United States District Court, C.D. Illinois, Urbana Division
August 5, 2005.
BURNELL DIXON, II Plaintiff,
AMERICALL GROUP, INC., Defendant.
The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge
In June 2005, Plaintiff, Burnell Dixon II, acting pro se,
filed an Amended Complaint (#20) against Defendant Americall
Group, Inc., alleging violations of Title VII of the Civil Rights
Act (42 U.S.C. § 2000e) (hereinafter "Title VII") and the Age
Discrimination Act of 1967 (29 U.S.C. § 621-34) (hereinafter
"ADEA"). Federal jurisdiction is based on federal question
(28 U.S.C. § 1331). The parties have consented to the exercise of
jurisdiction by United States Magistrate Judge David Bernthal.
In June 2005, Defendant filed a Motion To Strike (#23). After
reviewing the parties' pleadings and memoranda, this Court
GRANTS Defendant's Motion To Strike (#23).
The following background is taken from the complaint. Plaintiff
began working for Defendant in September 2002 as a telemarketing
representative. In November 2002, Defendant promoted Plaintiff to
acting manager of the day shift. In February 2003, Plaintiff was
assigned to attend training for a permanent manager position,
which he completed. He also completed a thirty-day probation
period without incident. In April 2003,*fn1 Plaintiff was
removed from his interim manager position and returned to his
previous position as a telemarketing representative. Plaintiff
alleges that Defendant discriminated against him based on his
age, sex, and race when it demoted him to telemarketing
representative. He also alleges that at least two employees (a Caucasian male and a Hispanic female) who also participated in
the training were not returned to their previous positions.
Plaintiff alleges that he was constructively discharged in May
Plaintiff's charge of discrimination, filed with the Equal
Employment Opportunity Commission (hereinafter "EEOC"), states
I was employed by Respondent on September 30, 2002 as
a Telemarketing Representative. In November 2002 I
was promoted to Acting Manager for the day shift. In
February, 2003, I was one of three Acting Managers,
when Respondent assigned us to attend a training
class for a permanent Manager position. After taking
the management training class, passing the exam, and
serving the 30-day probationary period, on or about
April 17, 2003, Respondent demoted me to a
telemarketing representative. The two other
non-Black, under 40 Acting Managers were not demoted.
I believe I have been discriminated against because
of my race, Black and my sex, male, in violation of
Title VII of the Civil Rights Act of 1964, as amended
and because of my age, 47, in violation of the Age
Discrimination in Employment Act of 1967, as amended.
(#23, Ex. A.)
Count I of Plaintiff's complaint alleges a violation of Title
VII and Count II alleges a violation of the ADEA. Plaintiff seeks
back pay, reinstatement, monetary damages, and other equitable
II. Standard of Review
The Court may order stricken from any pleading material that is
redundant, immaterial, impertinent, or scandalous. FED. R. CIV.
P. 12(f). Motions to strike are not favored. See 5A Charles A.
Wright and Arthur R. Miller, Federal Practice and Procedure §
1380 (1990). However, motions to strike "provide a useful and
appropriate tool where the parties disagree only on the legal
implications to be drawn from uncontroverted facts, or where
questions of law are involved." Commonwealth Edison Co. v.
Allis-Chalmers Mfg. Co., 245 F. Supp 889, 891 (D.C. Ill. 1965).
For example, a motion to strike can be used to winnow a
plaintiff's Title VII claims down to those contained in his
right-to-sue letter. Conner v. Ill. Dep't of Natural Resources,
No. 04-2933, 2005 WL 1540248, at *2 (7th Cir. Jul. 1, 2005)
(upholding the striking of pleadings not included in the plaintiff's EEOC charge and not
contained in the right-to-sue letter).
Defendant argues that the Court should strike Plaintiff's
allegations involving constructive discharge from the complaint
because Plaintiff failed to mention the termination of his
employment in his EEOC charge.
Filing a charge with the EEOC is a prerequisite to filing a
Title VII suit in federal court. Chambers v. Am. Trans Air,
Inc., 17 F. 3d 998, 1003 (7th Cir. 1994). "The purpose of this
requirement is to afford the EEOC and the employer an opportunity
to settle the dispute through conference, conciliation and
persuasion, and also to give the employer some notice of the
conduct of which the employee is aggrieved." Gawley v. Ind.
Univ., 276 F.3d 301, 313-14 (7th Cir. 2001). The plaintiff is
not required to plead specific elements of a legal theory in his
EEOC charge, however, some detail is necessary to allow the EEOC
to perform its statutory duty. Rush v. McDonald's Corp.,
966 F.2d 1104, 1111 (7th Cir. 1992). Generally, a plaintiff may not
bring charges that were not included in his EEOC charge. Harper
v. Godfrey Co., 45 F.3d 143, 147-49 (7th Cir. 1995). In
determining whether an allegation in a complaint falls within the
scope of an EEOC charge, "[t]he court looks at whether they are
like or reasonably related to those contained in the EEOC
[charge]. If they are, the court then asks whether the current
claim reasonably could have developed from the EEOC's
investigation of the charges before it." Cheek v. Peabody Coal
Co., 97 F.3d 200, 202 (7th Cir. 1996).
In response, Plaintiff argues that his complaints of race and
sex discrimination are reasonably related to his constructive
discharge. However, Plaintiff mischaracterizes his EEOC charge in
his argument. He contends that his EEOC charge stated that "he
was demoted without just cause and forced to resign." (#29, p. 4.)
The Court has reviewed the charge language, and nowhere in that charge is Plaintiff's termination mentioned, even
though he filed the charge in November 2003, about six months
after his employment with Defendant ended.
The Seventh Circuit has held that when a plaintiff's EEOC
charge alleges discrimination, but does not state that his
decision to stop working is based on that discrimination, the
charge does not support a constructive discharge claim. Herron
v. DaimlerChrysler Corp., 388 F.3d 293, 303 n. 2 (7th Cir.
2004). Several other circuit courts have also concluded that when
employees allege discrimination without referring to termination
of employment in the EEOC charge, they cannot bring a
constructive discharge claim later. Roxas v. Presentation
Coll., 90 F.3d 310, 318 n. 5 (8th Cir. 1996) (holding that
constructive discharge not like or reasonably related to denial
of sabbatical raised in EEOC charge); Albano v. Schering-Plough
Corp., 912 F.2d 384, 385 (9th Cir. 1990) (citing Ong v.
Cleland, 642 F.2d 316, 320 (9th Cir. 1981) (holding that "a
constructive discharge is not like or reasonably related to a
charge of discrimination in promotion")); Paris v. Sw. Bell Tel.
Co., 94 Fed. Appx. 810, 816 (10th Cir. 2004) (holding that
constructive discharge is not reasonably related to
Courts have determined that a claim of discrimination in an
EEOC charge may support a constructive discharge claim in a suit
only when, through the course of its investigation, the EEOC has
included the charge in its reasonable cause determination and
conciliation proceedings. E.E.O.C. v. Delight Wholesale Co.,
973 F.2d 664, 668-69 (8th Cir. 1992). However, in the instant
case, Plaintiff has not alleged that the EEOC made such a finding
or that Plaintiff's purported constructive discharge was part of
any administrative conciliation proceeding.
Although a plaintiff need not draft an EEOC charge to legal
standards, he should explain how he was harmed, even if an EEOC
investigation might have discovered the infraction. In Geldon v.
South Milwaukee School District, the court held that a
plaintiff's EEOC charge of discrimination in the course of
seeking specific employment did not allow her to sue for
discrimination based on the refusal of her application for a
different position with same defendant. Geldon v. S. Milwaukee
Sch. Dist., No. 04-2886, 2005 WL 1631122, at *2 (7th Cir. Jul. 13, 2005). The court reasoned that even if the second act of
discrimination might have been found in the course of the
investigation, it could not be included in the complaint because
the EEOC and the defendant had only been put on notice regarding
the first incident. Id. The court also pointed out that a
defendant would not have to do much to broaden the scope of the
charge. Id. For example, if the plaintiff had simply said that
she had been discriminated against in her application for "these
positions," she would have stated enough. Id. Here, as in
Geldon, Plaintiff did not put the EEOC or his employer on
notice concerning his purported constructive discharge because he
did not mention it in even the vaguest terms in his charge.
The issue in this case is not whether Plaintiff experienced a
constructive discharge, but whether his EEOC charge includes that
claim. Plaintiff's EEOC charge does not state that he experienced
a constructive discharge or even that his employment had
terminated. Thus, Plaintiff's claims relating to constructive
discharge are beyond the scope of the EEOC charge and the Court
grants Defendant's motion to strike.
For the reasons set forth above, this Court GRANTS
Defendant's Motion To Strike (#23).
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