United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Debra Daniels, was employed by the defendant, Titan ES, LLC
(Titan) until August, 2016. She submitted a formal Charge of
Discrimination with the EEOC on March 17, 2017. (Doc. 17-1).
In the Charge, she checked the boxes alleging discrimination
based on race, sex, and retaliation, and she also asserted an
equal pay claim. (Id.). She identified the following
as the “particulars” of her discrimination claim:
I. I was hired in January 2013 as an Administrative Assistant
and was later promoted to Marketing Coordinator. During my
employment I was subjected to harassment by Charles Effinger,
Operations Manager. Mr. Effinger routinely belittled and
intimidated me, stated that he worked with idiots, joking
said I did not do my job, paid females less than similarly
situated males, required salaried female employees [to] clock
in and out, but salaried male employees did not, and made
racist remarks, including saying that tribal members should
not be getting the tribal benefits. I, and others, complained
about this behavior. In response my employment was terminated
on or about August 26, 2016. Others who complained, that are
not American Indian, were not fired.
II. The reason given by Brad Cockings, Owner, for the
offensive, discriminatory behavior exhibited by Mr. Effinger,
was that Mr. Effinger has back pain.
III. I believe that I have been discriminated against because
of my sex, Female, my race, American Indian, and in
retaliation for my complaints of discrimination and
harassment, in violation of Title VII of the Civil Rights Act
of 1964, as amended, and because of my sex, Female, in
violation of the Equal Pay Act of 1963, as amended.
Daniels subsequently initiated this litigation by filing a
pleading in which she alleged quid pro quo harassment (First
Claim for Relief), gender discrimination (Second Claim for
Relief) and race / national origin discrimination (Third
Claim for Relief). (Doc. 2-3). Titan moves for partial
summary judgment, as to Ms. Daniels’s First Claim for
Relief. (Doc. 17). Titan argues that Ms. Daniels did not
exhaust her First Claim for Relief, because her Charge of
Discrimination did not include any factual allegations that
would promote an inquiry by the EEOC or would provide notice
to Titan that she was claiming quid pro quo sexual harassment
by Mr. Cockings. (See id.).
First Claim for Relief in her Complaint asserts a claim for
quid pro quo sexual harassment based on Ms. Daniels’s
allegations that Titan “conditioned [her] continued
employment upon her submission to conduct of a sexual
nature” and “terminated her employment”
after she informed Mr. Cockings “that she was not
interested in him in a romantic or sexual way.” (Doc.
2-3 at ¶¶ 19-20). She similarly asserted that Mr.
Cockings “fired [her] after she refused his sexual
advances.” (Id. at ¶ 21). Titan is
correct that these allegations are not mentioned in Ms.
Daniels’s Charge of Discrimination. (See Doc.
17-1). The Charge alleges belittling, intimidating,
harassing, offensive, and discriminatory behavior by Charles
Effinger, but it does not assert that Mr. Cockings
engaged in sexually harassing behavior or quid pro quo
discrimination or that he terminated her employment after she
refused his alleged romantic or sexual advances.
Daniels argues that the Court should look at her EEOC Intake
Questionnaire, in which she asserts that Mr. Cockings
“terminated [her] employment but refused to tell [her]
why while four other people were quiting [sic] tired of
drama.” (Doc. 18-3). In her Intake Questionnaire, she
alleged that there were three other Titan employees who
witnessed texts, emails, gestures, and “frequent
visits.” (Id. at 4, 6).
consideration of the parties’ briefs and authorities,
the Court concludes that there is no genuine dispute as to
any material fact and Titan is entitled to judgment as a
matter of law on Ms. Daniels’s First Claim for Relief.
Ms. Daniels did not exhaust that claim because her Charge did
not include any assertions that Mr. Cockings sexually
harassed the plaintiff or fired her for failing to cede to
his sexual advances. It thus contained no information that
either would prompt the EEOC to investigate, or would provide
notice to Titan of, any such claim regarding Mr.
plaintiff must exhaust administrative remedies in accordance
with Title VII in order to ultimately recover on a
discrimination claim under Title VII. Apsley v. Boeing
Co., 691 F.3d 1184, 1210 (10th Cir. 2012).
“Further, administrative remedies generally must be
exhausted as to each discrete instance of discrimination or
retaliation.” Id. (citing Foster v.
Ruhrpumpen, Inc., 365 F.3d 1191, 1194-95 (10th Cir.
2004)); see also Martinez v. Potter, 347 F.3d 1208,
1210 (10th Cir. 2003). A plaintiff exhausts administrative
remedies by timely filing a Charge of Discrimination with the
EEOC. The Charge of Discrimination is to include “[a]
clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment
practices.” 29 C.F.R. § 1601.12(a)(3); see
also Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir.
2017) (quoting § 1601.12(a)(3)). The factual allegations
in the charge form must be “sufficiently related to the
claim such that those facts would prompt an investigation of
the claim.” Jones v. UPS, Inc., 502 F.3d 1176,
1186 (10th Cir. 2007). The charge document is construed
purpose of the exhaustion requirement is twofold: to give
notice of the alleged violations; and to provide the EEOC an
opportunity to resolve the claim. See Needham, 856
F.3d at 1290. While “there are times in which a
different filing, such as an intake questionnaire, can
constitute a charge for certain purposes, the general rule
remains that [courts] typically look to the charge form if
one exists” because “the charge form, not a
previous filing, is given to the employer to notify it of the
potential claims against it and ordinarily determines the
scope of the EEOC’s investigation.” Id.
(internal citations omitted). In recent unpublished opinions,
the Tenth Circuit declined to read allegations from the
Intake Questionnaire where the plaintiff had filed a formal
charge of discrimination. See Hankishiyev v. ARUP
Laboratories, 732 F. App’x 673, 677-78 (10th Cir.
2018); Green v. JP Morgan Chase Bank Natl
Ass’n , 501 F. App’x 727, 731 (10th Cir.
2012). While these opinions are not precedential, they
address the precise issue presented here and accordingly have
persuasive value. See 10th Cir. R. 32.1(A). The
Court will therefore consider the Charge of Discrimination,
rather than the Intake Questionnaire.
liberally, Ms. Daniels’s Charge of Discrimination did
not provide any notice to Titan that she was asserting quid
pro quo sexual harassment by Mr. Cockings. (See Doc.
17-1). As a result, Ms. Daniels did not exhaust the claim,
and Titan is entitled to judgment as a matter of law on the
First Claim for Relief. See Apsley, 691 F.3d at
1210-11 (affirming summary judgment where plaintiffs checked
the box for retaliation on their charges of discrimination,
but “the narrative portion of their charges” set
forth a factual basis different than the facts alleged in
their discrimination claim filed in court and
“[n]othing in the EEOC forms put the Companies on
notice of retaliation claims relating to gender, race, or
Motion for Partial Summary Judgment (Doc. 17) is
granted. Plaintiff s First ...