McDonald v. Corrections Corp. of America

• Decision Date: 10 January 2002
• Docket Number: No. CIV 01-0447 BRB/KBM.,CIV 01-0447 BRB/KBM.
• Parties: Sharon MCDONALD, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, Defendant.
• Court: U.S. District Court — District of New Mexico

Page 1274

181 F.Supp.2d 1274

Sharon MCDONALD, Plaintiff, v. CORRECTIONS CORPORATION OF AMERICA, Defendant.

No. CIV 01-0447 BRB/KBM.

United States District Court, D. New Mexico.

January 10, 2002.

COPYRIGHT MATERIAL OMITTED

Gilbert J. Vigil, Albuquerque, NM, for Sharon McDonald.

Tila F. Hoffman, Tila Fleming Hoffman, PC, Albuquerque, NM, for Corrections Corporation of America.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

BALDOCK, Circuit Judge.

Plaintiff Sharon McDonald worked as Records Manager for Defendant Corrections Corporation of America at the Torrance County Detention Center Facility in Estancia, New Mexico. After Defendant terminated Plaintiff's employment, Plaintiff filed a six-count complaint alleging (1) gender and race discrimination in violation of Title VII; (2) retaliation in violation of Title VII; (3) age discrimination in violation of the Age Discrimination in Employment Act (ADEA); (4) breach of an employment contract; (5) breach of the implied covenant of good faith and fair dealing; and (6) wrongful termination. Defendant filed a motion to dismiss the complaint, excepting Count III, which the Court now grants in part, and denies in part.

I. Count I

A. Gender Discrimination

Defendant moves to dismiss Plaintiff's gender discrimination claim in Count I for failure to exhaust administrative remedies. Exhaustion of administrative remedies is a jurisdictional prerequisite to a Title VII suit. See McDonnell Douglas, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997). Because Defendant challenges this Court's jurisdiction, the Court will treat the motion as a motion to dismiss under Fed.R.Civ.P. 12(b)(1). A party challenging jurisdiction in a 12(b)(1) motion may make either a facial attack on the complaint's allegations, or may go beyond the complaint's allegations and challenge the facts upon which jurisdiction is based. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir.2001). Defendant challenges the facts upon which jurisdiction is based, and offers documentary evidence in support of its motion. In reviewing this type of jurisdictional challenge, a court has "wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. (internal quotation and citation omitted).

Prior to filing a Title VII suit in federal court, a plaintiff must first exhaust her administrative remedies. See Seymore, 111 F.3d at 799. To meet the exhaustion requirement, Plaintiff must show either (1) that she received a right to sue letter from the Equal Employment Opportunity Commission (EEOC) based on a timely-filed charge of gender discrimination, or (2) that her gender discrimination claim comes within an exception to the exhaustion requirement.

1. Filing a Charge with the EEOC

Pursuant to 42 U.S.C. § 2000e-5(b), "[c]harges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires." The EEOC's regulations also require that a charge "shall be in writing and signed and shall be verified." 29 C.F.R. § 1601.9. The term "verified" is defined in the regulations as "sworn to or affirmed before a notary public, designated representative of the Commission, or other person duly authorized by law to administer oaths and take acknowledgements [sic], or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3.

Here, Plaintiff's charge of discrimination, attached as an exhibit to Defendant's motion to dismiss, is the only document the parties have provided that meets the statutory requirements. The charge is the only document Plaintiff filed with the EEOC that she signed under penalty of perjury.¹ Plaintiff's charge of discrimination does not include a gender discrimination claim. Plaintiff's charge is set forth on an EEOC form which contains boxes for the charging party to check as the basis for her EEOC charge. Following the row of boxes is space for the party to describe the factual allegations of her charge. The form has boxes for race, color, sex, national origin, age, retaliation, and disability. Plaintiff checked the boxes for national origin, age, and retaliation, but did not mark the box labeled "sex."

Although Plaintiff did not mark the box for gender discrimination in her charge, this omission "is not dispositive, [but] it certainly creates a presumption that she was not asserting claims represented by boxes not checked." Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir.1998) (internal citations omitted). As in Gunnell, the text of Plaintiff's claim does not rebut this presumption.² See id. Plaintiff's charge clearly states that Defendant discriminated against Plaintiff on the basis of her age (45), as well as on the basis of her national origin (Anglo). Plaintiff further alleges retaliation by specifically identifying in her charge the date of her initial complaint, and that she was subsequently reprimanded and discharged in retaliation for lodging the complaint. Plaintiff does not, however, allege any facts supporting a gender discrimination claim. Plaintiff does not even identify her gender in her factual allegations.

The official charge is "the primary, and usually the only, place to which courts look to determine whether a plaintiff timely and properly exhausted her claims before the EEOC." Welsh v. City of Shawnee, 182 F.3d 934, 1999 WL 345597, at *5 (10th Cir. June 1, 1999) (unpublished). Despite this general rule, a court may consider other charges "outside the body of the charge" where (1) "it is clear that the charging party intended the agency to investigate the allegations," or (2) "the EEOC negligently handled the claim." Smith v. Board of County Comm'rs, 96 F.Supp.2d. 1177, 1186 (D.Kan.2000) (internal quotations and citations omitted) (citing Welsh, 1999 WL 345597, at *5).

Here, Plaintiff has not clearly shown that she intended the EEOC to investigate her gender discrimination claim. As noted above, while Plaintiff initially indicated on her intake form and in her statement of harm that she was alleging gender discrimination, her official charge contained no hint of gender discrimination allegations. The intake form and statement of harm show only that at some point, Plaintiff intended to charge gender discrimination. See Welsh, 1999 WL 345597, at *5 (noting that while plaintiff's information sheet indicates that at some point she intended the EEOC to investigate harassment allegations, "her subsequent filing, under oath, of the charge ... effectively negated the information sheet"). Plaintiff has never explained why, after she filed the information sheet and statement of harm containing the gender discrimination charges, she then filed the charge containing only allegations of age and national origin discrimination and retaliation. See id. at *6 (finding plaintiff's failure to explain variance between intake form and charge "most telling"). Plaintiff does not contend that the gender discrimination claim was omitted through the EEOC's error or negligence. Accordingly, Plaintiff has failed to meet the exhaustion requirement for this claim.

2. Exception to the Exhaustion Requirement

The Tenth Circuit has adopted a limited exception to the exhaustion rule for Title VII claims when the unexhausted claim is for discrimination "like or reasonably related to" the allegations in a timely-filed EEOC charge for which Plaintiff received a right-to-sue letter. Simms v. Oklahoma ex rel. Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1327 (10th Cir.1999). A court may consider claims not expressly included in Plaintiff's EEOC charge where the alleged conduct would "fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993).³

Plaintiff's gender discrimination claim, however, is not reasonably related to her national origin or age discrimination or retaliation claims. First, a gender discrimination claim is distinct from claims of age or national origin discrimination or retaliation. Compare Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 503 (7th Cir.1994) (sexual harassment cannot be reasonably inferred from allegations of gender discrimination); Schroder v. Runyon, 1 F.Supp.2d. 1272, 1275 (D.Kan.1998) (disability discrimination is "fundamentally different" from gender discrimination); Williams v. Kansas Gas and Elec. Co., 805 F.Supp. 890, 900 (D.Kan. 1992) (gender discrimination is not reasonably related to race discrimination), with Lazuran v. Kemp, 142 F.R.D. 466, 469 (W.D.Wash.1991) (claim of race discrimination is related to and merely a "refinement" of a national origin discrimination claim).

Moreover, if the unexhausted discriminatory act occurs prior to the EEOC filing, and plaintiff fails to allege the act or claim in the charge, the act or claim ordinarily will not reasonably relate to the charge. See Seymore, 111 F.3d at 799 (retaliation occurring prior to EEOC charge not reasonably related to exhausted claims).⁴ Plaintiff was aware of the facts supporting her gender discrimination claim before she signed her verified charge, yet she failed to check the gender discrimination box on the EEOC charge form, and she made no reference to gender discrimination in the body of the charge. As Plaintiff's own proof suggests, she completed the intake form and filed her statement of harm, both of which included gender discrimination allegations, over a week before she signed her verified charge. Plaintiff was fully aware of all the facts constituting her gender discrimination claim at the time she filed her charge, yet Plaintiff did not include these allegations in her charge. As a result, Plaintiff's unexhausted gender discrimination claim...