United States District Court, D. Maryland
MEMORANDUM AND ORDER
WILLIAM M. NICKERSON, Senior District Judge.
Pending before the Court is a Motion for Leave to File an Amended/Clarified Complaint, filed by Plaintiff Unray Peters, Sr. ECF No. 11. Plaintiff, originally proceeding pro se, filed suit on October 21, 2013, alleging that Defendant, Baltimore City Board of School Commissioners, "subjected him to discrimination" based on his age and disability by failing to accommodate his disability and subjecting him to "constructive termination/retirement." ECF No. 1 at 1. As set forth in this Court's initial scheduling order, the deadline for amendment of the pleadings was February 14, 2014. ECF No. 9. On March 3, 2014, Plaintiff, now represented by counsel, filed the present Motion for Leave to File an Amended/Clarified Complaint - seventeen days after expiration of the deadline as set forth in the scheduling order. Plaintiff proposes to amend his Complaint to add a sex discrimination claim, as well as to clarify his disability claim with respect to retaliation and to correct certain dates erroneously identified in the original complaint.
Defendant opposed Plaintiff's Motion for Leave to File on two grounds. Defendant argues that the proposed amendments as to sex discrimination and retaliation would be futile, as Plaintiff failed to exhaust his administrative remedies as to those claims. Moreover, Defendant contends that Plaintiff has not shown good cause to amend his Complaint outside of the deadline provided in this Court's scheduling order. See Fed.R.Civ.P. 16(b).
Upon review of the pleadings, the Court will grant Plaintiff's Motion in part and deny it in part. As to Plaintiff's claim of sex discrimination, the Court agrees with Defendant that amendment would be futile. "[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies." Balas v. Huntington Ingalls Indus., Inc. , 711 F.3d 401, 406 (4th Cir. 2013). Thus, an employee alleging discrimination must first exhaust his or her administrative remedies by filing an intake questionnaire with the Equal Employment Opportunity Commission, which will then prepare a charge for the employee to sign. In any subsequent lawsuit, the court may consider "only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint." Jones v. Calvert Group, Ltd. , 551 F.3d 297, 300 (4th Cir. 2009) (quoting Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 963 (4th Cir. 1996)).
The principal purpose of this exhaustion of administrative remedies requirement is to place the defendant on notice of the alleged violations. See Sydnor v. Fairfax County, Va. , 681 F.3d 591, 593 (4th Cir. 2012) (citing Miles v. Dell, Inc. , 429 F.3d 480, 491 (4th Cir. 2005)). "At the same time, however, the exhaustion requirement should not become a tripwire for hapless plaintiffs" and is not intended to be an "insurmountable barrier to litigation" resulting from "overly technical concerns." Id. at 594. Thus, "[d]ocuments filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies.'" Id . (quoting Fed. Express Corp. v. Holowecki , 552 U.S. 389, 406 (2008)) (alterations in original).
Despite this liberal construction, the Court determines that it lacks subject matter jurisdiction over both of Plaintiff's proposed substantive amendments. With regard to Plaintiff's proposed sex discrimination claim, Plaintiff's EEOC charge contains no reference to any facts relating to sex discrimination. See id. at 593 (noting that, "where a charge alleges only racial discrimination but the complaint includes sex discrimination, or where a charge alleges only retaliation but the complaint alleges racial discrimination as well, " courts have found a failure to exhaust administrative remedies (internal citations omitted)). Although Plaintiff's retaliation claim is a closer question, the Court finds that it too is outside the scope of Plaintiff's EEOC charge.
Plaintiff's charge states:
I began working for the above named employer on January 3, 1990 as a Custodial Worker I. In May 2006, I suffered an on the job injury which resulted in having a surgical procedure performed. I was released to return to work on light duty in May 2007, however, I was informed that no light duty work was available since my position can only perform at full maximum capacity. I was encouraged to apply for other positions within the agency that may have light duty available. I applied for several positions including: Hall Monitor, Recreational Leader, Bus Driver Trainee, and Maintenance Supervisor but I was not hired for any of these positions. I remained out of work from May 2006 until January 6, 2011 when I received a letter informing me that I was being discharged from my employment.
I was informed that my discharge was pursuant to Board Rule 405.03 due to my prolonged absence by Shawn Stokes, Chief Human Capital Officer. I was not given a reason why I was not selected for any of the posted positions to which I applied.
I believe that I have been constructively discharged, denied a reasonable accommodation and denied hire because of my disability in violation of the Americans with Disabilities Amendments Act of 2008. I also believe that I have been denied hire because of my age (54) in violation of Title VII of the Civil Rights Act of 1964, as amended.
ECF No. 12-1. The boxes checked on Plaintiff's charge form indicate that Plaintiff claimed discrimination on the basis of both disability and age, and asserted that he was denied a reasonable accommodation. The retaliation box was not checked. On its face, therefore, Plaintiff's EEOC charge does not state a claim for retaliation.
Although the EEOC charge itself does not indicate that Plaintiff intended to pursue a retaliation claim, Plaintiff argues that he properly exhausted his administrative remedies because his EEOC intake questionnaire contains language that would lend itself to a retaliation claim, although, here also, Plaintiff did not check the box labeled "retaliation." Plaintiff's answer to question six of the intake questionnaire states, in relevant part, that Defendant required him to obtain a high school diploma or G.E.D., and that, "[b]ut for [his] on-the-job injury in 2006 (16 years), which left [him] disabled, did [Defendant] claim [he] could only return to work if [he] had a G.E.D. To show pretext, [he] secured a G.E.D. in Dec. 2009; yet [Defendant] failed to return [him] to his job." ECF No. 17-5 at 4. Plaintiff does not argue, nor does he present any evidence, suggesting that Defendant received the intake questionnaire and was thus aware of its precise contents. See Balas , 711 F.3d at 408 n.5 ("None of the routine uses' of the questionnaire involve sending it or attached documents to respondent employers."); Barzanty v. Verizon PA, Inc. , 361 F.Appx. 411, 415 (3d Cir. 2010) ("[T]he Intake Questionnaire is not shared with the employer during the pendency of the EEOC investigation."). Accordingly, the Court will not treat the intake questionnaire as a part of the EEOC charge document. See Cohens v. Maryland Dept. of Human Resources, 933 F.Supp.2d 735, 744 (D. Md. 2013) (finding that a mention of retaliation in an EEOC intake questionnaire did not confer subject matter jurisdiction over that claim where the EEOC charge itself did not set forth any retaliatory conduct); see also Park v. Howard Univ. , 71 F.3d 904, 909 (D.C. Cir. 1995) ("To treat Intake Questionnaires willy-nilly as charges would be to dispense with the requirement of the notification of the prospective defendant.").
The question remaining before the Court, therefore, is whether Plaintiff's claim that he was retaliated against for requesting a reasonable accommodation is "reasonably related" to his EEOC charge, "such that it would have reasonably been expected to follow from an administrative investigation of that charge." Miles , 429 F.3d at 492. The Court notes, at the outset, that the framing of Plaintiff's alleged retaliation charge in his EEOC intake questionnaire is unclear at best.
Although "certain claims absent from a charge of discrimination may be pursued in a subsequent lawsuit if they are reasonably related to the original complaint' or developed by reasonable investigation of the original complaint, '... a plaintiff has failed to exhaust administrative remedies where a charge of discrimination references different time frames, actors, and discriminatory conduct' than the allegations found in a complaint." Johnson v. Baltimore City Police Dept., Civ. No. ELH-12-2519, 2014 WL 1281602, at *11 (D. Md. Mar. 27, 2014) (quoting Jones , 551 F.3d at 330; Chacko v. Patuxent Inst. , 429 F.3d 505, 506 (4th Cir. 2005)). Under that standard, Plaintiff's retaliation claim does not meet the exhaustion requirement. Plaintiff's retaliation claims were known to him at the time he filed his EEOC charge, yet he included no mention of them in that document. Retaliation is different in substance than his reasonable accommodation, ADA discrimination, and ADEA discrimination claims, and thus would not likely grow out of an investigation into his charge. See Jones , 551 F.3d at 302 (noting that the scope of a suit may extend to "any kind of discrimination like or related to allegations contained in the charge and growing out of such allegations during the pendency of the case before the Commission"). Indeed, much of Plaintiff's proposed retaliation claim relates to a requirement that he obtain a G.E.D. in order to return to work - a fact which is not mentioned at all in Plaintiff's EEOC charge. The Court agrees with ...