Bland v. Kansas City, Kansas Community College

271 F.Supp.2d 1280

Betty J. BLAND, Plaintiff, v. KANSAS CITY, KANSAS COMMUNITY COLLEGE, Defendant.

No. 02-2482-JWL.

United States District Court, D. Kansas.

July 11, 2003.

COPYRIGHT MATERIAL OMITTED

Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for Defendant.

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Plaintiff filed suit against defendant alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. This matter is presently before the court on defendant's motion to dismiss plaintiff's complaint (doc. # 11). As set forth below, the motion is granted in part and denied in part. Specifically, the motion is denied with respect to plaintiff's ADEA claim and is otherwise granted.

The court begins its analysis of defendant's motion with those claims that plaintiff expressly concedes should be dismissed. In that regard, defendant moves to dismiss plaintiff's complaint to the extent that complaint could be read to assert claims arising under the United States Constitution. Plaintiff has clarified in her papers that she did not intend to assert such claims. Defendant's motion to dismiss those claims, then, is granted as uncontested. In addition, plaintiff consents in her papers to the dismissal of her claim for punitive damages against defendant and, thus, defendant's motion is granted in that regard as well.

I. Failure to Exhaust Administrative Remedies

The court turns, then, to plaintiff's Title VII claim, a claim that plaintiff impliedly concedes should be dismissed. Defendant moves to dismiss this claim on the grounds that plaintiff failed to exhaust her administrative remedies. According to defendant, plaintiff's charge of discrimination is totally devoid of any reference to any claim arising under Title VII. Defendant makes the same argument with regard to plaintiff's ADA claim. In her papers, plaintiff urges only that she exhausted her remedies with respect to her ADA claim by referencing her alleged disability in the questionnaire she completed for the EEOC. She makes no mention of her Title VII claim and does not purport to suggest that any Title VII claim was preserved by virtue of her charge or her questionnaire. The court concludes, then, that plaintiff concedes that she did not exhaust her remedies with respect to this claim.

Even assuming plaintiff did not intend to abandon her Title VII claim by failing to mention that claim in her response to defendant's motion to dismiss, dismissal of this claim is nonetheless appropriate. Exhaustion of administrative remedies is a jurisdictional prerequisite to bringing suit under Title VII. See Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999); Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.1997). To exhaust administrative remedies, a Title VII plaintiff generally must present her claims to the EEOC as part of her timely filed EEOC "charge" for which she has received a right-to-sue letter. See Simms, 165 F.3d at 1326. The charge "shall be in writing and signed and shall be verified," 29 C.F.R. § 1601.9, and must at a minimum identify the parties and "describe generally the action or practices complained of," id. § 1601.12(b). The charge tells the EEOC what to investigate, provides it with the opportunity to conciliate the claim, and gives the charged party notice of the alleged violation. See Seymore, 111 F.3d at 799; 29 C.F.R. § 1601.14(a) (requiring EEOC generally to send copy of charge to charged party or respondent within ten days of its filing). Thus, requiring a plaintiff to have first presented her claims in her EEOC charge before being allowed to bring suit serves the dual purposes of ensuring the EEOC has the opportunity to investigate and conciliate the claims and of providing notice to the charged party of the claims against it. See Seymore, 111 F.3d at 799; cf. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989) ("[A]llowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.") (quotation omitted).

On the charge form, plaintiff marked only the box referencing discrimination on the basis of age. In the "particulars" section of the charge, plaintiff wrote:

I have been employed by the above named employer since November 4, 1999, as a Child Care Teacher.

I am being paid less than younger teachers that was hired after me with less experience and less education.

I believe that I am being discriminated against because of my age (49) in violation of the Age Discrimination in Employment Act.

On its face, then, plaintiff's charge is devoid of any reference to a Title VII claim. Moreover, plaintiff's intake questionnaire-assuming for the moment that the court could consider this document for exhaustion purposes-lacks any reference to a Title VII claim. In such circumstances, it is beyond dispute that plaintiff's Title VII claim (a claim based on plaintiff's race) does not come within any of the exceptions to the exhaustion rule recognized by the Circuit; plaintiff's race claim is not "like or reasonably related to" her age discrimination claim and it is not reasonable to conclude that any alleged acts of racial discrimination would "fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made." See Simms, 165 F.3d at 1327; Martin v. Nannie & the Newborns, Inc., 3 F.3d 1410, 1416 n. 7 (10th Cir.1993). Clearly, plaintiff has failed to exhaust her administrative remedies with respect to her Title VII claim and that claim is properly dismissed.

Not only does plaintiff's charge fail to mention a claim arising under Title VII, it also fails to mention any claim that might arise under the ADA. Again, as should be evident from the court's recitation of plaintiff's charge, plaintiff's charge raises only an age discrimination claim. Plaintiff concedes as much in her papers, but she nonetheless urges that her ADA claim has been exhausted because she made allegations of disability discrimination in her intake questionnaire. While the court agrees with plaintiff that her intake questionnaire contains allegations supporting her disability discrimination claim, the court believes that the Tenth Circuit, if faced with the circumstances present here, would reject plaintiff's attempt to reach beyond the body of her charge for exhaustion purposes. As the Circuit has stated:

[T]he formal charge is the key document in getting the Title VII [and ADA] process rolling. By statute and regulation, it must be in writing and signed under oath or affirmation, see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.9, and it must describe the practices complained of, see id. § 1601.12(b). It therefore is the primary, and usually the only, place to which courts look to determine whether a plaintiff timely and properly exhausted her claims before the EEOC. Because it is the only document that must be sent to the charged party, it is the only document that can satisfy the notice requirement.

Welsh v. City of Shawnee, 182 F.3d 934, 1999 WL 345597, at *5 (10th Cir. June 1, 1999).¹ In Welsh, the Tenth Circuit rejected the plaintiff's argument that the district court should have considered her allegations of discrimination contained in an "information sheet" that she submitted to the EEOC. In doing so, the Circuit emphasized that the information sheet was not signed under oath. See id. at *4-5 & n. 6. According to the Circuit, plaintiff's "subsequent filing, under oath, of the charge clearly containing allegations against only McCalip regarding gender discrimination effectively negated the information sheet." Id. at *5. The Circuit also emphasized that there was no "clear indication" that plaintiff intended to have the EEOC investigate the allegations in the information sheet. See id. at *5-6.

Here, plaintiff's intake questionnaire is not even signed by plaintiff much less signed under oath. The fact that the plaintiff's information sheet in Welsh was unverified was a critical component in the Circuit's decision. Thus, the court believes that the Circuit would similarly disregard the intake questionnaire here. See also Park v. Howard Univ., 71 F.3d 904, 908-09 (D.C.Cir.1995) (rejecting argument that intake questionnaire should be construed as having adequately raised hostile work environment claim for exhaustion purposes where the charge itself raised only discrimination claims in part because intake questionnaire was not signed under oath), cited with approval in Welsh, 182 F.3d 934, 1999 WL 345597, at *5 n. 6. Moreover, there is simply no evidence before the court that plaintiff intended the EEOC to investigate the allegations contained in the intake questionnaire.² As the Circuit indicated in Welsh, while submission of the completed questionnaire itself "may be some indication that at some point she intended [the EEOC] to investigate her [disability discrimination] allegations," her subsequent timely filed formal charge, signed under oath, containing only allegations of age discrimination effectively negated the questionnaire. Id. at *5. Although plaintiff was proceeding pro se, anyone reading the charge would realize that it did not include allegations of disability discrimination. Id.

In sum, the court finds that the Tenth Circuit's decision in Welsh, albeit unpublished, strongly suggests that the Circuit would reject plaintiff's reliance on her intake questionnaire for exhaustion purposes. As Judge Briscoe advised in Welsh, "[t]here is a difference between making allegations of an individual's improper...