Walsh et al v. Sisbro Management, LLC, No. 2:2020cv02404 - Document 26 (W.D. Tenn. 2020)
Court Description: ORDER Granting 8 Defendant's Motion to Dismiss. Signed by Judge Thomas L. Parker on 12/3/2020. (ljt)
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12(b)(6) because he did not exhaust his administrative remedies under 42 U.S.C. § 12117(a). (ECF No. 8.) The Court now turns to the ADA’s exhaustion requirements. II. Legal Standard for Exhaustion of Administrative Remedies Under the ADA To sue an employer for violating the ADA, an employee must first file a charge of discrimination with the EEOC within 300 days of the alleged discrimination. See 42 U.S.C. § 12117(a); § 2000e-5(e)(1). Then to exhaust his administrative remedies, he must include all of his employment discrimination claims in that charge of discrimination. Russ v. Memphis Light Gas & Water Div., 720 F. App’x 229, 236 (6th Cir. 2017). But because EEOC charges are often filed pro se, “[a] complainant need not ‘attach the correct legal conclusion’ to allegations in the charge, ‘conform to legal technicalities,’ or use ‘the exact wording which might be required in a judicial pleading.’” Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir. 2000) (quoting Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)). What is more, “[a]n administrative charge filed with the EEOC that has been prepared by a non-lawyer without assistance from or representation by an attorney should be liberally and broadly construed to encompass all claims reasonably expected to grow out of the EEOC investigation of the charge made.”4 Seay v. Tenn. Valley Auth., 340 F. Supp. 2d In his Questionnaire, Mr. Walsh says he “sought help about this situation” from Attorney William A. Wooten at the Wooten Law Office. (ECF No. 14-1 at PageID 57.) Though Mr. Wooten is Plaintiff’s attorney here, it is not clear that Mr. Wooten also helped Mr. Walsh prepare his Charge. Under a 12(b)(6) motion to dismiss, the Court reads the facts in Plaintiff’s favor. Directv, Inc., 487 F.3d at 476. As a result, the Court will liberally construe Plaintiff’s EEOC charge as if he filed it pro se. 4 5 Case 2:20-cv-02404-TLP-atc Document 26 Filed 12/03/20 Page 6 of 9 PageID 102 844, 849 (E.D. Tenn. 2004). And so, under this liberal standard, failing to allege or to check-off the box for a specific form of discrimination in the EEOC charge does not decide whether the plaintiff exhausted his administrative remedies. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004). But if a plaintiff wants to recover for claims that he omitted from the EEOC Charge form, the omitted claims must relate to or arise from those claims that Plaintiff did include in the charge. Id.; Russ, 720 F. App’x at 236 (“Only claims that are included in the charge or are ‘reasonably related to or grow out of the factual allegations in the EEOC charge’ may be heard in federal court.” (quoting Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010))). “The claim must grow out of the [EEOC’s] investigation or the facts alleged in the charge must be sufficiently related to the claim such that those facts would prompt an investigation of the claim.” Johnson v. Cleveland City Sch. Dist., 344 F. App’x 104, 109 (6th Cir. 2009). So the Court’s analysis focuses on whether the factual allegations in the charge would put the EEOC on notice of the plaintiff’s uncharged claim. If so, the EEOC typically investigates or “facilitate(s) conciliation procedures” with the employer about the uncharged claim. Dixon, 392 F.3d at 217; Pearison v. Pinkertons, Inc., No. 1:02-CV-142, 2002 WL 32060142, at *4–5 (E.D. Tenn. Sept. 16, 2002) (finding that the plaintiff’s uncharged claim was not reasonably related to charge where plaintiff presented “no factual allegations” prompting state agency to investigate unrelated claims). III. Discussion of Mr. Walsh’s Exhaustion of His Administrative Remedies Mr. Walsh’s Charge did not allege that he experienced disability discrimination. (See ECF No. 8-1.) As a result, the Court must determine whether Mr. Walsh’s disability 6 Case 2:20-cv-02404-TLP-atc Document 26 Filed 12/03/20 Page 7 of 9 PageID 103 discrimination claim reasonably grows from the sexual orientation discrimination he does allege in his Charge. Russ, 720 F. App’x at 236. It does not. Plaintiff now argues that the Charge describes Defendant’s employees spreading rumors about Plaintiff and belittling him. (ECF No. 14 at PageID 49.) He claims that “[a]n investigation of this charge and charge attachment by the EEOC would have allowed Plaintiff Walsh to easily explain what the rumors and belittling were, including the discriminating actions and comments regarding Plaintiff’s disability (HIV).” (Id.) These arguments are not persuasive. An investigation of Plaintiff’s Charge of sexual orientation discrimination would not necessarily lead the EEOC to investigate disability discrimination. Mr. Walsh never mentioned in his Charge that he is HIV positive. He never mentioned any disability discrimination in either his EEOC Questionnaire or Charge.5 (See ECF Nos. 14-1 & 8-1.) In the Questionnaire, Mr. Walsh checked the box for disability, but then struck through it and instead wrote “sexual orientation” in the section of the form for “other” types of discrimination. (ECF No. 14-1 at Page ID 55.) Also Mr. Walsh did not complete the portion of the Questionnaire that specifically requests information about the employee’s disability. (Id. at PageID 56.) And the written description of the discrimination does not mention that he has HIV or that he felt targeted because of his alleged disability. (Id. at PageID 58.) 5 Several circuits have held that courts should not consider intake questionnaires for exhaustion purposes. See Russ, 720 F. App’x at 237 (collecting cases). But the Sixth Circuit has considered an intake questionnaire when analyzing a plaintiff’s exhaustion of remedies. Id. (stating that “even assuming that intake questionnaires may be considered,” plaintiff’s references to race in questionnaire were insufficient to give EEOC notice). And so the Court here considers the allegations in Mr. Walsh’s Questionnaire. 7 Case 2:20-cv-02404-TLP-atc Document 26 Filed 12/03/20 Page 8 of 9 PageID 104 What is more, Mr. Walsh did not mention his HIV positive condition in his Charge. (ECF No. 8-1 at PageID 22.) Mr. Walsh did not check the box for disability, and only signified that his discrimination claims were based on sex and retaliation. (Id.) Most importantly, nothing in the narrative portion of the EEOC charge suggests disability discrimination, and there is no language that would have put the EEOC on notice of Mr. Walsh’s uncharged disability claim. In the narrative description of his claims, Mr. Walsh describes how he disclosed his sexual orientation to Defendant when it hired him; that Ms. Foster retaliated against him for disclosing his sexual orientation; and that Defendant “discriminated and retaliated against [him] because of [his] sex (male-sexual orientation) in violation of Title VII of the Civil Rights Act of 1964, as amended.” (Id.) Nowhere does Plaintiff mention that he is HIV positive or that Defendant discriminated against him because of his disability. All in all Plaintiff’s Charge contains no factual allegations about his diagnosis with HIV or about discrimination in violation of the ADA. As a result, the EEOC would not have had notice of Mr. Walsh’s disability discrimination claim. See Younis, 610 F.3d at 363 (finding plaintiff’s retaliation claim did not grow from charge where plaintiff did not check retaliation box on form and narrative portion of charge did not mention retaliation); Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998) (finding the plaintiff could not bring retaliation claims because plaintiff neither checked retaliation box in EEOC charge, nor described any actions supporting a retaliation claim); Gant v. S Means, LLC, No. 1:19-cv-00090, 2020 WL 2512826, at *3–4 (M.D. Tenn. May 15, 2020) (holding plaintiff could not bring race discrimination claim even though plaintiff spoke to EEOC about it, because charge contained no facts on race discrimination); Christiansen v. Omnicom Grp., Inc., 167 F. Supp. 3d 598, 610-11 (S.D.N.Y. 2016), aff’d in part, rev’d in part on other grounds, 852 F.3d 195 (2d Cir. 2017) 8 Case 2:20-cv-02404-TLP-atc Document 26 Filed 12/03/20 Page 9 of 9 PageID 105 (finding plaintiff’s HIV disability claim was not reasonably related to EEOC charge that only mentioned AIDS once in a different context). In sum, Plaintiff does not list or identify his disability claims on the Questionnaire or Charge. Plus, the disability claims here do not reasonably grow from his charged sexual orientation claims. And the claims in his Charge would not have prompted the EEOC to investigate disability discrimination.6 CONCLUSION Mr. Walsh therefore failed to exhaust his administrative remedies as to his ADA claims. The Court thus GRANTS Defendant’s motion to dismiss Mr. Walsh’s disability discrimination claims. SO ORDERED, this 3rd day of December, 2020. s/Thomas L. Parker THOMAS L. PARKER UNITED STATES DISTRICT JUDGE Plaintiff also argues that Defendant had notice of Plaintiff’s disability claims through the Questionnaire and a demand letter Plaintiff sent Defendant. (ECF No. 14-1.) But the exhaustion of administrative remedies inquiry asks whether the Charge would put the EEOC on notice of the plaintiff’s uncharged claims, not the defendant. See Dixon, 392 F.3d at 218. 6 9
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