dismiss is DENIED.

I. FACTUAL SUMMARY

On August 1, 1997, Plaintiff Connor, a female, began working for Defendant WTI as a secretary at Defendant's Galveston facility, under the supervision of the Terminal Manager, Leonard Miller, Jr. Plaintiff alleges that soon thereafter Miller started to verbally and physically harass her because of her sex, whereupon Plaintiff protested to Miller. Plaintiff asserts that her objections did not dissuade Miller from continuing the harassment; in fact, according to Plaintiff, Miller actually increased the level of harassment, in retaliation for her entreaties to end the workplace discrimination. In her pleadings, Plaintiff also speculates that because Miller's actions were so pervasive Defendant's managers became aware of the harassment, but did not intervene. Consequently, on February 28, 1998, Plaintiff resigned.

On August 20, 1998, Plaintiff filed a sexual harassment and retaliation charge with both the Equal Employment Opportunity Commission ("EEOC") and the Texas Commission for Human Rights ("TCHR"), alleging sexual discrimination. On January 14, 1999, presumably at Plaintiff's request, the EEOC issued a dismissal notice containing a "right-to-sue" statement authorizing her to bring a private action in federal court — 146 days after Plaintiff had submitted her complaint to the EEOC. Plaintiff then filed suit on her discrimination claims on April 6, 1999.

II. MOTION TO DISMISS

A. Standard of Review

The Federal Rules of Civil Procedure authorize a court, upon suitable showing, to dismiss any action or any claim within an action for failure to state a claim upon which relief can be granted. See FED. R.CIV.P. 12(b)(6). When considering a motion to dismiss, the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff. See Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993). Unlike a motion for summary judgment, a motion to dismiss should be granted only when it appears without a doubt that the plaintiff can prove no set of facts in support of her claims that would entitle her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).

B. Early Right-to-Sue Notices

Defendant seeks dismissal of Plaintiff's suit, alleging that the Court is without jurisdiction to address Plaintiff's claim because the EEOC did not have the authority to issue a notice of right-to-sue. According to Defendant, the EEOC prematurely issued a right-to-sue letter to Plaintiff in violation of Section 2000e-5(f)(1) of Title VII. Therefore, Defendant argues that Plaintiff failed to exhaust her administrative remedies. In support of its position, Defendant cites nine opinions in which courts have held that a private party cannot bring a Title VII suit until the EEOC has completed a 180-day investigation of the alleged discrimination. See Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336 (D.C.Cir.1999); Robinson v. Red Rose Communications, Inc., No. CIV.A. 97-CV-6497, 1998 WL 221028 (E.D.Pa. May 5, 1998); Montoya v. Valencia County, 872 F.Supp. 904 (D.N.M.1994); Henschke v. New York Hosp. — Cornell Med. Ctr., 821 F.Supp. 166 (S.D.N.Y.1993); New York v. Holiday Inns, Inc., 656 F.Supp. 675 (W.D.N.Y.1984); Mills v. Jefferson Bank E., 559 F.Supp. 34 (D.Colo. 1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N.Y.1980); Hiduchenko v. Minneapolis Med. and Diagnostic Ctr. Ltd., 467 F.Supp. 103 (D.Minn.1979); Loney v. Carr-Lowrey Glass Co., 458 F.Supp. 1080 (D.Md.1978) (all dismissing Title VII suits for failure to state a claim because the EEOC issued a right-to-sue notice prior to the expiration of the 180-day statutory period). Defendant also contends that dicta found in EEOC v. Hearst Co., 103 F.3d 462 (5th Cir.1997), indicates that the Fifth Circuit is likely to adopt this position, as well.

In response, Plaintiff points to the Second, Ninth, and Eleventh circuits, which allow the EEOC to issue a right-to-sue letter before the 180-day review period has elapsed. See Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061 (11th Cir.1994); Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir.1984); Saulsbury v. Wismer and Becker, Inc., 644 F.2d 1251, 1257 (9th Cir. 1980); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425 (9th Cir.1978), vacated and remanded on other grounds, 444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980) (all permitting a private party to pursue claims in federal court upon the issuance of the right-to-sue letter by the EEOC, even if the 180-day investigation period has not expired).¹

1. Title VII Requirements

In Title VII discrimination cases, plaintiffs must first exhaust their administrative remedies with the EEOC before filing suit in federal court. See Lockhart v. American Tel. & Tel. Co., No. CIV.A. 397-CV-3021-X, 1999 WL 38167 (N.D.Tex. Jan.15, 1999); see also National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 711 (5th Cir.1994). The statute provides that a complainant may file a civil action if the EEOC has dismissed the charge or if "within one hundred and eighty days from the filing of such charge ... the [EEOC] has not filed a civil action ..., whichever is later...." 42 U.S.C. § 2000e-5(b) (1994). EEOC regulations also allow for the issuance of a right-to-sue notice prior to the expiration of the 180-day period if the complainant requests an early issuance and the EEOC determines that "it will be unable to complete its administrative proceeding of the charge within 180 days from the filing of the charge." 29 C.F.R. § 1601.28(a)(2) (1998).² Issuance of a right-to-sue letter terminates further EEOC processing of the complaint, see id. § 1601.28(a)(3), and allows the plaintiff to bring action in federal court. Absent these circumstances, the EEOC is required to investigate the charge and determine whether there is reasonable cause to believe the complaint is true. This determination is to be made "as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge." 42 U.S.C. § 2000e-5(b). The Fifth Circuit has not squarely addressed the jurisdictional effect of the early right-to-sue notice, authorized by 29 C.F.R. § 1601.28(a)(2), and there is a split of authority among the circuits that have discussed it. However, without clear direction from the Fifth Circuit on this issue, the Court finds the reasoning of the Ninth and Eleventh Circuits' opinions to be convincing.

2. The Ninth and Eleventh Circuits³

In allowing the early issuance of private right-to-sue letters, the Ninth Circuit has held that "`Section 2000e-5(f)(1) simply requires the EEOC to issue a notice of right-to-sue if it has failed to file suit or arrange a conciliation agreement within 180 days. Nowhere does the statute prohibit the EEOC from issuing such notice before the expiration of the 180-day period.'" Saulsbury, 644 F.2d at 1257 (quoting Bryant, 585 F.2d at 425). The Eleventh Circuit has further recognized that:

(1) 29 C.F.R. § 1601.28(a) does not prohibit the EEOC from issuing an early right to sue notice prior to the expiration of a 180-day period; (2) the purpose of the 180-day period is to protect the aggrieved party from extended administrative proceedings or bureaucratic backlog; and (3) where the EEOC determines, due to its huge backlog, that it cannot investigate an aggrieved party's charge within the 180-day period and notifies the aggrieved party that it is terminating its investigative efforts, it is pointless for the aggrieved party to stand by and mark time until the 180-day period expires.

Sims, 22 F.3d at 1061.⁴ These opinions recognize the legitimacy of the EEOC's early right-to-sue regulation, based on the express provision in Title VII that the EEOC can "issue, amend, or rescind suitable procedural regulations to carry out the provisions of this subchapter." 42 U.S.C. § 2000e-12(a). And as the Sims court noted, EEOC's regulation should be upheld because "it is `reasonably related to the purposes of the enabling legislation.'" Sims at 1062 (quoting Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369, 93 S.Ct. 1652, 1660-61, 36 L.Ed.2d 318 (1973)). Additionally, the Ninth and Eleventh Circuits both have held that the language and history of the EEOC regulation remain consistent with the purposes of Section 2000e-5(f)(1). The Court agrees.

In this case, the Court also finds it would be even more inequitable for the Court to remand Plaintiff's complaint to the EEOC and then simply wait an additional thirty-four days (until the 180-day period has expired) before the agency returns the case back to this Court.⁵ In issuing the right-to-sue order 146 days after Plaintiff filed her complaint, the EEOC already determined that it would not be able to bring resolution to Plaintiff's case before the end of the 180-day period. Remanding the case to the EEOC will only serve to...