Bracken v. Welborn

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BARBARA BRACKEN

CIVIL ACTION NO.

VERSUS 20-72-SDD-EWD

DOUG WELBORN, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITY AS

CLERK OF COURT FOR EAST BATON

ROUGE PARISH

RULING

This matter is before the Court on the Motion for Judgment on the Pleadings

Pursuant to Rule 12(c)1 by Defendant, Doug Welborn, sued in both his individual and

official capacities as Clerk of Court for East Baton Rouge Parish (“Defendant”). Plaintiff,

Barbara Bracken (“Plaintiff”) has filed an Opposition2 to this motion, to which Defendant

filed a Reply.3 For the following reasons, the Court finds that Defendant’s motion should

be DENIED.

I. FACTUAL BACKGROUND

Plaintiff began her employment as a deputy clerk at the downtown office of the

East Baton Rouge Clerk of Court (“EBRCC”) on November 12, 2012.4 Plaintiff alleges

that, shortly after her employment began, she was subjected to sexual harassment by

1 Rec. Doc. No. 10.

2 Rec. Doc. No. 12.

3 Rec. Doc. No. 16.

4 Rec. Doc. No. 1-1, ¶ 4.

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Greg Brown (“Brown”), Chief Deputy, who was Plaintiff’s supervisor with immediate and

successively higher authority over her.5

Plaintiff further alleges that, in 2012, Brown made repeated sexual advances

towards her, including: requiring her to meet with him in his office alone; discussing sexual

history, sexual preferences, and sexual relationships; propositioning her to have sex

and/or a sexual relationship with him; and commenting on her body and sex in a

threatening, harassing, and sexually charged manner.6 Plaintiff claims she rebuffed

Brown’s advances.7 In 2013, Plaintiff allegedly told Brown to cease and reported Brown’s

behavior to Defendant, including to Brown directly and her then-supervisor Howard

Burgess (“Burgess”).8

After reporting Brown’s behavior, Plaintiff alleges he made no further sexual

advances, but instead began retaliating against Plaintiff for making the complaint by

threatening her job, falsely reprimanding her, removing job duties, making false

accusations of poor performance, transferring her to an undesirable location, suspending

her, and ultimately terminating her.9 Plaintiff also alleges that, in November 2018, Brown

openly threatened Plaintiff’s job by stating to Plaintiff’s supervisor, Pamela Plunkett

(“Plunkett”),10 “what took you so long to get rid of [Plaintiff].”11 Soon thereafter, on

November 8, 2018, Plaintiff alleges she met with Brown, who demanded Plaintiff sign a

“false warning,” which Plaintiff refused, and she complained that she was being retaliated

5 Rec. Doc. No. 1-1, ¶ 3.

6 Rec. Doc. No. 1-1, ¶ 5.

7 Rec. Doc. No. 1-1 ,¶ 5.

8 Rec. Doc. No. 1-1, ¶ 6.

9 Rec. Doc. No. 1-1, ¶ 7. Defendant asserts Plaintiff was not terminated but resigned. See Rec. Doc. No.

12, p. 2.

10 The record reveals that the correct spelling of the name is Plunkett; although Plaintiff refers to her in the

Petition and briefing as “Pluckett.”

11 Rec. Doc. No. 1-1, ¶ 8.

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against for her protected activity.12 In response, Brown threatened her, stating she was

“going to do what [he] said she was going to do,” that “nobody was going to believe” her

complaint of sexual harassment, and that she was going to sign the “final warning” or

“else.”13

Plaintiff’s employment ended on November 8, 2018, and it is contested whether

Plaintiff voluntarily quit or was fired.14 Plaintiff contends that she suffered retaliation

because she opposed, reported, and complained about the unlawful sex-based

harassment and what she reasonably believed to be unlawful sexual harassment in

violation of Title VII.15

On March 12, 2019, Plaintiff field a Charge of Discrimination with the EEOC

(“Charge”) alleging discrimination based on race, sex, and retaliation between October

24, 2018 and November 13, 2018.16 In the Charge, Plaintiff stated the following

particulars:

I began my employment with the East Baton Rouge Clerk of Court on

October 11, 2012, as a Deputy Clerk, most recently earning $15.0 per hour.

Since June 2018, Ms. Pamela Pluckett [sic] harassed me by cursing at me

and talking down to me. I officially reported her behavior to her supervisor,

Mr. Brandon Abadie. After reporting Ms. Plucketts [sic] behavior, the

harassment progressed, and she disciplined me several times for no reason

including an unpaid suspension. Ultimately, I was discharged although the

company claims I resigned. After applying to another job, I was given

unfavorable refences although my evaluations were all above average. The

company employs over 500 people.

No reason was given for the action taken against me.

12 Rec. Doc. No. 1-1, ¶ 8.

13 Rec. Doc. No. 1-1, ¶ 8.

14 Rec. Doc. Nos. 10-1, p. 1; 12, p. 2.

15 Rec. Doc. No. 1-1, ¶ 9.

16 Rec. Doc. No. 10-1, p. 2; see Rec. Doc. No. 12-1, p. 21.

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I have been discriminated against because of my race (Black), and because

of my sex (Female), and retaliated against in violation of Title VII of the Civil

Rights Act of 1964, as amended.17

On November 19, 2019, the EEOC issued a dismissal and a “Notice of Right to

sue.” The EEOC issued a “no cause” determination stating, “[b]ased upon its

investigation, the EEOC is unable to conclude that the information obtained established

violations of the statutes… No finding is made as to any other issue that might be

construed as having been raised by this charge.”18

Defendant previously filed a Motion for Partial Dismissal on two grounds. First,

Defendant argued that to the extent any sexual harassment claim was asserted by the

Plaintiff’s petition that the claim be dismissed as time barred.19 Second, Defendant moved

to dismiss the claim against him in his individual capacity under Title VII.20 On June 17,

2020, the Motion for Partial Dismissal was granted by this Court.21

Defendant now moves for a Rule 12(c) judgment on the pleadings for failure to

exhaust administrative remedies, arguing that, in her EEOC Charge, Plaintiff never

mentioned any of the following allegations set forth in her petition: “(1) any type of

harassment occurring before October 24, 2018; (2) Greg Brown or Howard Burgess; (3)

sexual harassment by Greg Brown; or, (4) retaliation for reporting alleged sexual

harassment by Greg Brown.”22 Defendant notes that Greg Brown’s name does not

appear anywhere on the Charge and solely focuses on the alleged conduct of Plunkett.

Plaintiff opposes this motion, arguing that Defendant’s motion is actually an

17 Rec. Doc. No 12-1, p. 21.

18 Rec. Doc. Nos. 1-1, ¶ 10; 10-1, p. 2.

19 See Rec. Doc. No. 2.

20 See Rec. Doc. No. 2.

21 Rec. Doc. No. 19.

22 Rec. Doc. No. 10-1, p. 3.

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improperly “disguised motion for summary judgment,” and, whether on the face of her

pleadings or on the merits, she has demonstrated that she met the Title VII requirements

for filing suit.

II. LAW AND ANALYSIS

A. Motion to Dismiss Under Rule 12(c)

Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on the

pleadings.” A judgment on the pleadings under Rule 12(c) is subject to the same standard

as a motion to dismiss under rule 12(b)(6).23 The Court should accept all well-pleaded

facts as true, viewing them in the light most favorable to the plaintiff, the non-moving

party.24

A motion for judgment on the pleadings under Rule 12(c) is designed to dispose

of a case where the material facts are not in dispute and a judgment on the merits can be

rendered by looking at the substance of the pleadings and any judicially noted facts.25

Additionally, the court may rely on the complaint, its proper attachments, “documents

incorporated into the complaint by reference, and matters of which a court may take

judicial notice.”26

23 See Johnson v. Johnson, 385 F.3d 503,529 (5th Cir. 2004); Great Plains Trust Co. v. Morgan Stanley

Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002) (“A number of courts have held that the standard

to be applied in a Rule 12(c) motion is identical to that under a Rule 12(b)(6) motion.” (citation and internal

quotations omitted)).

24 Guidry v. Am. Public Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007); See also In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).

25 Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per ciruam).

26 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio

Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). see also Voest-Alpine Trading USA Corp v. Bank of China,

142 F.3d 887 (5th Cir. 1998) (the district court’s consideration of the documents attached to the complaint

was proper because these documents became a part of the pleading); King v. Life School, 809 F.Supp.2d

572, 578 (N.D. Tex. 2011) (“Under the 12(b)(6) standard, a court cannot look beyond the pleadings. In the

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“The central issue is whether, in the light most favorable to the plaintiff, the

complaint states a valid claim for relief.”27 “The issue is not whether the plaintiff will

ultimately prevail, but whether [the plaintiff] is entitled to offer evidence to support his

claim.”28 To survive a defendant’s motion, a plaintiff must allege enough facts “to state a

claim that is plausible on its face.”29 A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.”30 “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has

acted unlawfully.”31 A complaint is insufficient if it merely “tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’”32 The plaintiff’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level, on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).”33 “[W]here the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged-but not ‘shown’-‘that the pleader is entitled to relief.’”34

“Pleadings should be construed liberally, and judgment on the pleadings is

appropriate only if there is no disputed issue of fact and only questions of law remain.”35

“If it is clear that the plaintiff can prove no set of facts that would entitle them to relief, then

12(b)(6) context, pleadings include attachments to the complaint.” (citations and internal quotations

omitted)).

27 Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001).

28 Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).

29 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

30 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

31 Id. (quoting Twombly, 550 U.S. at 556).

32 Ashcroft v. Iqbal, 556 US 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009).

33 Guidry v. Am Public Life Ins Co. at 180.

34 Id. at 678.

35 Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001).

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the court may dismiss the claim.”36 While the Court must accept all well-pleaded facts as

true, it should not “strain to find inferences favorable to the plaintiff.”37 Further, the Court

should not “accept as true conclusory allegations or unwarranted deductions of fact.”38 A

Motion to dismiss under Rule 12(c), just like Rule 12(b)(6), is disfavored and rarely

granted.39

Pursuant to Federal Rule of Civil Procedure 12(d) a motion under 12(c) may be

converted to one under Rule 56. In that instance “[i]f . . . matters outside the pleadings

are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56” and “[a]ll parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.”40 Thus, in

consideration of the Motion for Judgment on Pleadings under Rule 12(c) the Court may

only consider the plaintiff’s and defendant’s pleadings and the EEOC Charge referenced

in the plaintiff’s pleading, which is integral to the matters pertained therein, without

converting the motion to one under Rule 56.41

Plaintiff argues Defendant’s motion is a disguised motion for summary judgment

and, if necessary for her to demonstrate that she exhausted claims against Brown, she

presents to the Court documents outside of the pleadings bearing out this fact. Defendant

maintains that the Court may make this determination on the face of the pleadings but

argues that, even if looking at the documents Plaintiff has submitted, conversion to a

36 Jones v. Greninger, 188 F.3d 422, 324 (5th Cir. 1999).

37 Taha v. William Marsh Rice University, 2012 WL 1576009 at *2 (quoting southland Sec. Corp. v. Inspire

Ins solutions, Inc., 365 f3d 353, 361 (5th Cir. 2004).

38 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000).

39 See Lormand v. U.S. Unwired, Inc., 565 F.3d 288, 232 (5th Cir. 2009) (Rule 12(b)(6); Boyd v. Dallas

Indep. Sch. Dist., No. 3:08-cv-0426-M, 2009 WL 159243, at *1 (N.D. Tex. Jan 21, 2009) (citing Sosa v.

Coleman, 646 F.2d 991, 993 (5th Cir. 1981).

40 Fed. R. Civ. P. 12(d).

41 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d at 763.

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motion for summary judgment is unwarranted, and Defendant’s motion should still be

granted.

The Court finds that it need not convert this motion to a motion for summary

judgment. As will be explained below, and as the Fifth Circuit has held: “this court

interprets what is properly embraced in review of a Title VII claim somewhat broadly, not

solely by the scope of the administrative charge itself, but by the scope of the EEOC

investigation which can reasonably be expected to grow out of the charge of

discrimination.”42 In doing so, the Court “engage[s] in fact-intensive analysis of the

statement given by the plaintiff in the administrative charge, and look[s] slightly beyond

its four corners, to its substance rather than its label.”43

B. Title VII Exhaustion of Administrative Remedies

A plaintiff asserting a claim under Title VII must exhaust administrative remedies

before pursuing the claim in district court.44 Exhaustion occurs when a plaintiff files a

timely charge with the EEOC, within 300 days,45 and receives a statutory notice of the

right to sue the employer named in the charge.46 Because a plaintiff’s Title VII claim must

be administratively exhausted, a subsequent suit must be limited to the claims made in

the employee’s initial EEOC charge or any type of discrimination “like or related to the

42 Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)( (citing Sanchez v. Standard Brands, Inc., 431 F.2d

455, 463 (5th Cir.1970)) (internal quotation marks omitted).

43 Id.

44 Taylor v. Books A Million, 296 F.3d 376, 378-79 (5th Cir. 2002); Davis v. Fort Bend Cty., 893 F.3d 300,

303 (5th Cir. 2018) (citing 42 U.S.C. § 2000e-5(e)(1)).

45 While a plaintiff filing a Title VII claim must typically file within 180 days of the alleged discrimination,

“deferral states” like Louisiana extend the filing period to 300 days when the complainant has instituted a

complaint with a state or local agency which possesses the authority to grant or seek relief suck practices.

National R.R. Passenger Corp v. Morgan, 536 U.S. 101, 109 (2002); Celestine v. Petroleos de Venezuella

SA, 266 F.3d 343, 351 (5th Cir. 2001) (citing 42 U.S.C. § 2000e-5(e)(1)), abrogated on other grounds

McDaniel v. National Rail Road Passenger Corp., 705 Fed. Appx 240 (5th Cir. 2017); Griffin v. city of Dallas,

26 F.3d 610, 612 (5th Cir. 1994).

46 Taylor, 296 F.3d at 378-79; Dao v. Auchan Hypermarket, 96 F.3d 787, 788-89 (5th Cir. 1996).

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charge’s allegations, limited only by the scope of the EEOC investigation that could

reasonably be expected to grow out of the initial charges of discrimination.”47

A cause of action under Title VII “may be based, not only upon the specific

complaints made by the employee’s in the initial EEOC charge, but also upon any kind of

discrimination like or related to the charge’s allegations, limited only by the scope of the

EEOC investigation that could reasonably be expected to grow out of the initial charges

of discrimination.48 This rule is designed to balance competing interests. On one hand,

the scope of an EEOC charge should be liberally construed for litigation purposes

because Title VII “was designed to protect the many who are unlettered and unschooled

in the nuances of literary draftsmanship.”49 On the other hand, the “primary purpose of

Title VII is to trigger the investigatory and conciliatory procedures of the EEOC, in [an]

attempt to achieve non-judicial resolution of employment discrimination claims.”50

To reconcile these competing policies, the court should construe an EEOC

complaint broadly, but also in the terms of the EEOC investigation that “can reasonably

be expected to grow out of the charge of discrimination.”51 The Court should use a “fact-

intensive analysis” of the administrative charge that looks beyond the four corners of the

document to its substance.52 Thus, a lawsuit may contains allegations “like or related to

47 Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (quoting Fellows v. Universal Restaurants, Inc., 701 F.2d

447, 451 (5th Cir. 1983)); see also Harris v. Honda, 213 Fed. App’x 258, 261 (5th Cir. 2006) (citing Elgaghil

v. Tarrant Cty. Junior Coll., 45 S.W.3d 133, 141 (Tex. App. 2000)).

48 Fine, 995 F.2d at 578 (citing Fellows, 701 F.2d at 451).

49 McClain v. Lufkin Indus., Inc., 519 F.3d 264, 273 (5th Cir. 2008) (quoting Sanchez v. Standard Brands,

Inc., 431 F.3d 455, 456 (5th Cir. 1970).

50 Id. (quoting Pacheco v. Mineta, 448 F.3d 783, 788-89 (5th Cir. 2006).

51 Id. (quoting Sanchez, 431 F.3d at 466).

52 Id.

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the allegations contained in the EEOC charge and growing out of such allegations during

the pendency of the case before the commission.”53

C. Analysis

Plaintiff’s petition states that, “[o]n March 12, 2019, Petitioner timely filed a Charge

of Discrimination with the EEOC and was issued her Notice of Right to Sue dated

November 12, 2019, a copy of which is attached hereto. All conditions prerequisite to

filing suit under federal law have been complied with.”54 The Defendant’s Answer admits

this allegation to the extent that the Plaintiff filed a Charge of Discrimination and received

a Dismissal and Notice of Rights but denies any remaining allegations contained in the

petition.55

Looking at the EEOC Charge and engaging in a “fact intensive analysis of the

statement given,” and “only looking slightly beyond its four corners, to its substance rather

than its label,”56 the factual allegations in the Charge represent that Plaintiff was harassed

by Pamela “Pluckett” (Plunkett) who cursed and talked down to Plaintiff.57 The Charge

also reads that, after reporting the harassing behavior to “Pluckett’s” supervisor, Brandon

Abadie (“Abadie”), the harassment progressed, and Plaintiff was “disciplined [] several

times for no reason including an unpaid suspension. Ultimately, I was discharged

although the company claims I resigned.”58 The Plaintiff states that she was given

unfavorable references although she always received good performance evaluations, and

53 Id.

54 Rec. Doc. No. 1-1, ¶ 11.

55 Rec. Doc. No. 3, ¶ 11.

56 Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006).

57 Rec. Doc. No 12-1, p. 21.

58 Id.

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“[n]o reason was given for the action taken against me.”59 Plaintiff’s Charge concludes by

stating: “I have been discriminated against because of my race (Black), and because of

my sex (Female), and retaliated against in violation of Title VII of the Civil Rights Act of

1964, as amended.”60

Plaintiff’s Charge pertains to alleged harassment at the hands of Plunkett and

alleged subsequent retaliation for reporting same. In contrast, the allegations of Plaintiff’s

petition substantially refer to actions taken by Brown and seldom mention Plunkett.61

While this fact is notable, it is not determinative. Plaintiff can bring an action in federal

court under Title VII that relates to the initial charge or any type of discrimination “like or

related to the charge’s allegations, limited only by the scope of the EEOC investigation

that could reasonably be expected to grow out of the initial charges of discrimination.”62

As such, if the matters contained in Plaintiff’s EEOC investigation documents are

reasonably likely to grow out of the allegations contained in the EEOC charge, then

Plaintiff will have exhausted her administrative remedies and her suit can proceed in

federal court.63

Plaintiff’s Charge states: “After reporting Ms. Plucketts [sic] behavior, the

harassment progressed, and she disciplined me several times for no reason including an

unpaid suspension … I have been discriminated against because of my race (Black), and

because of my sex (“Female”), and retaliated against in violation” of the law.64 The petition

59 Id.

60 Id.

61 Rec. Doc. No. 1-1, passim.

62 Fine v. GAF Chem. Corp., 995 F.2d 576, 578 (quoting Fellows v. Universal Restaurants, Inc., 701 F.2d

447, 451 (5th Cir. 1983)); see also Harris v. Honda, 213 Fed. App’x 258, 261 (5th Cir. 2006) (citing Elgaghil

v. Tarrant Cty. Junior Coll., 45 S.W.3d 133, 141 (Tex. App. 2000)).

63 Id.

64 Rec. Doc. No. 12-1, p. 21.

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states that Brown “began retaliating against her for complaints and opposition to the

sexual harassment. Defendant threatened Petitioner’s job, issued her false reprimands,

removed job duties, made false accusations of poor performance, transferred her to the

Airline Highway office, an undesirable duty, suspended her, and ultimately, terminated

her because of her protected activity.65

In the Court’s view, there are two questions to answer to resolve this motion. First,

can the Court look to documents relating to the EEOC’s investigation of the Charge under

Rule 12(c)? Second, if so, do these documents demonstrate that the allegations in the

petition were investigated such that Defendant was on notice of the allegations, and this

claim was fully exhausted?

1. Consideration of EEOC Investigation Documents

In Brooks v. Firestone Polymers, LLC,66 the court set forth the appropriate standard

to apply to the first question:

Civil complaints filed under Title VII may only encompass discrimination

“‘like or related to allegation[s] contained in the [EEOC] charge and growing

out of such allegations during the pendency of the case before the

Commission.’” McClain, 519 F.3d at 273 (quoting Sanchez, 431 F.2d at

466); Nat'l Ass'n of Gov't Emps. v. City Pub. Serv. Bd., 40 F.3d 698, 711

(5th Cir.1994); see Dollis, 77 F.3d at 781. Accordingly, the scope of the

complaint is limited to “‘the discrimination stated in the charge itself or

developed in the course of a reasonable [EEOC] investigation of that

charge.’” Nat'l Ass'n of Gov't Emps., 40 F.3d at 712 (quoting King v.

Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir.1976)); see

Pacheco, 448 F.3d at 789–90; Thomas v. Tex. Dep't of Crim. Justice, 220

F.3d 389, 395 (5th Cir. 2000). As the Fifth Circuit has stated, although “the

actual scope of an EEOC investigation does not determine whether a claim

is exhausted, we are also mindful that investigation of a particular claim

creates a strong inference that such a claim was presented.” Clark v. Kraft

Foods, Inc., 18 F.3d 1278, 1280 (5th Cir.1994).

65 Rec. Doc. No. 1-1, ¶ 7.

66 70 F. Supp. 3d 816, 841-42 (E.D. Tex. 2014)(emphasis added).

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Several other courts have addressed this issue. In Cargo v. Kansas City Southern,

the district court for the Western District of Louisiana addressed the issue of exhaustion

under various employment statutes where the plaintiff’s EEOC charge did not include

certain allegations in her complaint.67 The plaintiff argued that the court should consider

not only the substance of her initial charge but also to a letter she wrote to the EEOC

investigator, the Charge Questionnaire she filled out before submitting her Charge, and

the EEOC submission of her co-plaintiffs.68

Relying on the Fifth Circuit’s holding in Pacheco, the Cargo court stated: “At issue

in this case is the scope of the exhaustion requirement, which ‘has been defined in light

of two competing Title VII policies that it furthers.’”69 As the Fifth Circuit has explained:

On the one hand, because the provisions of Title VII were not designed for

the sophisticated, and because most complaints are initiated pro se, the

scope of an EEOC complaint should be construed liberally. On the other

hand, 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....

[A]llowing a federal court complaint to proceed despite its loose ‘fit’ with the

administrative charge and investigation is precluded if it would circumvent

agency efforts to secure voluntary compliance before a civil action is

instituted.70

In evaluating the plaintiff’s charge, the court noted that “[a] discriminatory act

alleged in a lawsuit but not included in an EEOC charge is not ‘like or related to’ acts that

are alleged in an EEOC charge simply because both are based on the same type of

67 2009 WL 3010835 (W.D. La. Sep. 16, 2009).

68 Id. at *3.

69 Id. at *2 (quoting Pacheco, 448 F.3d at 788-89).

70 Id. (quoting Pacheco, 448 F.3d at 788-89)(internal citations and quotation marks omitted).

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discrimination.”71 “For a particular ‘alleged discriminatory act to fall within the scope of an

EEOC charge, there must be some factual relationship between the act and the acts

described in the charge, beyond the fact that both involve the same employer and the

same general type of discrimination.’”72 The Cargo court also noted:

Recently, in Fed. Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct.

1147, 1158, 170 L.Ed.2d 10 (2008), the Supreme Court held that a

document filed with the EEOC constitutes a “charge” for the purposes of the

Age Discrimination in Employment Act (“ADEA”) when “it [can] 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.” Fed. Express Corp. v. Holowecki, 552 U.S.

389, 128 S.Ct. 1147, 1158, 170 L.Ed.2d 10 (2008). Other federal district

courts have extended Holowecki to claims filed pursuant to Title VII rather

than the ADEA. See Beckham v. Nat'l R.R. Passenger Corp., 590

F.Supp.2d 82, 86 (D.D.C.2008) (holding that “because of the similarities

between the statutory scheme of the ADEA and Title VII concerning

exhaustion of administrative remedies,” Holowecki's holding concerning the

interpretation of “charge” should be applied in the Title VII context); see also

Grice v. Balt. County, Civ. No. 07-1701, 2008 WL4849322, at *4 n. 3 (D.Md.

Nov. 5, 2008), and cases cited therein.73

Applying this jurisprudence to the facts in Cargo, the court concluded that it could consider

the plaintiff’s letter to the EEOC investigator:

The first sentence of Cloud's letter states: “I would like to add to my previous

claim some important information that I hope you find helpful in your

investigation. I would like to add discrimination based on hostile work

environment and age.” [Doc. 240, Ex. B7]. It is clear that Cloud sought, by

writing the letter to Ms. Thompson, to amend the Charge of Discrimination

she previously filed with the EEOC to include additional claims of

discrimination. Because the letter presumably was filed after and in an

apparent effort to amend the Charge of Discrimination, this Court will

construe it as a request for the EEOC to take remedial action.74

71 Id. (quoting Turner v. St. Luke's Episcopal Health Sys., 2008 WL 706709 at *8 (S.D.Tex. Mar.14, 2008)).

72 Id. (quoting Turner, at *8).

73 Id.

74 Id. at *3.

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In Trina Bowie v. Darnley R. Hodge, Sr., et al.,75 the district court for the Eastern

District of Louisiana addressed a case very similar to the present case with respect to the

issue of exhaustion. There, the plaintiff’s EEOC charge had checked boxes for

discrimination based on race, sex, retaliation, and age; however, the defendants argued

that the allegations in the plaintiff’s complaint went far beyond those in the charge.76

Much like the Defendant’s argument in this matter that Plaintiff’s Charge does not mention

her petition allegations regarding Brown, the defendant in Bowie claimed that the

plaintiff’s EEOC charge did not mention a certain employee or any allegations related to

his alleged harassment of her.77

The plaintiff urged the court not to consider her EEOC charge because she did not

attach it to her complaint; however, the plaintiff also argued that, if the court considered

her charge, it should also consider the position statement to the EEOC along with the

position paper filed by Defendants. The plaintiff claimed that “the EEOC intake

investigator did not complete typing her entire narrative in the ‘particulars’ section of her

EEOC charge,” and that the exhaustion requirement must be construed liberally.78

The Bowie court held as follows:

On the record before it, the court cannot determine whether Bowie

exhausted her administrative remedies on all the claims made in her

Complaint. As the defendants point out, the Complaint contains numerous

allegations that are not raised in the EEOC charge. At least some of these

new allegations seem to extend beyond the scope of the particulars alleged

in the EEOC charge. But, the narrative statement in the EEOC charge cuts

off, suggesting that additional information may have been inadvertently

excluded by the EEOC staff member drafting the form. There might be a

contemporaneously created EEOC intake questionnaire that reflects the

details that were left out of the narrative statement. But the court has not

75 2021 WL 53312 (E.D. La. Jan. 6, 2021).

76 Id. at *4-*5.

77 Id. at *5.

78 Id.

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been presented with a copy. Bowie asserts that she filed a position

statement that fully described her claims. But she has not presented that

statement to the court.1 Nor does the court have the defendants’ position

statement, which could also reflect what claims were raised by the EEOC

charge and any resulting investigation.79

Accordingly, the court stated it was “not now prepared to conclude that the new

allegations could not have grown out of an EEOC investigation,” and the court noted that

the defendants could re-urge the argument if additional documentation submitted

supported their position.80 Thus, the court would consider documents relating to the

EEOC investigation of the plaintiff’s initial charge to determine whether she had

exhausted the claims raised in her complaint.

In Herster v. Board of Supervisors of Louisiana State University,81 another section

of this Court addressed the proper scope of an EEOC charge for purposes of determining

whether claims in the complaint had been exhausted. In Herster, the defendant

challenged certain allegations during certain dates as being beyond the scope of the

charge and not actionable.82 Rejecting the defendant’s argument, the Court held:

LSU's argument that Herster should be denied the liberal construction fails.

Given the wording of Herster's claim, which states that she was denied

promotion in favor if a man and alleges that complaints to the Human

Resources Department produced no results, it is reasonably foreseeable

that the investigation would explore events prior to the promotion; this

would be necessary to evaluate the validity of her claim regarding the basis

for LSU's choice in promoting Ostrenko over her.83

79 Id.

80 Id.

81 72 F.Supp.3d 627 (M.D. La. 2014).

82 Id. at 642-43.

83 Id. at 643 (emphasis added).

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In Hayes v. MBNA Technology, Inc. a plaintiff’s EEOC Charge stated that she was

“denied a promotion.”84 As a result, the EEOC could reasonably be expected to

investigate why she did not get a higher position,” but when the plaintiff attempted to

assert a demotion-based claim “it was not reasonably expected for the EEOC to

investigate “why she lost the job she held.”85

Based on the above, the Court finds that it can consider documents submitted to

the EEOC in investigating Plaintiff’s Charge on this Rule 12(c) motion without converting

the motion to a Rule 56 summary judgment. Defendant acknowledges as much.86 The

Court now considers whether Plaintiff’s allegations against Brown were investigated by

the EEOC such that Defendant was on notice of these allegations and the claim was fully

exhausted.

2. Were the Brown Allegations Exhausted?

Plaintiff relies heavily on the documents submitted with her Opposition, namely the

position statement submitted by Defendant and her rebuttal statement submitted to the

EEOC. Based on the foregoing jurisprudence, the Court will not consider any evidence

submitted that was not clearly part of the EEOC investigation file. In determining whether

Plaintiff exhausted her retaliation claims against Brown, the Court will look at these two

documents and their contents relating to Brown.

Defendant’s position paper includes the following statements related to Brown:

“Chief Deputy Greg brown decided to transfer Ms. Bracken to the Mortgage Department

84 Hayes v. MBNA Technology, Inc., No. Civ.A.3:03-CV-1766-D, 2004 WL 1283965 (N.D. Tex. June 9,

2004).

85 Id. at 6.

86 Rec. Doc. No. 16, p. 6.

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located at the Clerk’s Airline Highway Branch Office.”87 “After she returned to work from

the suspension … Chief Deputy Greg Brown … met with Ms. Bracken. The purpose of

this meeting was to provide Ms. Bracken with a final written warning letter and to discuss

the changes that needed to take place going forward ... .”88 During this meeting, “Ms.

Bracken became immediately ‘defensive,’ ‘hostile,’ ‘argumentative,’ ‘aggressive,’ and

loud and … became ‘combative,’ yelling and accusing Mr. Brown of harassment.”89

These are the sole mentions of Brown in Defendant’s position statement submitted to the

EEOC.

Plaintiff was asked by the EEOC to submit a rebuttal to Defendant’s position paper.

On page one of this rebuttal, Plaintiff notes:

I want to explain to you when I visited your agency for the first time (on

March 12th), Mr. Morgan, the intake investigator, stated “I could address all

of the issues that affected me at the Clerk of Court’s office: however, he

could only address employment related issues within a 300 day time frame,

but I had the opportunity to address any and all issues with my assigned

investigator (i.e., Sexual Harassment by Mr. Gregory Brown, the

Suspension from Mr. Brandon Abadie due to retaliation from the supervisor,

Pamela Pluckett, and the discrimination concerning wages … .”90

Plaintiff later notes: “Mr. Brown continue[d] to tell me ‘you are going to do what I say do

and all I can think about Mr. Brown in his office tell me about how he watched me out of

the window.’”91 “I am a strong black woman because, I walked away from Mr. Brown

advancements … This man sexually harassed single black women who he felt needed

money and/or their jobs.”92 During a November 2018 phone call with Shirley Dupre,

87 Rec. Doc. No. 12-1, p. 26.

88 Id. at p. 28.

89 Id.

90 Id. at p. 67.

91 Id. at p. 74.

92 Id. at p. 75.

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Plaintiff states: “Mr. Brown came to the Airline office and asked Pam Pluckett, ‘what took

you so long to get rid of Barbara.’ I mentioned I am a strong back woman to Mr. Brown,

because Mr. Brown approached me inappropriately in a sexual harassment matter. I

refused to accept his advancements. The Chief (Mr. Brown) … came to attack me for his

personal revenge.”93

Regarding Defendant’s position paper, Plaintiff stated: “Please note that [Defense

Counsel] has completely ignored the above-referenced charge, and has completely

omitted the sexual harassment perpetrator, Mr. Gregory Brown, the Chef (sic).”94 Plaintiff

summarized her claims against Brown:

Mr. Brown has engaged in inappropriate sexual advances toward me during

my employment with Agency, as I have explained in this correspondence,

starting in late 2013. Due to my unwillingness to succumb to his sexual

overtures, he retaliated against me by engaging in false accusations with

the cooperation of Ms. Karen (Lands) and Ms. Pamela (Pluckett). These

two employees were able to meet directly with him to smear my name and

reputation at work. Please note that after my termination, some co-workers

and former co-workers have contacted me to share their stories about Mr.

Brown approaching them with inappropriately sexual behavior. These

anecdotes have a similar pattern of Mr. Brown’s modus operandi, which is

to learn about the employee’s personal issues or problems, and then use

this information to call the victim into his office and officer applicable

assistance for sexual gain.95

…

In conclusion, please note that Mrs. Wells never provided me with any

written or verbal response or communication relative to the many e-mails

and letters concerning my mistreatment, sexual harassment claims, and

employment retaliation at the Clerk of Court … Throughout this ordeal, Mrs.

Wells did not show any empathy for me being harassed on the job.96

93 Id. at p. 76.

94 Id. at p. 78.

95 Id. at p. 79.

96 Id. at p. 80.

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Plaintiff further states that she was “approached wrongfully” by Brown, and he

would use others to “falsely accuse [her] of rude behavior.”97 “The meetings orchestrated

by Mr. Brown were very stressful to me and to my health.”98 Plaintiff states that Brown

tried to pressure her to resign, but she did not.99 Plaintiff recounts one incident when

Brown allegedly made a pass at Plaintiff and she responded with “hash tag, Me Too,” to

which Brown allegedly responded: “I’ve known you a long time” (and he stood up) and

raised his voice by saying, “Nobody is Going to Believe You” (and uttered something I

cannot recall) about lawyers.100

Defendant acknowledges that, “to the extent the documents attached by Ms.

Bracken are contained in the EEOC Charge file (i.e., Defendant’s Statement of Position

to the EEOC and Bracken’s rebuttal), they are public records, are authentic and

unopposed, subject to judicial notice and, thus, can be considered by the court” in this

Rule 12(c) without converting it to a motion for summary judgment.101 However,

Defendant claims that the documents Plaintiff wants the Court to consider are not signed

under oath or otherwise verified; thus, they do not meet the definition of a Charge of

Discrimination and do not demonstrate exhaustion under Fifth Circuit law. Additionally,

Defendant contends there is no evidence to suggest that the EEOC treated Plaintiff’s

rebuttal as a charge or investigated all the claims asserted therein, and Defendant claims

this rebuttal was never served upon Defendant by the EEOC. Defendant’s position

97 Id. at p. 81.

98 Id.

99 Id.

100 Id. (internal punctuation modified).

101 Rec. Doc. No. 16, p. 6.

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statement addressed only those claims that appear in the Charge and not anything

relating to sexual harassment or retaliation at the hands of Brown.

Defendant cites to Reyes v. Tidewater Inc., an ADA case where the court was

faced with deciding whether the plaintiff’s letter to the EEOC legally constituted a

“charge.”102 The court noted the standard to apply in making this determination:

For plaintiff's letter to be deemed a charge, it must (1) comply with EEOC

regulations and (2) “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.” Fed. Express Corp. v.

Holowecki, 552 U.S. 389, 402 (2008). The filer's state of mind when drafting

the document is not the determinative question; rather, the court must

examine the document “from the standpoint of an objective observer to

determine whether, by a reasonable construction of its terms, the filer

requests the agency to activate its machinery and remedial processes.” Id.

The Holowecki decision permits “a wide range of documents” to be

classified as charges. Id. The standard is consistent with the statutory

purpose of the ADA and ADEA, which “set[ ] up a ‘remedial scheme in which

laypersons, rather than lawyers, are expected to initiate the process[es].’ ”

Id. at 402-03 (quoting EEOC v. Commercial Prods. Co., 486 U.S. 107, 124

(1988)). A charge can thus be “a form, easy to complete, or an informal

document, easy to draft.” Id. at 403.103

The court then evaluated the plaintiff’s letter and found that, “Plaintiff’s letter does not

contain a sworn verification, and thus does not comply with the EEOC regulations and

cannot constitute a charge . . . .”104

However, in Herster discussed above, another section of this Court set forth the

standard for this determination under Title VII:

An EEOC charge must be “in writing under oath or affirmation.” 42 U.S.C. §

2000e–5. This requirement shields “employers from the disruption and

expense of responding to a claim unless a complainant is serious enough

... to support it by oath subject to liability for perjury.” Edelman v. Lynchburg

College, 535 U.S. 106, 113, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002). LSU

claims that because Herster's “supplemental EEOC charge” was a letter to

102 2018 WL 4739671 (E.D. La. Oct. 2, 2018).

103 Id. at *3.

104 Id.

Document Number: 64827  21

an EEOC employee that was not verified, it cannot be considered an EEOC

charge. (Doc. 61–1 at 5). Therefore, the allegations within it should not be

actionable because Herster failed to exhaust her administrative remedies

concerning these claims; LSU also points out that they did not get notice of

this letter until the discovery stage of this lawsuit. Id. at 5–6. Herster sticks

with the liberal construction argument. (Doc. 77 at 32–33). Though her

charge only covers events before it was filed, it is reasonable to expect that

similar events occurring after the charge would be subject to potential

litigation, including the non-renewal of her contract—the alleged retaliatory

action. Therefore, summary judgment seeking dismissal of claims based on

events after Herster filed her initial charge should be denied.105

Thus, the Herster court still considered the plaintiff’s letter to the EEOC investigator

despite it not being sworn or verified.

The Court has considered the above arguments and jurisprudence and has

considered a plethora of additional case law on this issue. The Court, construing all

allegations in the light most favorable to Plaintiff, shall deny Defendant’s motion, as it

appears Plaintiff did provide these allegations to the EEOC. It is not clear whether the

EEOC actually investigated Plaintiff’s claims against Brown from these documents.

Should Defendant have summary judgment evidence to demonstrate that these claims

were not exhausted, it may so move.

105 Herster, 72 F.Supp.3d 627, 643-44.

Document Number: 64827  22

III. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings

Pursuant to Rule 12(c)106 is DENIED.

IT IS SO ORDERED.

Baton Rouge, Louisiana, this 25th day of January, 2021.

S

________________________________

SHELLY D. DICK

CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

106 Rec. Doc. No. 10.

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