Green v. JP Morgan Chase Bank Nat'l Ass'n
| Decision Date | 01 November 2012 |
| Docket Number | No. 11-5153,11-5153 |
| Parties | TARUS GREEN, Plaintiff-Appellant, v. JP MORGAN CHASE BANK NATIONAL ASSOCIATION, a Delaware corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(N.D. Okla.)
ORDER AND JUDGMENT*Before GORSUCH, ANDERSON, and EBEL, Circuit Judges.
Tarus Green appeals the district court's grant of summary judgment to his former employer, JP Morgan Chase Bank ("Chase"), in his employment discrimination action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, but vacate the grant of summary judgment on certain claims that were notadministratively exhausted and remand for the district court to dismiss those claims for lack of subject matter jurisdiction.
Mr. Green is an African-American whom Chase employed as a licensed personal banker in Tulsa, Oklahoma. His 2006 production numbers placed him near the top of Chase's list of its Oklahoma personal bankers. In October 2006, he submitted his first application for a promotion to business banker. Chase deferred filling the business-banker position until it hired Jason Groves as area manager in December 2006, but eventually the field was narrowed to Mr. Green and an external candidate, a Caucasian male who had been recommended to Mr. Groves by Mr. Groves' father. Mr. Groves met briefly with Mr. Green on January 4, 2007. Mr. Groves' notes from the meeting indicate that he thought that Mr. Green had a chip on his shoulder and he had a concern about Mr. Green's "coachability." Aplt. App. at 350. Nevertheless, he told Mr. Green that he would have a formal interview before the entire hiring panel the next week. But that interview never occurred.
Mr. Groves testified that after his meeting with Mr. Green, he discussed his impressions of Mr. Green with another member of the hiring panel, district manager Michelle Ward. She revealed some concerns that Mr. Green Id. at 333. She also stated that she was concernedabout his ability to work with three different branch-manager personalities. When Mr. Groves asked her why the panel had asked him to meet with Mr. Green, in light of those concerns, she told him:
We felt like you being new on the ground, not having any preconceived notions of any individuals or their skill set or their background, you know how rumors go throughout the markets, we wanted you to interview Tarus because we felt like based on his production, he deserved the opportunity to be interviewed for that position, and we wanted you to sit down and interview him and make it your decision.
Id. at 334. Ultimately, the full hiring panel interviewed only the other candidate and offered him the job. Mr. Groves informed Mr. Green of the decision on or about January 16.
On January 31, 2007, Mr. Green submitted a letter of complaint to a Chase performance evaluation analyst. It does not appear that this person had any responsibility to handle complaints of discrimination; as best he could recall, Mr. Green contacted her "because of her association with some organization in the bank that I thought might have been sympathetic to looking at minority issues." Id. at 98. On February 2, he filed an intake questionnaire with the Oklahoma Human Rights Commission ("OHRC"). Then, on February 7, he submitted a formal written complaint of discrimination to a Chase human resources employee. He supplemented that letter with further allegations on February 12. The lengthy supplement included complaints about, among other issues, possible bias in favor of persons with strong ties to Oklahoma; working conditions and Ms. Ward's style of management; a fractious relationship between Mr. Green and a co-worker that went unaddressedallegedly because the co-worker had a personal friendship with Ms. Ward; and the existence of inappropriate sexual relationships among employees that led to favoritism.
Before any resolution of his internal complaint, however, on February 15, 2007, Mr. Green submitted a letter of resignation, stating that he had "been offered a position equal in job responsibilities as the personal banker position, but with a 45% base pay increase and comparable incentive opportunity." Id. at 168. The undisputed facts show that Mr. Green had initially explored employment with the other company as early as December 7, 2006, and he had submitted pre-employment forms to that company on January 26, 2007, before he ever filed his internal written complaint with Chase. Also, the record contains paycheck stubs reflecting that the other company paid wages to Mr. Green for the pay periods spanning February 1-15 and February 16-28, 2007.
For personal reasons, Mr. Green remained at his new job only a few weeks, resigning on March 27, 2007. The next day, he filed a charge of discrimination with the OHRC, alleging that Chase's failure to promote him was the result of racial discrimination. After receiving a right-to-sue letter, he filed a complaint alleging discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Oklahoma Anti-Discrimination Act, Okla. Stat. Ann. tit. 25, § 1302 ("OADA"), as well as violations of 42 U.S.C. § 1981.
In deciding Chase's motion for summary judgment, the district court held that Mr. Green had not administratively exhausted his Title VII/OADA retaliation and constructive-discharge claims. With regard to the Title VII/OADA discrimination claims, the court held that Mr. Green had failed to show that Chase's legitimate non-discriminatory reasons for hiring the other candidate were pretext for racial discrimination. As for § 1981, Mr. Green's summary-judgment brief argued that he was constructively discharged under that statute. The court, however, concluded that he had pleaded his § 1981 claim not as constructive discharge, but as unfair discipline. Moreover, the court held that even if a § 1981 constructive-discharge claim had been adequately pleaded, Mr. Green had failed to establish that the circumstances amounted to a constructive discharge. Accordingly, the court granted summary judgment to Chase on all claims.
Mr. Green appeals the district court's conclusions that: (1) he did not exhaust his Title VII/OADA retaliation claims; (2) he failed to show that Chase's proffered reasons for not promoting him were pretext for racial discrimination in violation of Title VII and the OADA; and (3) he did not plead constructive discharge in violation of § 1981. We review the grant of summary judgment de novo, viewing the evidence in the light most favorable to Mr. Green. See Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1207 (10th Cir. 2010). Summary judgment is appropriate when "the movantshows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
Mr. Green acknowledges that his formal OHRC charge focuses on racial discrimination and does not mention retaliation. But relying on Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), he asserts that the district court erred in deciding that he had not administratively exhausted the retaliation claim because the intake questionnaire he had earlier submitted to the OHRC clearly set forth allegations of retaliation.
In Holowecki, the Supreme Court held that a filing other than a formal charge may be deemed to be a charge if it contains the required information and can reasonably be construed as a request for agency action. Id. at 402, 405. But in Holowecki, the claimant had filed only an intake questionnaire (along with a supplemental affidavit) before filing her lawsuit; she filed a formal charge only after filing her complaint. See id. at 394, 406. Thus, Holowecki did not address the situation in this case, where a claimant files an initial intake questionnaire, then timely files a formal charge that becomes the basis of the agency's investigation, all before commencing a lawsuit.
Nothing in Holowecki indicates that an intake questionnaire must be treated as a charge, no matter the circumstances. In fact, the Court stated the opposite. See id. at 405 (). Although we recognize that "[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies," id. at 406, we agree with the reasoning of a post-Holowecki panel of the Third Circuit that it would defeat the statutory scheme to find exhaustion where an employee includes a claim in the intake questionnaire, but then omits it in a timely subsequent formal charge that forms the basis for the administrative proceedings, see Barzanty v. Verizon Pa., Inc., 361 F. App'x 411, 415 (3d Cir. 2010).
In Barzanty, the court noted that the formal charge "serves to define the scope of the Commission's investigation and to notify the defendant of the charges against it." Id. In Mr. Green's case, for example, the OHRC proceeded solely on the allegations in the formal charge; its decision discusses whether the denial of promotion was discrimination, not retaliation. As the Third Circuit stated, Id. Similarly, another court has distinguished Holowecki and stated that "permitting Title VII plaintiffs to routinely reach back to the contents of intake questionnaires to expand the scope of a subsequent lawsuit would, if not eviscerate, then at the very least significantly undermine the policies underlying the exhaustion requirement Congress...
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