Opinion
Civil Action No. 3:03-CV-1429-N.
March 24, 2004
ORDER
Before the Court is Defendant MBNA Technology, Inc.'s ("MBNA") partial motion to dismiss for lack of subject matter jurisdiction, under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Because Plaintiff Moss's Title VII claims in this Court must be limited to those raised in her EEOC charge, MBNA's motion is granted.
The instant motion is essentially a replay of the arguments in Johnson v. MBNA Hallmark Information Services, Inc., Civil Action No. 3:02-CV-0177-K, 2003 WL 21418670 (N.D. Tex. June 16, 2003), involving the same plaintiff's counsel, the same defendant, the same defense counsel, the same arguments, and the same result. The Johnson court held that (1) a Title VII plaintiff must exhaust his or her administrative remedies by filing a charge with the Equal Employment Opportunity Commission ("EEOC"); (2) plaintiff's claims could include only those within the scope of the EEOC investigation that could reasonably have been expected to grow out of the charge; (3) the questionnaire provided to the EEOC cannot be considered part of the EEOC charge; (4) Clark v. Kraft Foods, Inc., 18 F.3d 1278 (5th Cir. 1994) is factually distinguishable because the employer there had actual knowledge of the content of the questionnaire during the course of the EEOC's investigation of those claims, in contrast to the facts of Johnson, where the employer was unaware of the contents of the investigation until that lawsuit commenced; and (5) a specific claim of failure to promote in the EEOC charge does not support jurisdiction over claims for discrimination in hiring and rates of pay, racially hostile work environment, and racial harassment. Johnson, supra, at *1-*3.
The facts here are substantially similar to those in Johnson. Moss filed an EEOC charge alleging (1) discriminatory failure to promote her to the positions of Facilitator and Senior Personal Banking Officer, and (2) failure to make reasonable accommodations and subjecting her to harassment regarding the adjustment of her working hours. In her complaint, she further alleges claims for demotions, retaliation, denial of other promotions, and certain class wide allegations. As in Johnson, MBNA was not aware of the content of Moss's questionnaire until after this litigation began. Accordingly, for the reasons given in Johnson, the Court here has subject matter jurisdiction over only those items raised in her EEOC charge, and her other Title VII claims are dismissed.
The Court certainly is not holding at this point that the other factual information alleged in her complaint would not be relevant factually to her remaining claims. That is an issue for another day.
MBNA also moves to dismiss Moss's complaint because the EEOC issued her a right to sue letter the same day she filed her charge, without actually conducting an investigation, and Moss then filed suit less than 180 days after she filed her charge. MBNA argues that only the EEOC can file suit within the 180 day period, citing Equal Employment Opportunity Comm'n v. Hearst Corp., 103 F.3d 462, 466 (5th Cir. 1997) ("in the first 180 days after the charge is filed, only the EEOC is permitted to sue"), and Moss's complaint must therefore be dismissed. If Moss had waited until after the 180 day period, however, she would be in a Catch-22 situation for not filing within 90 days of her right to sue letter. See 42 U.S.C. § 2000e-5(f)(1). It appears to the Court that the EEOC's failure to investigate for 180 days before issuing a right to sue letter should not impair Moss's ability to seek redress. The appropriate remedy, if any, would seem to be to abate the case until the 180 day exclusivity period has passed. Because that time has long since passed, there is no compelling reason to abate or dismiss Moss's remaining claims.
MBNA also moves to dismiss Moss's claims that she received discriminatory evaluations and discriminatory assignments as not being actionable ultimate employment decisions. Moss responds that those actions are cited in her complaint as factual allegations supporting her claims of pattern and practice of discrimination, and do not constitute a separate count in the complaint. In view of that representation, the Court declines to dismiss the factual allegations.