ANI-DENG v. JEFFBOAT LLC, No. 4:2012cv00084 - Document 37 (S.D. Ind. 2013)
Court Description: ENTRY GRANTING IN PART AND DENYING IN PART 18 MOTION FOR JUDGMENT ON THE PLEADINGS - The Court denies in part and grants in part Defendant's motion for judgment on the pleadings. Count 1, Plaintiff's Title VII claim based on her first EE OC complaint is dismissed with prejudice, and Count 5, her intentional infliction of emotional distress claim, is also dismised with prejudice. All of Plaintiff's remaining claims, brought pursuant to Title VII retaliation, 1981, and the Equal Pay Act, may proceed. Signed by Judge Sarah Evans Barker on 6/19/2013. (JLM)
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ANI-DENG v. JEFFBOAT LLC Doc. 37 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION AWOK ANI-DENG, Plaintiff, vs. J EFFBOAT LLC, Defendant. ) ) ) ) ) ) ) ) ) No. 4:12-cv-0 0 0 84-SEB-TAB EN TRY GRAN TIN G IN PART AN D D EN YIN G IN PART MOTION FOR JU D GMEN T ON TH E PLEAD IN GS This cause is before the Court on Defendant’s Motion for J udgm ent on the Pleadings (ECF No. 18), filed on October 17, 20 12, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff Awok Ani-Deng brings this claim against her form er em ployer, Defendant J effboat LLC, alleging discrim ination based on her national origin, race, and sex, in violation of Title VII of the Civil Rights Act; retaliation in violation of Title VII; violation of the 42 U.S.C. §1981 right to enforce contracts; violation of 29 U.S.C. §20 6 (the Equal Pay Act); and the intentional infliction of emotion distress. J effboat m oves for judgm ent on the pleadings as to all claim s in the com plaint. The Court denies J effboat’s m otion in part, and grants it in part. Factu al Backgro u n d Ani-Deng, a Sudanese wom an, began work as a welder for J effboat in J anuary 20 0 6. On February 18, 20 11, she filed a Charge of Discrim ination with Dockets.Justia.com the Equal Em ployment Opportunity Com m ission (“EEOC”) alleging discrimination based on her national origin and gender. This charge stated that her supervisor, Eric Stidham , treated and disciplined plaintiff m ore severely than he did her Am erican m ale counterparts, and that J effboat failed to address the unequal treatm ent after Ani-Deng raised the issue with Rick Schulthless of the Hum an Resources departm ent. When the EEOC issued its a Notice of Rights, Ani-Deng did not sue within the 90 -day period required by 42 U.S.C. §20 0 0 e5(f)(1). Ani-Deng alleges that her treatm ent in the workplace continued to be more prejudicial than that m eted out to her peers. J effboat supervisor J ason Kirby allegedly reprim anded Ani-Deng for workplace infractions, despite failing to reprim and other employees for similar infractions. On J une 28, 20 11, Ani-Deng was dem oted from Welder 1st Class to Welder 3 rd Class, which dem otion J effboat justified on the ground that Ani-Deng incurred injuries on too frequently a basis. In August 20 11, Ani-Deng was laid off from her job with J effboat. She filed a second charge with the EEOC shortly thereafter, on August 15, 20 11, alleging that her layoff was in retaliation for having filed the initial EEOC charge. AniDeng claim s that she asserted her recall rights in J anuary 20 12 1 under the Collective Bargaining Agreem ent (“CBA”) governing the parties’ em ploym ent relationship. She received her Notice of Rights from the EEOC on April 26, 20 12, 1 Plaintiff said 20 11, though she clearly m eant 20 12. Com pl. ¶18. 2 and filed suit 88 days later. J effboat’s m otion for judgment on the pleadings addresses these events and allegations. D is cu s s io n I. Stan d ard o f Re vie w fo r Ju d gm e n t o n th e Ple ad in gs Defendant's m otion under Federal Rule of Civil Procedure 12(c) seeks judgm ent on the pleadings for the Com plaint's failure to state a claim upon which relief can be granted. The standard of review for a m otion for judgment on the pleadings is identical to that applicable to a m otion filed pursuant to Rule 12(b)(6). United States v. Wood, 925 F.2d 1580 , 1581 (7th Cir.1991). Therefore, once a claim has been adequately stated, it m ay be supported by any set of facts consistent with the allegations in the complaint. Bell Atlantic Corp. v. Twom bly, 550 U.S. 540 , 561-62 (20 0 7) (quoting Sanjuan v. Am . Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994)). Dism issal is warranted if the factual allegations, viewed in the light most favorable to the plaintiff, do not plausibly entitle the plaintiff to relief. Twom bly, 550 U.S. at 561-62. However, as the Seventh Circuit has recognized, “it is not enough for a com plaint to avoid foreclosing possible bases for relief; it must suggest that the plaintiff has a right to relief . . . by providing allegations that ‘raise a right to relief above a speculative level.’” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 777 (20 0 7) (quoting Twom bly, 550 U.S. at 561-62). When determ ining whether judgm ent on the pleadings is proper, a court “m ay not look beyond the pleadings,” Wood, 925 F.2d at 1581, but “m ust treat all 3 well-pleaded allegations asserted in the com plaint as true, construe the allegations liberally, and draw all reasonable inferences in the light m ost favorable to the plaintiff.” J ackson v. Arvinm eritor, Inc., 20 0 8 WL 64528, at *1 (S.D.Ind. J an. 3, 20 0 8) (Ham ilton, J .). II. D is cu s s io n A. Title VII D is crim in atio n J effboat asserts that Ani-Deng’s Title VII discrim ination claim in her first EEOC charge m ust be dism issed as tim e-barred. The parties both acknowledge that Ani-Deng did not file her com plaint within 90 days following her receipt of the notice of rights issued by the EEOC relative to that charge. Com pl. ¶13. AniDeng rejoins that by m entioning her first charge as the im petus for the retaliation she alleged in her second EEOC charge incorporated the first charge, rendering her discrim ination claim still tim ely. Ani-Deng cites no case law to support this assertion—that a reference to a prior charge in a tim ely, subsequent filing necessarily im plies incorporation of the prior EEOC charge in the second charge. “[A] claim in a civil action need not be a replica of a claim described in the charge, but there m ust be ‘a reasonable relationship between the allegations in the charge and the claim s in the com plaint,’ and it m ust appear that ‘the claim in the com plaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.’” Vela v. Village of Sauk Village, 218 F.3d 661, 664 (7th Cir.20 0 0 ) (quoting Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 50 0 (7th Cir.1994) (reiterating the two-prong test adopted in J enkins v. Blue 4 Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 169 (1976)) ). For a claim to be deem ed reasonably related to a charge, “the EEOC charge and the com plaint m ust, at a m inim um , describe the sam e conduct and im plicate the sam e individuals.” Cheek, 31 F.3d at 50 1. Ani-Deng’s com plaint relies on an expired charge, so we apply the J enkins test to the EEOC charges to determ ine whether her second EEOC charge encompassed the first. “Norm ally, retaliation and discrim ination charges are not considered ‘like or reasonably related’ to one another.” Swearnigen– El v. Cook County Sheriff's Dep't, 60 2 F.3d 852, 865 (7th Cir.20 10 ). A careful review discloses that AniDeng’s charges fail to explicitly connect the alleged actions by J effboat or the m otivations behind these two actions. In her first charge, Ani-Deng alleged that she was denied an interpreter when she sought to com plain about disparate treatm ent, attributing this denial to discrim ination. Her second charge focused on written reprim ands, her dem otion, and her layoff; all were attributed to retaliation for her first charge. Ex. C - 2/ 18/ 20 11 Discrim . Charge, ECF No. 1-3. The first charge did not nam e the J effboat em ployees m entioned in the second charge, nor describe any of the sam e incidents. Ex. A - Charge No. 474-20 110 10 41 at 2, ECF No. 1-1. A single sentence serves as Ani-Deng’s proffered connection between the com plaints: “On 2/ 18/ 11 I filed a charge alleging em ploym ent discrimination with the Equal Em ploym ent Opportunity Com m ission.” Id. But m ere m ention of a prior charge cannot incorporate an entire docum ent. See, e.g., Sitar v. Indiana 5 Dep't of Transp., 344 F.3d 720 , 726 (7th Cir. 20 0 3) (denying reasonable relation when plaintiff failed to draw connections between charges). Twom bly requires plaintiffs to put the EEOC and defendants on notice of plausible claim s. 550 U.S. at 555. See, e.g., Rush v. McDonald's Corp., 966 F.2d 110 4, 1111-12 (7th Cir. 1992). A charge of retaliation does not autom atically educe connections to discrimination. In our view, Ani-Deng’s second charge does not reasonably relate to her first EEOC charge. Because Count 1 was filed after the statute of limitations and does not reasonably relate to the second EEOC charge, we GRANT Defendant’s Motion for J udgm ent on the Pleadings as to Count 1 of Plaintiff’s Com plaint. Count 1 is thus dism issed with prejudice. B. Title VII Re taliatio n 1. Ad ve rs e Em p lo ym e n t Alle ge d J effboat asserts that Ani-Deng’s retaliation claim m ust also be dism issed for failure to adequately allege that she suffered an adverse employm ent action, the second elem ent of a retaliation claim . See, e.g., Harrison v. Larue D. Carter Mem 'l Hosp., 882 F. Supp. 128, 132 (S.D. Ind. 1994) aff'd, 61 F.3d 90 5 (7th Cir. 1995). However, the com plaint clearly alleges that Ani-Deng was disciplined harshly, received written reprim ands, dem oted, laid off, and denied her recall rights in retaliation for her first EEOC charge. These allegations suffice. While Ani-Deng did not explicitly label these actions as adverse em ploym ent actions, 6 they clearly put the Defendant on notice of the nature of her claim and thus satisfy the Twom bly notice pleading standard. 2. Effe ct o f th e CBA J effboat alternatively posits that the CBA precludes Ani-Deng’s Title VII retaliation claim . Ani-Deng rejoins that the CBA should not be considered, at least in conjunction with a m otion for judgm ent on the pleadings, since she did not attach a copy to her com plaint. Neither assertion is correct. J udgm ent on the pleadings, intuitively, restricts its focus to the pleadings. Nonetheless, contrary to Ani-Deng’s suggestion, introduction of documents after the initial pleading stage does not automatically implicate Fed.R.Civ.P. 12(d) and transform a m otion for judgm ent on the pleadings into a m otion for sum m ary judgm ent, contrary to Ani-Deng’s suggestion. Pl.’s Resp. at 3, ECF No. 25. When docum ents are “referred to in the plaintiff’s com plaint and are central to [her] claim ,” the docum ents are considered part of the pleadings. Menom inee Indian Tribe of Wisconsin v. Thom pson, 161 F.3d 449, 456 (7th Cir. 1998). Docum ents incorporated by reference in the pleading m ust constitute a “core of the parties' contractual relationship,” and serve as the basis of the plaintiff’s rights in the com plaint. Venture Associates Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 432 (7th Cir. 1993). Ani-Deng referenced the CBA in her com plaint, and J effboat subm itted excerpts of that agreem ent into the record. See Com pl. ¶ 17, ECF No. 1; Def.’s Mem . Supp. J . Pleadings, Ex. B, ECF No. 19-2. The CBA is the source of Ani7 Deng’s recall rights and provides the basis for her legal relationship with J effboat. See Com pl. ¶ 17-18. Accordingly, the portions of the CBA in the record are considered part of the pleadings for purposes of a 12(c) m otion to dism iss. However, contrary to J effboat’s assertions, invoking the CBA does not effect a waiver of Ani-Deng’s right to proceed in a federal judicial forum to vindicate her statutory antidiscrim ination claim s. Unions waiving an em ployee’s federal judicial forum rights for statutory antidiscrim ination claim s m ust construct “clear and unm istakable” agreem ents. Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 , 80 (1998) (quoting Metropolitan Edison Co. V. N.L.R.B. 460 U.S. 693, 70 8 (1983)). General union waivers do not suffice to bind individuals to m andatory arbitration. Wright, 525 U.S. at 80 (requiring arbitration for “[m ]atters under dispute,” without incorporation of statutory antidiscrim ination requirem ents, was im permissibly vague). Access to a federal judicial forum is sufficiently im portant to require at least an explicit union waiver. Id. Similarly to the contract at issue in Wright, this CBA’s arbitration clause here is general in scope: “Grievances are defined as any differences which arise between the Com pany, its employees, or the Union as to any violation of the term s of this Agreem ent or as to its interpretation or application.” Ex. B - CBA Provisions at 5, ECF No. 19-2. This is not the sort of explicit waiver required to 8 preclude a Title VII claim .2 Ani-Deng’s retaliation claim belongs before the Court and thus will not be dismissed. 3. Re call Righ ts w ith in Se co n d EEOC Claim Ani-Deng’s com plaint alleges that J effboat denied her recall rights in retaliation for her filing of her first EEOC claim . Ani-Deng filed both her first and second EEOC claim s before any alleged denial of recall rights, so neither charge m entions a denial of her recall rights. Accordingly, J effboat asserts that the scope of Ani-Deng’s Title VII retaliation claim should exclude claim s based on a denial of her recall rights. We disagree. As noted above, for a Title VII claim to properly relate to and incorporate an EEOC charge, “there m ust be ‘a reasonable relationship between the allegations in the charge and the claim s in the com plaint,’ and it m ust appear that ‘the claim in the com plaint can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge.’” Vela, 218 F.3d at 664 (citations om itted). Here, Ani-Deng laid out a pattern of actions by J effboat each allegedly m otivated by retaliation for her EEOC filing. This satisfies both prongs of the Vela test. Denial of the right of recall is reasonably related to Ani-Deng’s layoff and can fairly be viewed as part of a pattern of retaliatory adverse em ploym ent 2 Theoretically, another portion of the CBA could address procedures for antidiscrimination claim s. Such a provision, assum ing it exists, has not been brought to our attention, and the issue of whether or not a CBA could constitute a waiver of em ployee rights to seek recourse in a federal judicial forum has not, to our knowledge, been explicitly ruled upon. See Wright 525 U.S. at 70 . 9 actions. The denied rights of recall could conceivably be an outgrowth of the investigation of the allegations in Ani-Deng’s allegations in her second EEOC charge. Accordingly, J effboat’s m otion for judgm ent on Ani-Deng’s retaliation claim is DENIED. C. §19 8 1 Ani-Deng alleged that J effboat refused to honor her recall rights under the CBA, in violation of 42 U.S.C. §1981. In its reply3 , J effboat asserts that Ani-Deng neglected to allege that she was party to a specific contract. Def.’s Reply Supp. J . Pleadings at 7, ECF No. 32. This contention by J effboat is entirely baseless, as Ani-Deng clearly referenced the CBA in her com plaint. Com pl at ¶17. J effboat adm itts in its Answer that Ani-Deng possessed recall rights under the CBA. Answer at ¶ 13. Ani-Deng has also identified “an im paired ‘contractual relationship,’ § 1981(b), under which the plaintiff has rights” in asserting that J effboat breached this contract. Dom ino's Pizza, Inc. v. McDonald, 546 U.S. 470 , 476 (20 0 6). At this stage, we cannot conclude that no version of the facts could ever support Ani-Deng §1981 claim . Accordingly, J effboat’s m otion relating to Ani-Deng’s Claim 3 is DENIED. 3 J effboat initially argued against applying 42 U.S.C. §1981 to this case, based on Artis v. Hitachi Zosen Clearing, Inc. See Def.’s Mem . Supp. J . Pleadings at 6-7, ECF No. 19. As Ani-Deng notes, however, Congress revised the statute in 1991 to include contractual rights in the em ploym ent context, a change that did not retroactively apply so as to affect the contract in Artis. See, e.g., Pl.’s Resp. at 4-5, ECF No. 25. J effboat concedes the accuracy of this bit of legal history and has abandoned the Artis argum ent in its reply. Thus the Court will address it no further. 10 D . Equ al Pay Act Claim The Equal Pay Act (“EPA”) requires three elem ents required to m ake out a prim a facie case: “No em ployer . . . shall discriminate . . . between em ployees on the basis of sex (1) by paying wages to employees . . . at a rate less than the rate at which he pays wages to em ployees of the opposite sex . . . for equal work on jobs the perform ance of which (2) requires equal skill, effort, and responsibility, and which (3) are perform ed under similar working conditions . . . .” 29 U.S.C. § 20 6(d)(1) (num bering added). See also Dey v. Colt Constr. and Dev. Co., 28 F.3d 1446, 1461 (7th Cir. 1994) (delineating the three elem ents for a prim a facie case). In her com plaint, Ani-Deng claim s that J effboat paid her as a Welder 3rd Class rather than a Welder 1st Class because she was a wom an. Com pl. ¶28. J effboat claim s Ani-Deng was reassigned (for her own safety due to frequent injuries) to the Welder 3rd Class position. Answer at ¶12. This conflict continues in the briefing of this issue 4 J effboat thus contests the second elem ent (equal pay for jobs requiring equal skill, effort, and responsibility) of Ani-Deng’s claim . 4 J effboat references m aterial not in the record and states that the job descriptions for 1st and 3rd Class Welders are “notably different.” Def.’s Reply at 8, ECF No. 32. AniDeng asserts that “J effboat m erely renam ed Plaintiff’s identical job duties,” and that her Third Class Welder position required the sam e responsibility and skill as her form er First Class Welder position. Pl.’s Resp. at 5, ECF No. 25. Hence, the parties clearly disagree on the nature of the work perform ed by Third Class Welders. Since, at this stage, all inferences are drawn in favor of the Plaintiff, we credit her view. See, e.g., Patinkin v. City of Bloom ington, Ind., No. 1:0 7-CV-482-SEB-J MS, 20 0 8 WL 817267 at *3 (S.D. Ind. Mar. 21, 20 0 8). 11 Though not entirely clear from the wording in her com plaint,5 Ani-Deng appears to have alleged that she was paid as a Welder 3rd Class, when she should have been paid as a Welder 1st Class. Determ ining the exact nature of and reasons for plaintiff’s dem otion requires further factual developm ent, which cannot be accom plished under the aegis of a m otion for judgm ent on the pleadings. J effboat’s m otion for judgm ent on Ani-Deng’s EPA claim is thus DENIED. E. In te n tio n al In flictio n o f Em o tio n al D is tre s s Finally, Ani-Deng has alleged a state law claim for intentional infliction of em otional distress. J effboat contends that this claim arises under the CBA, rather than as a m atter for litigation in federal court, and is thus preem pted. “The LMRA [Labor Managem ent Relations Act] displaces a state-law claim if resolution of the claim ‘requires the interpretation of a collective-bargaining agreement. Filippo v. N. Indiana Pub. Serv. Corp., Inc., 141 F.3d 744, 750 (7th Cir. 1998) (quoting Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 (1988)). If a federal court’s analysis m ust delve into a collective bargaining agreement to determine the outcom e of the case, then it is preem pted by §30 1 of the LMRA and should be dism issed. We cannot determ ine what is extreme and outrageous conduct on the part of J effboat without first knowing what is ordinary conduct under these 5 Com pl. ¶16 says that “Plaintiff was dem oted . . . .” This phrase could suggest a dem otion of skill or responsibility or a dock in pay or rank. 12 circum stances. Whether and to what degree J effboat em ployees m ay have (or m ay not have) deviated from ordinary procedure in dealing with Ani-Deng’s em ployment rights, the Court m ust delve into the controlling provisions of the CBA. This is not unfam iliar territory for the Court. Courts routinely hold that deciding what constitutes extrem e and outrageous conduct is determined in light of the param eters of a CBA, and thus routinely dism iss intentional infliction of em otional distress claim s in this context. See, e.g., Dixon v. Borgwarner Diversified Transm ission Products, Inc., 1:0 3-CV-0 0 945-SEB-VS, 20 0 4 WL 80 1270 (S.D. Ind. Mar. 29, 20 0 4) (dism issing an intentional infliction of em otional distress claim that would require determination of contractual rights). We hold that, because a determ ination of Ani-Deng’s intentional infliction of em otional distress claim would require an interpretation of the CBA, J effboat’s m otion to dism iss m ust be GRANTED on this final claim . Ani-Deng’s intentional infliction of em otional distress claim is thus dismissed with prejudice. III. Co n clu s io n For these reasons, we DENY in part, and GRANT in part Defendant’s m otion for judgment on the pleadings. Count 1, Plaintiff’sTitle VII claim based on her first EEOC complaint is dism issed with prejudice, and Count 5, her intentional infliction of em otional distress claim is also dism issed with prejudice. All of Plaintiff’s remaining claim s, brought pursuant to Title VII retaliation, §1981, and the Equal Pay Act, m ay proceed. 13 IT IS SO ORDERED. 06/19/2013 Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana Distribution: Matthew R Lem m e attorney@indiana.usa.com Charles H. Stopher BOEHL STOPHER & GRAVES, LLP cstopher@bsg-law.com Edward H. Stopher BOEHL STOPHER & GRAVES, LLP estopher@bsg-law.com J am es L. Fischer, J r. BOEHL STOPHER & GRAVES, LLP - New Albany jfischer@bsg-in.com Dustin Tyrone White WHITE LAW PRACTICE wlawpractice@aol.com 14
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