Lange v. Cigna Individual Financial Services Co.

• Citation: 759 F. Supp. 764
• Decision Date: 20 March 1991
• Docket Number: Civ. A. No. 90-2053-O.
• Parties: Gloria LANGE, et al., Plaintiffs, v. CIGNA INDIVIDUAL FINANCIAL SERVICES COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Kansas

759 F. Supp. 764

Gloria LANGE, et al., Plaintiffs, v. CIGNA INDIVIDUAL FINANCIAL SERVICES COMPANY, et al., Defendants.

Civ. A. No. 90-2053-O.

United States District Court, D. Kansas.

March 20, 1991.

Thomas H. Bornholdt and C. Edward Peterson, Perry & Hamill, Overland Park, Kan., for plaintiffs.

William J. Hatley, Overland Park, Kan., and Jack D. Rowe, Lathrop, Norquist & Miller, Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on plaintiffs' motion to strike affirmative defenses and defendants' motion for leave to amend answer. Having reviewed the motions, the court is now prepared to rule.

Plaintiffs Gloria Lange ("Lange"), Joyce Pino ("Pino"), Marianne Crowley ("Crowley") and Levetta Sneathen ("Sneathen") filed this action on February 22, 1990, pursuant to Title VII of the Civil Rights Act of 1964, requesting relief from alleged employment discrimination. Lange, Pino and Crowley, all former employees of defendant Cigna Individual Financial Services Company ("Cigna"), allege that they were subjected to sexual harassment while employed by Cigna and that their employment was terminated because of their sex.¹ Sneathen alleges that she interviewed for a position at Cigna but was not hired because of her sex.

Defendants Cigna, Larry Smith ("Smith") and Jeffrey P. Briley ("Briley") filed a joint answer on March 13, 1990, which included the following affirmative defenses:

THIRD AFFIRMATIVE DEFENSE

3. The Court is without jurisdiction over the claims of plaintiffs Lange, Crowley and Pino of sexual harassment (Count I) as no charge alleging sexual harassment has ever been filed with any local, state or federal agency by plaintiffs Lange, Crowley or Pino as required by sections 706(e) and 706(f)(1) of Title VII of the Civil Rights Act of 1964, as amended Title VII, 42 U.S.C. § 2000e-5(e) and (f)(1).

FOURTH AFFIRMATIVE DEFENSE

4. The Court is without jurisdiction over the claim of plaintiff Lange of discrimination because of sex (Count II) because no charge alleging discrimination because of sex has ever been filed with any local, state or federal agency by plaintiff Lange as required by sections 706(e) and (f)(1) of Title VII.

FIFTH AFFIRMATIVE DEFENSE

5. The Court is without jurisdiction over the claim of plaintiff Sneathen of discrimination because of sex (Count III) because no charge alleging discrimination has ever been filed by plaintiff Sneathen with any local, state or federal agency as required by sections 706(e) and (f)(1) of Title VII.

SIXTH AFFIRMATIVE DEFENSE

6. The Court is without jurisdiction over the claims of plaintiffs Lange, Crowley, Pino and Sneathen against defendants Smith and Briley of discrimination because of sex and sexual harassment (Counts I, II and III) because no charge alleging discrimination because of sex or sexual harassment has ever been filed by plaintiffs Lange, Crowley, Pino and Sneathen against those two defendants with any local, state or federal agency as required by sections 706(e) and 706(f)(1) of Title VII.

1. Motion to strike affirmative defenses

Plaintiffs request the court to strike each of the above-listed affirmative defenses. In support of their request, plaintiffs allege that on June 6, 1989, subsequent to her discharge, Pino filed a "charge of discrimination" with the Equal Employment Opportunity Commission. Plaintiffs further allege that: (1) this charge contained specific charges of discriminatory discharge, unequal pay, and hostile work environment; (2) this charge contained sufficient facts to assert a charge of sexual harassment; (3) the question of harassment is a necessary extension of any investigation of a hostile work environment charge; (4) under the "single file rule," they have a common basis for suit arising from facts occurring in a similar time period; (5) Smith and Briley are properly included as defendants, even though they were not specifically named in the charge; and (6) Smith and Briley were not prejudiced as a consequence of being omitted from the charge because the EEOC did not conduct an investigation and there was no opportunity for conciliation through EEOC proceedings.

Though framed as a motion to strike, both sides appear to have treated the motion as one for partial summary judgment. Specifically, plaintiffs in their reply admit that they "are attempting to obtain an early determination concerning four of defendants' twelve affirmative defenses." Further, both sides have submitted evidence outside of the pleadings in support of their arguments. Accordingly, even though conversion of a motion to strike into a motion for summary judgment is not explicitly authorized by the Federal Rules of Civil Procedure, the court will treat plaintiffs' motion as one for partial summary judgment. See 5A C. Wright and A. Miller, Federal Practice and Procedure, § 1380 (1990).

A moving party is entitled to summary judgment only when the evidence indicates that no genuine issue of material fact exists. Fed.R.Civ.P. 56(c); Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). The requirement of a "genuine" issue of fact means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The court must consider factual inferences tending to show triable issues in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985).

The court first turns to the question of how broadly to read plaintiff Pino's EEOC charge. Generally, a Title VII complaint may include any claims of discrimination not listed in the EEOC charge, as long as such claims are "like or reasonably related to the allegations of the EEOC charge." Brown v. Hartshorne Public School Dist. No. 1, 864 F.2d 680, 682 (10th Cir.1988) (citing Oubichon v. North American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973)); Babrocky v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 864 (7th Cir.1985) ("The standard is a liberal one in order to effectuate the remedial purposes of Title VII, which itself depends on lay persons, often unschooled, to enforce its provisions."). Accordingly, the issue here is whether Pino's claim of sexual harassment is "like or reasonably related to" the allegations of her EEOC charge.

In her EEOC charge, Pino alleges that she was paid less than her male co-workers and was discharged because of her sex and in retaliation for her associating with females who had previously been discharged from Cigna and who Cigna believed were potential sex discrimination plaintiffs. In her final allegation, Pino states: "I further believe that discrimination occurred in the form of a hostile work environment, as a result of my sex, female." Pino also submitted a seven-page affidavit with her charge setting forth in greater detail her allegations.

Liberally construing Pino's EEOC charge, the court finds that Pino's sexual harassment claim is "like or reasonably related to" the allegations contained in her charge. Clearly, Pino's charge does not mention the term "sexual harassment." However, reading her allegation of a "hostile work environment" together with the more detailed facts of her EEOC affidavit, the court concludes that Pino's charge was sufficient to encompass the sexual harassment claim now before this court. See generally Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-69, 106 S.Ct. 2399, 2403-07, 91 L.Ed.2d 49 (1986); Baker v. Weyerhaeuser Co., 903 F.2d 1342, 1344 (10th Cir.1990). Accordingly, Pino is entitled to partial summary judgment with respect to the defendants' third affirmative defense.

The court next turns to the question of whether plaintiffs Lange, Crowley and Sneathen may pursue their Title VII claims against the defendants even though they have not filed EEOC charges. As pointed out by the plaintiffs, several courts have applied a "single-filing rule," which allows a plaintiff who has not complied with the Title VII procedural requirements to join a suit initiated by a plaintiff who has complied with the procedural requirements. E.g., Snell v. Suffolk County, 782 F.2d 1094, 1100-01 (2d Cir.1986); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 335 (4th Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 539 (1984); Zuckerstein v. Argonne Nat'l Laboratory, 663 F.Supp. 569, 572-76 (N.D.Ill.1987).

Although the Tenth Circuit has not had an opportunity to discuss the "single filing rule," at least six other circuits have adopted the rule. See Zuckerstein, 663 F.Supp. at 572-74 (setting forth a thorough history of the rule). In so doing, the various circuits have noted that the policies of Title VII, notice to the employer and encouragement of conciliation, are not violated by allowing a non-complying plaintiff to join a complying plaintiff under appropriate circumstances. Id. Further, the courts have noted the futility of multiple individual filings when conciliation with a "similarly situated" plaintiff has already failed. Id.

Although the court is not...