# Opposition Brief — Park v. Howard University

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 811

## Text

A SOROW NA ACh on Bs Bek ae

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JUN 12 1996

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—_ upumunneell

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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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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14

1V
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
RUD UPIT svessetstisuiedascbicibieninaiessbuidelueidaehimialaabiabiantens 9
Hodges v. Northwest Airlines, Inc., 990 F.2d 1030
GY Geis Soc enscidesiesenrenctansceedelevapineabbdainbiceiaass 13

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
ERP UTED weetindccdasasiaiNinstganuebcabsiagnaacaibaedasibabalvadshenls bellies

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.
Ral, SU Gbihinhicterabasnincaekaloaniiateabcaaapnnianieadelincas
Riley v. Technical & Management Servs. Corp., 872
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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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Page

vi
TABLE OF AUTHORITIES -- Continued
Page

Torriero v. Olin Corp., 684 F. Supp. 1165
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1320%3A3. Public record. Not legal advice.