Scholz v. RDV Sports, Inc.

• Decision Date: 27 March 1998
• Docket Number: No. 96-0496,96-0496
• Citation: 710 So.2d 618
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 763, 23 Fla. L. Weekly D826 George W. SCHOLZ, Appellant/Cross-Appellee, v. RDV SPORTS, INC., etc., et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 618

710 So.2d 618

76 Fair Empl.Prac.Cas. (BNA) 763, 23 Fla. L. Weekly D826

George W. SCHOLZ, Appellant/Cross-Appellee, v. RDV SPORTS, INC., etc., et al., Appellees/Cross-Appellants.

No. 96-0496.

District Court of Appeal of Florida,

Fifth District.

March 27, 1998.

Rehearing Denied April 30, 1998.

Bernard H. Dempsey, Jr. and Daniel N. Brodersen of Dempsey & Associates, P.A., Winter Park, for Appellant/Cross-Appellee.

John A. Reed, Morey Raiskin and Janet M. Courtney of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellees/Cross-Appellants.

ON MOTION FOR REHEARING

ANTOON, Judge.

After reviewing the parties' motions for rehearing, we withdraw our opinion dated September 5, 1997, and substitute the following opinion in its stead.

George Scholz appeals the trial court's final judgment entered in favor of RDV Sports, Inc., the general partner of the Orlando Magic, Ltd. (the Magic). Scholz contends

                that the trial court erred in granting the Magic's motion for summary judgment on his claim of retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e, et seq.   He also contends that the trial court erred in directing verdicts in favor of the Magic on his Title VII claims of wrongful discharge and improper refusal to contract in violation of 42 U.S.C. sections 2000e, et seq. and 1981, and 28 U.S.C. section 1331, and on his claim of defamation.  We affirm the trial court's ruling entering summary judgment in favor of the Magic on Scholz' retaliation claim but reverse the court's ruling directing a verdict in favor of the Magic on his wrongful discharge, failure to contract, and defamation claims
                

FACTS

In 1988, John Gabriel, the Magic's Director of Scouting, spoke with Scholz about possible employment with the Magic. Gabriel told Scholz that his name had originally been suggested for the Magic's head coach position but that Matt had been hired instead. Gabriel allegedly told Scholz that he was "going to get [him] ... as an assistant coach."

In the summer of 1990, Gabriel invited Scholz to speak at the "Matt Goukas Basketball Camp." During the camp, Gabriel advised Scholz that an assistant coaching position might open up, and the two men discussed the responsibilities of the position. Scholz was later invited to attend the NBA Southern Rookie Review in Charlotte, North Carolina to discuss the job further and to become acquainted with the Magic coaching staff. In August of 1990, Scholz accepted the Magic's offer of employment and a press release was issued by the Magic which stated in pertinent part:

SCHOLZ NAMED AS MAGIC ASSISTANT COACH:

* * * * * *

Orlando, Florida--The Orlando Magic announced today that George Scholz will join the club in a full-time assistant coaching capacity....

Scholz joins the Magic coaching staff after enjoying an impressive eight-year career as head coach at Florida Southern College, an NCAA Division II basketball program located in Lakeland, Florida....

Scholz' written job responsibilities with the Magic included scouting, player development, and team representation. Team media guides and organizational charts described him as a second assistant coach.

In carrying out his job responsibilities, Scholz worked with players individually during the preseason. He also prepared and distributed motivational materials for them. During the first part of the season, Scholz scouted by observing the NBA teams the Magic would play in the near future. He spent the remainder of the season coaching both during practice and from the bench during games. Goukas allegedly told Pat Williams, the Magic's general manager, that he was satisfied with Scholz' performance. Brian Hill, the first assistant coach at the time, also allegedly expressed satisfaction with Scholz. All of Scholz' performance evaluations were positive.

About six months later, in September of 1991, Rich DeVos bought RDV Sports, Inc., which is now the general partner of the Orlando Magic, Ltd., a limited partnership, consisting solely of DeVos family members. DeVos' son-in-law Robert Vander Weide was placed in charge of overseeing the Magic's operations on a day-to-day basis.

In March of 1992, Goukas was allegedly told to keep his eyes and ears open for prospective "black assistant coaches." ¹ On March 27, Vander Weide prepared a memo which included a list of NBA teams employing blacks in scouting and coaching positions which revealed that the Magic was one of only five NBA teams not doing so. According to Scholz, Goukas said, "[t]hey want [a black assistant] on the bench out in front of the TV cameras. They want him where he can be seen."

On April 9, Vander Weide authored a memo recommending termination of Scholz' employment. On April 20, Goukas told Scholz that he was not going to be invited

                back, and on June 11, Vander Weide, Goukas, and Gabriel sent Scholz a letter terminating his employment citing job dissatisfaction.  In response, Scholz met with Goukas to express his disagreement with the contents of the termination letter.  According to Scholz, he asked Goukas whether he had been fired because the Magic wanted to hire a black assistant, and Goukas answered affirmatively, saying that he had been pressured to hire a black assistant "since day one."   On September 24, 1992, Scholz filed this lawsuit against the Magic
                

RETALIATION

Scholz alleged in his complaint that the Magic retaliated against him by making defamatory statements after he asserted that he had been discriminated against because of his race. The trial court granted the Magic's motion for summary judgment on Scholz' retaliation claim, concluding that, although Scholz had filed a timely charge with the Equal Employment Opportunity Commission (EEOC), he had failed to satisfy the substantive and procedural presuit requirements of 42 U.S.C. § 2000e. We affirm this ruling. The trial court correctly determined that since Scholtz failed to include the defamatory statements described in his complaint in his EEOC charge, he essentially waived his right to sue for retaliation based on those statements.

In Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir.1994), the Seventh Circuit explained the significance of the EEOC presuit procedure:

As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). This rule serves the dual purpose of affording the EEOC and the employer an opportunity to settle the dispute through conference, conciliation, and persuasion, Id. at 44, 94 S.Ct. at 1017, and of giving the employe[r] some warning of the conduct about which the employee is aggrieved. Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992); Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989). Although the rule is not jurisdictional, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392, 102 S.Ct. 1127, 1131, 71 L.Ed.2d 234 (1982), it is a condition precedent with which Title VII plaintiffs must comply. Babrocky v. Jewel Food Co., 773 F.2d 857, 864 (7th Cir.1985). For allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would frustrate the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge.

Cheek, 31 F.3d at 500.

Notwithstanding the liberal construction afforded the Title VII presuit procedure, ² its requirements cannot be overlooked. In this regard, Title VII claims set forth in a complaint are cognizable only if they encompass allegations which are like or reasonably related to the allegations contained in an EEOC charge. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) (en banc ) (quoting Danner v. Phillips Petroleum Co., 447 F.2d 159, 162 (5th Cir.1971)), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976). See also Sanchez, 431 F.2d at 466. The Jenkins test is satisfied if: (a) there is a reasonable relationship between the allegations in the EEOC charge and the claims in the complaint, and (b) the claims in the complaint can reasonably be expected to grow out of an investigation into the allegations in the EEOC charge. Cheek, 31 F.3d at 500. "This means that the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals." Id. (emphasis in original).

There are many ways in which an employer may retaliate against an employee, and thus, a claim of retaliation in an EEOC charge and a claim of retaliation in a complaint are not necessarily "reasonably related" merely because they both assert forms of I believe that I have been discriminated against in violation of Title VII because of my Race/White and Retaliation 704(a) by discharge for the following reasons:

                retaliation.  See Cheek, 31 F.3d at 501.   Here, although both Scholz' EEOC charge form and his complaint alleged retaliation, the similarity ended there.  In his EEOC charge form, Scholz stated in relevant part
                

1. On or about March 16, 1992, I expressed my concerns about being discriminated against because of my Race.

2. After voicing my concerns about being discriminated against, management stated I was not performing my duties and subsequently fired me.

3. In June 1992, a non-White candidate was offered the job of second assistant coach.

Under the "cause of discrimination" category, the investigator checked the "race" and "retaliation" boxes on the charge form. Thus, Scholz' EEOC charge form asserted a claim of retaliation based upon his termination from employment.

In contrast, the retaliation claim set forth in this lawsuit was based on statements about Scholz published by the Magic. Specifically, in his complaint Scholz alleged that the Magic had published defamatory statements about him in retaliation for his racial discrimination charge. The statements cited were...