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Palmer v. Southwest Airlines Co.

October 23, 2009


The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge

Magistrate Judge Geraldine Soat Brown


Plaintiff Ann M. Palmer ("Palmer") filed an amended complaint against defendant Southwest Airlines Co. ("Southwest") alleging sex discrimination and retaliation. (Am. Compl. ¶¶ 19, 20, 27.) [Dkt 36.] The parties have consented to the jurisdiction of a Magistrate Judge. [Dkt 15, 16.] Southwest has moved to dismiss Palmer's claims pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that Palmer's Equal Employment Opportunity Commission ("EEOC") charge was untimely and therefore she did not satisfy the administrative requirements for bringing a Title VII lawsuit. [Dkt 37, 38.] For the reasons set out below, Southwest's motion is denied.


A. Palmer's employment with Southwest

Palmer was hired by Southwest in February 2002 to work as a flight attendant. (Am. Compl. ¶ 7.) On March 13, 2007, Southwest discharged Palmer, along with her male co-worker Ron Gibson, because of alleged misconduct toward members of the public while they were staying at a hotel in Las Vegas. (Id. ¶ 10, Ex. A at ANK 19.)Palmer and Gibson both filed grievances challenging their terminations pursuant to the applicable collective bargaining agreement. (Id. ¶ 11.) In August 2007, separate arbitrations of Palmer's and Gibson's grievances were held. (Id. ¶ 12.) On October 2, 2007, prior to the issuance of the arbitrator's rulings on either of the grievances, Southwest reinstated Gibson to his position as a flight attendant. (Id. ¶ 13, Ex. A at ANK 19.) Southwest did not reinstate Palmer. (Id. ¶ 14.) The arbitrator subsequently upheld Palmer's discharge. (Id. ¶ 17.)

B. The Intake Questionnaire and Attached Statement

On November 5, 2007, Palmer completed and submitted an EEOC form "intake questionnaire" in which she set forth her belief that she had been subject to sex discrimination and retaliation. (Id. ¶¶ 4b, d, Ex. A.) On the form, Palmer noted that her claims were based on her discharge in March 2007 and her failure to be reinstated in October 2007. (Id. Ex. A at ANK 19.) Also on the form, Palmer provided information including her name, address, and telephone number as well as that of her employer, her dates of employment, the number of employees at Southwest, the name of the person whom she believed discriminated against her, the names of comparable employees, the names of three witnesses, and the fact that she had not filed a charge or complaint with any other agency. (Id. Ex. A at ANK 18-21.) She further checked a box marked "Yes," indicating that she had sought help regarding the situation from the Transport Workers Union, which was representing her through the grievance process. (Id. Ex. A at ANK 21.)

Printed at the bottom of the last page of the questionnaire were, inter alia, the following statements:

PRINCIPAL PURPOSE. The purpose of this questionnaire is to solicit information in an acceptable form consistent with statutory requirements to enable the Commission to act on matters within its jurisdiction. When this form constitutes the only timely written statement of allegations of employment discrimination, the Commission will, consistent with 29 CFR 1601.12(b) and 29 CFR 1626.8(b), consider it to be a sufficient charge of discrimination under the relevant statute(s). ROUTINE USES. Information provided on this form will be used by Commission employees to determine the existence of facts relevant to a decision as to whether the Commission has jurisdiction over allegations of employment discrimination and to provide such charge filing counseling as is appropriate. Information provided on this form may be disclosed to other State, local and federal agencies as may be appropriate or necessary to carrying out the Commission's functions. Information may also be disclosed to respondents in connection with litigation.

WHETHER DISCLOSURE IS MANDATORY OR VOLUNTARY AND EFFECT ON INDIVIDUAL FOR NOT PROVIDING INFORMATION. The providing of this information is voluntary but the failure to do so may hamper the Commission's investigation of a charge of discrimination. It is not mandatory that this form be used to provide the requested information. (Id. Ex. A at ANK 21, emphasis added.) Palmer signed her name at the bottom of the questionnaire, but did not verify it. (Id.)

Palmer attached a four page statement to the questionnaire, with details regarding the alleged sex discrimination and retaliation as well as the basis for her belief that she had been discriminated and retaliated against. (Id. ¶ 4b, Ex. B.) Palmer stated, for example, that Southwest's action of "requiring [her] to wear a wig to perform [her] duties is discriminating because companies can't have different appearance standards for men and women." (Id. Ex. B at ANK 29.) She further noted that "Ron Gibson was offered his job back and [she] was not," and that she felt she had been "disciplined differently from other participants in this incident" because of her past appearance issues with Southwest. (Id. Ex. B at ANK 31, 32.) Palmer also asserted that she did "not believe that the offenses the Company has laid against [her] warranted termination." (Id. Ex. B at ANK 31.) Finally, Palmer noted that she was currently awaiting a decision from an arbitrator, and believed that "the transcripts from this [arbitration] hearing would provide [the EEOC] with the most information available about the incident." (Id. Ex. B at ANK 31, 32.) Palmer's attached statement was unsigned and unsworn. (Id. Ex. B.)

C. Subsequent Events

On December 31, 2007, the EEOC issued a Notice of Charge of Discrimination addressed to Southwest. (Id. ¶ 4h, Ex. C.) The Notice of Charge advised Southwest that Palmer had filed a charge of sex discrimination and retaliation and that the issues involved Palmer's discharge and terms and conditions of employment. (Id. Ex. C.) The Notice of Charge was signed by an EEOC Representative. (Id. Ex. C.)

On April 4, 2008, approximately 388 days after her discharge, Palmer signed and filed a verified charge of discrimination with the EEOC. (Id. ΒΆ 4n, Exs. D, E.) In that charge, Palmer alleged that her discharge and failure to be reinstated were discriminatory and retaliatory. (Id. Exs. D, E.) ...

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