Bain v. Wilcox & Jones, Inc.

Bain v. Wilcox & Jones, Inc.
1999 OK CIV APP 14
976 P.2d 559
70 OBJ 668
Case Number: 91697
Decided: 10/27/1998
Mandate Issued: 02/11/1999

RELEASE FOR PUBLICATION BY ORDER OF COURT OF CIVIL APPEALS,
IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA;
DIVISION III.

MARY BAIN, Plaintiff/Appellant,
versus
WILCOX & JONES, INC. and WILCOX & JONES BENEFITS, INC., Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA;
Honorable P. Thomas Thornborough, Trial Judge.

AFFIRMED

Mary L. Lohrke, Tulsa, Oklahoma, For Appellant,
Glennella P. Doss, Tulsa, Oklahoma, For Appellee.

OPINION

CAROL M. HANSEN, Judge

¶1 Plaintiff, Mary H. Bain, entered into a business relationship with Dennis Jones (Jones) and Tom Wilcox (Wilcox), co-owners of Defendant Wilcox & Jones, Inc., (Jones, Inc.) for the purpose of forming Wilcox & Jones Benefits, Inc. Plaintiff, president of Wilcox and Jones Benefits, Inc. (Benefits), claims that shortly after entering into this business arrangement, Jones began making unwelcome sexual advances toward her. Plaintiff also claims that when she rejected his advances, Jones began a campaign of retaliatory conduct directed at her. She complained in writing to Jones and Wilcox of the sexual harassment and retaliatory conduct by Jones, and on June 24, 1995, she received notice she had been fired.

¶2 On December 14, 1995, (173 days after notice of her termination), Plaintiff filed a Complaint Intake Questionnaire with the Oklahoma Human Rights Commission (OHRC). On December 29, 1995, Plaintiff was notified her complaint could not be accepted because "Plaintiff did not report the alleged harassment for 31/2 years to her superiors," and she had "no evidence or witnesses to her allegations."

¶3 On April 18, 1996, Plaintiff mailed an Intake Questionnaire to the Equal Employment Opportunity Commission (EEOC) which the EEOC received on April 19, 1996.

¶4 On August 8, 1996, the EEOC forwarded to Jones, Inc., the charge of discrimination. On September 9, 1997, Plaintiff received from the EEOC a Dismissal and Notice of Rights indicating Plaintiff's charge was not timely filed, and also that she had ninety days to initiate a lawsuit (Notice of Right to Sue).

¶5 On December 8, 1997, Plaintiff filed the instant lawsuit in the Tulsa County District Court.

¶6 On March 18, 1998, the trial court sustained Defendants' motion to dismiss as to Counts I and II and sustained as to Count III against Defendant, Jones, Inc., only. The trial court overruled Defendants' motion to dismiss as to Count III "insofar as such Count relates to Defendant [Benefits]."

¶7 The trial court also denied Plaintiff's motion to reconsider the order dismissing Counts I and II. Plaintiff filed a Second Motion to Reconsider based on the discovery of new evidence.

¶8 Plaintiff argues the trial court erred in determining Plaintiff did not timely file her charge of discrimination with the EEOC. On December 29, 1995, OHRC notified Plaintiff that her complaint could not be accepted. On April 18, 1996, Plaintiff mailed her Intake Questionnaire to the EEOC. On April 19, 1996, the EEOC received it. Pursuant to 42 U.S.C. §2000e-5(e), Plaintiff did not file her charge within 30 days after receiving notice from OHRC that it had terminated proceedings under Oklahoma law. However, Plaintiff argues that her April filing of the EEOC charge was within 300 days of the alleged unlawful employment practice and that the filing is timely pursuant to §2000e-5(e) because of the workshare agreement between the OHRC and the EEOC, under which each agency acts as the agent of the other for purposes of receiving charges.

¶9 Plaintiff refers this Court to cases from various circuits wherein those Courts of Appeal held the workshare agreement between the state agencies and the EEOC, operated automatically to commence and terminate state proceedings and to extend the limitations period to 300 days.

¶10 Nevertheless, Plaintiff contends that because the OHRC did not "accept" her Intake Complaint Questionnaire because she did not report the alleged sexual harassment for 31/2 years and because she had no evidence or witnesses to support her allegations, it could not have "terminated" proceedings. Plaintiff has offered no authority to support this argument. The trial court's decision denying Plaintiff's Second Motion for Reconsideration is AFFIRMED. Because of this Court's decision, it becomes unnecessary to address Plaintiff's remaining propositions of error.

¶11 Defendants seek appeal-related attorney fees based on

AFFIRMED.

ADAMS, J., and BUETTNER, P.J., concur.

FOOTNOTES

1 Title 25 O.S. 1991 §1502(A) provides:

A person claiming to be aggrieved by a discriminatory practice . . .may file with the Commission a written sworn complaint stating that a discriminatory practice has been committed, and setting forth the facts upon which the complaint is based, and setting forth facts sufficient to enable the Commission to identify the person charged, hereinafter called the respondent. The Commission or a member of the Commission or the staff shall promptly furnish the respondent with a copy of the complaint and shall promptly investigate the allegations of discriminatory practice set forth in the complaint. The complaint must be filed within one hundred eighty (180) days after the alleged discriminatory practice occurs.

2 42 U.S.C. §2000e-5(e) (1994) provides:

Time for filing charges; time for service of notice of charge on respondent; filing of charge by Commission with State or local agency.

3 During 1996 the EEOC and the OHRC operated under a Workshare Agreement whereby the EEOC and the OHRC acted as the agent of the other for purposes of receiving charges, "including those that are not jurisdictional with the agency that initially receives the charges." The OHRC "shall take all charges alleging a violation of Title VII . . . where both the [OHRC] and EEOC have mutual jurisdiction, or where EEOC only has jurisdiction. . . ."

4 The requirement in 42 U.S.C. §2000e(f)(1) for filing a civil action within 90 days of receipt of the right-to-sue letter is jurisdictional. Hinton v. CPC International, Inc., 520 F.2d 1312 (8th Cir. 1975). Pursuant to this section, Plaintiff, as a "person aggrieved," may institute the civil action.

5 Federal courts do not have exclusive jurisdiction over actions brought under Title VII. Congress has not divested state courts of concurrent authority to adjudicate federal claims under Title VII. Yellow Freight System, Inc., v. Donnelly, 494 U.S. 820 (1990).

6 The new evidence was an April 17, 1998, affidavit by the Area Director for the Oklahoma Area Office of the EEOC. Therein, the director stated she received Plaintiff's intake questionnaire on April 18, 1996. She further stated the questionnaire was not filed until April 19, 1996. She then stated that "[i]n accordance with section 1601.21(1) the EEOC has issued a notice to reconsider (Exhibit B) since the April 18, 1996 receipt of information makes the above charge timely filed." However, notice of intent to reconsider does not revoke the notice of right to sue, if the charging party has filed suit. 29 CFR 1601.21(b)(1).

7 It is apparent from the allegations of Plaintiff's petition and the parties' arguments contained in this record that the breach of contract claim is truly a separate cause of action rather than an alternative theory of relief.

8 See Griffin v. City of Dallas, 26 F.3d 610 (5th Cir. 1994), Worthington v. Union Pacific RR., 948 F.2d 477 (8th Cir. 1991), and Sofferin v. American Airlines, Inc., 923 F.2d 552 (7th Cir. 1991).