Opinion
Civil Action No. 3:03-CV-1272-L
March 30, 2004
MEMORANDUM OPINION AND ORDER
Before the court are Defendant's Partial Motion to Dismiss and Brief in Support of Its Partial Motion to Dismiss, both filed August 20, 2003; Plaintiff's Response to Defendant's Partial Motion to Dismiss Plaintiff's Complaint, filed September 5, 2003; and Defendant's Reply in Support of its Partial Motion to Dismiss, filed September 22, 2003. After careful consideration of the motion, brief, appendix, response, reply, and applicable authority, the court denies in part and grants in part Defendant's Partial Motion to Dismiss.
I. Procedural and Factual Background
Plaintiff Mukund Shankar Naik ("Plaintiff" or "Naik") filed this action on June 6, 2003 against his employer MBNA Technology, Inc. ("Defendant" or "MBNA"). Naik seeks equitable, compensatory, and punitive damages against MBNA. He contends that MBNA continuously deprived him of rights accorded to him under the laws of the State of Texas; Section 1981 of the Civil Rights Act of 1871, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("Section 1981"); Title VII of the Civil Rights Act of 1964, as amended, by the Civil Rights Act of 1991, 42 U.S.C. § 2000 et seq. ("Title VII"); and the Fair Labor and Equal Pay Act, resulting from acts of officers, supervisors and/or managers of MBNA that constitute the following causes of action: (1) negligent supervision; (2) negligent hiring and retention; (3) disparate treatment because of race and national origin; (4) disparate impact affecting Indians and other minorities; (5) discrimination in violation of Section 1981; (6) discrimination in violation of Title VII; and (7) retaliation in violation of Title VII and Section 1981. See Plaintiff's Complaint ¶ 8.
MBNA denies that any discrimination took place and contends that the conduct challenged by Plaintiff occurred as a result of legitimate, nondiscriminatory reasons unrelated to Plaintiff's race, color, national origin, religion, or gender. MBNA also asserts a number of affirmative defenses. With respect to its motion to dismiss, MBNA contends that Plaintiff's Title VII claims are barred in whole or part because of his alleged failure to exhaust administrative remedies and moves to dismiss them for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Naik, of course, contends that he has exhausted administrative remedies and that the court should deny Defendant's motion for partial dismissal.
Naik, through his attorney, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 11, 2003. The EEOC sent Plaintiff, the charging party, a dismissal notice and a right-to-sue notice on March 11, 2003. See Defendant's App. at 1-2. As previously stated, Naik filed this action in federal court on June 6, 2003, some 87 days after the EEOC sent him the notice of dismissal and right-to-sue notice. II. Rule 12(b)(1) Motion to Dismiss Standard
The court does not know the basis of the dismissal. Although Plaintiff's Complaint and Defendant's Brief in Support of Its Partial Motion to Dismiss refer to an "Exhibit A" to Plaintiff's Complaint, no "Exhibit A" was attached to Plaintiff's Complaint.
A motion to dismiss filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the subject matter jurisdiction of a federal district court. See Fed.R.Civ.P. 12(b)(1). A claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim. See Home Builders Assoc., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Federal courts are courts of limited jurisdiction, and absent jurisdiction conferred by statute, they lack the power to adjudicate claims. See, e.g., Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). Thus, a federal court must dismiss an action whenever it appears that subject matter jurisdiction is lacking. Stockman, 138 F.3d at 151.
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.), cert. denied, 122 S.Ct. 1059 (2002); see also Ynclan v. Dep't of Air Force, 943 F.2d 1388, 1390 (5th Cir. 1991). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record. See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). Uncontroverted allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424. III. Analysis
A. Authorization for a Private Party to Bring Suit under Title VII
MBNA contends that the court does not have jurisdiction over Plaintiff's Title VII claims because the EEOC did not investigate them during the required 180-day period, and therefore the EEOC had no authority to issue a right-to-sue letter to Naik. For this reason, MBNA contends that Naik's Title VII claims are premature and the court lacks subject matter jurisdiction over them. The court disagrees.
MBNA relies on Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1346 (D.C. Cir. 1999), cert. denied, 528 U.S. 1147 (2000), which states "[T]he Commission's duty to investigate is both mandatory and unqualified"; and also relies on Equal Employment Opportunity Comm'n v. Hearst Corp., 103 F.3d 462, 469 (5th Cir. 1997), which states "the private right of action does not arise until 180 days have passed from the filing of the charge" and "the statute is clear that in the first 180 days after the charge is filed, only the EEOC is permitted to sue." Id. at 466.
First, the court notes that Martini is not binding on it, as it is authority from another circuit. Second, Hearst does not relate to the issue before this court. In Hearst, the court held that once employees initiated litigation in court, the EEOC's investigative powers ended and it had no authority to enforce two administrative subpoenas issued before the litigation had commenced. As the legal issue before the court in this case is different from that in Hearst, the court treats the language in Hearst as nothing more than dicta. Moreover, the language in Hearst must be read in the context of the 180-day provision of the statute, as will be later discussed by the court.
The real question that must be answered is: when can a person bring a private action under Title VII? To resolve this question, the court first looks to the relevant statutory language:
If a charge filed with the Commission . . . is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section . . ., or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved. . . .42 U.S.C. § 2000e-5(f) (1994). The statutory language contemplates two distinct situations in which a private party is authorized to bring suit in federal district court under Title VII. Whitehead v. Reliance Ins. Co., 632 F.2d 452, 455 (5th Cir. 1980). Whitehead describes these two situations as follows:
The first is when [the private party] is notified that the EEOC has completed its administrative processes and decided, for whatever reason, not to file suit. The second is when, though the EEOC has not indicated that its efforts have concluded, the private party has waited more than 180 days from the filing of the charge and is dissatisfied with the process made by the EEOC in processing his charge.Id. at 457 (emphasis added). Here the EEOC completed its administrative process with respect to Plaintiff's charge when it dismissed his charge and sent him a right-to-sue letter. Clearly under Whitehead, Naik has the right to pursue this action. MNBA reads too much into the 180-day clause and takes the language of Hearst out of context. As the Supreme Court cogently observed:
[A] natural reading of [section 2000e-5(f)(1)] can lead only to the conclusion that it simply provides that a complainant whose charge is not dismissed or promptly settled or litigated by the EEOC may himself bring a lawsuit, but that he must wait 180 days before doing so. After waiting for that period, the complainant may either file a private action within 90 days after EEOC notification or continue to leave the ultimate resolution of his charge to the efforts of the EEOC.Occidental Life Ins. Co. v. Equal Employment Opportunity Comm'n, 432 U.S. 355, 361 (1977). It is clear from this language and Whitehead that the 180 days apply to an individual whose charge is not dismissed. The 180-day language does not apply to an individual whose charge has been dismissed. Naik falls into this category, and the statute and Whitehead clearly authorize him to file his lawsuit within ninety days of the right-to-sue notice. From this authority and analysis, it is the dismissal of the charge and issuance of the right-to-sue notice (that is, the end of the EEOC administrative process), not the investigation or the lack thereof, that determine when a private party may bring a Title VII lawsuit.
The approach urged by MBNA places Naik and other Title VII litigants in a legal catch-22. MBNA is asserting that since Naik filed his lawsuit before the 180-day period expired, it is premature and therefore the court has no subject matter jurisdiction. On the other hand, had Naik waited and not filed a lawsuit within the ninety days after he received the right-to-sue notice from the EEOC, most assuredly, MBNA would have filed a motion to dismiss for Naik's failure to timely file a lawsuit. The court does not believe that a Title VII litigant's fate is so hapless that it places him between a legal Scylla and Charybdis. The equally repugnant or undesirable alternatives are having a lawsuit dismissed because it is premature on the one hand, and, on the other hand, having it dismissed because it is time-barred.
According to Greek mythology, Scylla was originally a beautiful nymph who was later turned into a monster by Circe, an enchantress. Glaucus, a sea god, fell in love with Scylla; however, she wanted no part of him. When Scylla rebuffed Glaucus's efforts to spark her, he enlisted the aid of Circe to persuade Scylla that she should love him. Circe, however, had ideas of her own and tried to convince Glaucus to love her instead of Scylla. When Glaucus spurned Circe's amorous efforts, she became enraged and turned Scylla into a monster to spite Glaucus.
After being turned into a monster, Scylla lived in a cave overlooking the Strait of Messina, which separates the island of Sicily from Italy. Immediately opposite the cave where Scylla lived was the whirlpool Charybdis. When mariners navigated the Strait of Messina, they were faced with the equally repugnant alternatives of either (1) being devoured by Scylla, or (2) being sucked into and drowned by the deadly waters of the whirlpool Charybdis.
With respect to the ninety-day requirement, this circuit does not play; it strictly construes the requirement, and if a Title VII plaintiff fails to file an action within ninety days after receipt of his or her right-to-sue notice, it is time-barred. See Taylor v. Books a Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002); Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1249; and Crittendon v. American Nat'l Ins. Co., 967 F. Supp. 933, 941 (S.D. Tex. 1997).
That the EEOC opted to dismiss Naik's charge the same day it was filed, rather than investigate it as MBNA contends, should not hinder Plaintiff from proceeding with this lawsuit. After all, the EEOC's decision to dismiss caused Naik to file the lawsuit when he did, and Naik should not be penalized for the actions or inactions of the EEOC. Although the court does not know the reason the EEOC dismissed Naik's charge of discrimination, assuming that the EEOC dismissed the charge because it was "unable to conclude that the information obtained establishes violations of the statutes," as MBNA contends ( see Defendant's Brief at 6-7), requiring Naik return to the EEOC makes no legal sense, serves no legitimate purpose, and causes unnecessary further delay. As the EEOC has already unequivocally expressed its position by issuing a right-to-sue notice, if Plaintiff returned to the EEOC, the EEOC would in all probability "sit" on the charge for 180 days and, after the expiration of this time period, simply issue its second right-to-sue notice to Naik. Clearly, such morass is not contemplated by the statute.
Moreover, the court cannot accept MBNA's statement that the EEOC issued the right-to-sue notice to Plaintiff "without conducting any investigation." MBNA's Reply at 3 (emphasis in original). The court assumes that no extensive investigation took place; however, based on what MBNA stated as the EEOC's reason for dismissal of the charge, it appears that, at least, a bare-bones or perfunctory investigation took place for the EEOC to determine that Naik's charge should be dismissed.
For the reasons stated herein, the court determines that Plaintiff's Title VII claims are not premature. The court expressly holds that a person may file a Title VII action within 180 days after filing the initial charge of discrimination with the EEOC if the EEOC has dismissed the person's charge and issued him or her a right-to-sue notice. Accordingly, this court has jurisdiction over Plaintiff's Title VII claims and declines to dismiss them for lack of subject matter jurisdiction.
B. Plaintiff's Claims of Retaliation and Classwide Discrimination
MBNA contends that the court does not have jurisdiction over Naik's claims for retaliation and classwide discrimination because they were not alleged in his EEOC charge. Naik disagrees and contends that the scope of his EEOC charge encompasses these claims and that it would have been reasonable to expect the EEOC to investigate the retaliation and classwide discrimination claims. The court disagrees with Naik.
A condition precedent to bringing suit on an employment discrimination claim under Title VII is the timely filing and exhaustion of an EEOC charge. See 42 U.S.C. § 2000e-5(e)(1); Taylor v. Books A Million, Inc. 296 F.3d 376, 379 (5th Cir. 2002); Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990). The scope of the lawsuit thereafter extends no further than the scope of the investigation that can reasonably be expected to grow out of the charge of discrimination. Id.; Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (5th Cir. 1993). A Title VII cause of action, however, may be based
not only on the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination.Id. at 578 (quoting Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 451 (5th Cir. 1983)). The determination is driven by the competing policies of promoting the "voluntary settlement of all issues without an action in the District Court," and expanding the scope of the lawsuit to recognize "the remedial and humanitarian underpinnings of [Title VII]." Sanchez v. Standard Brands, Inc., 431 F.2d 455, 467 (5th Cir. 1970).
All retaliation claims do not require the filing of a charge with the EEOC. The Fifth Circuit has held that retaliation which occurs as a result of one having filed a charge with the EEOC may be included in a Title VII action in district court without filing a new charge, provided it "grows out of an administrative charge that is properly before the court." Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5th Cir. 1981); see also Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5th Cir. 1991). Gupta only exempts from the exhaustion requirement those acts of retaliation which occur after one has filed a charge with the EEOC; and any retaliation claim that arose prior to the filing of the EEOC charge can be part of a Title VII lawsuit only if it is included in the initial charge. Having set forth the applicable law, the court now turns to the facts of this case.
When Plaintiff filed his charge with the EEOC, he did not check the box labeled "retaliation" on his EEOC form. Likewise, he did not include any allegations or statements relating to retaliation or classwide discrimination. As set forth below, Naik complained only of being denied a promotion over the last eight years. The entire statement made in his charge is as follows:
Over the last 8 years, MBNA managers have systematically undermined my career by purposely using delaying tactics in my promotion, handed me out predetermined little annual raises, the last occasions [sic] of which was coincident with my year end evaluation in November 2002. There is [sic] no performance criteria for promotions[,] nor are there postings for one to apply. . . .
I believe I have been discriminated against because of my National Origin, East Indian, in violation of Title VII of the Civil Rights Act of 1964, as amended.
Defendant's App. at 1. The language in the charge is simply devoid of any indication of classwide discrimination. Naik quite clearly is making allegations related only to his denial of a promotion. The discriminatory allegations relate only to how MBNA allegedly treated Naik. Nowhere does he even intimate, or put the EEOC on notice, that MBNA has discriminated against others in its workforce; or that it has taken retaliatory conduct against him because he has (1) filed a charge, (2) complained or protested to MBNA management regarding its alleged discriminatory or retaliatory practices, or (3) assisted or aided other persons with respect to discriminatory practices of MBNA. Liberally construing the allegations contained in the charge, one could not reasonably expect an EEOC investigation based on retaliation and classwide discrimination to grow out of Plaintiff's charge of discrimination filed on March 11, 2003. MBNA is entitled to have these claims dismissed.
In his complaint filed with the court, Plaintiff is quite eloquent in setting forth several alleged acts of retaliation (reduction of his bonuses and awards of insignificant raises to him as compared to others who were lower performers) after he complained of discriminatory treatment. See Plaintiff's Complaint ¶¶ 18-23.
Naik urges the court to consider the information contained in his EEOC questionnaire to expand the scope of his Title VII claims. As the questionnaire is not part of the record, the court cannot consider it. Moreover, even if the court did have the document as part of the record, there is a serious question whether the court could consider it as part of the EEOC charge under the circumstances of this case. See McCray v. DPC Industries, Inc., 942 F. Supp. 288, 295 (E.D. Tex. 1996).
III. Conclusion
For the reasons set forth, the court grants in part and denies in part Defendant's Partial Motion to Dismiss. The court has jurisdiction over Plaintiff's Title VII claims, and denies the motion to the extent that Defendant MBNA seeks dismissal for lack of subject matter jurisdiction. With respect to the claims for retaliation and classwide discrimination, the court grants the motion to dismiss these claims. Accordingly, the court dismisses without prejudice the retaliation and classwide discrimination claims because of Plaintiff's failure to satisfy a precondition to filing a lawsuit.
Because of the inconsistency in authority regarding the effect of failure to exhaust administrative remedies, the court confesses some confusion with respect to whether it lacks jurisdiction or whether a precondition for filing a lawsuit has not been met. MBNA believes that these claims should be dismissed for lack of subject matter jurisdiction. Certainly, there is authority for this position. See National Ass'n of Gov't Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 711 (5th Cir. 1994) ("It is well-settled that courts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies.") (citation omitted). On the other hand, Taylor, 296 F.3d at 379, and Young, 906 F.2d at 179, expressly state that the filing of a charge is not a "jurisdiction prerequisite" but is a "precondition to filing a lawsuit." Considering that existing precedent, more often than not, treats non-exhaustion of administrative remedies as a failure to satisfy a precondition to filing suit, the court ultimately decides that it has jurisdiction.