IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

CHARLES HENRY JONES, III, ) ) Plaintiff, ) ) v. ) Case No. 2:20-CV-01017-CLM ) FRESENIUS USA ) MANUFACTURING, INC., ) ) Defendant. )

MEMORANDUM OPINION Charles Henry Jones III, an African American man, filed a charge of discrimination with the EEOC, alleging that his employer, Fresenius USA Manufacturing, discriminated against him because of his race. Doc. 22-1. The EEOC issued Jones a Notice of Right to Sue letter (doc. 1, p. 10), after which Jones filed his first complaint, and later an amended complaint. Fresenius has moved to dismiss Counts 7-9 of Jones’s Amended Complaint for failure to exhaust. See Doc. 22 (amended complaint); 26 (motion to dismiss). Jones concedes that Count 9 is due to be dismissed (doc. 28 at 6), so the court will grant Fresenius’s motion dismiss Count 9. For the reasons stated within, the court denies Fresenius’ motion to dismiss Counts 7-8. STATEMENT OF THE FACTS Jones worked for Fresenius as a long-haul truck driver from June 2011 until September 2019, when Jones claims Fresenius constructively discharged him.' A few days later, Jones filed a charge of discrimination against Fresenius with the EEOC. The charge reads:

THE PARTICULARS ARE /¥ scdifinny popes iz seeded, atpoh cairo ahaa): lam an African American man. | worked for Reapondent as a Truck Driver from 6/11/14 until my last day on 8/30/49, During my employment | was discriminated against by the Transportation Supervisor Sam Tidisco and his boss. Distribution Center Manager Brett Heiner. 'was clscriminated against in wages, route assignments, work hours, promotions, job assignments, load assignments, evaluations and disciplines. | complained to Brett Hainar of discrimination from Sam Tidiseo, but long term action was taken to stop the discrimhation, In addition, higher paying Jobs were filled that | would have liked to have had, but | did not Opportunty to apply because those jabs are not posted such as clinic jobs and local dalivery driver jobs. When | asked about thase better jobs that would got me off the road, | was told | was not the right fit. Then, respondent would place a less qualified white person in that job, Teeny ae ina pattern and practice of discriminating against a class of African ericans in selection decisions and wages. This Is done thre tontioréTand Hi Impact discrimination. Ne 7 i The EEOC gave Jones a Right to Sue letter on April 23, 2020. Jones filed this lawsuit

on July 17, 2020. STANDARD OF REVIEW Title VII requires that Plaintiffs exhaust all available administrative remedies before filing a lawsuit—i.e., an EEOC charge. Wilkerson v. Grinnell Corp.,

(11th Cir. 2001). When the Plaintiff files a lawsuit, his complaint is limited by the scope of the EEOC investigation that can reasonably be expected to

! Jones states in his complaint that his last day was September 2019, though the court takes notice that, in his EEOC charge, he says that his last day was August 30, 2019.

have grown out of the EEOC charge. Gregory v. Ga. Dep’t of Human Res.,

(11th Cir. 2004). The Eleventh Circuit has said that the scope of an

EEOC charge should not be strictly interpreted and that it is “extremely reluctant” to allow a procedural technicality to bar a discrimination claim.

If the claims in the complaint amplify, clarify, or more clearly focus the EEOC charge, the claim

may move forward. Ray v. Freeman,

(5th Cir. 1980). ANALYSIS Count 7: Hostile Work Environment with Constructive Discharge In Count 7, Jones alleges that Fresenius’s Transportation Supervisor (Tidisco)

and Distribution Center Manager (Heiner) created a hostile work environment for African American employees and that hostility forced Jones to resign. Doc. 22 ¶¶ 144-161. Defendants often raise two distinct arguments against such claims at the

Rule 12 stage: (1) the Plaintiff did not exhaust the claim in his EEOC charge and (2) the facts in the complaint, if proved true, would not entitle the Plaintiff to relief. But Fresenius limits its argument to exhaustion; it does not argue that Count 7 or its § 1981 counterpart, Count 5, fail to plead facts that would entitle Jones to relief. See

Doc. 26 at 4-9. So the court’s task is limited to determining whether the EEOC could be reasonably expected to have investigated the claim Jones alleges in Count 7. The following chart compares the facts that Jones put in his EEOC charge with the facts that Jones alleged in Count 7:

EEOC Charge Complaint (Count 7) • Low wages • Lower paid miles per hour rating • Less desirable route assignments • Given route assignments that • Less desirable work hours required driver to unload • Lack of promotions • Poor evaluations because of • Less desirable job assignments assignment choices • Less desirable load assignments • Fresenius failed to post openings for • Poor evaluations jobs that do not require drivers to • Disciplines unload • Fresenius failed to post desirable • Fresenius told Jones he was not the openings “right fit” for jobs that were given to • Fresenius told Jones he was not the white drivers “right fit” for jobs that went to less • Fresenius’s refusal to give Jones qualified white employees better assignments prevented him from having a healthy lifestyle and more time with family

Doc. 22-1 at 2 (EEOC Charge); 22 at 25 (Complaint). The chart shows that Count 7 stems from the same facts that Jones presented to the EEOC, just with more detail. So the court finds that Jones exhausted Count 7 because the EEOC could be reasonably expected to have investigated the facts that support Count 7. Gregory,

; see also

(b) (“…a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of”). This ruling comes with two caveats. First, the court is not ruling that Jones’s facts, as pleaded, can sustain a claim for hostile work environment with constructive

discharge because Fresenius limited its argument to failure to exhaust. See Doc. 26 at 4-9. Fresenius may raise its merits argument in future motions. Second, the court’s finding of exhaustion is limited to the facts pleaded in the

EEOC charge and now pleaded in Count 7. “Allegations of new acts of discrimination, offered as the essential basis for the requested judicial review, are not appropriate” absent presentation to the EEOC. Ray,

.

Count 8: Retaliatory Hostile Work Environment with Constructive Discharge Count 8 is identical to Count 7, except that Jones alleges that Fresenius took

the actions that created the hostile work environment because Jones complained to management about discrimination more than 40 times. Doc. 22 ¶¶163-65. Jones checked the ‘retaliation’ box on his EEOC charge and alleged that he complained to Heiner (the Distribution Center Manager) about discrimination. Doc. 22-1 at 2. So

the court finds that Jones exhausted Count 8 because the EEOC could be reasonably expected to have investigated the facts that support Count 8. The court places the same two caveats on this ruling that the court placed on its Count 7 ruling.

Count 9: Negligent Hiring, Training, Supervision, and Retention In his brief in opposition, Jones says that he “voluntarily dismisses” Count 9. Doc. 28 at 6. So the court will grant Fresenius’ motion to dismiss Count IX, without prejudice. CONCLUSION For the reasons stated above, Fresenius’s motion to dismiss is due to be GRANTED in part and DENIED in part. The court will grant Fresenius’s motion

as to Count 9 and deny Fresenius’s motion as to Counts 7-8. This court will enter a separate order carrying out this finding. DONE and ORDERED on April 22, 2021. Level Me Le COREY KE MAZE 72 UNITED STATES DISTRICT JUDGE