Duggins v. Steak'N Shake

• Decision Date: 23 September 1999
• Docket Number: Nos. 98-4159,98-4289,s. 98-4159
• Citation: 195 F.3d 828
• Parties: (6th Cir. 1999) Rebecca K. Duggins, Plaintiff-Appellant/Cross-Appellee, Morganroth & Morganroth; Steven Schiller; James R. Estep, Attorneys-Appellees (98-4289), v. Steak 'N Shake, Inc., Defendant-Appellee/Cross-Appellant, Consolidated Products, Inc., Defendant-Appellant (98-4289). Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 828

195 F.3d 828 (6th Cir. 1999)

Rebecca K. Duggins, Plaintiff-Appellant/Cross-Appellee, Morganroth & Morganroth; Steven Schiller; James R. Estep, Attorneys-Appellees (98-4289), v. Steak 'N Shake, Inc., Defendant-Appellee/Cross-Appellant,

Consolidated Products, Inc., Defendant-Appellant (98-4289).

Nos. 98-4159, 98-4289

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: September 23, 1999

Decided and Filed: November 8, 1999

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati; No. 97-00374--Sandra S. Beckwith, District Judge. [Copyrighted Material Omitted] Steven L. Schiller, Newport, Kentucky, for Plaintiff-Appellant/Cross-Appellee.

Mayer Morganroth, MORGANROTH & MORGANROTH, Southfield, Michigan, for Appellees.

James R. Estep, Union, Kentucky, for Appellee Pro Se.

Steven L. Schiller, Newport, Kentucky, for Appellant Pro Se.

David A. Skidmore, Jr., David T. Croall, FROST & JACOBS LLP, Cincinnati, Ohio, for Defendant-Appellee/Cross-Appellant, and Defendant-Appellant.

Before: MERRITT and CLAY, Circuit Judges; ALDRICH, District Judge^*.

OPINION

MERRITT, Circuit Judge.

This appeal arises from the district court's grant of summary judgment against plaintiff Rebecca Duggins on her claim of retaliation for complaints regarding alleged sexual harassment and gender-based discrimination under Title VII of the Civil Rights Act of 1964 on the part of her former employer, Steak 'N Shake, Inc. In addition, Duggins appeals the district court's denial of her motion for leave to amend the complaint to include a claim for violation of the Fair Labor Standards Act. Finally, Steak'N Shake and Consolidated Products, Inc. cross-appeal the district court's failure to consider their motion for dismissal and for sanctions against plaintiff's former counsel Morganroth & Morganroth for allegedly allowing one of its agents, James R. Estep, to engage in the unauthorized practice of law. For the reasons discussed below, we REVERSE in part and AFFIRM in part the decision of the district court.

Plaintiff Rebecca Duggins and her daughter Julie were employees of Steak 'N Shake in Cincinnati, Ohio. Duggins was a manager-in-training and subsequently a manager, and worked at several different store locations during her tenure at Steak 'N Shake. Duggins alleges that her daughter, Julie Duggins, was raped by another employee of Steak 'N Shake, Inc¹. In addition, Duggins alleges that she was sexually propositioned and harassed by Tom Svec, another individual employed by Steak 'N Shake. Duggins complained to management about the alleged sexual harassment of both herself and her daughter. Duggins alleges that she was subsequently retaliated against for those complaints. She lists several possible retaliatory incidents, including being passed over for promised promotions, having a pay raise taken away from her, and being falsely reprimanded for alleged poor performance. Steak 'N Shake counters that she was the highest paid manager in the Ohio Division of the company, and that each of the individuals who received promotions over Duggins deserved those promotions. Duggins subsequently filed an EEOC charge. Duggins alleged further retaliation after the filing of her EEOC charge, primarily a transfer to another Steak 'N Shake location farther from her home after explicitly informing management that her newly-prescribed medication made driving long distances difficult. Finally, Duggins brought an action against Steak 'N Shake, Inc. and its parent company, Consolidated Products, Inc., alleging sex discrimination, disability discrimination, and retaliation. After voluntarily dismissing the sex and disability discrimination claims, the retaliation claim remained. Steak 'N Shake and Consolidated Products moved for summary judgment, and Duggins moved to amend the complaint to allow a claim for violation of the Fair Labor Standards Act. The district court denied Duggins's motion for leave to amend and granted the defendants' motion for summary judgment. The district court held that the defendants' motion for dismissal and for sanctions against plaintiff's counsel was moot in light of the court's summary judgment determination.

I.

The primary issue on appeal is whether the district court erred in granting Steak 'N Shake and Consolidated Products' motion for summary judgment. First, the district court held that Duggins' EEOC charge did not allege retaliation. If an EEOC charge does not properly allege a retaliation claim, the court only has jurisdiction over retaliation arising as a result of filing the EEOC charge itself. Therefore, the court held that it could only properly consider allegations of retaliation arising after the date Duggins filed her EEOC charge, October 4, 1996. In addition, the court found that Duggins's affidavit submitted in opposition to summary judgment claimed an incident of retaliation after October 4, 1996, in the form of a transfer to a distant location in spite of Duggins's alleged inability to drive long distances. Second, the court found that the affidavit was contradictory to earlier deposition testimony, which gave non-retaliatory reasons for the transfer and reasons other than the transfer for plaintiff's decision to resign. To the extent that it was contradictory, the court held that the affidavit could not be admitted. The district court found that without the portion of the affidavit alleging the retaliatory transfer, no retaliation after October 4, 1996 was alleged, and therefore summary judgment was appropriate. The standard of review for summary judgment determinations is de novo review. Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996).

First, this court must consider whether Duggins's EEOC charge alleged retaliation. The one-page EEOC charge explicitly alleged sexual discrimination and gender discrimination in violation of Title VII as well as violation of the Equal Pay Act. Steak 'N Shake and Consolidated Products' brief makes much of the fact that Duggins failed to check the box marked "retaliation" on the one-page form and instead marked the boxes for "sex" and "other" as the types of discrimination charged. Defendants are correct that under normal circumstances the failure to check the appropriate box on an EEOC charge will deprive a court of jurisdiction to hear a claim. Defendants rely on the Ang v. Procter & Gamble line of cases from the 6th Circuit, which hold that a district court's jurisdiction is "limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination." Ang v. Procter & Gamble Co., 932 F.2d 540 (6th Cir. 1991) (holding that a race discrimination charge was precluded where plaintiff failed to check the appropriate box on the EEOC charge and failed to allege race discrimination in the factual statement); see also Sherman v. American Cyanamid Co., 996 F.Supp. 719 (N.D. Ohio 1998); Nichols v. General Motors Co., 978 F.Supp. 743 (S.D. Ohio 1997); Kun v. Finnegan, Henderson, Farabow, Garrett & Dunner, 949 F.Supp. 13 (D.D.C. 1996).

The case before this court, however, presents a unique situation which was foreseen by the Ang court. As that court indicated, "[b]ecause Title VII is a remedial statute, many courts refuse to narrowly construe the charge where such a construction would preclude a plaintiff from bringing a claim." Ang, 932 F.2d at 546. The court went on to conclude that a broad reading of the charge is necessary where Title VII claimants are "unschooled in the technicalities of the law and proceed without counsel," and specifically noted that one reason Ang's claim failed was that he was "assisted by counsel in writing his charge." Ang, 932 F.2d at 546. In its pursuit of sanctions, Defendant Steak 'N Shake's counsel has repeatedly urged this court to consider the fact that Duggins was represented by an individual engaged in the unauthorized practice of law when she filed her EEOC charge. In fact, the evidence shows that Duggins talked only with James Estep, a non-lawyer, before filing her charge. Under these circumstances, the broader reading of the charge contemplated in the Ang decision is compelled. See Cameron v. Board of Educ. of the Hillsboro, Ohio, City School Dist., 795 F.Supp. 228, 234 (S.D. Ohio 1991) ("Where a claimant in a Title VII case does not have an attorney, courts are required to give a broad reading of the charge before the EEOC.")

Duggins's situation is different from the Ang decision on a second ground. In the recent Sixth Circuit decision Davis v. Sodexho, Judge Kennedy, writing for a panel of this court, held that "where facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim." Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). Judge Kennedy cited with approval a Sixth Circuit decision, Farmer v. ARA Services Inc., 660 F.2d 1096 (6th Cir. 1981), which held that female plaintiffs who alleged denial of fair representation by their union in an EEOC charge were not precluded from including an Equal Pay Act charge in their complaint. See Davis, 157 F.3d at 463-64. This decision is consistent with the spirit of Ang and its predecessor, EEOC v. Bailey Co., Inc., which held that a judicial complaint must be limited to "'the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination,'" not that the complaint must be tied to the four corners of the one-page form document under all circumstances. Ang, 932 F.2d at 545 (quoting EEOC v. Bailey Co., Inc., 563 F.2d 439, 446 (6th Cir. 1977)).

In this case, Duggins related facts to the EEOC which would have prompted an investigation into retaliation. In addition to filing her charge with the EEOC on October 4, 1996, Duggins filed an internal affidavit with the EEOC on that date. That affidavit clearly...