Jeter v. Boswell

Decision Date07 January 1983
Docket NumberCiv. A. No. 82-0080-W(H).
Citation554 F. Supp. 946
PartiesAudrey J. JETER, Plaintiff, v. Floyd H. BOSWELL, et al., Defendants.
CourtU.S. District Court — Northern District of West Virginia

Franklin D. Cleckley, Morgantown, W.Va., Helen Jackson-Gillison, Weirton, W.Va., for plaintiff.

W. Dean DeLaMater, DeLaMater, Hagg & Bohach, Weirton, W.Va., Arthur B. Muchin, Dorfman, Cohen, Laner & Muchin, Ltd., Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

HADEN, District Judge.

Plaintiff, a black woman, brings this action pursuant to 42 U.S.C. §§ 1981 and 2000e-5(f), against her former employer, Levolor Lorentzen, Inc., and a supervisory employee of her former employer seeking to recover monetary, declaratory and injunctive relief. Currently pending before the Court is the Defendants' motion to dismiss, pursuant to Rule 12(b), Federal Rules of Civil Procedure, filed October 13, 1982. Inasmuch as the Court has referred to matters outside of the pleadings in deciding the Defendants' motion to dismiss, the Court has deemed it appropriate to treat the Defendants' motion as one for partial summary judgment, pursuant to Rule 56(b), Federal Rules of Civil Procedure. For the reasons set out below, this Court hereby denies the Defendants' motion.

I. Title VII's Administrative Remedy Exhaustion Requirement

On October 19, 1981, the Plaintiff filed a complaint against her employer, Levolor Lorentzen, Inc., with the EEOC wherein she charged it with having demoted her discriminatorily on the basis of her sex and race.1 The Plaintiff subsequently filed a second EEOC complaint against her employer on May 25, 1982, wherein she alleged that her employer had given her a five-day suspension from her employment and was otherwise retaliating against her for having filed her initial EEOC complaint.2 As a result of the allegedly intolerable, discriminatory working conditions which she was continually subjected to, the Plaintiff terminated her employment with Levolor Lorentzen, Inc., on June 25, 1982.2a After the EEOC issued the Plaintiff a right to sue letter on June 1, 1982, she subsequently commenced this Section 1981 and Title VII action on August 26, 1982, complaining of (1) her demotion from office manager to a lesser position, (2) her several suspensions from her employment, and (3) her constructive discharge.

Inasmuch as the Plaintiff commenced this civil action within less than 180 days from the filing of her May 25, 1982, administrative complaint second charge3 which was still pending before the EEOC, the Defendants argue that the Court does not have subject matter jurisdiction under Title VII over those allegations pertaining to the Plaintiff's suspension from her employment and the other allegations of retaliation by her employer which are raised in the second charge.4 The Defendants further argue that the Court does not have subject matter jurisdiction under Title VII over the Plaintiff's alleged constructive discharge claim which the Defendants maintain was not raised before the EEOC. Defendants conclude, therefore, that the Court only has subject matter jurisdiction under Title VII over the Plaintiff's allegation that she was discriminatorily demoted.5 Since the Plaintiff never filed a third charge with the EEOC pertaining to her alleged constructive discharge and, furthermore, inasmuch as she commenced this civil action before the EEOC had completed processing her second charge and within less than 180 days of her filing of the second charge, the Court would normally have to focus its analysis solely on the Plaintiff's first EEOC charge, which pertained to her demotion claim, and seek to determine whether the Plaintiff's suspension and constructive discharge claims are within "the `scope' of the EEOC investigation which can reasonably be expected to grow out of the first charge of discrimination." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970); Chisholm v. U.S. Postal Service, 665 F.2d 482, 491 (4th Cir.1981). Such is not the case here, however, where the Plaintiff has alleged that she was suspended6 and eventually constructively discharged7 from her employment in retaliation for having filed discrimination charges against her employer with the EEOC.8

In this regard, one district court in this circuit has stated the controlling rule as follows:

"In the absence of any indication of dereliction by the agency, it is this court's opinion that the scope of an EEOC investigation should be conclusive on the scope of a subsequent Title VII suit with two limited exceptions.10
10 ... the second exception is where an employer acts in reprisal against an employee because a discrimination charge has been filed. See Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1004-08 (5th Cir.1969); 42 U.S.C. § 2000e-3."

Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1190-91 (D.Md.1977). Accord Haynes v. Mark, 520 F.Supp. 1183, 1184 (D.Col.1981) (citing cases).9

Provided the Plaintiff can prove the Defendants' alleged retaliatory animus behind her suspensions and constructive discharge, the Court can hear these unexhausted claims under Title VII without offending the statutory scheme of informal persuasion and voluntary compliance. In any event, these unexhausted claims are independently actionable under Section 1981. Cf., Taylor v. Union Carbide Corporation, 93 F.R.D. 1, 4 (S.D.W.Va.1980).

II. Plaintiff's Title VII and Section 1981 Claims Against the Individual Defendant, Boswell
A. Subject Matter Jurisdiction Over the Title VII Claim Against Boswell.

The Defendant Boswell argues that the Court does not have subject matter jurisdiction over him with respect to the Plaintiff's Title VII claim, since he was not named as a respondent in the complaints which the Plaintiff filed with the EEOC. See 42 U.S.C. § 2000e-5(f)(1).10 Mindful of the administrative filing requirement's twofold purpose of giving notice to the charged party and of providing an avenue for voluntary compliance, the Plaintiff maintains that Boswell should not be allowed to cry foul where he is an agent of the named respondent and where his allegedly retaliatory conduct and statements11 indicates that he had actual notice of the administrative proceedings. The issue at hand is by no means novel in either this circuit or elsewhere.

In Mickel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir.) cert. denied 389 U.S. 877, 88 S.Ct. 177, 19 L.Ed.2d 166 (1967), a black applicant brought a Title VII action against a state employment agency and a private company with which he had desired employment. The company successfully moved for dismissal on the basis that the plaintiff had not named it as a respondent in her EEOC complaint. On appeal, the Fourth Circuit held that an opportunity for administrative conciliation is a jurisdictional prerequisite to bringing a civil action under Title VII and concluded that the plaintiff had not satisfied that prerequisite as to the company where she had not named it in her administrative complaint, and where there was neither any indication that she had had any direct dealings with the company nor that the state employment agency, which had been named in the EEOC complaint, had acted as the company's agent in discriminating against her.

Mickel has been distinguished on its facts, however, in at least three subsequent Title VII actions in this circuit. Cf., EEOC v. American National Bank, 652 F.2d 1176, 1185-86 (4th Cir.1981), rehearing en banc denied 680 F.2d 965 (4th Cir.1982) cert. denied ___ U.S. ___, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). In Kelly v. Richland School District, 463 F.Supp. 216 (D.S.C. 1978),12 the school district's board of trustees and the individual board members moved that the Title VII claim against them be dismissed, inasmuch as the Plaintiff had not named them as respondents in his EEOC complaint. Finding that the purposes of the administrative filing requirement had been satisfied with respect to the unnamed defendants, the court denied their motion. In doing so, the court reasoned that the notice of the alleged discriminatory conduct and the opportunity for voluntary conciliation which the EEOC complaint afforded to the named school district was attributable to the board of trustees and its members since under state law the school district could only act through them.

In Vanguard Justice Society, Inc. v. Hughes, 471 F.Supp. 670 (D.Md.1979), the court held that it was not deprived of subject matter jurisdiction over the individual defendants who were not named in the EEOC complaint, but who were officials of the named entities where the unnamed defendants had not asserted that they lacked actual notice of the EEOC charge, nor that the EEOC's conciliation efforts were in any way affected by the plaintiff's failure to name them in the administrative complaint. Accord, Chastang v. Flynn and Emrich Co., 365 F.Supp. 957, 959-64 (D.Md.1973), affirmed in relevant part 541 F.2d 1040 (4th Cir.1976) (identity of interests between named corporation and its unnamed officers and directors).

In Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977) Glus I the Third Circuit astutely commented that:

"Much of the initiation of charges with the EEOC is done by laymen .... We cannot believe Congress intended that a person filing charges should accurately ascertain, at the risk of later facing dismissal of their suit, at the time the charges were made, every separate entity which in some way may have violated Title VII.
* * * * * *
The goal of conciliation without resort to the already overburdened federal courts is of great importance and should not be lost. However, equally important is the availability of complete redress of legitimate grievances without undue encumbrance by procedural requirements especially when demanding full and technical compliance would have no relation to the purposes for requiring those procedures in the first instance."

The Glus court...

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