Romain v. Kurek, 86-2101

• Decision Date: 31 December 1987
• Docket Number: No. 86-2101,86-2101
• Citation: 836 F.2d 241
• Parties: 45 Fair Empl.Prac.Cas. 1105, 45 Empl. Prac. Dec. P 37,689 Cathleen R. ROMAIN, Plaintiff-Appellant, v. Marvin KUREK, individually; Patricia Teays, personal representative of the estate of Robert Teays; the White Horse Inn, a corporate assumed name for Bania-Hensley Corporation, a Michigan corporation; jointly and severally, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 241

836 F.2d 241

45 Fair Empl.Prac.Cas. 1105,

45 Empl. Prac. Dec. P 37,689

Cathleen R. ROMAIN, Plaintiff-Appellant, v. Marvin KUREK, individually; Patricia Teays, personal representative of the estate of Robert Teays; the White Horse Inn, a corporate assumed name for Bania-Hensley Corporation, a Michigan corporation; jointly and severally Defendants-Appellees.

No. 86-2101.

United States Court of Appeals Sixth Circuit.

Argued Oct. 15, 1987.

Decided Dec. 31, 1987.

Otis M. Underwood (argued), Underwood & Associates, P.C., Oxford, Mich., for plaintiff-appellant.

William E. Pilchak (argued), The Fishman Group, Kirk D. Falvay, Bloomfield Hills, Mich., for defendants-appellees.

Before MARTIN, JONES and BOGGS, Circuit Judges.

PER CURIAM:

This is an appeal by plaintiff Cathleen Romain from an involuntary dismissal pursuant to Fed.R.Civ.P. 41(b) in favor of defendant, the Estate of Robert Teays, in a sex discrimination action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. (1982). The district court granted defendant's Rule 41(b) motion after concluding that plaintiff had not established an "identity of interest" between Robert Teays and the White Horse Inn, the business entity named in the charge filed with the Michigan Civil Rights Commission, and that therefore the failure to name Teays in the administrative charge deprived the court of jurisdiction to enter judgment against Teays. For the following reasons we affirm the judgment as to the Estate of Teays, but remand to the district court for clarification as to the status of the other defendants involved in this litigation.

I.

Plaintiff, Cathleen Romain, was employed as a waitress at the White Horse Inn, a bar/restaurant business owned and operated by the Bania-Hensley Corporation. On December 2, 1980, Romain returned from a four-day authorized absence from employment to find that she had not been scheduled to work. Upon discovering this, Romain approached defendant Marvin Kurek, the manager of the White Horse, and asked him why she had not been scheduled. Kurek took Romain over to the table of defendant Robert Teays who was apparently working temporarily as a manager of the restaurant. Romain, who was 12 weeks pregnant at the time, alleged that Teays told her she could not work at the White Horse Inn in her pregnant condition and that she should come back after she had the baby.

Although Romain had never met or seen Teays before her encounter with him on December 2nd, she later learned that he had been introduced to the staff as the new manager sometime during her absence, and, together with Kurek, was considering entering into an agreement with the Bania-Hensley Corporation to purchase the restaurant. In fact on October 27, 1980, a little over a month before Romain was told she could not work at the restaurant, Kurek and Teays had entered into an agreement to purchase all of the stock of the Bania-Hensley Corporation. The closing of this stock purchase--that is, the actual purchase--was scheduled to occur within ten days after receipt of approval of the stock transfer from the Michigan Liquor Control Commission ("LCC"). It is undisputed that the sale to Teays was never consummated as Teays himself withdrew his application to purchase the Inn sometime around the end of December 1980. Teays communicated the fact of his withdrawal to the LCC at that time, and his application for approval was accordingly discontinued by the LCC in mid-January 1981.

On January 19, 1981, Romain visited the offices of the Michigan Department of Civil Rights and filed a charge of discrimination. Since Michigan is a "deferral state," the state commission performs the investigative role that the EEOC would normally perform. In her charge, plaintiff named the White Horse Inn as the respondent. Teays was not named as a respondent nor was his name mentioned in the complaint. According to Romain, Teays, or any individual for that matter, was not mentioned in the charge because the Department's "usual practice" did not permit a person bringing a charge of employment discrimination to name individuals. On January 27, 1981, the "Notice of Charge of Discrimination" was mailed to the White Horse Inn.

On October 2, 1981, the Michigan Department of Civil Rights' staff report was completed, and a conciliation conference was recommended to award Romain monetary relief. The record shows that all of the information regarding conciliation was addressed to Kurek alone as manager of the White Horse Inn. Regardless of what Teays's role in the operation may have been at the time Romain was discharged, the record plainly shows that he was no longer involved by the time the conciliation efforts began.

After some initial cooperation by Kurek, it eventually became clear to plaintiff that the conciliation efforts were not going to succeed. She retained counsel and a right to sue letter was issued on February 22, 1982.

On April 15, 1982 plaintiff filed her complaint in district court. She alleged that she was discharged from her waitress position at the White Horse Inn in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). Named as defendants were Kurek, Teays (although plaintiff spelled it "Tayes"), and Bania-Hensley Corporation, doing business as the White Horse Inn. Plaintiff sought compensatory damages in excess of $10,000 and "punitive damages" of $1 million.

None of the defendants named in the district court action filed timely answers or other pleadings and the district court entered a default judgment finding all of the defendants jointly and severally liable. Defendant Teays then entered his appearance and filed a motion to set aside the default judgment on the ground that he had not been brought before the court by either actual or constructive service. The district court granted the motion to set aside the default judgment "as to him" (Teays), and but stated in the order that since joint several liability had been adjudged against all defendants, the default judgment would be set aside as to all. However, no order was ever entered specifically setting the default judgment aside as to the other defendants, and in subsequent orders the district court noted that the case had been disposed of as to all defendants.

After Teays filed an answer, and the parties engaged in some discovery, he filed a motion for summary judgment on the ground that plaintiff had failed to name him, Teays, in her charge with the Michigan Department of Civil Rights. On April 27, 1984, the district court granted Teays's motion upon finding that plaintiff had named only the White Horse Inn in her charge with the Department. The court invoked the rule stated by this court in Geromette v. General Motors Corp., 609 F.2d 1200 (6th Cir.1979), cert. denied, 446 U.S. 985, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980), that suit may not be filed in the district court under Title VII against any party not named in the original discrimination complaint.

Plaintiff appealed the district court's grant of summary judgment to this court. On September 18, 1985, a panel of this court reversed and remanded to the district court for further proceedings. Romain v. Kurek, 772 F.2d 281 (6th Cir.1985) (per curiam) ("Romain I "). The court in Romain I held that the district court should reconsider its decision in light of this circuit's then-recent decision in Jones v. Truck Drivers Local Union No. 299, 748 F.2d 1083 (6th Cir.1984), where we stated:

Filing an EEOC charge against a party is a necessary prerequisite to suit. It is well settled that a person not named in an EEOC charge may not be sued under Title VII unless there is a clear identity of interest between it and a party named in the EEOC charge or it has unfairly prevented the filing of an EEOC charge.

748 F.2d at 1086 (citations omitted) (emphasis added).

The court in Romain I felt that certain documents and affidavits filed by plaintiff created a genuine issue of material fact as to whether there was a "clear identity of interest" between Teays and the White Horse Inn. Specifically, the court pointed to the following three things as possibly bearing on the identity of interest issue: 1) plaintiff's affidavit alleging that Teays was sitting with the owners of the restaurant and was the one who told her that she was discharged because she was pregnant; 2) the copy of the stock purchase agreement filed with the LCC by which Teays had agreed to purchase an interest in the White Horse Inn; and 3) the affidavit of Mr. Edward Chastang, the Director of the Enforcement Bureau for the Michigan Department of Civil Rights, in which he stated it was the usual practice of the Civil Rights Commission not to permit a person bringing a charge of discrimination to name individuals nor to investigate the corporate ownership of an employer. The court accordingly remanded to the district court for a consideration of the identity of interest question in light of these factual issues. ¹

On November 10, 1986, the remanded case was called for trial in the district court before Judge Stewart Newblatt. The court ordered that plaintiff proceed only with the jurisdictional questions initially. Plaintiff's proof on the issue of jurisdiction consisted of the testimony of plaintiff and a former part-time waitress from the White Horse Inn, Mary Schroeder. In addition, certain documents were admitted upon the stipulation of the parties, including the stock purchase agreement and the previously submitted affidavit of Mr. Chastang. Plaintiff also admitted the deposition testimony of the late Mr. Teays. During the pendency of plaintiff's case-in-chief, defendant compelled the introduction of a variety of documents pursuant to Fed.R.Evid. 106, including a number of documents that demonstrated that Teays never became a shareholder, officer, or director of the Bania-Hensley Corporation.

At the close of plaintiff's case, defen...