The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Partial Motion to Dismiss or in
the Alternative, for Summary Judgment [Doc. # 20, Part # 1].
For the foregoing reasons, Defendant's motion is granted.
Plaintiff was a Part-Time Flexible (PTF) employee and trainee
for the position of letter sorting machine (LSM) operator at
the Rock Island, Illinois, Post Office. Plaintiff had
experienced problems with LSM supervisor Rita Marks concerning
her performance on the letter sorting machine during the month
of September. On September 14, 1987, a meeting was held between
Postmaster James Simoens, Rita Marks, Greg Blaser, APWU
President, and Plaintiff and her husband at which time it was
proposed that Plaintiff's performance on the letter sorting
machine would be reviewed at the end of 30 days. On October 21,
1987, Plaintiff called an EEO counselor to request a meeting to
review her record and to make sure that she was receiving equal
keying time on the letter sorting machine as the other
trainees. Plaintiff did not pursue this contact by filing a
formal or informal complaint with the EEO at that time.
On March 4, 1988, Plaintiff was issued a Notice of Proposed
Removal for failing to qualify as a LSM operator. On March 10,
1988, Plaintiff contacted an EEO counselor to complain that the
proposed discharge was discriminatory based on her race and
sex. In a May 10, 1988, interview, Plaintiff informed EEO
counselor Eleanor Boston that she had originally contacted the
EEO office on October 21, 1987, in connection with the review
of her performance on the LSM by superiors. Based on the
information provided to the Court, Plaintiff did not inform the
EEO counselor that she believed that her discharge was in
retaliation for her previous EEO contact at the time of the
initial March 10, 1988, contact or during the informal
investigation that ensued.
On April 5, 1988, Plaintiff's discharge became effective.
Plaintiff continued to pursue her EEO remedies. On May 18,
1988, Plaintiff filed a formal complaint of discrimination,
claiming that her discharge was discriminatory, based on her
race and sex. Plaintiff has offered no evidence that she
informed the EEO investigators that she believed that her
discharge was in retaliation for her October 21, 1987, EEO
contact. Plaintiff did not check the box labeled "Reprisal" on
the complaint form, nor does her EEO Investigative Affidavit
mention the October 1987 contact or anything to indicate that
Plaintiff believed that her discharge was connected to the
1987, EEO contact. The EEO investigation did not encompass a
charge of retaliatory discharge.
Plaintiff then filed a civil action in this Court in which she
alleged that her discharge was discriminatory on the basis of
her race, Oriental, and was in retaliation for her October 21,
1987, EEO contact. Defendant has now moved to dismiss the claim
of retaliatory discharge, or in the alternative, for summary
judgment on that claim, on the grounds that Plaintiff failed to
exhaust her administrative remedies with respect to that claim
in that she did not present it to the Postal Service's EEO
In Title VII actions, the scope of the administrative or agency
charge limits the scope of the subsequent complaint. Babrocky
v. Jewel Food Co. & Retail Meatcutters, 773 F.2d 857, 864 (7th
Cir. 1985); Rennie v. Garrett, 896 F.2d 1057, 1062 (7th Cir.
1990). Presenting a claim at the administrative or agency level
is in the nature of a condition precedent with which a
plaintiff must comply rather than a jurisdictional prerequisite
to filing suit. Id.*fn1 Accordingly, Defendant's motion
should be treated as one for partial summary judgment rather
than for partial dismissal. Babrocky, 773 F.2d at 864.
Summary judgment is proper only if there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1985). In
essence, the inquiry on summary judgment is whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law. Anderson, 477 U.S. at
251-52, 106 S.Ct. at 2511-12. The Court must view all
inferences to be drawn from the facts in a light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48, 106
S.Ct. at 2509-10.
Plaintiff may file a complaint in federal court encompassing
all claims that are "`like or reasonably related to the
allegations of the charge and growing out of such
allegations.'" Babrocky, 773 F.2d at 864 (quoting Jenkins v.
Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.
1976) (en banc), cert. denied, Blue Cross Mut. Hosp. Ins.,
Inc. v. Jenkins, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598
(1976) (quoting Danner v. Phillips Petroleum Co.,
447 F.2d 159, 162 (5th Cir. 1971), cert. denied, 429 U.S. 986, 97
S.Ct. 506, 50 L.Ed.2d 598 (1976))). Allegations not contained
in the charge cannot be contained in the district court
complaint because this would circumvent the governmental
agency's investigatory or conciliatory role and deprive the
charged party of notice of the claim. See Babrocky, 773 F.2d
at 863. The charge, which is generally drafted by laypersons,
is to be interpreted liberally to effectuate the remedial
purposes of Title VII. Babrocky, 773 F.2d at 864. For
example, failure to check the appropriate box on the complaint
will not necessarily bar a subsequent claim in the district
court. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc.,
538 F.2d 164 (7th Cir. 1976). Nor does the scope of the actual
investigation pursued determine what district court complaint
may be filed. Schnellbaecher v. Baskin Clothing Co.,
887 F.2d 124 (7th Cir. 1989). Rather, the determining factor is what
investigation could reasonably be expected to grow from the
factual allegations of the original complaint and other
information provided by Plaintiff. Id.; Gomez v. Amoco Oil
Co., 767 F. Supp. 191 (N.D.Ind. 1991).
Claims of retaliation for filing a charge arising after the
charge was filed are considered "like or reasonably related
to the allegations of the charge and growing out of such
allegations" and need not be separately exhausted. Malhotra v.
Cotter & Co., 885 F.2d 1305, 1312 (7th Cir1989). However, in
general, claims of retaliation occurring prior to the filing of
a charge but not included in that charge do not fall within the
scope of the charge and may not be presented in federal court
unless such claims have been exhausted. Steffen v. Meridian
Life Ins. Co., 859 F.2d 534, 544-45 (7th Cir. 1988); Ang v.
Procter & Gamble Co., 932 F.2d 540, 546-47 (6th Cir. 1991).
Plaintiff's claim is of the latter type. While Plaintiff claims
that she was retaliated against for her October 1987 contact
with an EEO counselor, this contact was never pursued and no
charge or formal or informal complaint was filed at that time.
Plaintiff did not file anything akin to a charge until after
receiving notice of her proposed discharge. Thus, the policies
behind excusing exhaustion of claims of retaliation for filing
a charge on the basis that such exhaustion would be futile
based on the inability of the parties to resolve the original
complaint are not implicated. Rennie, 896 F.2d at 1062.
However, Plaintiff claims that an investigation into her
retaliatory discharge claim should have reasonably grown out of
her March 10, 1988, complaint because she informed EEO
counselor Boston about the October EEO contact in a May 10,
1988, interview. Plaintiff was discharged some five months
after the contact. Viewing the factual allegations of the
charge most liberally in favor of Plaintiff, the Court cannot
conclude that the mere mention of the October 1987 EEO contact
was sufficient to put the EEO investigator(s) or the Defendant
on notice of a possible retaliatory discharge claim which
should have been investigated. Based on the information
provided to this Court, it does not appear that Plaintiff
informed Boston as to whether Defendant or any of Plaintiff's
supervisors knew of this EEO contact, or provided the EEO
counselor with any other factual information to indicate that
there might be a connection between the contact and her
discharge. Plaintiff did not make any allegations ...