United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Kevin McDonald has filed a pro se complaint against his former employer Adams & Associates. McDonald used the form prescribed by this district for pro se employment discrimination complaints. He alleges that Adams discriminated against him based on his age and color (the Court takes the latter allegation as encompassing a claim of race discrimination) and that Adams failed to stop harassment, retaliated against him because he asserted his rights, and terminated his employment.
In the narrative section of his complaint, McDonald, who is black, alleges that he began working for defendant in 2006 as a food service assistant and had no problems until 2013, when a white male was hired as assistant manager. He says the new assistant manager called him names in front of other workers and that the manager (the assistant's boss) was aware of this but did nothing. Adams also hired a younger white male from a temporary employment agency who carried a knife to work and would brandish it at McDonald, saying he was going to "skin [McDonald's] black ass." McDonald said this was reported to management but nothing was done. Instead, he alleges, management retaliated against him by changing his schedule without notice, resulting in him being late to work without knowing it. Then McDonald did not come to work on a particular date because it was his regular day off, only to find out later that his schedule had been changed without his knowledge to require him to work that day. He was written up as "no call, no show" and was terminated as a result.
As indicated on the form complaint that McDonald filed, his claims arise under Title VII of the Civil Rights Act of 1964; 42 U.S.C. § 1981; and the Age Discrimination in Employment Act of 1967.
Adams has moved to dismiss McDonald's Title VII and ADEA harassment claims and his ADEA retaliation claim (but not huis Title VII termination claim or his section 1981 claims). In its motion to dismiss, Adams argues that McDonald failed to exhaust administrative remedies for the Title VII and ADEA harassment claims because they are outside the scope of his EEOC charge. A copy of the charge is attached to McDonald's pro se complaint. Under the heading for types of discrimination, the boxes for race, retaliation, and age are checked off. There is no box on the form for "harassment" or "hostile work environment." In the short narrative section, the charge says this:
I was hired by the Respondent on or about August 31, 2006. My most recent position was Food Service Assistant. During my employment, I was disciplined. Subsequently, I was discharged.
I believe I have been discriminated against because of my race, Black, and retaliated against, in violation of Title VII of the Civil Rights Act of 1964, as amended.
I also believe I have been discriminated against because of my age, 49 (Date of Birth: xxxxxxxxx), and retaliated against, in violation of the Age Discrimination in Employment Act of 1967, as amended.
Compl., Ex. 2 (EEOC charge).
When Adams's motion to dismiss was initially presented to the Court, the Court noted that the charge form-which, as is commonly known, is filled out by EEOC staff, not by the complainant-does not include a check-box for harassment or retaliation. The Court also noted that a racially-based hostile work environment is a form of race discrimination and suggested that the EEOC charge's claim of race discrimination therefore encompassed McDonald's claim of a hostile work environment. Adams relies on Hottenroth v. Vill. of Slinger, 388 F.3d 1015 (7th Cir. 2004), for the proposition that an EEOC charge like the one McDonald filed is insufficient to put the EEOC or the employer on notice that the complainant is asserting a hostile work environment claim.
A plaintiff in a Title VII or ADEA case "may bring only those claims that were included in his EEOC charge or that are like or reasonably related to the allegations of the charge and growing out of such allegations." Swearingen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 864 (7th Cir. 2010) (internal quotation marks omitted). "To be' like or reasonably related, " the claims must, at a minimum, describe the same conduct and implicate the same individuals." Id. (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994)).
The Court notes that the Seventh Circuit's formulation of the standard seems to require the EEOC charge to describe the same conduct but not to name those involved-rather, the claim must implicate those involved, which is not the same thing as naming them. But that aside, Adams' primary contention is that because there is nothing in McDonald's EEOC charge that describes the alleged verbal harassment by his supervisor or the alleged threats by his co-worker, neither the EEOC nor Adams was "alerted... to Plaintiff's claim of harassment." Mem. in Support of Def.'s Partial Mot. to Dismiss at 4.
If the Court's consideration were limited to the face of the EEOC charge, there is a pretty decent argument that there is nothing there that would have clued the EEOC or Adams in to the fact that McDonald was claiming harassment by a supervisor and a co-worker. But the inquiry is not so limited. In Swearingen-El, the Seventh Circuit said that it has "suggested that written allegations outside the body of the charge may be considered when it is clear that the charging party intended the agency to investigate the allegations." Id. at 865. See also, e.g., Mirza v. The Neiman Marcus Group, Inc., No. 06 C 6484, 2009 WL 3824711, at *2 (N.D. Ill. Nov. 13, 2009) (Dow, J.) (considering documents in EEOC file beyond the charge, including notes from the EEOC regarding an interview with the complainant).
For this reason, the Court asked Adams's counsel to provide a copy of the EEOC's intake questionnaire regarding McDonald's claim, which counsel had in their possession. The intake questionnaire reflects that in response to a question regarding why he believed Adams's actions were discriminatory, McDonald said, "my manager new [sic] it was a young white kid who was working their [sic] he talked at everyone with no respect brought it to her attention nothing was done." In an interview by an EEOC investigator, McDonald reported that his supervisor (the same individual he identifies in his lawsuit) "did not like him" and "ma[de] comments to him" of a derogatory nature. The evidence, together with the charge's reference to race and age discrimination and disparate treatment in connection with discipline, indicates that hostile work environment allegations were in fact brought to the EEOC's attention by McDonald and that this type of claim "could reasonably be expected to grow out of the administrative charge[ ...