United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Strike
Plaintiff's Claims For Failure To Exhaust All
Administrative Remedies [Record Document 44]. This motion
seeks to have the Court strike claims by Plaintiff that
Defendant alleges were not investigated by the Equal
Employment Opportunity Commission ("EEOC") or were
prescribed prior to the filing of the EEOC charge of
discrimination. For the reasons announced herein,
Defendant's motion is DENIED.
Cynthia Draper ("Draper"), brought this suit
arising out of her employment at Savannah at the Oaks,
Willis-Knighton's senior assisted living facility. In her
complaint, Draper, a black female, alleges that her
supervisor, Janice Latvala ("Latvala"), a white
female, subjected her to discrimination, retaliation, and a
hostile working environment. Plaintiff's discrimination
claim was dismissed on summary judgment, but her claims of
retaliation and hostile work environment remain. Record
status conference in April 2017, the Court noted that
Defendant's answer claims that portions of
Plaintiff's allegations are beyond the scope of her EEOC
charges. The Court instructed that if Defendant intended to
raise this issue, it must do so by May 1, 2017. Record
Document 39. Defendant then filed this Motion to Strike,
alleging that Plaintiffs Title VII claims that were not
raised before the EEOC must be dismissed.
Law & Analysis
Defendant's motion raises issues of both timeliness and
scope, this Court's exhaustion analysis will consider
both as to each of Plaintiff's remaining claims.
employee seeking judicial relief from proscribed
discriminatory employment practices must first exhaust her
administrative remedies by filing a charge of discrimination
with the EEOC no more than 300 days after the alleged
discriminatory employment action occurred. Laviqne v.
Caiun Deep Foundations, LLC, 654 F.App'x 640, 643
(5th Cir. 2016); Mack v. John L Wortham &
Sonf LP., 541 F.App'x 348, 358 (5th Cir.
2013); Pachecov.Mineta, 448 F.3d 783, 788 (5th Cir.
2006). Additionally, the scope of a plaintiff's complaint
is limited to the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination. Mack, 541 F.App'x at 358. This
standard is intended to further two competing Tile VII
policies. First, because the provisions of Title VII were not
designed for sophisticated complainants, the scope of an EEOC
complaint should be construed broadly. However, a primary
purpose of Title VII is to trigger the investigatory and
conciliatory procedures of the EEOC, and Title VII
contemplates that "no issue will be the subject of a
civil action until the EEOC has first had the opportunity to
attempt to obtain voluntary compliance." Pacheco, 448
F.3d at 788-89 (quoting Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 467 (5th Cir. 1970)). A court
analyzing the scope issue must engage in a
"fact-intensive analysis of the statement given by the
plaintiff in the administrative charge, and look slightly
beyond its four corners, to its substance rather than its
label." Pacheco, 448 F.3d at 789.
filed her official charge of discrimination on April 4, 2014.
Record Document 46-2, p. 23. Three hundred days prior to this
date would be June 18, 2013. Plaintiff argues that her
earlier intake questionnaire should constitute a charge for
timing purposes. The Fifth Circuit "has recognized that
an intake questionnaire that informs the EEOC of the identity
of the parties and describes the alleged discriminatory
conduct in enough detail to enable the EEOC to issue an
official notice of charge to the respondent is sufficient to
set the administrative machinery in motion." Conner
v. Louisiana Dep't of Health & Hosps., 247
F.App'x 480, 481 (5th Cir. 2007) (quotation omitted).
Here, Draper's intake questionnaire, received on December
13, 2013, appears to meet these conditions. The questionnaire
identifies the parties and describes some of the alleged
problematic conduct. Record Document 46-2, p. 18-21.
Furthermore, the records provided to the Court indicate that
the EEOC notified Defendant of the charge. Id., at 17, 30.
The Court may thus consider the intake questionnaire for
timing purposes. See Redford v. KTBS, LLC, 135
F.Supp.3d 549, 557 (W.D. La. 2015) (finding similarly). Three
hundred days prior to receipt of the intake questionnaire on
December 13, 2013 is February 16, 2013. Thus, February 16,
2013 is the operative date for any timeliness analysis.
Plaintiff's retaliation claim, this claim has been
exhausted. First, Plaintiff was terminated on June 19, 2013,
which is clearly within the time period for filing a charge
based on this act. Record Document 47-1, p. 5. This claim was
also within the scope of the EEOC investigation. On her
intake questionnaire, Plaintiff indicated that she was
"discharged wrongfully, " and on her formal charge
of discrimination, she indicated that she was retaliated
against for "opposing practices made unlawful under
Title VII" Record Document 46-2, p. 19, 23.
Additionally, notes within the EEOC file contain the line:
"Retaliation: Ms. Latvala was upset that I went to HR..
."Id., at 14. Thus, Plaintiff's claim of retaliation
based on her discharge was exhausted.
Plaintiff's hostile work environment claim, Defendant
argues that Plaintiff failed to plead sufficient facts to the
EEOC to show a continuing violation and thus her complaint as
to the hostile work environment claim is both outside the
scope of the investigation and prescribed. Plaintiff argues
that she made sufficient allegations to the EEOC to exhaust
this claim and the continuing violation doctrine applies,
such that the claim was also timely.
hostile work environment claim has already survived summary
judgment. That claim was based on Latvala's alleged
behavior, which included continuous racist and derogatory
comments, following Plaintiff, and raising her voice at
Plaintiff. See Record Document 41. Plaintiff reported in her
charge of discrimination that she was subjected to harassment
and bullying by Latvala. Record Document 46-2, p. 23. The
intake questionnaire similarly indicates harassment,
bullying, and wrongful discharge. Id. at 19.
Plaintiff complained on her questionnaire that Latvala
"likes to show her authority by screaming and yelling at
employee and making racist remarks while trying to belittle
employee using aggressive attitude and behavior. Examples
that also include constant following and harassment."
Id. Notes in the file also detail specific comments
allegedly made by Latvala. A note in the file states that
Latvala was "always making racist remarks, i.e., (1)
Girl where you been; (2) Girl where were you; (3) black men
always go to jail; (4) Blacks are Getto [sic]; (5) blacks
wear rags on their head; [and] (6) Black men don't keep
jobs." Id. at 14. The notes indicate that the
behavior was "ongoing" during Draper's two
years of employment, that she reported the behavior, and that
Latvala was upset that Draper "went to HR."
argues that the EEOC investigation did not encompass a
continuos hostile work environment claim such that activity
falling outside of the 300 day period is not covered. This
Court disagrees. The continuing violation doctrine
"provides that when a plaintiff alleges a hostile work
environment claim, as long as an employee files her complaint
while at least one act which comprises the hostile work
environment claim is still timely, the entire time period of
the hostile environment may be considered by a court for the
purpose of determining liability." Heath v. Bd. of
Supervisors for S. Univ. & Aaric. & Mech. Coll..
850 F.3d 731, 736 (5th Cir. 2017), as revised (Mar. 13, 2017)
(citations and internal quotations omitted). "Hostile
environment claims are "continuing' because they
involve repeated conduct, so the 'unlawful employment
practice' cannot be said to occur on any particular
day." Id., at 737. Such ...