Strub v. Public Service Co.
Strub v. Public Service Co.
Opinion of the Court
ORDER REGARDING MOTION TO DISMISS
In this employment discrimination suit, Plaintiff asserts claims based on sex discrimination in violation of Title VII, 42 U.S.C. §§ 2000e et seq., breach of contract, and promissory estoppel. This matter comes before the Court on Defendant’s Motion To Dismiss,
I. BACKGROUND
Plaintiff worked for Defendant Public Service Company of Colorado from 1981 until 1992 in various capacities. In Plaintiffs First Claim For Relief, based on sexual discrimination, sexual harassment, and retaliation, she contends that throughout her tenure with Defendant she was subjected to intentional sexual discrimination, which manifésted itself in at least six ways, as set forth in paragraphs 79(a)-(f)
II. STANDARD FOR MOTION TO DISMISS
Under Fed.R.Civ.P. 8(a)(2), a plaintiff is required to offer a short and plain statement of the claims against defendants. “This requirement guarantees that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest.” TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069-70 (D.Colo. 1991), aff'd 964 F.2d 1022 (10th Cir. 1992) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102-03, 2 L.Ed.2d 80 (1957)).
A claim should not be dismissed under Fed.R.Civ.P. 12(b) unless a plaintiff can prove no set of facts in support of her claims which would entitle her to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Tri-Crown, Inc. v. American Fed. Sav. & Loan Ass’n, 908 F.2d 578, 582 (10th Cir. 1990). The court must accept all factual allegations as true and must draw all reasonable inferences in favor of the nonmoving party. Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686. All of the plaintiffs pleadings must be lib
III. ANALYSIS
Defendant’s Motion To Dismiss seeks to dismiss several of the charges Plaintiff makes in her First Claim For Relief. Defendant contends that the discriminatory acts alleged in paragraphs (b) through (e) must be dismissed for two reasons. Namely, Defendant argues that with respect to each, Plaintiff has failed to exhaust her administrative remedies and that, even if Plaintiff had exhausted her remedies, they were untimely filed in her charge of discrimination with the EEOC. As Defendant seeks to have these allegations dismissed for the same reasons, they will be dealt with together.
A. Failure To Exhaust Administrative Remedies
Under 42 U.S.C. § 2000e-5 (West Supp. 1993), a plaintiff must exhaust certain administrative remedies as a precursor to bringing a case in federal court. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). A plaintiff must first file a charge of discrimination with the Equal Employment Opportunity Commission or similar state agency. In addition, “[a]s a general rule, where charges are not brought before the EEOC, federal courts are without jurisdiction to hear them.” Martin v. Nannie And The Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir. 1993). A district court also has jurisdiction, however, over claims of discrimination that, while not administratively exhausted, are “reasonably related to a charge already submitted to EEOC,” Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483, 488 (10th Cir. 1991), or where “the conduct alleged would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made.” . Martin, 3 F.3d at 1416. “The EEOC charge must be construed liberally.” Riggs v. K-G Retail Stores, Inc., No. 92-F-2170 (D.Colo. Jan. 27, 1992). See also EEOC v. World’s Finest Chocolate, 701 F.Supp. 637, 640 (N.D.Ill. 1988) (“charges are to be construed with ‘utmost liberality’ ” and “ ‘[a]n EEOC complaint contains factual statements only, which may implicate several types of illegal discrimination’ ”) (quotations and citations omitted). .
Examining Plaintiffs EEOC charge alone,
In August of 1985, I threatened to file a sex discrimination complaint because I was refused a promotion to Lead Analyst. I was told by Paul Thomsen, Division Manager-human resources, that it was too much money for a woman to make and too fast for a woman to move in the company.
In addition, at paragraph 5, Plaintiffs charge states:
To my knowledge, the reason I did not get one of the positions [of Strategic Planning Officer] is because Ralph Sargent III, Treasurer, reorganized the division[.]
The Court finds that the factual allegations set forth in Plaintiffs charge would reasonably lead to an investigation surrounding Plaintiffs. accusations relating to Mr. Sargent; to her charge that the company failed to promote her in 1985; that the reasons included that a woman could not be paid “too much”; and that the company continued to treat Plaintiff discriminatorily from the earlier incident in 1985 through her termination in 1992. Consequently, the Court cannot say that Plaintiffs allegations in her First Claim For Relief relating to: (c) unequal compensation; (d) failure to promote; and (e) lack of affirmative action to correct effects of policies and practices complained of, are not related to or arising from her original charge of discrimination. The Court thus has jurisdiction over these allegations.
As for Plaintiffs complaint of sexual harassment or hostile work environment, while the Court has examined cases cited by Defendant calling for separate and distinct allegations regarding sexual harassment as distinguished from other forms of sexual discrimination, in this case we need not establish such a bright line rule. Plaintiffs charge of discrimination, however, nowhere contains a hint that she suffered from, or had ever alleged, either quid pro quo or hostile environment sexual harassment. See Martin, 3 F.3d at 1414 (citing two principal theories of Title VII sexual harassment). Even the broad parameters of Plaintiffs charge of discrimination, which we have found could encompass the remaining allegations in her First Claim For Relief, could not reasonably be expected to involve investigating sexual harassment relating to Plaintiffs employment. See Riggs, 92-F-2170, slip op. at 8-9, in which this Court held that “the material filed with the EEOC would have caused an investigation into sexual harassment in the [ ] workplace. Plaintiffs Intake Questionnaire specifically uses the term ‘hostile environment’.” In this case, the Court cannot say that either a reasonable investigation would have turned up evidence relating to sexual harassment, nor that the material presented to the Court indicates that Plaintiff has exhausted her administrative remedies with regard to this allegation.
B. Untimeliness Of Allegations
Defendant also contends that the allegations contained in paragraphs 79(b) through (e) are time barred. Defendant states that Plaintiff must have complied with the 180-day time limit contained in 42 U.S.C. § 2000e-5(e) for each allegation contained in her charge, and included in her complaint. In Furr v. AT & T Technologies, Inc., 824 F.2d 1537 (10th Cir. 1987), the Tenth Circuit Court of Appeals recognized the “continuing course of conduct” doctrine in a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. In Allen v. Denver Pub. Sch. Bd., 928 F.2d 978 (10th Cir. 1991), the Court extended the doctrine to a Title VII claim. “Under that doctrine, a claim of discrimination may include challenges to incidents which occurred outside the statutory time limitations of Title VII if the various acts constitute a ‘continuing pattern of discrimination.’ ” Martin, 3 F.3d at 1415, quoting Furr, 824 F.2d at 1543; and citing Allen, 928 F.2d at 984. “There must, however, be at least one instance of the discriminatory practice within the filing period for the doctrine to apply, and the earlier acts must be part of a continuing policy or practice that includes the act or acts within the statutory period.” Martin, 3 F.3d at 1415, citing Furr, 824 F.2d at 1543. See also Estate of Pitre v. Western Electric Co., Inc., 975 F.2d 700, 705 (10th Cir. 1992); Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993).
In this case, Plaintiffs charge of discrimination and her Complaint allege that begin
IV. ORDER
ACCORDINGLY, it is ORDERED that:
(1) Defendant’s Motion To Dismiss is GRANTED IN PART and DENIED IN PART;
(2) Defendant’s Motion to Dismiss, as it relates to paragraph 79(b) of Plaintiff’s Complaint, is GRANTED; Defendant’s Motion To Dismiss is DENIED as to paragraphs 79(c), (d), and (e) of Plaintiff’s Complaint.
(3) Plaintiffs First Claim For Relief, as it relates to paragraph 79(b) of her Complaint, is DISMISSED.
. In its Reply To Plaintiff s Memorandum In Opposition To Defendant’s Motion To Dismiss, Defendant urges the Court to treat its motion as one for summary judgment pursuant to Fed.R.Civ.P.
Defendant's motion is actually a partial motion to dismiss, as it relates only to Plaintiff's First Claim For Relief.
. All factual recitations contained in this order have been alleged in the litigants’ pleadings.
. Plaintiff filed a Motion For Leave To File First Amended Complaint on November 3, 1993, which was granted November 4, 1993. The paragraphs in the First Amended Complaint that correspond to paragraphs 79(a)-(f) are paragraphs 92-97. This order refers to the paragraphs in Plaintiff's original Complaint.
. Although Plaintiff denoted this letter as Exhibit A, and indicated that it was attached to the Complaint, the Court to date has not received a copy of such a letter.
. The Court, while not basing its decision on Plaintiff’s Personal Statement that, according to her Response, supplemented her original charge of discrimination, and is attached as Exhibit A to the Response, notes that a reasonable investigation into Plaintiff's charge of discrimination would include such information if it was provided to the EEOC. Defendant’s citation of EEOC v. Bellemar Parts Indus. Inc., 865 F.2d 780 (6th Cir. 1989) is inapposite, as in that case the court found that no sworn allegations had been lodged against the defendant corporation. Where, as here, the charging party has made out a sworn charge filed with the EEOC, it is simply incorrect to state, as Defendant does, that in order to be considered in an investigation, Plaintiff’s supplemental statement itself must also amount to a "charge.”
. Defendant does not seek to dismiss the allegations contained in paragraphs 79(a) (termination based on discrimination) and 79(f) (retaliation).
. In the Notice of Determination Finding Of No Probable Cause, filed as Exhibit C to Defendant's Reply, at paragraph D.14., the investigator for the Colorado Civil Rights Division (CCRD) notes that the Respondent (Defendant) stated that the company has no knowledge of any 1985 incident, nor could any files be found relating to such an incident. Plaintiff contends, in her Appeal To The Colorado Civil Rights Division at paragraphs C.3 & C.4, attached to Defendant’s Reply as Exhibit B, that she presented evidence to the Division relating to her 1985 complaints.
Reference
- Full Case Name
- Maureen D. STRUB v. PUBLIC SERVICE COMPANY OF COLORADO
- Cited By
- 1 case
- Status
- Published