Killian v. Kinzer

Page 60

123 Md.App. 60

716 A.2d 1071

Janice L. KILLIAN v. Charles W. KINZER, et al.

No. 1700, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Sept. 1, 1998.

Donald F. Chiarello (Hochberg, Chiarello & Costello on the brief) Towson, for appellant.

Alan Hilliard Legum (Rebecca B. Brugger and Michael R. Roblyer on the brief) Annapolis, for appellees.

Argued before MOYLAN, SONNER and BYRNES, JJ.

SONNER, Judge.

Appellant, Janice Killian, was terminated form her employment on December 23, 1994. Subsequently, she filed a Charge of Discrimination with the Equal Employment Opportunities Commission (EEOC) against her former employer. On the pre-printed charge form, Mrs. Killian checked the box titled "retaliation," to indicate the basis of her cause of discrimination, but she did not check the box titled "sex." In late August 1995, she received her right to sue letter from the EEOC, in accordance with 42 U.S.C. § 2000e-5(f)(1), and, on November 24, 1995, she filed a complaint in the Circuit Court for Anne Arundel County, alleging wrongful discharge in count one, a violation of Title VII in count two, and a violation of Maryland's Article 49B in count three. On July 11, 1997, appellees, Ms. Killian's former employers, Charles W. Kinzer, individually; Charles W. Kinzer, M.D., P.A.; Peter F. Verkouw, individually; Peter F. Verkouw, M.D., P.A.; John D. Jackson, individually; and Internal Medicine Associates of Annapolis (IMA), filed a motion to dismiss and for summary judgment. ¹ Following a hearing on August 1, 1997, the court granted appellees' motion to dismiss on counts one and three and entered summary judgment in favor of appellees on count two. Ms. Killian has appealed the court's decision as to count two only and asks the following questions, which we have reordered and rephrased:

I. Did the trial court err in limiting the case to the retaliation claim alone?

II. Did the trial court err in granting summary judgment where genuine disputes as to material fact exist?

III. Did the court misapply the determinative factor rule?

We find that the court erred by entering summary judgment against appellant and, accordingly, reverse.

FACTS

Ms. Killian worked as an office manager for IMA; Doctors Kinzer, Verkouw, and Jackson were physicians at IMA; Kinzer and Verkouw were also partners with IMA. Dr. Kinzer joined the practice in 1987, and Ms. Killian claims that he subjected her to continuous sexual harassment until 1993. In July 1993, Ms. Killian informed Dr. Verkouw of the harassment by Dr. Kinzer toward her and other employees. Dr. Verkouw suggested that she speak with his wife, Mrs. Verkouw, who had recently attended a seminar on sexual harassment. After speaking with Mrs. Verkouw, Ms. Killian wrote a letter to Dr. Kinzer, listing the behavior that she found unacceptable and, on August 2, 1993, she gave Dr. Kinzer the letter. On August 18, Dr. Kinzer wrote a reply to Ms. Killian, apologizing for any behavior that she may have interpreted as inappropriate. Ms. Killian did not make any further allegations or complaints of harassment against Dr. Kinzer.

In the summer of 1994, representatives of IMA began merger discussions with another group of Annapolis physicians, Annapolis Internal Medicine, and they decided to consolidate both groups of physicians into one. The consolidation meant that the merged practices would thereafter need only one office manager. The merger committee chose Charlotte King, the office manager for Annapolis Internal Medicine, instead of Ms. Killian. IMA informed Ms. Killian of the decision at a meeting with the practitioners and told her that she could stay until May 1995, when the physical merger was to take place. A few weeks later, Ms. Killian asked Dr. Verkouw why they chose Ms. King. Dr. Verkouw told her that part of the reason was because of the situation between her and Dr. Kinzer and because her performance had slipped. In December 23, 1994, IMA discharged Ms. Killian from employment and completed its merger with Annapolis Internal Medicine on January 1, 1995.

ANALYSIS

I.

Ms. Killian argues that the court erred by limiting her case to the claim of retaliation alone, based on the fact that she had marked only the "retaliation" box on the EEOC charge when her EEOC charge, read as a whole, demonstrated that she also complained of sexual harassment. She acknowledges that she failed to check the box for "sex discrimination" in her EEOC charge, but argues that her statement did describe the sexual harassment and that her case demonstrates a continual course of sexual harassment that closely related to her charge of sex discrimination. We hold that the court did not err by limiting her case.

We recognize that an EEOC charge need not be as legally specific as a complaint because the administrative system is meant to allow an average person access to the remedial services of the EEOC. Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972); see Alvarado v. Bd. of Trustees of Montgomery Community College, 848 F.2d 457 (4th Cir.1988). Often, courts have forgiven a complainant's failure to comply with the procedural requirements of Title VII, even when a complainant fails to name a required party in the EEOC charge, Evans v. Sheraton Park Hotel, 503 F.2d 177, 183-84 (D.C.Cir.1974), as long as the complainant has not bypassed the administrative process that serves the statutory purpose of conciliation. Richerson v. Jones, 572 F.2d 89, 96 (3rd Cir.1978). Courts have held, however, that a complainant bypasses the administrative process when the complaint attempts to set forth a new charge, not filed in the administrative charge, that is unrelated to or unlike the allegations already filed. Rush v. McDonald's Corp., 966 F.2d 1104 (7th Cir.1992); Prizevoits v. Indiana Bell Tel. Co., 882 F.Supp. 787 (S.D.Ind.1995); Miller v. U.S. F. & G., 65 Fair Empl. Prac. Cas. (BNA) 593 (D.Md.1994).

Generally, a court can exercise jurisdiction only over claims encompassed within the EEOC charge and claims "like or related to allegations contained in the charge, and growing out of such allegations...." Nealon v. Stone, 958 F.2d 584, 590 (4th Cir.1992) (quoting Hill v. Western Electric, 672 F.2d 381, 390 n. 6 (4th Cir.1982)) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970)). "[T]he scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Chisholm v. United States Postal Service, 665 F.2d 482, 491 (4th Cir.1981). "[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 charges, as surely as would an initial failure to file a timely EEOC charge." Nicol v. Imagematrix Inc., 767 F.Supp. 744, 752 (E.D.Va.1991) (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989)(quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 863 (7th Cir.1985)).

Here, although Ms. Killian claims that she described her complaint of harassment in her charge, we find that her statement does not describe or assert a hostile workplace. We agree with the trial court that Ms. Killian's EEOC charge stated only that she had been subjected to harassment, which stopped, but that her complaint of harassment led to her termination.

Ms. Killian suggests that marking the box was a mere procedural technicality and her failure to comply perfectly with the procedural requirements should not be fatal to her cause of action. Richerson, 572 F.2d at 95-96. We find that Ms. Killian's failure, either to describe the harassment or mark the appropriate box, is more than a procedural technicality. Rather, it is a necessary element to the orderly, non-disruptive approach adopted by Congress to resolve employment discrimination claims because it affects the notice requirements of an EEOC charge. Smallzman v. Sea Breeze, Inc., 60 Fair Empl. Prac. Cas. (BNA) 1031 n. 4 (D.Md.1993).

The charges of retaliation and harassment are not sufficiently interrelated to put appellees on notice. Ms. Killian's EEOC retaliation charge accuses appellees of being intolerant of a legitimate employee complaint, but her complaint of harassment ascribes improper behavior by appellee, based on her sex. Substantively, these claims are unrelated to the administrative investigation conducted by the EEOC and both could have been presented to the EEOC for investigation. Since Ms. Killian did not mark the box alleging harassment or describe the harassment in her EEOC charge, to allow her to assert this new claim would frustrate the goals of the EEOC administrative apparatus, that is, notice to an employer of the charge and an opportunity to resolve the dispute outside a courtroom. We find that the trial court correctly refused to hear this claim. See Hicks v. Baltimore Gas & Electric Co., 829 F.Supp. 791, 794-95 (D.Md.1992).

II.

Ms. Killian also claims that the court erred in entering judgment in favor of appellees when genuine issues of material fact exist and because it failed correctly to apply the determinative factor test. These issues are related, and so we will address them together.

In reviewing the grant of summary judgment motion, we determine whether the trial court was legally correct. Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592, 578 A.2d 1202 (1990). Pursuant to Md. Rule 2-501(e), the trial court grants the motion if

there is no genuine dispute as to any material fact and [it finds] that the moving party is entitled to judgment as a matter of law. The purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact that is sufficiently material to be tried.

Miller v. Ratner, 114 Md.App. 18, 26-27, 688 A.2d 976, cert. denied, 345 Md....