Opposition Brief — Park v. Howard University

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No. 95-1832 ct

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

SOON Y. PARK.

Petitioner,

v.

HOWARD UNIVERSITY,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

DAVID G. LEITCH*

AMY FOLSOM KETT

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W

Washington, D.C. 20004-1109

(202) 637-5822

* Counsel of Record Counsel for Respondent

QUESTION PRESENTED

Whether this Court should exercise its certiorari

jurisdiction to review the application of settled law

concerning exhaustion of administrative remedies to

bar a Title VII hostile work environment claim when

the employee’s EEOC charge did not allege a hostile

environment but challenged only a single decision by

her employer not to appoint her to a position she

desired.

(i)

3

RULE 29.6 STATEMENT

Respondent Howard University has no parent

companies and no nonwholly owned subsidiaries.

Se

TABLE OF CONTENTS

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REASONS FOR DENYING THE WRIT....................00004.

I. THE COURT OF APPEALS DID NOT

ADOPT A “NEW RULE” ~~ FOR

EXHAUSTION, BUT RATHER APPLIED

THE SETTLED RULE TO THE FACTS OF

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TABLE OF AUTHORITIES

Page

Cases

Alexander v. Gardner-Denver Co., 415 U.S 36

ERO Sricicncdscctensdsihnesintnciainnainiaindiaaaiiaimniindian 6

Allen v. Denver Pub. Sch. Bd., 928 F.2d 978 (10th

Sioa: NP a cs-ceeentinnselpesalinssiophintonisteskabaionaanaueaibuobeasoiaons 10

Babrocky v. Jewel Food Co. & Retail Meatcutters

Union, Local 320, 773 F.2d 857 (7th Cir.

Set iciccistschavansbitestcaacionneusibubanetcaibainiaymaauianidegictes 9

Baltzer v. City of Sun Prairie/Police Dep't, 725

F. Supp. 1008 (W.D. Wis. 1989)... 12

Bartha v. Service Sys. Corp., 44 Fair Empl. Prac.

Cas. (BNA) 1765 (W.D.N.Y. 1987)..............000. 1] |

Berman v. Washington Times Corp., 129 Lab. Cas.

i ee a Fr ieseniantsraceprincaniianeiasn 1]

Buffington v. General Time Corp., 677 F. Supp.

Se ey HII heiidiiuiccheniccisianisiicmatanetannias 13

Cabiness v. YKK (USA), Inc., 859 F. Supp. 582

rs Se cclseiiesnasedrreitinlanberiicacstiopetwenseahiintions 11

Cheek v. Western & Southern Life Ins., Co., 31 F.3d

FF CF is ee eivcaitinnicireiicntaninicimnudesinibieviaads 7,10

Chisolm v. United States Postal Serv., 665 F.2d 482

Se a ete iiacicsiniscieasavhcmnessubslbedthaansdiitebabaadibepeibbaiils 6,7

Clemmer v. Enron Corp., 882 F. Supp. 606 (S.D.

UL, Rie iieiiatsnctinisceseseinnseabecniiennsntenneabiienien 13

Danner v. Phillips Petroleum Co., 447 F.2d 136

CO Gees BF Diciianceenttiisecsaienepticobinijantenioinaebinians 7

Early v. Bankers Life & Cas. Co., 959 F.2d 75 (7th

aie PE bnicidiscacesennneiedebpesanteuabaneiimmnumicaisaiash 13 |

Ghahramani v. BASF Corp., 755 F. Supp. 708 |

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Harris v. Forklift Systems, Inc., 510 U.S. 17

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Hodges v. Northwest Airlines, Inc., 990 F.2d 1030

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Vv

TABLE OF AUTHORITIES -- Continued

Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538

F.2d 164 (7th Cir.) (in banc), cert. denied, 429

Si I CP ei idencseclateysictactehseisidiestniaebituiortshctnineusiouns

Laffey v. Northwest Airlines, Inc., 567 F.2d 429

(D.C. Cir. 1976), cert. denied, 434 U.S. 1086

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CRIT svisehessenninieraccssctinsancouanninnilicnconibbesdbactinadiaidobines

Miller v. International Tel. & Tel. Corp., 755 F.2d

20 (2d Cir.), cert. denied, 474 U.S. 851 (1985)...

Nicol v. Imagematrix, Inc., 767 F. Supp. 744 (E.D.

Wels. NENT ii devbiossasnnecascslgcusnednidbcannieciammltaibitaswdei

Ostapowicz v. Johnson Bronze Co., 541 F.2d 394

(3d Cir. 1976), cert. denied, 429 U.S. 1041

Lg : SRR ARCS EMO EE OF Soe CHOCO

Pritchett v. General Motors Corp., 650 F. Supp. 758

Ss Sn: AEE Deititlcalsebiesisianintsieances arenes ices,

Prizevoits v. Indiana Bell Tel. Co., 882 F. Supp. 787

SA Re: Bee eistasaiiainahinascecitishunieescsntinaisontcteeas

Reese v. Goodyear Tire & Rubber Co., 859 F. Supp.

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Revis v. Slocomb Indus., Inc., 814 F. Supp. 1209 (D.

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Riley v. Technical & Management Servs. Corp., 872

B.D. BISG OD. BE, TOTS) oven esicscanecosascennesinsesi

Rush v. McDonald’s Corp., 966 F.2d 1104 (7th Cir.

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

Riera: See OUinitih dinnseadiakanciecseonaondioniaaiiieds adeiaiivlans

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502

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Tart v. Hill Behan Lumber Co., 31 F.3d 668 (8th

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TABLE OF AUTHORITIES -- Continued

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IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1995

No. 95-1832

SOON Y. PARK,

Petitioner,

V.

HOWARD UNIVERSITY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

Respondent Howard University respectfully

requests that this Court deny the Petition for a Writ of

Certiorari seeking review of the decision of the United

States Court of Appeals for the District of Columbia

Circuit.

COUNTERSTATEMENT

As originally framed, this case presented one

issue: whether Howard University (“the University”)

discriminated against Soon Y. Park (“Park”), a tenured

professor at the University, on the basis of her sex and

national origin in violation of Title VII, 42 U.S.C.

§§ 2000e to 2000e-17, by not selecting her to be

Assistant Dean ‘or Student Affairs at the University’s

2

College of Pharmacy and Pharmacal Sciences (“the

College of Pharmacy”). Although the district court,

after a bench trial, rejected Park’s claim, it entered

judgment for her on a different theory that Park had

neither presented in the charge she filed with the Equal

Employment Opportunity Commission (“EEOC”) nor

pleaded in her original or amended complaint. The court

of appeals properly determined that petitioner had failed

to exhaust her administrative remedies and reversed the

judgment.

Soon Y. Park, a Korean-American, is a tenured

Associate Professor in the Department of Pharmacy

Practice in the University’s College of Pharmacy. She

joined the faculty as an Assistant Professor in 1981, Pet.

App. A18, and in 1987 she received tenure and was

promoted to the rank of Associate Professor. Jd. at A23.

This dispute arose in 1992 when the Dean of the College

selected Bertram Nicholas (a white American) to

become Assistant Dean for Student Affairs in the

College of Pharmacy, a position in which Park had

expressed an interest. 1 Jd. at A25.

Nicholas, as the district court ruled, was more

qualified for the position than Park and was selected for

the position because of these qualifications. Jd. at A29-

A30. Unlike Park, he held a doctorate in higher

education administration. He also had prior experience

as an Assistant Dean for Student Affairs at the

Massachusetts College of Pharmacy, where he served

7 years as Chairman of the Department of Pharmacy.

Id. at A25.

1 Under the College’s Articles of Organization, assistant deans

are appointed annually at the Dean’s discretion after an informal

selection process. Pet. App. A25; Trial Transcript 587. The

positions are not full-time, but are assumed by full-time faculty

members in addition to their other responsibilities for a small

stipend. Thus, assistant dean assignments are restricted to current

faculty members.

3

On September 23, 1992, Park filed a charge of

discrimination with both the District of Columbia

Department of Human Rights and Minority Business

Development (“D.C. Department of Human Rights”) and

the EEOC alleging that the University discriminated

against her on the basis of her sex and national origin in

the selection of Nicholas as Assistant Dean for Student

Affairs. Jd. at A70-A73. Park alleged that the

University, “on or about March 25, 1992 [the date she

learned of Nicholas’ selection] and continuing

* * * subject[ed] me to differential treatment in terms

and conditions of employment[] because of my sex

(female) and national origin (Korean).” Jd. at A70. The

charge also stated generally that Park was “denied the

opportunity for advancement in my career.” Jd. at A72.

All of the particulars of her claim listed on the ~

administrative charge related to the process by which

Nicholas was selected to fill the assistant dean position.

Id. at A71-A72.

On November 25, 1992, after the EEOC issued a

Notice of Right to Sue, id. at A28-A29, Park filed her

complaint in this case. D.C. Circuit Joint Appendix

(“J.A.”) 9. Like the administrative charge, the complaint

alleged discrimination based on sex and national origin

in the selection of Nicholas for the assistant deanship.

Id. at 10-11. On December 11, 1992, Park filed an

amended complaint, id. at 13, in which she further

alleged an “atmosphere of sexual harassment” at che

University. Jd. at 15.

The district court granted the University’s motion

for partial summary judgment on Park’s allegations of

sexual harassment “on the grounds that the amended

complaint contains no discrete claim of sexual

harassment.” Pet. App. Al4. Following a four-day

bench trial, the district judge to whom the case had been

reassigned issued an opinion deciding liability issues.

Id. at A1l6. He construed Park’s amended complaint to

allege three claims: (1) sexual harassment; (2)

4

discrimination on the basis of sex and national origin in

the nonselection of Park as Assistant Dean for Student

Affairs; and (3) “[a]n on-going pattern of discrimination

against [Park] based on her sex and national origin

which created a hostile work environment.” Jd. at A17

(emphasis in original). It was only at this time -- after

trial -- that the University learned of the court’s view

that this case involved a national-origin hostile work

environment claim. Even though Park’s EEOC charge

challenged only her nonselection as assistant dean, the

court held, without any explanation or analysis, that

Park had exhausted her administrative remedies with

respect to all three of the claims that it believed were

stated in her amended complaint. Jd. at A28-A29.

The court ruled against Park on two of the three

claims. The sexual harassment claim, it held, failed

because it had already been dismissed. Jd. at A29. The

court also ruled against Park on her claim that the

selection of Nicholas to be Assistant Dean for Student

Affairs was discriminatory. It concluded that the

University “had a legitimate and nondiscriminatory

reason” for the decision: “Dr. Nicholas was better

qualified than [Park] in terms of education and

experience for the assistant deanship.” Jd. at A30. Park

did not carry her ultimate burden of persuading the court

that the University’s “proffered reason was not the true

reason for the employment decision and that she was

intentionally discriminated against.” Jd. (citing St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993)).

With respect to the purported hostile work

environment claim, the court did not find the existence

of a hostile environment based on Park’s sex. It did

rule, however, that Park was subjected to national origin

harassment at the University that created a hostile work

environment, and awarded damages. 2

2 In making a damages determination, the district court expressly

considered conduct predating the November 21, 1991 effective date

of the 1991 Civil Rights Act, J.A. 45-49, notwithstanding this

Ce

5

The court of appeals reversed in an opinion by

Judge Sentelle, joied by Judge Wald and Judge

Silberman. The court held that Park had “failed to

exhaust her administrative remedies at the EEOC for the

hostile work environment claim.” Pet. App. A4. Citing

decisions from the Fourth and Seventh Circuits, and

adopting the very standard Park urged (Brief for

Appellee 22), the court of appeals noted that a Title VII

lawsuit is limited in scope to claims that are reasonably

related to, and would reasonably be expected to grow

out of, the plaintiffs EEOC charge. Jd. at A4-AS.

Park’s administrative charge, however, “did not express

or even hint at a national origin hostile work

environment claim,” id. at A5, and “lack[ed] any factual

allegations supporting such a claim.” Jd. at A7. It made

no reference to the various actions that the district court

found to constitute a hostile work environment. /d.

Rather, it focused exclusively on the specific decision

involving the assistant dean position, see id. at A5S-A7

(quoting EEOC charge) -- a decision the district court

found was “legitimate and nondiscriminatory.” Jd. at

A30. Accordingly, “[b]ecause Park’s EEOC charge

contained no claims or factual allegations that could

reasonably be expected upon investigation to lead to a

hostile work environment claim,” the court held that

“she failed to exhaust her administrative remedies for

such a claim at the EEOC,” and “[h]er civil claim for a

hostile work environment is therefore barred.” Jd. at

A8-A9. 3

Court’s holding in Landgraf v. USI Film Products, 114 S. Ct. 1483

(1994), that Title VII plaintiffs cannot recover compensatory

damages for conduct occurring before that date.

3 The University also argued on appeal that the district court

erred in holding the University liable for conduct occurring outside

the statutory limitations period, in determining that the conduct of

which Park complained constituted a hostile work environment, and

in awarding damages based to a significant extent on conduct that

occurred long before the effective date of the 1991 Civil Rights Act,

in violation of principles described by this Court in Landgraf.

6

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS DID NOT

ADOPT A “NEW RULE” OF EXHAUSTION,

BUT RATHER APPLIED THE SETTLED

RULE TO THE FACTS OF THIS CASE

An EEOC charge is a prerequisite to a lawsuit

under Title VII. 42 U.S.C. § 2000e-5(b), (e), 0;

Alexander v. Gardner-Denver Co., 415 US. 36,

(1974). 4 The purpose of this exhaustion Bhar Bhty i

to give the employer notice of the conduct about which

the employee is aggrieved and to afford the employer

and the EEOC an opportunity to resolve the dispute. Jd.

at 44; Laffey v. Northwest Airlines, Inc., 567 F.2d 429,

472 n.325 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086

(1978).

In determining whether a plaintiff has exhausted

her administrative remedies, lower courts have

uniformly held that a Title VII lawsuit is “limited by the

charge filed with the EEOC and the investigation which

can reasonably be expected to grow out of that charge.”

Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir.

1990) (internal quotation marks omitted). 5 Thus, the

universal rule is that Title VII claims are cognizable ‘only

if they are “‘like or reasonably related to the allegations

Because of its disposition of the case, the court of appeals did not

consider these arguments, Pet. App. A9, which provide separate

grounds for sustaining the court of appeals’ judgment and therefore

further counsel against granting review in this case.

4 Title VII and the District of Columbia Human Rights Act

require charges filed with, respectively, the EEOC and the D.C.

Department of Human Rights to be served on the charged party.

See 42 U.S.C. § 2000e-5(b); D.C. Code § 1-2545(a).

5 Accord, e.g., Miller v. International Tel. & Tel. Corp., 755

F.2d 20, 23-24 (2d Cir.), cert. denied, 474 U.S. 851 (1985);

Chisolm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir.

1981); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-399

(3d Cir. 1976), cert. denied, 429 U.S. 1041 (1977). See Pet. 9

(citing cases).

7

of the [administrative] charge and grow[] out of such

allegations.”” Jenkins v. Blue Cross Mut. Hosp. Ins.,

Inc., 538 F.2d 164, 167 (7th Cir.) (in banc) (quoting

Danner v. Phillips Petroleum Co., 447 F.2d 159, 162

(Sth Cir. 1971)), cert. denied, 429 U.S. 986 (1976).

Petitioner in fact recognizes that the courts have been

unanimous in applying these standards to exhaustion

issues. Pet. 9-11. See also Brief for Appellee 22 (“We

agree with appellant that the scope of a title VII lawsuit

is ‘limited by the charge filed with the EEOC and the

investigation which can reasonably be expected to grow

out of that charge””) (quoting Brief for Appellant 17).

These settled standards for determining the scope

of the administrative charge for exhaustion purposes are

precisely the standards applied by the court of appeals

below. Quoting the Seventh Circuit’s decision in Cheek

v. Western & Southern Life Ins. Co., 31 F.3d 497, 500

(7th Cir. 1994), the D.C. Circuit held that “[a] Title VII

lawsuit following the EEOC charge is limited in scope to

claims that are ‘like or reasonably related to the

allegations of the charge and growing out of such

allegations.”” Pet. App. A4-A5. Quoting the Fourth

Circuit’s decision in Chisolm, the court of appeals held

that “[a]t a minimum, the Title VII claims must arise

from ‘the administrative investigation that can

reasonably be expected to follow the charge of

discrimination.”” Pet. App. AS.

Applying these settled standards to the facts of

this case, the court of appeals determined that Park had

not exhausted her administrative remedies as to the

claim of hostile work environment on which she had

prevailed in the district court. As we explain more fully

in Part Il, the decision was plainly correct. More

importantly for present purposes, it represents no more

than the application of settled law to the facts of this

case, as petitioner herself recognized below. See Brief

for Appellee 22 (“What can ‘reasonably be expected’ [to

grow out of the EEOC charge] necessarily turns on the

8

facts of the particular case”). The decision below

therefore provides no occasion for the exercise of this

Court’s certiorari jurisdiction.

Petitioner charges that the court of appeals

adopted a “new rule negating the well-founded rule

heretofore followed in all circuits.” Pet. 8. Not so.

Certainly nothing on the face of the court’s opinion

supports the claim that the D.C. Circuit has suddenly

departed from well-settled standards applicable to the

exhaustion requirement. Petitioner recognizes as much

when she observes that this “new rule” was “neither

fully articulated nor rationalized by the Court below.”

Id. The reason for this “failure” is plain: the court of

appeals -- relying expressly on the standards Park urged

-- simply applied settled law to the facts of this case and

therefore had no need to articulate or rationalize a “new

rule.”

Petitioner claims that “[o]ther courts of appeal

reviewing district court determinations of exhaustion

have been clear that the claim in district court need not

have been pled, or evidence supporting it have been set

out, in the preceding EEOC charge.” Pet. 13. We agree.

What these courts require, like the court below, is only

that the claim must be set out in the EEOC charge or

could reasonably be expected to grow out of the charge.

See, e.g., Powers, 915 F.2d at 38. The court of appeals

did not require that the claim appear on the face of the

administrative charge, but rather applied the more

expansive inquiry to petitioner’s claim. Pet. App. A4-

AS, A8-A9. Petitioner’s claim simply failed that test.

Petitioner’s real complaint, therefore, is with the

result of the court’s application of undisputed principles

of law. That factbound complaint, however, provides no

“compelling” issue requiring this Court’s review. S. Ct.

Rule 10. In any event, as explained more fully below,

the court of appeals was correct in its determination that

petitioner had failed to preserve a national origin hostile

work environment claim.

Ii. THE DECISION BELOW WAS CORRECT

“The requirement of some specificity in a charge

is not a ‘mere technicality.” Rush v. McDonald’s

Corp., 966 F.2d 1104, 1111 (7th Cir. 1992). That is

because allowing a lawsuit “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.” Babrocky v. Jewel Food Co. &

Retail Meatcutters Union, Local 320, 773 F.2d 857, 863

(7th Cir. 1985).

In construing a _ charge, “the crucial

element * * * is the factual statement contained therein.

Everything else entered on the form is, in essence, a

mere amplification of the factual allegations.” Sanchez

v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir.

1970) (emphasis in original). The factual portion of

Park’s administrative charge described a single

personnel decision: the selection of Nicholas, instead of

her, to be Assistant Dean for Student Affairs. Even the

most charitable reading of Park’s narrative cannot

transform the charge into a hostile environment claim,

nor would the charge reasonably lead the agency to

investigate such a claim.

Nothing in the charge even remotely suggests a

workplace “permeated with discriminatory intimidation,

ridicule, and insult * * * sufficiently severe or pervasive

to alter the conditions” of Park’s employment. Harris v.

Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 370

(1993) (internal quotation marks omitted). As noted, the

charge focuses completely on the selection of Nicholas

rather than Park to fill the assistant dean position. While

Park now claims that an investigation of that charge

would have led the EEOC to discover a variety of

allegedly discriminatory acts, the acts of which she now

10

complains are far removed from the decision she

described in her complaint. A reasonable investigation

of that decision would plainly not have led the EEOC to

a wide-ranging probe of the University’s more than

decade-long relationship with Park. Rather, it would

have revealed, as the district court found, that the

University selected the most qualified person to serve as

assistant dean, and did not discriminate against Park in

doing so. That would have ended the matter.

Park’s contention (Pet. 12) that the EEOC would

have uncovered the unrelated, additional facts that the

district court later found to comprise a_ hostile

environment -- facts that included not only different

personnel actions widely spaced in time, but also

different decisionmakers, and different types of conduct

-- is sheer speculation, and was properly rejected on the

facts by the court of appeals. Permitting such hindsight

to control the scope of the administrative charge would

effectively negate the requirement of some relationship

between the administrative charge and the allegations

made in court and replace it with the assumption that

any administrative complaint about discrimination is

sufficient to exhaust all subsequent charges -- no matter

how unrelated to the initial charge. That is not the law.‘

As the court of appeals observed, Pet. App. A7-

A8, in similar cases where an employee’s administrative

charge challenged only a discrete employment decision,

courts have consistently dismissed subsequent lawsuits

alleging harassment or a hostile work environment as

6 See, e.g., Cheek v. Western & Southern Life Ins. Co., 31 F.3d

at 501 (Allegations raised in an administrative charge and in

litigation must be reasonably related; “This means that the EEOC

charge and the complaint must, at minimum, describe the same

conduct and implicate the same individuals”) (emphases in

original); Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 984 (10th

Cir. 1991) (administrative charge alleging 1986 disciplinary action

and 1988 discharge did not permit court challenge to 1979

nonpromotion).

|

1]

beyond the scope of the charge. See, e.g., Rush, 966

F.2d at 1110-12 (EEOC charge alleging discriminatory

discharge failed to preserve subsequent court claim of

racial harassment); Riley v. Technical & Management

Servs. Corp., 872 F. Supp. 1454, 1459 (D. Md. 1995)

(charge alleging discriminatory wages and discharge did

not permit later hostile work environment claim), aff'd,

79 F.3d 1141 (4th Cir. 1996) (Table); Berman v.

Washington Times Corp., 129 Lab. Cas. 957,835

(D.D.C. 1994) (charge alleging sex discrimination based

on inadequate work assignments, unfair performance

evaluations, suspension, and demeaning treatment in

front of complainant’s co-workers did not permit later

claim of sex harassment). 7

7 Accord, e.g., Tart v. Hill Behan Lumber Co., 31 F.3d 668,

672-673 (8th Cir. 1994) (charge alleging discriminatory discharge

insufficiently related to subsequent court claim of racial

harassment); Prizevoits v. Indiana Bell Tel. Co., 882 F. Supp. 787,

791-792 (S.D. Ind. 1995) (charge of discriminatory discharge

insufficiently related to subsequent claim of sexual harassment),

appeal dismissed, 76 F.3d 132 (7th Cir. 1996); Reese v. Goodyear

Tire & Rubber Co., 859 F. Supp. 1381, 1387 (D. Kan. 1994)

(charge alleging discriminatory discharge and retaliation did not

permit later claim of racial harassment); Cabiness v. YKK (USA),

Inc., 859 F. Supp. 582, 586-587 (M.D. Ga. 1994) (charge alleging

discriminatory discharge not reasonably related to later claim of

hostile environment); Revis v. Slocomb Indus., Inc., 814 F. Supp.

1209, 1219 (D. Del. 1993) (charge challenging disciplinary write-

ups and suspension did not permit later claim of racially hostile

work environment); Nicol v. Imagematrix, Inc., 767 F. Supp. 744,

752-755 (E.D. Va. 1991) (charge alleging termination on basis of

pregnancy did not permit later hostile work environment claim);

Ghahramani v. BASF Corp., 755 F. Supp. 708, 710-711 (M.D. La.

1991) (charge alleging discriminatory demotion, several denials of

promotion, and discharge did not permit subsequent claim of racial

harassment); Torriero v. Olin Corp., 684 F. Supp. 1165, 1170

(S.D.N.Y. 1988) (charge alleging discrimination in promotion,

transfer, and termination insufficiently related to later claim of sex

harassment); Bartha v. Service Sys. Corp., 44 Fair Empl. Prac.

Cas. (BNA) 1765 (W.D.N.Y. 1987) (charge alleging discriminatory

wages and termination did not permit subsequent claim of sex

harassment).

12

Nor did any of the more general statements about

discrimination in Park’s charge suffice to preserve a

hostile environment claim. For all that appears, those

statements were simply efforts to characterize the

specific incident raised in the charge; they provided no

notice that other conduct might be at issue. In Rush,

relied on by the D.C. Circuit below (Pet. App. A7), the

Seventh Circuit held that general claims of

discriminatory treatment are insufficient to permit an

employee’s subsequent court complaint alleging racial

harassment:

[T]he goals behind the requirement of prior resort to

administrative relief would be frustrated if the filing

of a general charge with the EEOC would open up

the possibility of judicial challenges to any related

conduct that took place in connection with the

employment relationship. * * * Some detail, beyond

a statement that “I believe I have been discriminated

against because of [a protected characteristic]” i

necessary to allow the agency to perform its statutory

duty. [966 F.2d at 1110-11.]

See also Baltzer v. City of Sun Prairie/Police Dep’t, 725

F. Supp. 1008, 1019 (W.D. Wis. 1989); Pritchett v.

General Motors Corp., 650 F. Supp. 758, 762 (D. Md.

1986).

Particularly when read together with the specific

allegations about the assistant dean position, Park’s

general allegations of discrimination were wholly

insufficient to advise the agency and the University that

Park might also be making a claim of national origin

harassment based on other conduct that occurred over a

period of many years.’ The agency had no opportunity

8 Indeed, Park’s identification of the date of discrimination in her

charge as March 25, 1992 -- the date on which she claims she

learned of Nicholas’ selection as assistant dean, J.A. 54 -- makes

clear that the charge is addressed to that particular decision, and not

to events that occurred years earlier.

;

:

:

:

:

13

to investigate the merits of such a claim, and the

University had no opportunity to attempt conciliation.

Indeed, that the issue of national origin harassment

emerged in this case as an afterthought is underscored by

Park’s initial court pleadings: the original complaint,

like the EEOC charge, a no reference to a hostile

environment and challenged only the decision regarding

the assistant deanship, and the references to harassment

and hostile environment in the amended complaint all

specify that the alleged conduct was based on Park’s sex,

not her national origin.9

For these reasons, the court of appeals’ holding

that Park failed to exhaust a claim of hostile work

environment based on national origin is clearly correct.

9 Petitioner apparently does not take issue with the D.C. Circuit’s

holding that the unsworn “pre-complaint questionnaire” that Park

submitted to the D.C. Department of Human Rights over a month

before filing her formal charge - but never served on the University

~- cannot be considered part of the formal charge. Pet. App. A&.

This holding too is consistent with the decisions of other lower

courts. Hodges v. Northwest Airlines, Inc., 990 F.2d 1030, 1032

(8th Cir. 1993) (unsworn administrative intake questionnaire “did

not constitute a valid charge under Title VII”); Early v. Bankers

Life & Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992) (“To treat Intake

Questionnaires willy-nilly as would be to dispense with the

requirement of notification of the prospective defendant”’);

Clemmer v. Enron Corp., 882 F. Supp. 606, 610 (S.D. Tex. 1995):

Buffington v. General Time Corp., 677 F. Supp. 1186, 1193 (M.D.

Ga. 1988). Moreover, that Park may have complained to

University officials about alleged sex harassment (Pet. 5), of

course, did not satisfy her statutory obligation to notify both the

University and the EEOC that she might bring a claim of national

origin harassment.

4

CONCLUSION

For all of the foregoing reasons, the petition

should be denied.

Respectfully submitted,

DAVID G. LEITCH*

AMY FOLSOM KETT

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004-1109

(202) 637-5822

* Counsel of Record Counsel for Respondent