Herr v. Am. Kennel Club

Roy Herr, Plaintiff, v. The American Kennel Club, Defendant.

No. 5:17-CV-00547

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

August 23, 2018

Memorandum & Recommendation

Plaintiff Roy Herr claims that his former employer, Defendant American Kennel Club, discriminated against him based on his age, sex, sexual orientation, and the fact that he attempted to take leave under the Family Medical Leave Act. AKC, for its part, claims that many of Herr's claims should be dismissed due to his failure to exhaust his administrative remedies with the EEOC and his Amended Complaint does not state a claim for relief. After reviewing the Amended Complaint and the applicable law, it is appropriate for the district court to dismiss all of Herr's claims except for his claim that AKC discriminated against him on the basis of his sex.

I. Background

Herr, a heterosexual male, began working for AKC in late 2005. Am. Compl. ¶ 7. During his about eleven and a half year career with the organization, Herr worked in different positions, rising to the role of Executive Field Representative. Am. Compl. ¶ 7.

Herr worked with Patricia Proctor, who eventually became his supervisor. Am. Compl. ¶¶ 11, 16. Herr and Proctor had a tumultuous relationship. He described her as "confrontational" and "combative" towards him. Am. Compl. ¶ 11. Herr also claims that she made false accusations against him and invented issues with his performance at work. Am. Compl. ¶¶ 11, 12.

The Amended Complaint lists several ways that Proctor allegedly treated Herr badly:

• When Herr moved back to Arizona from North Carolina in April 2012, Proctor refused to reimburse him for certain meal expenses despite AKC's President having told Herr before that all of his moving expenses would be reimbursed. Am. Compl. ¶¶ 9, 13, 14, 19.

• Proctor refused to approve a raise for Herr that he had previously been promised. Am. Compl. ¶¶ 17.

• To avoid renting a car, Herr accepted a ride from another person. Proctor later chastised Herr for violating company policy although the policy prohibits only giving people rides, not accepting rides from other individuals. Am. Compl. ¶ 21.

• Before attending a dog show in Cleveland, Ohio, Herr tried to save AKC money by staying at a home in Pennsylvania instead of at a hotel. After the show, he stayed at a hotel in Pittsburgh and then flew home. Proctor denied his expense reimbursement request because, she claimed, company policy required him to return home the same day as the show. But AKC does not have such a policy. Am. Compl. ¶ 24.

• Proctor accused Herr of malfeasance when he booked a hotel room through a local kennel club even though Herr was following a long-approved practice in an attempt to ensure that AKC could benefit from a block rate for hotel rooms. Am. Compl. ¶ 26.

• Herr had to stay in locations with poor internet access. Proctor subsequently insisted that Herr cancel all of his hotel reservations and only stay at chain hotels that provided internet connections. She also falsely accused him of charging for internet access. Am. Compl. ¶¶ 27, 33(a), 33(b).

• Proctor insisted that Herr drive to an event even though a computer system suggested that flying was the preferred method of travel. Am. Compl. ¶ 33(c).

• Although company policy entitled the senior field representative to leave work first, Proctor required Herr to change his plane ticket so that he could work later than another representative. Am. Compl. ¶ 33(d).

• Proctor used these made up instances of violations of company policy as a basis to give Herr a poor performance evaluation. Prior to Proctor becoming his supervisor, Herr's evaluations were all satisfactory or better. Am. Compl. ¶¶ 28, 29, 30.

To hear Herr tell it, Proctor's animus towards him stemmed from her preference to work with women and homosexual men instead of heterosexual men. Am. Compl. ¶¶ 18, 25. Proctor was apparently open about her preference and "routinely admitted she would rather work with women and gay men." Am. Compl. ¶ 18. In fact, on one occasion, Proctor told Herr that she "would rather have all gay men and women as field reps[.]" Am. Compl. ¶ 25. She did not subject women and homosexual men to the same kind of scrutiny or make the same kinds of false allegations against them. Am. Compl. ¶¶ 12, 18, 22, 27. Herr has repeatedly complained to AKC officials about Proctor's conduct. Am. Compl. ¶ 34, 38.

Herr sought and received approval to take time off intermittently under the Family Medical Leave Act in late August 2016. Am. Compl. ¶¶ 35, 36. He claimed that he needed this time off because he was having medical issues as a result of the stress caused by Proctor's actions. Am. Compl. ¶ 35.

In February 2017, while in Raleigh, North Carolina for the AKC Annual Meeting, Herr notified AKC officials that he would need to take intermittent FMLA leave in April 2017. Am. Compl. ¶ 39. Shortly thereafter, AKC officials told Herr that they wanted to meet to discuss the annual performance review that Proctor submitted. Am. Compl. ¶ 40.

At the meeting, Herr told the AKC officials that the review contained "a lot of information that was untrue, incorrect[,] and fabricated." Am. Compl. ¶ 40. AKC fired him at the end of the meeting. Am. Compl. ¶¶ 40. Herr, who is 66, claims AKC replaced him with "a younger homosexual male[.]" Am. Compl. ¶¶ 7, 41.

Several months later, Herr filed a Charge of Discrimination against AKC with the EEOC. Am. Compl. ¶ 48. The Charge of Discrimination alleged that AKC discriminated against himbased on his age and sex.¹ Mem. in Supp. of Resp. to Dismiss at 22, D.E. 33. Herr explained that AKC fired him in February 2017 because he "did not get along with Patricia Proctor[.]" Id. He went on to explain that "non-gay men ... were discriminated against because Patricia preferred females or gay men." Id. And he notes that "[s]hortly after [his] discharge, [he] was replaced with a younger gay male." Id.

The EEOC issued Herr a Right to Sue Letter in late July 2018 and this lawsuit followed several months later. The Amended Complaint alleges that AKC violated the Age Discrimination Act of 1967, engaged in gender or sex discrimination in violation of Title VII, violated the FMLA, and retaliated against him for exercising his FMLA rights. AKC asks the court to dismiss the Amended Complaint because the court lacks subject matter jurisdiction over some claims because of Herr's failure to exhaust his administrative remedies and that the Amended Complaint fails to state a claim about the remaining claims.

II. Discussion

A. Failure to Exhaust Administrative Remedies

AKC maintains that because Herr's EEOC Charge of Discrimination discussed discrimination only in the context of his termination, the court lacks subject matter jurisdiction over the remainder of his ADEA and Title VII claims. Herr responds that because his Charge of Discrimination showed that AKC discriminated against him because of his age and sex "all claims of sex discrimination and age discrimination are within the scope of the Charge of Discrimination." Mem. in Supp. of Resp. to Dismiss at 8. He also asserts that the claims in the Amended Complaint are reasonably related to the contents of his EEOC filing because theCharge alleges that "he was terminated as a result of his adverse relationship with his supervisor, who preferred working with women and gay men and that he was replaced by a younger gay man[.]" Id. After reviewing the parties' arguments and the applicable law, the court finds that AKC has the better argument and recommends that the district court grant its motion on this issue.

Congress has required that before an individual litigant may bring a civil action under Title VII, they must exhaust their administrative remedies with the EEOC. See 42 U.S.C. 2000e-5(b), (f)(1). The administrative remedy process begins with the aggrieved individual filing a charge of discrimination with the EEOC within a statutorily prescribed period. 42 U.S.C. § 2000e-5(e)(1). The charge must be "sufficiently precise to identify the parties, and to describe generally the action or practice complained of." 29 C.F.R. § 1601.12(b).

The factual content of the charge is important because it sets the boundaries for any subsequent litigation begun after the administrative process. See Evans v. Tech. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996). The Fourth Circuit has explained that "[i]f 'the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.'" Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) (quoting Dennis v. Cty of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995)).

Although the Fourth Circuit has recognized that charges of discrimination should receive a liberal construction because they are not typically filed by lawyers, it has still held fast to the principle that "the factual allegations made in formal litigation must correspond to those set forth in the administrative charge." Id. Thus, a "plaintiff's claim generally will be barred if his charge alleges discrimination on one basis-such as race-and he introduces another basis in formallitigation-such as sex." Id. And "[a] claim will also typically be barred if the administrative charge alleges one type of discrimination-such as discriminatory failure to promote-and the claim encompasses another type-such as discrimination in pay and benefits." Id. If the factual allegations in the charge and the complaint differ, the allegations in the charge must be "reasonably related" to the allegations in the complaint or the allegations in the complaint would have been developed by a reasonable investigation of his complaint for a court to have jurisdiction over the claims. Id.

Herr's charge of discrimination focuses on his termination from AKC because of his age and sex. This is problematic for him because his Amended Complaint...