United States District Court, D. South Carolina, Florence Division
Melissa A. Farley, Plaintiff,
Goodwill Industries of Lower South Carolina, Inc. and Anne Hanzel, Defendants.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Plaintiff Melissa A. Farley ("Farley" or "Plaintiff"), filed this action against her former employer, Goodwill Industries of Lower South Carolina ("Goodwill"), and a former coworker, Anne Hanzel ("Hanzel"), (collectively "Defendants"). Against Goodwill, Plaintiff alleges employment discrimination due to her gender pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and her age pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623. She also brings a state-law-based claim against Goodwill for "Breach of Contract and Covenants of Good Faith and Fair Dealing" and a statelaw claim for tortious interference with contractual relations against Defendant Hanzel. See Compl., ECF No. 1-1.
This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment. ECF No. 6. The court has considered Defendants' Motion and Memorandum; Plaintiff's response, as amended, ECF Nos. 13, 23; and Defendants' Reply, ECF No. 25. Having reviewed the parties' submissions and applicable law, the undersigned recommends Defendants' Motion to dismiss Goodwill from the case be denied and the Motion to dismiss Hanzel from the case be granted.
Plaintiff, who worked for Goodwill as a store manager from March 24, 2008 through January 10, 2014, claims she was discriminated against on account of her gender and her age. See Compl., ECF No. 1-1. Plaintiff avers she trained Defendant Hanzel, her former subordinate, and assisted Hanzel in qualifying for a district manager position. Id. ¶ 7. According to Plaintiff, once Hanzel became District Manager, Hanzel "harassed and interfered with Plaintiff daily, and purposefully intimidated, denigrated and embarrassed Plaintiff in the presence of her employees on numerous occasions." Id. ¶ 9. According to Plaintiff, Hanzel's "campaign" against her culminated in her January 10, 2014 termination without cause. Pl.'s Mem. 2.
II. Standard of review
Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, pursuant to Rule 56, arguing that Plaintiff's state-law claims should be dismissed for failure to state a claim and that her federal claims should be dismissed for failure to exhaust administrative remedies.
In considering Defendants' argument that Plaintiff's Title VII and ADEA claims should be dismissed for failure to exhaust administrative remedies, the court notes the "issue may [be] more properly addressed under Rule 12(b)(1), instead of Rule 12(b)(6)." Agolli v. Office Depot, Inc., 548 F.Appx. 871, 875 (4th Cir. 2013) (in Title VII context). When a defendant challenges subject-matter jurisdiction pursuant to a Rule 12(b)(1) motion to dismiss, the court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004) (citing cases).
A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Nonetheless, the court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, on a motion pursuant to Rule 12(b)(6), if matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d). Here, Defendants' Motion is styled as one brought pursuant to Rule 12 or, in the alternative, Rule 56. When ruling on a Rule 12(b)(6) motion, if considering documents not in the pleadings or motion to dismiss (other than as noted above), the court must convert the proceeding to one for summary judgment. Fed.R.Civ.P. 12(d). But, conversion of a motion to dismiss to one for summary judgment requires that "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id.
A. ADEA and Title VII claims: exhaustion of administrative remedies
The court finds it appropriate to consider Defendants' challenge to Plaintiff's federallaw-based employment claims first. Defendants argue that "[t]o the extent Plaintiff did not submit a verified charge to the EEOC [Equal Employment Opportunity Commission], her Title VII and ADEA claims should be dismissed." Defs.' Mem. 6. In response, Plaintiff details her dealings with the EEOC regarding the administrative-remedy process and submits that, to the extent she did not satisfy certain regulatory requirements, equity requires the court to consider her to have exhausted administrative remedies so that her claims can be considered on the merits (at a later date). Pl.'s Mem. 7-11. On reply, Defendants argue it is inappropriate to consider Plaintiff's equitable argument in connection with Plaintiff's Title VII claim. Defs.' Reply 4-5. Neither Plaintiff not Defendants devotes much of their arguments to whether Plaintiff adequately exhausted her administrative remedies as to her ADEA claim.
Before filing suit under the ADEA or Title VII, a plaintiff must exhaust her administrative remedies by bringing a charge with the EEOC. 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(d)(1). Neither the ADEA nor Title VII explicitly defines the term "charge." See Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 393 (2008) (noting the ADEA contains "no statutory definition" of "charge"); Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002) (same for Title VII).
Typically, an employee complaining of discrimination contacts the EEOC and provides it with information to support the allegations of illegal discrimination. After receiving that information through an intake questionnaire ("Questionnaire") and any other information the employee has provided, "the EEOC typically assists the employee with filing a charge." Balas v. Huntington Ingalls Industs., 711 F.3d 401, 407 (4th Cir. 2013) (in Title VII context). The EEOC's assistance may include the drafting of a charge to be forwarded to the employee for signature. Id. (citing U.S. Equal Employment Opportunity Comm'n, The Charge Handling Process, available at http://www.eeoc.gov/employees/process.cfm (last visited by citing court on Feb. 15, 2013)). The EEOC then sends a notice and copy of the charge to the employer, giving the employer an opportunity to conduct its own investigation and resolve any actions internally. At the same time, the EEOC investigates the charge. Balas, 711 F.3d at 407. As noted by the Court of Appeals for the Fourth Circuit ("Fourth Circuit"), the filing of a charge also "initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.''' Id. (quoting Chris v. Tenet, 221 F.3d 648, 653 (4th Cir. 2000)).
As to the substance of a charge, regulations concerning both the ADEA and Title VII set out certain very similar requirements for the information a charge must contain.
One of the [EEOC's] regulations [concerning the ADEA], 29 CFR § 1626.3 (2007), is entitled "Other definitions." It says: " charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act." Section 1626.8(a) identifies five pieces of information a "charge should contain": (1)-(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. The next subsection, § 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of § 1626.6- i.e., if it is "in writing and... name[s] the prospective respondent and... generally allege[s] the discriminatory act(s)."
Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 395-96 (2008).
Similarly, Title VII requires that a charge "contain such information and be in such form as the [EEOC] requires." 42 U.S.C. § 2000e-5(b). Pertinent EEOC regulations require that a charge contain the following information: (1) the full name, address, and telephone number of the person making the charge; (2) the full name and address of the person against whom the charge is made (if known); (3) a clear and concise statement of the facts, including relevant dates, regarding the alleged unlawful practices; (4) if known, the approximate number of employees of the respondent; and (5) a statement disclosing whether any proceedings regarding the alleged unlawful practices have been commenced before a state or local agency. 29 C.F.R. § 1601.12(a). These specific requirements notwithstanding, the EEOC regulations also contain a catchall clause, which provides that "a charge is sufficient when the [EEOC] 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." 29 C.F.R. § 1601.12(b).
Regarding form, Title VII includes a requirement the ADEA does not-that a charge be "verified." E.g. Wilkes v. Nucor-Yamato Steel Co., No. 3:14-CV-00224-KGB, 2015 WL 5725771, at *7 (E.D. Ark. Sept. 29, 2015) ("As it pertains to the form and substance of a charge, however, the only significant difference between Title VII and the ADEA is that the ADEA lacks a verification requirement.").
The Title VII regulations require that a charge be "in writing under oath or affirmation." 42 U.S.C. § 2000e-5(b); see also 29 C.F.R. § 1601.9 (establishing that a Title VII charge "shall be in writing and signed and shall be verified"). The EEOC's Title VII regulations define "verified" to mean "sworn to or affirmed before a notary public, designated representative of the [EEOC] or other person duly authorized by law to administer oaths and take acknowledgements, or supported by an unsworn declaration in writing under penalty of perjury." 29 C.F.R. § 1601.3. An unverified document that satisfies the other substantive requirements for a charge can be cured by a later-filed charge that is verified, in which case the verified charge relates to the filing date of the unsworn charge. See 29 C.F.R. § 1601.12(b); Edelman, 535 U.S. at 118 (upholding EEOC's regulation permitting relation back). EEOC regulations characterize the failure to verify a charge as a "technical defect, " 29 C.F.R. § 1601.12(b); nonetheless, the Fourth Circuit has held that compliance with Title VII's verification requirement is "mandatory, " Balazs v. Liebenthal, 32 F.3d 151, 156 (4th Cir. 1994).
A filing must "be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee" before it can be deemed a charge. Holowecki, 552 U.S. at 402 (in context of a charge alleging violation of the ADEA). In Holowecki, the United States Supreme Court addressed whether an EEOC Intake Questionnaire may constitute a "charge" for ADEA purposes. 29 U.S.C. § 621 et seq. The Court deferred to the EEOC's position that the regulations' criteria are not exhaustive, meaning that "not all documents that meet the minimal requirements of § 1626.6 are charges." Holowecki, 552 U.S. at 397. The Court also adopted the EEOC's position that "the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights." Id. at 398. This is sometimes referred to as the EEOC's "objective test." See id. at 402 (noting that, in determining whether submission to the EEOC may be considered a charge requires examination "from the standpoint of an objective observer").
In Edelman, the Court considered a challenge to the EEOC's regulation that permitted a Title VII charging party to complete a verification after completing an otherwise-timely discrimination charge. The Court noted that Title VII required both that a charge be filed concerning the complained-of conduct, 42 U.S.C. § 2000e-5(e)(1); and that a charging party must swear or affirm that the allegations are true, 42 U.S.C. § 2000e-5(b). 535 U.S. at 109. At issue was whether the EEOC's regulation permitting the later-submitted verification to "relate back" to the timely filed administrative charge, 29 C.F.R. § 1601.12(b), was appropriate. The Court deferred to the EEOC and its regulation, finding its construction of the requirements was appropriate and the charge did not necessarily have to be verified at the same time it was submitted. 535 U.S. at 117-19.
After a charge is filed with the EEOC, a claimant may initiate a civil action based on the claims made in her EEOC charge only after receipt of a so-called "Right to Sue" letter ("RTS Letter"). Suit must be filed within 90 days of receiving the RTS Letter. See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(c)(3)(e) (ADEA).
B. Timeline of potentially relevant events concerning administrative exhaustion
Against this backdrop, the following timeline is relevant to the parties' arguments and inform the court's analysis:
January 10, 2014:
? Plaintiff's employment with Goodwill was terminated-hence the date on which alleged discrimination took place, see Compl. ¶ 5;
April 28, 2014:
? Date of hearing before South Carolina Department of Employment and Workforce ("SCDEW") concerning Plaintiff's entitlement to employment security benefits; both Plaintiff and a representative of Goodwill appeared at the hearing, and SCDEW issued its decision on May 8, 2014, finding Plaintiff was not discharged for cause and was entitled to such benefits, see ECF No. 13-1; the decision referenced Peggy B. Smith of Goodwill Industries of Lower S.C. Inc.; id.
October 23, 2014:
? Date Plaintiff's counsel mailed the EEOC Intake Questionnaire that was completed by Plaintiff (and signed by Plaintiff on October 6, 2014), ECF No. 13-2 (completed four-page Questionnaire and six typed pages providing detailed information about inquiries made in Questionnaire);
October 31, 2014:
? Date EEOC Representative Patricia Fuller signed the one-page "Notice of Charge of Discrimination" that was sent to Goodwill Industries of Lower S.C. in North Charleston, S.C. (to the attention of Peggy Smith, VP of Human Resources). ECF No. 13-6 at 3. The Notice of Charge indicates that "a charge of employment discrimination has been filed against your organization" under Title VII and the ADEA. Id. This EEOC "Form 131" is signed by Fuller on behalf of the EEOC; there is no blank for signature by the Charging Party. The EEOC checked the box indicating "[n]o action is required by you [Goodwill] at this time" concerning the EEOC's "handling of this charge[.]" Id. Other "check-box" options not selected by the EEOC in the Notice of Charge in this matter include the following: a request that the employer "call the EEOC Representative listed below concerning the further handling of this charge"; a request that the employer provide a position statement on issues covered by the charge; a request that the employer provide additional information (to be detailed in the Notice of Charge); and a notation of the EEOC's available mediation program that includes a blank for a date to be entered by which the employer should respond should it choose to participate in mediation. Id. The Notice of Charge indicates near the end that "[a] perfected charge (EEOC Form 5) will be mailed to you once it has been received from the Charging Party." Id.
November 6, 2014:
? Deadline by which Plaintiff had to file a charge with the EEOC concerning the January 10, 2014 claims raised, as it is the ...