Hamilton v. Promise Healthcare, Inc.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA MARILYN HAMILTON CIVIL ACTION VERSUS PROMISE HEALTHCARE, INC. NO. 18-00102-BAJ-RLB RULING AND ORDER This is an employment discrimination case. Plaintiffs pro se Complaint! asserts claims of unlawful gender-based discrimination and retaliatory discharge against Defendant Promise Healthcare, Inc.? (See Doc. 1 at p. 4). Now before the Court is Defendant’s Motion to Dismiss (Doc. 21), which urges the Court to dismiss Plaintiffs action because she failed to exhaust her administrative remedies and because her Complaint fails to state a claim for which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See Doc. 21 at p. 1). Defendant’s Motion is opposed. (Doc. 25). For the reasons stated herein, Defendant’s Motion is granted. I. ALLEGED FACTS Plaintiff a Human Resources professional who began working for Defendant, a health care services provider, on a date not provided in the Parties’ pleadings. (See Plaintiff retained Counsel on October 15, 2018 but failed to file an Amended Complaint by the February 1, 2019 deadline for amending pleadings. (Docs. 16, 20). ? Plaintiff identified Defendant as “Promise Healthcare, Inc.,” in her Complaint. However, the correct legal name of Plaintiff's former employer is Promise Hospital of Ascension, Inc. d/b/a Promise Hospital Baton Rouge. (See Doc. 21-1 at p. 1 n.1). For purposes of this Ruling and Order, “Promise Healthcare, Inc.” is construed as synonymous with the legal entity, “Promise Hospital of Ascension, Inc. d/b/a Promise Hospital Baton Rouge.” Doc. 1 at p. 6). Plaintiffs Complaint is sparse on details, but for present purposes, the following allegations are accepted as true: In January 2017, Plaintiff notified Defendant’s Regional Director of Human Resources that she was filing a complaint with the Equal Employment Opportunity Commission (EEOC) regarding Defendant’s Chief Executive Officer (CEO) because he “fired or forced/ encouraged 5-7 women to resign in a 6-month period.” (See Doc. 1 at p. 4). Despite having recently received a raise, Plaintiff was terminated several weeks later on or about February 21, 2017.3 (See id.). Before firing Plaintiff, Defendant did not take progressive disciplinary action against her. (See Doc. 1 at p. 9). As a result of her termination, Plaintiff alleges economic damages. (See id.). II. PROCEDURAL BACKROUND On February 10, 2017, 11 days before she was fired, Plaintiff submitted an Intake Questionnaire to the EEOC, indicating that she was pursuing claims of raceand sex-discrimination, and retaliation. (See Doc. 21-3 at p. 12). Plaintiff accused Defendant’s CEO of “constantly” harassing her via email, making racist marks, and assassinating her character. (See id.). She further expressed that she believed “he [Defendant’s CEO] has issues with women, particularly women of color...” (See id.). Relevant here, Plaintiffs EEOC file contains two versions of her Intake Questionnaire. (See Doc. 21-3 at pp. 11-14, 17-20). The versions are identical except for the signature page. In what appears to be the earlier version, Plaintiff checked 3 Plaintiff did not provide her termination date in her Complaint or other filings. However, on June 29, 2017, Defendant received a Notice of Charge of Discrimination that lists the last date of discrimination as February 21, 2017. (See Doc. 21-2). “Box 2,” indicating “I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above.” (See Doc. 21-3 at p. 20). On the later version, however, “Box 2” and “Box 1” are checked, indicating both “I want to file a charge of discrimination ...” (Box 2), and “I want to talk to an EEOC employee before deciding whether to file a charge. I understand that by checking this box, I have not filed a charge with the EEOC. I also understand that I could lose my rights if I do not file a charge in time” (Box 1). (See Doc. 21-3 at p. 14). Further, above Box 1, Plaintiff wrote, “Yes,” indicating that she did not want to file a Charge of Discrimination at that time. Above Box 2, Plaintiff wrote “No,” also indicating that she did not want to file a Charge of Discrimination. (See id.). Plaintiff then initialed both inscriptions. (See Doc. 21-3 at p. 14). Accordingly, in the EEOC’s internal log of Plaintiffs file, it says, “[Plaintiff] marked both boxes on [Intake Questionnaire] and initialed request information on [Intake Questionnaire].” (See Doc. 21—3 at p. 15). The EEOC’s log confirms that on February 10, 2017, Plaintiff declined to file a Charge of Discrimination but requested information on how long she could wait before filing a Charge. (See id.). The EEOC closed Plaintiffs inquiry that same day. (See id.). According to the EEOC’s internal logs, two weeks later, on February 24, 2017, Plaintiff recontacted the agency and indicated that she wanted to file a Charge of Discrimination. (See Doc. 21-3 at p. 23). The log then notes “Formalize charge,” but a Charge of Discrimination was never created or perfected, and Plaintiffs Intake Questionnaire was not verified. (See Doc. 21-3 at p. 22). Nor did the EEOC investigate Plaintiffs claims, contact Defendant for its position on Plaintiffs allegations, or complete other administrative efforts. The inquiry was closed again on May 28, 2017, seemingly due to inactivity. (See id.). On June 8, 2017, Plaintiff contacted the EEOC again. (See Doc. 21-3 at p. 23). The EEOC attempted to return her call, but the agency contends that Plaintiff did not answer. (See id.). On June 29, 2017, the EEOC sent to Defendant a Notice of Charge of Discrimination that stated: This is notice that a charge of employment discrimination has been filed against your organization under Title VII of the Civil Rights Act. The boxes checked below apply to our handling of this charge: No action is required by you at this time. Circumstances of alleged discrimination: race, sex, and retaliation. (See Doc. 21-2 at p. 1) (emphasis added). Defendant did not receive a copy of Plaintiffs Intake Questionnaire or further correspondence from the EEOC. (See Doc. 21-1 at p. 2). On November 2, 2017, at Plaintiffs request, the EEOC issued a Notice of Right to Sue letter. (See Doc. 21-3 at p. 1). Plaintiff initiated this action in this Court on February 1, 2018, alleging that Defendant engaged in gender-based discrimination and retaliatory discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Doc. 1). Defendant now moves the Court to dismiss Plaintiffs action for lack of subject matter jurisdiction, arguing that Plaintiff failed to administratively exhaust her Title VII claim. Alternatively, Defendant argues that Plaintiffs complaint fails to set forth an actionable claim of discrimination. (Doc. 21). For reasons set forth below, the Court concludes that it lacks jurisdiction over Plaintiffs claims. Accordingly, the Court will not consider whether Plaintiffs Complaint also fails to state a claim upon which relief can be granted. Il. LEGAL STANDARD Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 148 F.3d 1006, 1010 (5th Cir. 1998) Gnternal citations omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Ramming, 281 F.3d. at 161 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)). “When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.” Ramming, 281 F.3d. at 161 (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam)). “Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only ifit appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief.” Ramming, 281 F.3d. at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.8d at 1010). In Title VIT cases, U.S. Court of Appeals for the Fifth Circuit precedent is split on whether administrative exhaustion implicates the court’s subject matter jurisdiction. See Pacheco v. Mineta, 448 F.3d 783 , 788 n.7 (5th Cir. 2006) (“There is disagreement in this circuit on whether a Title—VII prerequisite, such as exhaustion, is merely a prerequisite to suit, and thus subject to waiver and estoppel, or whether it is a requirement that implicates subject matter jurisdiction.”). Here, because waiver and estoppel are not at issue, the Court will analyze exhaustion in jurisdictional terms. See generally Evenson v. Sprint/United Mgmt. Co., No. 3:08-CV0759-D, 2008 WL 4107524 (N.D. Tex. Aug. 21, 2008) (discussing exhaustion in jurisdictional terms for purposes of deciding a Rule 12(b)(1) motion when the result of the decision would be the same if the court considered exhaustion be a perquisite to suit.). IV. DISCUSSION Title VII prohibits employer discrimination against employees based on an individual's race, color, religion, sex, or national origin. See 42 U.S.C. §2000e-2(a)(1). Before filing in federal court, an aggrieved party must administratively exhaust their Title VII discrimination claim by filing a Charge of Discrimination with the EEOC. See McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008). “The charge enables the EEOC to investigate and, if appropriate, negotiate a resolution with an employer. Only after administrative efforts terminate may the employee sue the employer in federal court.” Id. Dismissal is appropriate where an employee has failed to exhaust their administrative remedies. See Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996). Here, Defendant asserts that Plaintiff failed to exhaust her administrative remedies because there is no evidence that she perfected her charge with the EEOC. (See Doc. 21-1 at p. 2). Defendant explains that “despite Plaintiff allegedly filing a charge with the EEOC, [it] never received a charge.” (See id.). Plaintiff does not dispute that she failed to file a formal Charge of Discrimination. (See Doc. 25 at p. 1). However, she argues that pursuant to Price v. Southwestern Bel Telephone Co., an “unverified [Intake] questionnaire can suffice as a charge.” (See id.) (citing 687 F.2d 74 (5th Cir. 1982)). In Price, the Fifth Circuit “treated a plaintiffs unverified, EEOC intake questionnaire as a Title VII charge of discrimination for the purpose of satisfying the time limitation for filing a charge.” Evenson, 2008 WL 4107524 at *5. However, Price is distinguishable from Plaintiffs case. Unlike Plaintiff, Price ultimately filed a formal Charge of Discrimination, and her Intake Questionnaire was only considered a charge for purposes of satisfying Title VII’s timing requirement, not for purposes of satisfying the filing requirement altogether. See Price, 687 F.2d at 76-77 . Here, Plaintiff has all but conceded that she failed file a formal Charge of Discrimination with the EEOC. Instead, she urges the Court to consider her unverified Intake Questionnaire as sufficient to satisfy the charge requirement in toto. (See Doc. 25 at p. 2). But Plaintiff has failed to identify cases that considered an unverified Intake Questionnaire, on its own, as satisfying the charge requirement. Moreover, section 2000(e)(5)(b) of Title VII requires that “charges shall be in writing under oath or affirmation,” and the EKOC’s Title VII regulations also require that a charge be “verified.” 29 C.F.R. § 1601.9 (2007). Accordingly, because Plaintiffs Intake Questionnaire remained unverified, and was not supplemented by a verified Charge of Discrimination, it cannot on its own satisfy Title VII’s filing requirement. Plaintiff also argues that pursuant to Harris v. David McDonald Honda, because the EEOC sent Defendant a Notice of Charge of Discrimination, her Intake Questionnaire should be deemed to have satisfied the charge requirement. (See Doc. 25 at p. 2) (citing 218 Fed. Appx. 258 (5th Cir. 2006)). However, as in Price, the employee in Harris ultimately filed a Charge of Discrimination, and his Intake Questionnaire was only considered for purposes of determining which of the employee’s factual allegations were properly before the Court. See Harris, 213 Fed. Appx. at 261. Ultimately, Plaintiff contends that her Intake Questionnaire is properly considered a charge if she can offer proof that the EEOC considered it as “sufficient to satisfy the charge requirements or ‘otherwise set the administrative machinery in motion.” (See Doc. 25 at p. 2) (citing Price, 687 F.2d at 78 ). Citing Price, Plaintiff argues that the issuance of the Notice of Charge of Discrimination to Defendant and her receipt of the Right to Sue letter constitute this proof. (See id.). But as previously noted, there is a critical difference between the facts in Price and the facts sub judice. Moreover, the Price court considered the agency’s treatment of the aggrieved party’s unverified complaint as relevant, but not dispositive, “to the determination lof] whether... [the unverified complaint] constituted a charge within the meaning of the statute and pertinent regulations.” Price, 687 F.2d at 78-79 . Finally, the lack of investigatory or reconciliatory efforts by the EEOC in Plaintiffs case bely a finding that Plaintiffs Intake Questionnaire “set the administrative machinery in motion.” See Pacheo, 448 F.3d at 788-89 (“[A] primary purpose of Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in attempt to achieve non-judicial resolution of employment discrimination claims. Indeed, [a] less exacting rule would also circumvent the statutory scheme, since Title VII clearly contemplates that no issue will be the subject of a civil action until the EEOC has first had the opportunity to attempt to obtain voluntary compliance.”) (internal citations omitted). Thus, the Court concludes that Plaintiff failed to exhaust her administrative remedies, depriving the Court of subject matter jurisdiction in this action. V. CONCLUSION Accordingly, IT IS ORDERED that Defendant’s Motion to Dismiss (Doc. 21) be and is hereby GRANTED. IT IS FURTHER ORDERED that Plaintiffs action be and is hereby DISMISSED for failure to exhaust her administrative remedies. Judgement shall issue separately. _2[4 Baton Rouge, Louisiana, this day of March, 2023 ) Qa Ne JUDGE BRIAN A. jag KSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA Oo