Preyer v. Dartmouth College, Civil No. 96-491-JD

• Decision Date: 25 June 1997
• Docket Number: Civil No. 96-491-JD
• Parties: LaTanya PREYER, v. DARTMOUTH COLLEGE, et al.
• Court: U.S. District Court — District of New Hampshire

968 F.Supp. 20

LaTanya PREYER, v. DARTMOUTH COLLEGE, et al.

Civil No. 96-491-JD

United States District Court, D. New Hampshire.

June 25, 1997.

COPYRIGHT MATERIAL OMITTED

Edward M. VanDorn, Jr., VanDorn & Cullenberg, Orford, NH, for plaintiff.

Edward E. Shumaker, III, Gallagher, Callahan & Gartrell, P.A., Concord, NH, for defendants.

ORDER

DICLERICO, Chief Judge.

The plaintiff, LaTanya Preyer, brought this action seeking monetary relief under state and federal law as a result of being sexually and racially harassed as a temporary employee of Dartmouth College Dining Services, and not receiving an offer of permanent employment on account of her race. Before the court is the defendants' motion for judgment on the pleadings (document no. 5) pursuant to Fed.R.Civ.P. 12(c).¹

Background²

Dartmouth College Dining Services ("DCDS") provides food services to the Dartmouth College community and employs both students, some of whom are enrolled in federally funded work-study programs, and nonstudents. Between September 17, 1993, and June 19, 1994, the plaintiff, who is black, completed three three-month assignments as a temporary employee of DCDS, during which time she was supervised by defendants Beth Jones and John Koiter. She has not alleged that she was a student at Dartmouth while working at DCDS.

During her employment, Koiter asked the plaintiff why black women have large breasts, and told her "once you've had black, you'll never go back." On one occasion during a commencement function, Koiter assigned the plaintiff and two other black women to work at tables that were directly in the sun. When the plaintiff asked Koiter why only blacks received this assignment, Koiter responded, "We all know blacks don't burn." Koiter has acknowledged that he made statements to the plaintiff that could have offensive connotations.

Following the conclusion of the plaintiff's temporary assignments, she received a congratulatory letter and, on or about June 22, 1994, received a verbal thank you from Jones. In the first two weeks of August 1994, the plaintiff applied for permanent positions at DCDS.

Jones and Koiter reviewed the plaintiff's application. In their discussion, Koiter stated that the plaintiff's work did not satisfy his standards. On or about August 18, 1994, Jones informed the plaintiff that she would not be offered a position because she had accrued too many absences during her temporary employment with DCDS. The plaintiff was absent from work on January 12, 13, 14, and 31, 1994; May 22, 1994; and June 14, 1994. She had a doctor's note for the first three January absences.

After being denied permanent employment, the plaintiff discussed the matter with the Dartmouth Office of Equal Opportunity and Affirmative Action ("EOAA"), whose director described Koiter as "a bigot." In a meeting to resolve the plaintiff's claim, Jones claimed that the plaintiff's job performance was inadequate. The plaintiff's personnel file indicates that Jones previously had cited the plaintiff for poor job performance once during the course of her employment.

On November 15, 1994, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the New Hampshire Human Rights Commission. On the charge form, there are several boxes a complainant can check off, including race, sex, religion, and others, in order to denote the basis of discrimination. Space is also provided for a statement of the claims. The plaintiff checked off race, but did not mark sex, and specifically did not claim sex discrimination in her statement. See Defendants' Motion to Dismiss ("Defendants' Motion"), Ex. 1; see also id., Ex. 2 (EEOC notice of charge of discrimination in which box indicating race is only one checked off).³

In the charge to the EEOC, the plaintiff's lawyer used three pages to outline the offensive comments described above, as well as the handling of her application for permanent employment and her discussions with the Dartmouth EOAA. The plaintiff's lawyer concluded the charge by stating: "These sworn facts support a finding of refusal to hire on the basis of race. Accordingly, Ms. Preyer demands instatement into one of the positions for which she applied, an injunction against further discriminatory acts against her, and just compensation." Id., Ex. 1. In the charge, there were seven uses of the words "race" or "racially," and no references to the word "sex" or its derivatives.

On September 27, 1996, following her receipt of a right-to-sue letter from the EEOC and the unsuccessful mediation of her claim, the plaintiff filed the complaint in the instant action, alleging that she endured a racially and sexually hostile work environment, see Complaint ¶ 30-31, and that she was not offered permanent employment at DCDS because of her race, see id. ¶ 32. She alleges violations of Title VII of the Civil Rights Act of 1964 by Dartmouth College, Jones, and Koiter (Count I); violations of Title IX of the Education Amendments of 1972 by Dartmouth and Koiter (Count II); and violations of 42 U.S.C. § 1981 by Dartmouth and Koiter (Count III). In addition, the plaintiff alleges that Koiter intentionally interfered with her prospective contractual relations (Count IV), and that Dartmouth violated N.H.Rev.Stat. Ann. ("RSA") § 354-A, New Hampshire's Law Against Discrimination (Count V).

Discussion

The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as the standard for evaluating a Rule 12(b)(6) motion. See Republic Steel Corp. v. Pennsylvania Eng'g Corp., 785 F.2d 174, 182 (7th Cir.1986). In both cases, the court's inquiry is a limited one, focusing not on "whether a plaintiff will ultimately prevail but whether [he or she] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (motion to dismiss under Fed.R.Civ.P. 12(b)(6)). In making its inquiry, the court must accept all of the factual averments contained in the complaint as true, and draw every reasonable inference in favor of the plaintiffs. See Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992) (Rule 12(b)(6) motion); Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 (1st Cir.1991) (Rule 12(c) motion). Great specificity is not required to survive a Rule 12 motion. "[I]t is enough for a plaintiff to sketch an actionable claim by means of `a generalized statement of facts.'" Garita, 958 F.2d at 17 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (1990)). In the end, the court may not enter judgment on the pleadings unless it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief.'" Santiago de Castro, 943 F.2d at 130 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)); see also Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.1988).

I. Title VII

The defendants argue that the plaintiff's Title VII claim should be dismissed to the extent that it alleges sex discrimination because the plaintiff failed to make a specific allegation of discrimination on the basis of sex to the EEOC.⁴ Specifically, the defendants note that the plaintiff failed to check off the box for sex discrimination on the EEOC form, and that the text of the charge, drafted by the plaintiff's attorney, does not mention sex discrimination specifically. The plaintiff contends that her charge to the EEOC gave the defendants sufficient notice of her sex discrimination claim.

In a Title VII claim, the plaintiff must exhaust all of her administrative remedies prior to filing a complaint in federal district court. See 42 U.S.C.A. § 2000e-5(f)(1) (West 1994); Lawton v. State Mut. Life Assurance Co., 101 F.3d 218, 221 (1st Cir.1996). In order to satisfy this requirement with respect to a specific incident of discrimination, the charging party must give sufficient information to enable the EEOC to determine what the grievance is about. The court can consider claims which reasonably can be expected to grow out of the charge of discrimination investigated by the EEOC. See Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir.1990); Johnson v. General Elec., 840 F.2d 132, 139 (1st Cir.1988).

In the instant case, the plaintiff's charge to the EEOC includes allegations that she was denied permanent employment by DCDS, and the evidence offered in support thereof is itself evidence of a racially, and potentially sexually, hostile work environment. However, the plaintiff's charge to the EEOC, which was drafted by her attorney, begins: "This office represents La Tanya Preyer in connection with a claim for race discrimination...." Defendant's Motion, Ex. 1, and uses the word "race" or "racially" seven times. The charge concludes by asserting, "These sworn facts support a finding of refusal to hire on the basis of race." Id. Finally, the phrases attributed to Koiter, which form the evidence of the plaintiff's sex discrimination claim, are described only as "racially-based comments." Id. By contrast, the box labelled "sex" is not marked on the EEOC charge, and the three-page description of the plaintiff's claim does not assert that the plaintiff was discriminated against in any way on the basis of her sex.

Where EEOC charges are drafted without the assistance of counsel, courts have demonstrated a particular willingness to overlook discrepancies between the legal theories asserted in the complaint and those asserted in the EEOC charge See, e.g., Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 168 (7th Cir.1976) (permitting sex discrimination claim to proceed even though complainant, in pro se capacity, failed to mark off appropriate box, and endorsing authority recognizing that laymen are likely to be "ignorant of or unable to thoroughly describe the discriminatory practices...