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DIXON v. AMERICALL GROUP

August 5, 2005.

BURNELL DIXON, II Plaintiff,
v.
AMERICALL GROUP, INC., Defendant.



The opinion of the court was delivered by: DAVID BERNTHAL, Magistrate Judge

ORDER

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).

  I. Background

  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 2003.

  Plaintiff's charge of discrimination, filed with the Equal Employment Opportunity Commission (hereinafter "EEOC"), states the following:
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 relief.

  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).

  III. Discussion

  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 ...


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