Simms v OK Petition for Writ of Certiorari
Public Court Documents
January 25, 1999
70 pages
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Brief Collection, LDF Court Filings. Simms v OK Petition for Writ of Certiorari, 1999. 80a8d272-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c9ed9112-1a12-4b28-9cc6-379a65ffc5f4/simms-v-ok-petition-for-writ-of-certiorari. Accessed October 10, 2025.
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No. 98-
In The
i>u;prpmp GJflurt of tbp Im tpb S tates
Cedric D. Sim m s ,
v.
Petitioner,
Sta te of Ok la h o m a , ex r e l . ,
The D epartm ent of M ental H ea lth and
Substance Abuse Serv ices , a sta te a g e n c y ,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
E laine R. Jones
D irector-C ounsel
Theodore M . Shaw
N orm an J. C hachkin
Charles Steph en R alston
(<Counsel o f Record)
D eborah N . A r ch er
NAACP Lega l D e fen se and
Ed ucational F u n d , In c .
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 265-2200
K en F eagins
A ttorney A t L aw
629 24th Avenue, S.W.
Norman, OK 73069
(405) 360-9700
Attorney fo r Petitioner
PRESS OF BYRON S. ADAMS ♦ WASHINGTON, D.C. ♦ 1-800-347-8208
1
Q u e s t io n P r e s e n t e d
Does an amendment to an EEOC charge of
discrimination relate back to the date of the original
charge for the purpose of complying with the statute of
limitations for Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §2000e et seq., where the
amendment alleges an additional "legal theory" that grows
out of the same set of operative facts that were in the
original charge?
11
P a r t ie s
A ll of the parties are listed in the caption.
Ill
TABLE OF CONTENTS
Q u e s t io n P r e s e n t e d ............................................................ i
P a r t ie s .................................................... ii
T a b l e o f A u t h o r it ie s ............................................................iv
O pin io n s B e l o w ................................................................. 1
J u r is d ic t io n ............................................ 2
St a t u t e s a n d R e g u l a t io n s In v o l v e d ........................ 2
St a t e m e n t o f t h e Ca se ..................................................... 3
REASONS FOR GRANTING THE W R I T ................. 8
I. T h e D e c isio n Be l o w is in
C o n fl ic t W it h D ec isio n s in
N u m e r o u s O t h e r C i r c u i t s .................. 9
II. T h is Ca se Pr esen ts Issues o f
Su bsta n tia l Im p o r t a n c e ..................... 15
III. T h e D e c isio n Be l o w is in
C o n fl ic t W it h D e c isio n s o f T his
C o u r t ............................................................. 22
A. Avoiding the Imposition of
Technical Requirements upon
Lay P e rso n s ....................... 22
B. Deference to Agency
Interpreta tions............................. 24
C o n c l u sio n 26
IV
TABLE OF AUTHORITIES
Cases: Pages:
Adames v. Mitsubishi Bank, Ltd., 751 F. Supp. 1565
(E.D.N.Y. 1990) ......................................... 10-12, 14
Ahmed v. Samson Management Corp., 1996 WL 183011
(S.D.N.Y. 1996)................ 11
Alpem v. UtiliCorp United, Inc., 84 F.3d 1525
(8th Cir. 1996)............ 18
Anderson v. Block, 807 F.2d 145 (8th Cir. 1986) _____ 12
B. Sanfield, Inc. v. Finaly Fine Jewelry Corp.,
168 F.3d 967 (7th Cir. 1999) .............................. 19
Bridges v. Eastman Kodak Co., 822 F. Supp. 1020
(S.D.N.Y. 1993)........... 20
Bularz v. Prudential Ins. Co. of Am., 93 F.3d 372
(7th Cir. 1996)................... 18
Caribbean Broad. System, Ltd., v. Cable & Wireless PLC,
148 F.3d 1080 (D.C. Cir. 1998) . ...................... .. . 19
Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497
(7th Cir. 1994) . ................................................... .. . 20
Chevron v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1 9 8 4 )....................................... .. 24, 25
City of Chicago v. Int’l College of Surgeons,
522 U.S. 156, _ , 139 L. Ed. 2d 525 (1 9 9 7 )___ 18
Conroy v. Boston Edison Co., 758 F. Supp. 54
(D. Mass. 1991).................................... 12-14, 20, 21
V
Pages:
Drummer v. DCI Contracting Corp., 772 F. Supp. 821
(S.D.N.Y. 1991)..................................................... . 14
Eggleston v. Chicago Journeymen Plumbers’ Local Union
No. 130, 657 F.2d 890 (7th Cir. 1981 )................. 16
Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954 (4th Cir. 1996) ........................... 10, 11
Federal Deposit Ins. Corp. v. Bennett, 898 F.2d 477
(5th Cir. 1990)........................................... .. 18
Fellows v. Universal Restaurant, 701 F.2d 447
(5th Cir. 1983).............................................. .. . 23, 24
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) . . 25
Goren v. New Vision Int’l, Inc., 156 F.3d 721
(7th Cir. 1998)................................................ .. 19
Hicks v. ABT Associates, 572 F.2d 960 (3d Cir. 1978) . 11
Hopkins v. Digital Equip. Corp., 1998 WL 702339
(S.D.N.Y. 1998)........................ ....................... 10, 11
Hornsby v. Conoco Inc., 777 F.2d 243
(5th Cir. 1985) . ................................................. 12, 13
Kahn v. Pepsi Cola Bottling Group, 526 F. Supp. 1268
(E.D.N.Y. 1981) ..................................................... 11
Lantz v. Hospital of the Univ. of Penn., 1996 WL 442795
(E.D. Pa. 1 9 9 6 )......................................... .. 10, 11
Love v. Pullman, 404 U.S. 522 (1972) 16, 22, 23
VI
Pages:
McKenzie v. Illinois D ep’t of Transp., 92 F.3d 473
(7th Cir. 1996 ).......................................................... 20
Mohasco Corp. v. Silver, 447 U.S. 807 (1980) ............... 23
Morton v. Ruiz, 415 U.S. 199 (1974) ........................ .. 25
Oates v. Discovery Zone, 116 F.3d 1161
(7th Cir. 1997 ).......................................................... 19
Paige v. California, 102 F.3d 1035 (9th Cir. 1996) . 23, 24
Pejic v. Hughes Helicopters, Inc., 840 F.2d 667
(9th Cir. 1988).................................................. 10, 11
Pena v. United States, 157 F.3d 984 (5th Cir. 1998) . . . 18
Rizzo v. WGN Continental Broad., Co., 601 F. Supp. 132
(N.D. 111. 1985) .................................................. 14
Robinson v. H. Dalton, 107 F.3d 1018 (3rd Cir. 1997) . 20
Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970 )...................................... 12, 13, 15, 20
Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124
(7th Cir. 1989).................................................. 16, 24
Seymore v. Shawver & Sons, Inc., I l l F.3d 794 (10th Cir.
1997), cert, denied 118 S. Ct. 342 (1997) . _____ 16
St. Francis College v. Al-Kharzaji,
481 U.S. 604 (1 9 8 7 ).......................... ........... . . . . 11
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) . . 19
Warren v. Halstead Indus., 1983 WL 544
(M.D.N.C. 1 9 8 3 ) ..................................................... 14
Washington v. Jenny Craig Weight Loss Centres,
3 F. Supp.2d 941 (N.D.I11. 1998)................... 20, 21
Washington v. Kroger Co., 671 F.2d 1072
(8th Cir. 1982).................................................. 12, 13
Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993) . . . 18
Zanders v. O ’Gara-Hess, 952 F.2d 404 (6th Cir. 1992)
1992 U.S. App. Lexis 535 .................................... . 11
Zipes v. Trans World Airlines, Inc. Indep. Fed’n of Flight
Attendants, 455 U.S. 385 (1982).............. 16, 22, 23
Statutes, Rules, and Regulations:
28 U.S.C. §1254 ........................................................................ 2
29 C.F.R. §1601.12.........................................................passim
29 C.F.R. §1601.28 ................................................................... 6
29 C.F.R. §1601.34 .............................................................. 16
29 C.F.R. §1602.14 .............................................................. 17
42 U.S.C. §2000e-12(a)............................... .................. 2, 25
42 U.S.C. §§2000e-5 . ............................................................ 2
F e d . R. C iv . P. 8 ................................................................. 19
F e d . R. C iv . P. 1 5 .............................................................. 18
VI1
Pages:
F e d . R. C iv . P. 2 3 .............................................................. 23
Title VII of the Civil Rights Act of 1964 .................passim
Other Authorities:
5 Ch a r l e s A l a n W r ig h t & A r t h u r R. M il l e r ,
F e d e r a l P r a c t ic e a n d P r o c e d u r e §1215
(1 9 9 0 )........................................................................ 19
V lll
Pages:
No. 98-
In T h e
Supreme Court of tfje ©mteb States;
O c to b er T e r m , 1998
Ce d r ic D. Sim m s ,
Petitioner,
■ v.
St a t e o f O k la h o m a , e x r e l .,Th e D e pa r t m e n t o f
M e n t a l H e a l t h and Su bsta n ce A b u se
Se r v ic e s , a state a g e n c y
Respondent.
On Petition for Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioner Cedric D. Simms respectfully prays that
this Court issue a Writ of Certiorari to review the judgment
and opinion of the United States Court of Appeals for the
Tenth Circuit entered on January 25, 1999.
O pin io n s Belo w
The opinion of the Tenth Circuit, which is reported
at 165 F.3d 1321 (10th Cir. 1999), is set out at pp. la-16a of
the Appendix hereto. The September 3, 1997, opinion of
the district court granting the respondent’s motion for
summary judgment, which is not reported, is set out at pp.
17a-24a of the Appendix. The decision of the court of
2
appeals denying rehearing and rehearing en banc, which is
not reported, is set out at p. 25a of the Appendix.
J u r is d ic t io n
The decision of the Tenth Circuit was entered on
January 25, 1999. A timely petition for rehearing was
denied on February 24, 1999. The jurisdiction of this Court
is invoked pursuant to 28 U.S.C. §1254.
St a t u t e s a n d R e g u l a t io n s In v o lv ed
This matter involves Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §2000e et seq., and its
implementing regulation, 29 C.F.R. §1601.12(b), which
provides, in pertinent part:
A charge may be amended to cure technical defects
or omissions, including failure to verify the charge, or
to clarify and amplify allegations made therein. Such
amendments and amendments alleging additional
acts which constitute unlawful employment practices
related to or growing out of the subject matter of the
original charge will relate back to the date the charge
was first received. A charge that has been so
amended shall not be required to be redeferred.
The pertinent portions of Title VII, specifically 42 U.S.C.
§§ 2000e-5 and 2000e-12(a), are printed at pp. 26a-28a of
the Appendix.
3
St a t e m e n t o f t h e Ca se1
Petitioner, Cedric Simms, began his employment with
the respondent at Griffin Memorial Hospital in Norman,
Oklahoma as a Fire and Safety Officer I on April 29, 1991.
(App. 2a). On September 11, 1991, the respondent posted
a job announcement for the position of Fire and Safety
Officer II. Id. Mr. Simms was qualified for the position and
applied, but the defendant gave it to a white employee less
qualified than Mr. Simms. As a result, on October 12, 1992,
Mr. Simms filed a charge with the Equal Employment
Opportunity Commission ("EEOC") alleging that the
respondent denied Mr. Simms the promotion because of his
race, black. Id. The EEOC issued a right-to-sue letter. On
December 21, 1993, Mr. Simms filed an action in federal
court pursuant to Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §2000e et seq. ("Title VII"). Id.
On April 13, 1994, the parties to that case reached a
settlement. Pursuant to the settlement agreement, the
respondent promoted Mr. Simms to the position of Fire and
Safety Officer II, effective May 1, 1994. Id. Also, in the
settlement agreement the respondent agreed not to subject
Mr. Simms to the customary six (6) month probationary
period. Id. Respondent’s employees Carol Kellison,
Director of Management Support Services, and Stand
LaBoon, Superintendent, were provided with a copy of the
agreement and were aware that the agreement required the
probationary period be waived. Nevertheless, Kellison and
LaBoon withheld Mr. Simms’ supervisory duties until June
20, 1994. Id. *
‘Although this case has its origins in a complicated history of
litigation, this petition includes only those facts that are relevant to
the issue before the court.
4
On June 30, 1994, ten days after Mr. Simms began
his supervisory duties, the respondent posted a job
announcement for the position of Fire and Safety Officer
Supervisor. Id. The job announcement stated that
"PREFERENCE WILL BE GIVEN TO APPLICANTS
WITH SUPERVISORY EXPERIENCE." Id. Mr. Simms
applied, interviewed for the position, and received the
highest scores from a panel of six interviewers. Instead of
promoting Mr. Simms, Kellison initiated a second round of
interviews and selected the three member panel, which
consisted of Kellison, La Boon, and Ed Smith, an African
American. The respondent ultimately gave the position to
Bruce Valley, a white employee. At the time that Mr.
Valley was promoted he was being supervised by Mr. Simms.
Id. Nevertheless, respondent contended that Mr. Valley was
given the promotion because he had more supervisory
experience than Mr. Simms.
Unassisted by counsel, Mr. Simms filed a second
EEOC charge on October 31, 1994. (App. 2a). Mr. Simms
checked the box indicating he believed that he was
discriminated against because of his race. (The charge is
reproduced in the Appendix following App. 29a). In the
area asking for the particulars of his claim, Mr. Simms stated
that his claims arose from the denial of his promotion to the
position of Fire and Safety Officer Supervisor.2 * I. II. III.
Specifically, the charge stated:
I. Effective August 15, 1994, I was denied promotion
to the position of Fire and Safety Officer Supervisor.
II. Carol Kellison (Director Management Support
Services) informed me by written notice that a better
experienced candidate had been selected.
III. I believe I have been discriminated against because
of my race, Black, in violation of Title VII of the
5
On July 15, 1996, Mr. Simms, now having obtained
the assistance of counsel, filed an amendment to his October
31, 1994 EEOC charge. (App. 3a). Mr. Simms added
retaliation as a legal claim and explained why he believed
respondent’s decision not to promote him was motivated by
racial discrimination and retaliation for his previous lawsuit.
(See following App. 31a). He also alleged additional acts
related to the promotion denial he believed were unlawful
employment practices.3 I. II. III.
Civil Rights Act of 1964, as amended.
Specifically, the amendment stated:
I. Beginning in May of 1994 and continuing until the
present, I have had my supervisory duties with held
[sic] from my Fire and Safety Officer II position in
direct violation of a court order entered in a
previous EEOC charge. Effective August 15, 1994,
I was denied promotion to the position of Fire and
Safety Officer Supervisor.
II. The reasons given for withholding of supervisory
duties and other disciplinary action, I believe were
pretextural [sic]. No other reason has been given for
the withholding of supervisory duties. Carol Kellison
(Director Management Support Services) informed
me by written notice that a better experienced
candidate had been selected.
III. I believe that I have been discriminated against
because of my race, Black, and retaliated against for
filing previous charges, and for objecting to unlawful
employment practices, in violation of Title VII of
the Civil Rights Act of 1964, as amended.
This charge has been amended to include retaliation, and the
continuing violation.
6
The EEOC accepted Mr. Simms’ amendment. The
EEOC completed its investigation of the October 31, 1994
charge and, on September 25, 1996, issued a letter of
determination stating that it found "reasonable cause to
believe the charge is true." (App. 4a). Attempts at
conciliating both Mr. Simms’ retaliation and race
discrimination claims failed. On October 2, 1996, the
United States Department of Justice4 issued a right-to-sue
letter. Id. On December 31, 1996, the petitioner brought
the present action alleging that the respondent discriminated
against him on the basis of race and retaliation in violation
of Title VII. Id.
On June 16, 1997, the respondent filed a motion for
partial summary judgment, claiming that Mr. Simms’
retaliation claims asserted in the amendment to the second
charge did not relate back to the date of its filing, October
31, 1994, and were therefore time-barred. (App. 17a). The
district court granted the motion on September 3, 1997,
holding that Mr. Simms failed to exhaust his administrative
remedies. The court found that the allegations in the
amendment to the second EEOC charge related to events
that occurred more than 300 days prior to the amendment
and were not properly part of the charge, even though the
events occurred within 300 days of October 31, 1994, and
were based on the allegations in the charge that was timely
filed on that date. (App. 24a). On September 11, 1997, the
respondent filed a summary judgment motion with respect
to Mr. Simms’ remaining claims and that motion was
granted on October 23, 1997. (App. 4a).
4 Although Mr. Simms’ charge of discrimination was filed with the
EEOC, where the respondent is a government or governmental
agency, the Attorney General of the United States issues the notice
of right to sue "[w]hen there has been a finding of reasonable cause
by the [EEOC], there has been a failure of conciliation, and the
Attorney General has decided not to file a civil action." 29 C.F.R.
§1601.28(d)(l).
7
The petitioner filed a timely appeal to the United
States Court of Appeals for the Tenth Circuit. Mr. Simms
argued, inter alia, that the amendment to the charge
complies with 29 C.F.R. §1601.12(b), allowing amendments
to relate back to the date of the original charge, because it
added "additional acts which constitute unlawful employment
practices related to or growing out o f the same subject
matter as the original charge: the promotion denial.
The court below affirmed the judgment of the district
court, holding that Mr. Simms failed to exhaust his
administrative remedies with regard to his retaliation claims:
. . . [W]e hold that Mr. Simms’ retaliation charge
does not relate back under §1601.12(b) because his
1996 amendment alleges a new theory of recovery,
retaliation, that he did not raise in the second EEOC
charge.
(App. 8a).
Even though the EEOC had investigated the
retaliation charge and attempted conciliation between Mr.
Simms and the respondent, the court stated that
[prohibiting late amendments that include entirely
new theories of recovery furthers the goals of the
statutory filing period — giving the employer notice
and providing opportunity for administrative
investigation and conciliation.
(App. 8a).
On February 4, 1999, Mr. Simms filed a timely
petition for rehearing. The petition for rehearing was
denied on February 24, 1999.
8
REASONS FOR GRANTING THE WRIT
The petitioner in this case alleges that he was
subjected to racial discrimination and a series of retaliatory
acts. Despite a finding by the EEOC of probable cause to
believe that the petitioner was discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §2000e etseq., petitioner was prevented
from presenting his retaliation claims to a jury because the
courts below misconstrued the applicable EEOC regulation.
That regulation, 29 C.F.R. §1601.12(b), set out supra at pp.
1-2, provides that amendments to timely filed charges that
allegef] additional acts which constitute unlawful
employment practices related to or growing out of
the subject matter of the original charge will relate
back to the date the [original] charge was first
received.
29 C.F.R. §1601.12(b). The rulings below unnecessarily
penalize lay persons who fail to attach the correct legal
labels to the factual allegations in their EEOC charges. It
adopts a hyper-technical reading of the phrase "related to or
growing out o f which makes the legal "theory of recovery,"
not facts that would be known to a layperson, the
determining criterion of timeliness, notwithstanding that the
employer is put on notice by the original charge of the
specific adverse employment action — here the August, 1994
failure to promote Mr. Simms to Fire and Safety Officer
Supervisor — alleged to have been unlawful.
The petition for a writ of certiorari should be granted
because the decision below directly and irreconcilably
conflicts with the rulings of several other Circuits, as well as
applicable decisions of this Court. Further, the decision
resolves an important federal question in way that disrupts
settled doctrine and undermines Congress’ intent that Title
VII provide accessible and effective remedies to eradicate
9
employment discrimination.
I.
T h e D e c is io n B e l o w is in C o n fl ic t W it h
D e c isio n s in N u m e r o u s O t h e r C ir c u it s
This case concerns the Tenth Circuit’s interpretation
of 29 C.F.R. §1601.12(b), the EEOC regulation controlling
the relation back of amendments to an EEOC charge.
Substantially differing standards for applying §1601.12(b) are
in use in the federal courts. Whether a claimant will receive
a trial on the merits, or have his claims dismissed for failure
to exhaust his administrative remedies, frequently turns
solely on the district court and Circuit in which his
complaint is filed. This case presents an opportunity to
provide lower courts with a single, clear standard for
resolving this critical issue.
EEOC regulations explicitly allow the amendment of
charges of discrimination. Under the regulations, an
amendment filed outside of the applicable limitations period
will be considered timely if it is intended to "cure . . .
omissions . . . or to clarify and amplify allegations made
therein" or "allegjes] additional acts which constitute
unlawful employment practices related to or growing out of
the subject matter of the original charge." 29 C.F.R.
§1601.12(b). This language makes clear that an amendment
can allege new legal claims so long as those claims arose out
of the same set of operative facts as were alleged in the
original charge.
The court below took an exceedingly narrow view of
the regulation. The Tenth Circuit’s decision would allow
amendments to relate back only if those amendments clarify
legal theories already articulated in the original charge.
(App. 8a). The result is a blanket rule prohibiting
amendments alleging new legal claims even when those
10
claims are "related to or grow[ ] out of the subject matter of
the original charge." (App. 6a). This position is untenable
because nothing in the statute or regulation proscribes an
amendment that includes a new legal claim.
The court below correctly observed that its opinion
conflicts with those of numerous other Courts of Appeals.
(App. 7a-8a). Although the Courts of Appeals have taken
two general approaches to the issue, as set out below, there
are several distinct standards used in the lower courts.
The Fourth and Ninth Circuits have taken an
approach similar to that of the Tenth Circuit and have
concluded that an amendment will not relate back if it
advances a new theory of recovery, regardless of what facts
were included in the original charge. See Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 963 (4th
Cir. 1996); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667,
675 (9th Cir. 1988). In addition, although the Second and
Third Circuits have not directly addressed this question, two
district courts in those Circuits have followed the standard
adopted by the Fourth, Ninth and Tenth Circuits. Hopkins
v. Digital Equip. Corp., 1998 WL 702339, *2 (S.D.N.Y.
1998);5 Lantz v. Hospital o f the Univ. o f Penn., 1996 WL
442795, *4 (E.D. Pa. 1996).
The opinion in Evans demonstrates the consensus
approach of the Circuits that adopt this narrow construction
of the EEOC regulation. In Evans, the court refused to
permit relation back of an amendment adding age
discrimination to the original charge of sex discrimination,
even though both legal claims arose out of the same facts
5As with the Circuits, there is a split among the district courts in
the Second Circuit. Compare Hopkins v. Digital Equip. Corp, 1998
WL 702339^2 (S.D.N.Y. 1998), with Adames v. Mitsubishi Bank, Ltd.,
751 F. Supp. 1565, 1572-73 (E.D.N.Y. 1990).
11
and circumstances described in the original charge. Evans,
80 F.3d at 963. The court interpreted "related to or growing
out o f to mean that a new legal claim must "flow from" the
old legal claim, not from the underlying operative facts. Id.
Applying this standard, the court concluded that "age
discrimination does not necessarily flow from sex
discrimination and vice versa." Id. The court, however,
provided no guidance in determining when one legal claim
"flows" from the other.6
On the other hand, the Third, Fifth, Sixth and Eighth
Circuits have taken a more flexible approach to the
regulation and have held that the language of the regulation
encompasses claims based on different legal theories that
derive from the same set of operative facts included in the
original charge. See Hicks v. A B T Associates, 572 F.2d 960,
965 (3d Cir. 1978) (where claim of sex discrimination arose
out of the same facts as the claim of race discrimination set
out on EEOC charge, relation back is permissible if the two
claims are "directly related"); Zanders v. O ’Gara-Hess, 952
F.2d 404 (6th Cir. 1992), 1992 U.S. App. Lexis 535
(termination following suspension that was subject of
6Under this approach, few amendments have been regarded as
relating back to the original charge unless they involve the
overlapping statutorily protected categories of race, color, and
national origin. See, e.g., Kahn v. Pepsi Cola Bottling Group, 526 F.
Supp. 1268, 1270 (E.D.N.Y. 1981)(nationa! origin and race); Adames'
v. Mitsubishi Bank, 751 F. Supp. 1572 (race, color, national origin
connected); cf. St. Francis College v. Al-Kharzaji, 481 U.S. 604, 614
(1987)(Brennan, J. concurring) (ethnicity and national origin overlap
as a legal matter under Title VII); Ahmed v. Samson Management
Corp., 1996 WL 183011, *6 (S.D.N.Y. 1996) (noting that in Title VII
context, national origin claims may be treated as ancestry or ethnicity
claims). Compare, e.g., Evans, 80 F.3d 954 (sex and age not
sufficiently related); Pejic, 840 F.2d 667 (national origin and age not
sufficiently related); Hopkins, 1998 WL 702339 (race, disability and
retaliation not sufficiently related); Lantz, 1996 WL 442795 (disability
and age not sufficiently related).
12
charge); Anderson v. Block, 807 F.2d 145,149 (8th Cir. 1986)
(same); Hornsby v. Conoco Inc., I l l F.2d 243, 247 (5th Cir.
1985) ("other" box checked, age and retaliation written in,
but references to sex in factual statement held sufficient to
constitute charge on that basis); Washington v. Kroger Co.,
671 F.2d 1072, 1075-1076 (8th Cir. 1982) (second charge
properly treated as amendment of first); Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 464 (5th Cir. 1970) (national
origin amendment to original charge on which "sex" box was
checked)7. In addition, although the First and Second
Circuits have not addressed the question directly, two district
courts in those Circuits have also adopted a similar
approach. Conroy v. Boston Edison Co., 758 F. Supp. 54, 58
(D. Mass. 1991); Adames v. Mitsubishi Bank, Ltd., 751 F.
Supp. 1565, 1573 (E.D.N.Y. 1990).
Underlying the opinion in Sanchez and its progeny is
the recognition that "a large number of the charges filed
with [the] EEOC are filed by ordinary people unschooled in
the technicalities of the law." Sanchez, 431 F.2d at 463
(internal citations omitted); accord Washington, 671 F.2d at
1076; Conroy, 158 F. Supp. at 60; Adames, 751 F. Supp. at
1572. Therefore, these courts hold, procedural rules
governing Title VII must be sufficiently liberal to protect
their rights. Moreover,
the crucial element of a charge of discrimination is
the factual statement contained therein. . . The
selection of the type of discrimination alleged, i.e.,
the selection of which box to check, is in reality
nothing more than the attachment of a legal
’Although the Fifth Circuit allows the amendment as a "technical
amendment" it is evident from the opinion that the additional
allegations and inclusion of a new legal theory were substantive and
of the same nature as in the other decisions cited. Sanchez, 431 F.2d
at 458-59.
13
conclusion to the facts alleged. In the context of a
statute like Title VII it is inconceivable that a
charging party’s rights should be cut off merely
because he fails to articulate correctly the legal
conclusion emanating from his factual allegations.
Sanchez, 431 F.2d at 462.
Despite these commonalities, each of these Circuits
have taken slightly different routes to reach the conclusion
that claims related to the operative facts of the original
charge are not time-barred. In Hornsby v. Conoco, Inc., the
Fifth Circuit followed the teachings of Sanchez, and applied
the bright line rule of allowing amendments containing new
legal theories to relate back where those theories are based
on facts in the original charge. Hornsby, 111 F.2d at 247;
Sanchez, 431 F.2d at 462.
Another group of courts have utilized a "scope of the
investigation" and "like or reasonably related" analysis to
determine whether claims are time-barred.8 In Washington
v. Kroger, the court began its inquiry by focusing on the
factual statement in the original charge to determine
whether it supported the new legal theory alleged in the
amendment. 671 F.2d at 1076. Next, the court looked
8The "scope of the investigation" and the "like or reasonably
related" doctrines are inquiries distinct from the question whether
amendments relate back to the date of the original charge, although
the result is the same. These two doctrines
revolvef] around the principle that the scope of a civil action
is not determined by the specific language of the charge filed
with the agency, but rather, may encompass acts of
discrimination which the [ ] investigation could reasonably be
expected to uncover.
Conroy, 758 F. Supp. at 58.
14
beyond the words of the charge to discern whether, "[h]ad
the EEOC "investigated plaintiffs first charge, it is
reasonable to suppose that it would have uncovered the
related incidents that underlay the [amendment]." Id. This
hybrid approach has also been followed by several district
courts. See, e.g. Rizzo v. WGN Continental Broad., Co., 601
F. Supp. 132, 134 (N.D. 111. 1985) (although the court
focused on the underlying facts and not legal conclusions,
the court used "like or reasonably related" and "scope of
investigation" standards to determine relation back of
amendment); Adames, 751 F. Supp. at 1573 (same);
Drummer v. DCI Contracting Corp., 772 F. Supp. 821, 826
(S.D.N.Y. 1991) (applies "like or related to" standard);
Warren v. Halstead Indus., 1983 W L544, *4 (M.D.N.C. 1983)
(erroneously stating that scope of investigation test is
codified in 29 C.F.R. §1601.12(b)).
A district court in the First Circuit applied yet
another approach. In Conroy v. Boston Edison Co., while
stating that "[a]n amendment is said to grow out of the same
subject matter as the initial charge where the protected
categories are related . . . ." 758 F. Supp. at 58, the court
went beyond this approach to hold that: "[e]ven where the
amendment alleges a new protected category . . . it will still
relate back where the predicate facts underlying each claim
are the same." Id.
The circumstances of this case crystallize the practical
consequences of those differing standards. The petitioner’s
retaliation amendment was held to be time-barred by the
Tenth Circuit because, although it grew out of the same
facts as in the original charge, it alleged a legal claim distinct
from his initial claim of racial discrimination. However, had
the petitioner been in one of the Circuits allowing
amendments alleging additional legal claims to relate back
when the amendment flows from the same facts as in the
original charge, he would have had the opportunity to
present his retaliation claims to a jury.
15
This case presents squarely for review the sole issue
of what standard should guide federal courts in determining
when amendments to an EEOC charge relate back to the
date of the original charge. The Writ of Certiorari should
be issued to resolve this mature and irreconcilable conflict
among the Circuits.
II.
T h is Ca se P r esen ts Issu es o f
Su bsta ntia l Im po r t a n c e
The decision below decides an important question in
a way that fundamentally undermines Congress’ intent in
establishing the Title VII administrative and litigative
processes. The court interprets the EEOC regulation in a
manner that is wholly inconsistent with the Title VII
enforcement scheme. Under the Tenth Circuit rule, laymen
must act with the knowledge and precision of trained lawyers
or risk losing the right to pursue their legal claims. The
opinion below, therefore, threatens the effectiveness of Title
VII as a tool to combat employment discrimination.
In Sanchez, the court carefully and precisely spelled
out why complainants must be granted latitude in identifying
the legal claims in their EEOC charges:
While the distinction between [ ] two types of
discrimination will undoubtedly be crystal clear to a
lawyer delving into the law books to research a legal
question, it may not be so apparent to an uneducated
layman who is required to put pen to paper and, by
filling out a form, to articulate his grievance as best
he can without expert legal advice.
431 F.2d at 463 n.4 (internal citations omitted). This reality
necessitates liberal construction of procedural rules if the
16
rights of Title VII plaintiffs are to be adequately protected.
Congress and the EEOC created a "user-friendly"
administrative system for the assertion of rights under Title
VII and other antidiscrimination statutes that enables lay
complainants to present their claims initially, without the
assistance of attorneys.9 See Zipes v. Trans World Airlines,
Inc. Indep. Fed’n o f Flight Attendants, 455 U.S. 385, 397
(1982); Love v. Pullman, 404 U.S. 522, 527 (1972). This
important objective is served by simplicity and flexibility in
the procedural requirements for asserting discrimination
claims.
The objective of requiring a charging party to exhaust
his administrative remedies by filing a charge with the
EEOC is to place the charged party on notice of alleged
violations, to give the EEOC sufficient information to
investigate, and to provide the parties an opportunity to
conciliate. See Seymore v. Shawver & Sons, Inc., I l l F.3d
794, 799 (10th Cir. 1997), cert, denied, 118 S. Ct. 342 (1997);
Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124,127 (7th
Cir. 1989); Eggleston v. Chicago Journeymen Plumbers’ Local
Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981). The rule
adopted by the Tenth Circuit undermines the administrative
scheme adopted by Congress for this purpose.
Where, as here, the EEOC has thoroughly
investigated the charge as amended and provided the parties
with an opportunity to conciliate all claims, the purpose of
the statutory exhaustion requirement is not furthered by
denying a complainant the opportunity to pursue those
claims in federal court. In addition, the respondent cannot
be said to have been prejudiced in any manner if petitioner
9In fact, EEOC regulations explicitly state that its "rules and
regulations shall be liberally construed to effectuate the purpose and
provisions of title VII . . . ." 29 C.F.R. §1601.34.
17
is permitted to proceed on his retaliation claim.10 *
The opinion below is also inconsistent with the
established procedure for filing a charge of discrimination
with the EEOC. One avenue for filing a charge with the
EEOC is to complete a charge form. On the form, the
complainant is instructed to indicate the cause of
discrimination by checking the box or boxes that describe the
type of discrimination suffered from among several listed.11
Next, the form requests the complainant to provide a
statement describing the alleged discriminatory action. The
form contains no additional instructions alerting
complainants to the significance of the selection of which
boxes to check. In this case Mr. Simms’ failure to check the
"retaliation" box had the consequence, in the view of the
court below, of completely cutting off his right to bring his
retaliation claims before a court even though they were
10For example, once petitioner’s original 1994 charge was filed,
respondent was required to preserve all of its "personnel records
relevant to the charge" until its final disposition. 29 C.F.R. §1602.14.
The regulation continues:
The term "personnel records relevant to the charge," for
example, would include personnel or employment records
related to the aggrieved person and to all other employees
holding positions similar to that held or sought by the
aggrieved person . . . .
It is inconceivable in light of this regulation that a respondent
charged with denying a specific promotion based on race could
justifiably assert that it was led by such a charge to discard records
relevant to rebutting a claim of retaliation in denying the promotion,
so that its defense has been prejudiced. Certainly no such assertion
was ever made here.
nMr. Simms’ original and amended EEOC charges of
discrimination are reproduced in the Appendix following pp. 29a and
31a.
18
investigated and unsuccessfully conciliated by the EEOC.
Ironically, the court below is enforcing a more
rigorous administrative "pleading" requirement than is
imposed on plaintiffs represented by attorneys in federal
district court in two respects. First, under Federal Rule of
Civil Procedure 15(c)(2), an amendment to a pleading
relates back to the date of the original pleading if "the claim
or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading." F e d . R. C iv . P.
15(c)(2) (emphasis added). Courts have interpreted this rule
so that
a new substantive claim that would otherwise be
time-barred relates back to the date of the original
pleading, provided the new claim stems from the
same ‘conduct, transaction, or occurrence’ as was
alleged in the original complaint; for relation back to
apply, there is no additional requirement that the
claim be based on an identical theory of recovery.
Bularz v. Prudential Ins. Co. o f Am., 93 F.3d 372, 379 (7th
Cir. 1996); accord Pena v. United States, 157 F.3d 984, 987
(5th Cir. 1998); Alpem v. UtiliCorp United, Inc., 84 F.3d 1525,
1543 (8th Cir. 1996); Worthington v. Wilson, 8 F.3d 1253,
1256 (7th Cir. 1993); Federal Deposit Ins. Corp. v. Bennett,
898 F.2d 477, 479-80 (5th Cir. 1990).12
12Cf. City o f Chicago v. Int’l College o f Surgeons, 522 U.S. 156,__,
139 L. Ed. 2d 525, 535-36 (1997), holding that the supplemental
jurisdiction of federal courts extends to
state law claims that "derive from a common nucleus of
operative fact," such that "the relationship between [the
federal] claim and the state claim permits the conclusion that
the entire action before the court comprises but one
constitutional ‘case.’" . . . The state and federal claims "derive
19
Second, the Tenth Circuit approach contrasts starkly
with the liberal pleading requirements of F e d . R. C iv . P.
8(a). Rule 8(a) requires that pleadings in federal court
contain "a short and plain statement of the claim showing
that the pleader is entitled to relief'; it does not require the
plaintiff to plead legal theories. F e d . R. C iv . P. 8(a)(2); B.
San field, Inc. v. Finaly Fine Jewelry Corp., 168 F.3d 967, 973
(7th Cir. 1999); Goren v. New Vision In t’l, Inc., 156 F.3d
721, 730, n.8 (7th Cir. 1998). See also F e d . R. C iv . P.
8(e)(1). This interpretation of Rule 8 "indicates the
objective of the rules to avoid technicalities and to require
that the pleading discharge the function of giving the
opposing party fair notice of the nature and basis or grounds
of the claim . . . ." 5 Ch a r l es Al a n W r ig h t & A r t h u r
R. M il l e r , F e d e r a l P r a c t ic e a nd P r o c e d u r e §1215,
136-138 (1990); accord Caribbean Broad. System, Ltd., v.
Cable & Wireless PLC, 148 F.3d 1080. 1085-86 (D.C. Cir.
1998).
Similarly, under EEOC regulations, a Title VII
complainant’s EEOC charge need only "describe generally
the action or practices complained of'; complainants are not
required to articulate in their EEOC charges the precise
legal theories which they will later assert in a Title VII
lawsuit. 29 C.F.R. §1601.12(b); accord Oates v. Discovery
Zone, 116 F.3d 1161, 1176 (7th Cir. 1997)(D. Wood, J.
concurring in part and dissenting in part)("it is enough both
for EEOC charges . . . and for federal complaints to set
forth the facts that will form a basis for relieff; pjlaintiffs are
not under any legal obligation to plead legal theories");
from a common nucleus of operative fact," Gibbs, supra, at
725, namely, ICS’s unsuccessful efforts to obtain demolition
permits from the Chicago Landmarks Commission.
(bracketed material in original), quoting United Mine Workers v. Gibbs,
383 U.S. 715, 725 (1966).
20
Bridges v. Eastman Kodak Co., 822 F. Supp. 1020, 1026
(S.D.N.Y. 1993) (plaintiffs are not required to state legal
theories in their EEOC charges); cf Sanchez, 431 F.2d at
463 ("the only absolutely essential element of a timely charge
of discrimination is the allegation of fact contained therein").
The ruling below requires the lay person to go beyond
accurately describing all relevant facts, to denominate
precisely the legal implications of those facts. This is
contrary to Congressional intent and defeats the objectives
of the EEOC administrative process.
The Tenth Circuit’s approach also compromises the
"scope of the investigation" rule. This doctrine
revolves around the principle that the scope of a
[Title VII] civil action is not determined by the
specific language of the charge filed with the agency,
but rather, may encompass acts of discrimination
which the [ ] investigation could reasonably be
expected to uncover.
Conroy, 758 F. Supp. at 58; accord Robinson v. H. Dalton,
107 F.3d 1018, 1025 (3rd Cir. 1997) (discussing "scope of
investigation" rule); McKenzie v. Illinois Dep’t o f Transp., 92
F.3d 473, 481 (7th Cir. 1996)(discussing "like or reasonably
related" doctrine13); Washington v. Jenny Craig Weight Loss
Centres, 3 F. Supp.2d at 947-48 (N.D.I11. 1998)(discussing
"scope of investigation" and "like or reasonably related"
rules). Courts have liberally interpreted this requirement to
ensure that meritorious claims are not turned aside because
of procedural technicalities. See Cheek v. Western and
Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994);
13The scope of the investigation rule and the "like or reasonably
related” doctrine are essentially the same inquiry. See Washington v.
Jenny Craig Weight Loss Centres, 3 F. Supp. 2d 941, 947 (N.D. 111.
1998).
21
Jenny Craig, 3 F. Supp. 2d at 947.
Wholly inconsistent with this well-settled doctrine, the
Tenth Circuit has adopted an approach that makes the legal
claims, rather than the facts, the focus of the EEOC charge
and would disallow any claim or amendment not articulated
in the original complaint. In contrast, the "scope of the
investigation" rule provides that "where the factual statement
in a plaintiffs written charge should have alerted the agency
to an alternative basis of discrimination, and should have
been investigated, the plaintiff will be allowed to allege this
claim in his or her complaint regardless of whether it was
actually investigated." Conroy, 758 F. Supp. at 58.
Mr. Simms’ case typifies the potential for injustice in
jurisdictions that follow the Tenth Circuit approach. As a
result of the Tenth Circuit’s narrow construction, Mr. Simms
was effectively barred from vindicating his rights because of
steps he took during the administrative process while
unrepresented by counsel. Although his original claim of
race discrimination was found to be timely, he was barred
from pursuing a claim that the EEOC found cause to believe
was true simply because he did not check the appropriate
box on his EEOC charge form. Because this approach
frustrates the national policy of extirpating employment
discrimination that is embodied in Title VII, this Court
should grant review to correct this error.
22
III.
T h e D e c is io n B e l o w is in C o n fl ic t W it h
D e c is io n s o f T h is C o u r t
The standard applied by the Tenth Circuit is
inconsistent with this Court’s rulings concerning the
technical burdens that should be placed on Title VII
complainants at the start of the administrative process and
the level of deference that should be given to the EEOC’s
interpretation of the statute and of its own regulations.
A. Avoiding the Imposition o f Technical
Requirements upon Lay Persons
This Court’s opinions in Love v. Pullman, 404 U.S.
522 (1972)14 and Zipes v. Trans World Airlines, Inc. Indep.
Fed’n o f Flight Attendants, 455 U.S. 385 (1982)15 gave effect
14In Love, the Tenth Circuit affirmed a grant of summaiy
judgment on the grounds that the plaintiff had failed to exhaust his
state remedies where his charge was tendered to the EEOC, the
EEOC referred the charge to the state agency, and then the EEOC
formally filed it once the state deferral agency indicated that
proceedings before it were terminated. By this time the charge would
have been time-barred had it not earlier been presented to the
EEOC. 404 U.S.’at 525. In reversing the decision of the Tenth
Circuit, this Court held that the filing procedure followed there fully
complied with the purpose of the filing requirements and that the
respondent could make no showing of prejudice to its interests. Id.
at 526. Moreover, the Court held that the procedure endorsed by the
Tenth Circuit "would serve no purpose other than the creation of an
additional procedural technicality," inappropriate where laymen are
acting without the assistance of counsel. Id. at 526-27.
15In Zipes, this Court, based on the principle enunciated in Love,
held that the time for filing a charge with the EEOC was not
jurisdictional, but was a limitations period subject to waiver and
equitable tolling.
23
to a guiding principle for construing the provisions of Title
VII: the procedural requirements of Title VII should not be
applied with technical stringency to the claims of
uncounselled complainants. Zipes, 455 U.S. at 397; Love,
404 U.S. at 527; cf Mohasco Corp. v. Silver, 447 U.S. 807,
816, n.19 (1980) ("[W]e do not believe that a court should
read in a time limitation provision that Congress has not
seen fit to include,. . . at least when dealing with ‘a statutory
scheme in which laymen unassisted by trained lawyers
initiate the process’")(quoting Love).16
The ruling below departs from this tradition. It
neither promotes the requirements of Title VII nor respects
the realities of the lay-initiated administrative process.17
16As Mohasco demonstrates, this Court has held lay complainants
to precise requirements of which they would reasonably be made
aware by a reading of the statute. But this is a far cry from
penalizing a lay person for checking the wrong box on a form —
especially absent a showing of prejudice to the entity charged.
17Unfortunately, this is only one example of the general problem
of plaintiffs finding themselves limited by actions taken without
benefit of counsel during the administrative process. For example,
some courts have refused to permit a charging party to bring a class
action suit under Fed. R. Civ. P. 23 unless the charge itself used the
word "class," even though on the EEOC’s form there is no box to
check to indicate the complainant’s desire to raise class claims and no
instructions alerting complainants that special care must be given to
preserve the right to bring a class action. Other courts, cognizant
that complainants may be unaware of what "key words" can trigger
class action notification, are more generous in construing the charge.
E.g., Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996); Fellows
v. Universal Restaurant, 701 F.2d 447, 451 (5th Cir. 1983).
Paralleling the situation with respect to "relation back" of
amendments to charges, there is a conflict among the Circuits as to
class actions. The Ninth and Fifth Circuit have adopted approaches
liberally construing charges and allowing class claims where an EEOC
investigation of class discrimination could reasonably be expected to
24
B. Deference to Agency Interpretations
The Tenth Circuit also failed to afford the EEOC’s
interpretation of its regulations the appropriate level of
deference. It is well settled that
The power of an administrative agency to administer
a congressionally created . . . program necessarily
requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by
Congress.
Chevron v. Natural Resources Defense Council, Inc., 467 U.S.
check to indicate the complainant’s desire to raise class claims and no
instructions alerting complainants that special care must be given to
preserve the right to bring a class action. Other courts, cognizant
that complainants may be unaware of what "key words” can trigger
class action notification, are more generous in construing the charge.
E. g., Paige v. California, 102 F.3d 1035, 1041 (9th Cir. 1996); Fellows
v. Universal Restaurant, 701 F.2d 447, 451 (5th Cir. 1983).
Paralleling the situation with respect to "relation back" of
amendments to charges, there is a conflict among the Circuits as to
class actions. The Ninth and Fifth Circuit have adopted approaches
liberally construing charges and allowing class claims where an EEOC
investigation of class discrimination could reasonably be expected to
grow out of the allegations in the charge. See e.g., Paige, 102 F.3d at
1041 (EEOC charge alleging discriminatory denial of promotion
could support action challenging overall promotional process);
Fellows, 701 F.2d at 451 (allowing class claims because allegation in
charge that plaintiff discriminated against "because of my sex, female"
could lead to EEOC investigation of class discrimination). The
Seventh Circuit has taken a more restrictive view of the requirement,
essentially ignoring the actual or potential scope of the EEOC
investigation. See, e.g. Schnellbaecher v. Baskin Clothing Co., 887
F. 2d 124, 128 (7th Cir. 1989)(court found charge, which led to
investigation that sought "payroll records for all sales persons and an
explanation for the differences between the salaries of male and
female sales persons," insufficient to support class action).
25
837, 843 (1984), quoting Morton v. Ruiz, 415 U.S. 199, 231
(1974)(alteration in original). Furthermore, "such legislative
regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute."
Id. at 844.
In accepting, investigating, and attempting to
conciliate Mr. Simms’ amended EEOC charge, the EEOC
interpreted its regulation to allow Title VII complainants to
amend their charge to include new legal theories that grow
out of the operative facts articulated in the original charge.
Under the standard established in Chevron, the Tenth
Circuit should have given deference to the EEOC’s
interpretation of the statutory and administrative scheme.
First, Congress has given the EEOC explicit "authority from
time to time to issue . . . suitable procedural regulations to
carry out the provisions of this subchapter." 42 U.S.C.
§2000e-12(a). Second, the regulation at issue goes to the
heart of the EEOC’s role in the enforcement of Title VII:
investigating and conciliating charges of discrimination in the
first instance. Finally, this approach, as discussed above, is
consistent with the language, purpose and enforcement
scheme of Title VII. Accordingly, the Tenth Circuit should
have given greater deference to the EEOC’s interpretation
of 29 C.F.R. §1601.12(b).18
18Decisions of this Court giving limited deference to EEOC
interpretations have done so recognizing that "Congress, in enacting
Title VII, did not confer upon the EEOC [general] authority to
promulgate rules or regulations." General Electric Co. v. Gilbert, 429
U.S. 125, 141 (1976). In those circumstances the level of deference
"will depend upon the thoroughness evident in its consideration, the
validity of its reasoning, and its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control." Id. at 141. The EEOC
interpretation of 29 C.F.R. §1601.12(b) should be given greater
deference because Congress has given the EEOC explicit authority to
issue procedural regulations. 42 U.S.C. §2000e-12(a).
26
The Writ of Certiorari should be issued to address
the conflict between the foregoing decisions of this Court
and the decisions below.
C o n c l u sio n
For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted and the decision of the court
below reversed.
Respectfully submitted,
E l a in e R . J o n es
D ir e c t o r -C o u n se l
T h e o d o r e M . Sh a w
N o r m a n J. C h a c h k in
Ch a r l e s St e p h e n R a l st o n
(Counsel o f Record)
D e b o r a h N. A r c h e r
NAACP L e g a l D e f e n s e a nd
E d u c a t io n a l F u n d , In c .
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 265-2200
Ke n F e a g in s
A t t o r n e y a t Law
629 24th Avenue S.W.
Norman, OK 73069
(405) 360-9700
Attorneys for Petitioner
APPENDIX
la
PUBLISH
No. 97-6366
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
CEDRIC D. SIMMS,
Plaintiff-Appellant,
v.
THE STATE OF OKLAHOMA,
ex. rel., The Department of
Mental Health and Substance Abuse
Services, a state agency,
Defendant-Appellee
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
OKLAHOMA (D. Ct. No. CIV-96-2158-A)
Before Tacha, Briscoe, and Murphy, Circuit Judges.
Tacha, Circuit Judge.
Plaintiff-Appellant Cedric D. Simms appeals two
orders of the district court granting summary judgment in
favor of defendant, the Oklahoma Department of Mental
Health and Substance Abuse Services ("DMHSAS") on
claims of unlawful employment discrimination and
retaliation. On appeal, plaintiff argues that: (1) his pre-1995
retaliation claims are not time-barred and (2) the district
court erred in granting summary judgment on his failure to
promote claim because he presented sufficient evidence of
pretext, creating a genuine dispute as to an issue of material
fact. We exercise jurisdiction pursuant to 28 U.S.C.§ 1291
and affirm.
2a
The procedural histoiy of this case is somewhat
complicated. Mr. Simms, an African-American, began his
employment with defendant at Griffin Memorial Hospital
around April 29, 1991, as a Fire and Safety Officer I. On
September 11, 1991, defendant posted a job announcement
for the position of Fire and Safety Officer II. Mr. Simms
applied for the position, but defendant gave it to a white
employee whom he thought was less qualified.
Consequently, he filed a charge with the Equal Employment
Opportunity Commission ("EEOC") on October 12, 1992
(No. 311930053), alleging that defendant refused to promote
him because of his race. The EEOC issued a right-to-sue
letter and, on December 21,1993, Mr. Simms filed an action
in federal court pursuant to Title VII of the Civil Rights Act
("Title VII"). The parties settled this action ("Simms I") on
April 13, 1994. Under the settlement agreement, defendant
promoted Mr, Simms to the position of Fire and Safety
Officer II. Although the court stated that DMHSAS should
waive its standard six-month probationary period for
plaintiffs, defendant’s employees Carol Kellison and Stand
LaBoon withheld Mr. Simms’ supervisory duties until June
20, 1994.
Ten days later, defendant posted a job announcement
for the position of Fire and Safety Officer Supervisor. The
job announcement stated that "PREFERENCE WTT T BE
GIVEN TO APPLICANTS WITH SUPERVISORY
EXPERIENCE." Appellant’s App. at 376. Mr. Simms
applied and interviewed for the position. Mr. Simms and
Bruce Valley, a white employee under Mr. Simms’
supervision but who had numerous years of supervisory
experience in the construction industry, received the highest
scores in the first round of interviews. A panel including
Carol Kellison and Stand LaBoon interviewed both men in
a second round and ultimately gave the promotion to Mr.
Valley. As a result, Mr. Simms filed a second EEOC charge
(No. 311950136) on October 31, 1994, alleging that
defendant unlawfully failed to promote him based on his
3a
race.
After filing the second EEOC charge, Mr. Simms’
relationship with the defendant deteriorated. In March
1995, defendant reprimanded him for "distribution of
unauthorized material" and, in April 1995, defendant
suspended him for "insubordination, not devoting full time,
attention and effort to the duties and responsibilities of
position during assigned hours of duty, and failure or
inability to perform the duties in which employed."
Appellant’s App. at 83. On June 5, 1995, Mr. Simms filed
a third EEOC charge (No. 311950898) alleging that these
acts were in retaliation for filing and pursuing his second
EEOC charge. On July 20, 1995, Mr. Simms received his
first adverse job performance evaluation. Defendant
demoted him to Fire and Safety Officer I on August 13,
1995, and ultimately terminated his employment on
September 22, 1995.
On November 29, 1995, Mr. Simms received an
EEOC right-to-sue letter regarding his third EEOC charge.
He brought aa Title VII action in federal court ("Simms II")
on January 12, 1996, alleging race-based employment
discrimination and retaliation, including allegations of
retaliatory acts occurring prior to 1995 and not covered by
his third EEOC charge. At the time he commenced Simms
II, he had not yet received a right-to-sue letter for his
second EEOC charge. On July 13, 1996, DMHSAS filed a
motion for partial summary judgment on the grounds that
Mr. Simms had failed to exhaust his administrative remedies
as to his race discrimination and pre-1995 retaliation claims.
Two days later, Mr. Simms filed an amendment to his
second EEOC charge. The amendment contained
allegations of pre-1995 acts of retaliation, including
withholding of supervisory duties for the Fire and Safety
Officer II position and failure to promote him to the Fire
and Safety Supervisor position. On September 3, 1996, the
district court granted defendant’s motion for partial
4a
summary judgment, leaving only the post-1995 retaliation
claims for trial.
The EEOC completed its investigation of the second
EEOC charge on September 25, 1996, and issued a letter of
determination stating that it found "reasonable cause to
believe the charge is true." Appellant’s App. at 274. A
right-to-sue letter followed on October 2, 1996. Based on
these events, plaintiff asked the district court to reconsider
its September 3 Order in Simms II. The court denied Mr.
Simms’ motion for reconsideration on October 23,1996. On
December 31, 1996, plaintiff brought the present action
("Simms III") reasserting the claims that were dismissed in
Simms II for failure to exhaust administrative remedies.
On January 6, 1997, Simms III was transferred to the
district court judge presiding over Simms II, and plaintiff
filed a motion to consolidate the two cases. The district
court denied the motion because it would delay Simms II,
which was set for trial in a week. The remaining claims in
Simms II were tried to a jury. The jury found in favor of
DMHSAS on the retaliatory discharge claim, but found
against DMHSAS on the other post-1995 retaliation claims
(the reprimand, suspension, negative performance
evaluation, and demotion). On February 26, 1997, the trial
court entered judgment in accordance with the jury’s verdict.
On June 16, 1997, DMHSAS filed a motion for
partial summary judgment in Simms III, claiming that Mr.
Simms’ pre-1995 retaliation claims were time-barred and did
not relate back to his original second EEOC charge. The
trial court granted the motion on September 3,1997, holding
that Mr. Simms failed to exhaust administrative remedies.
The district court found Mr. Simms’ amendment to his
second EEOC charge neither timely nor related to the
activities contained in the original charge. On September
11, 1997, defendant filed a summary judgment motion with
respect to plaintiffs remaining claims in Simms III. The
5a
court granted defendant’s motion on October 23, 1997. The
trial court denied plaintiffs motion for reconsideration of
the two orders, and this appeal followed.
Standard of Review
We review the district court’s grant of summary
judgment de novo, applying the same legal standard used by
the district court. See Byers v. City o f Albuquerque 150 F.3d
1271, 1274 (10th Cir. 1998). Summary judgment is
appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine-issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). When
applying this standard, we view the evidence and draw
reasonable inferences therefrom in the light most favorable
to the nonmoving party. See Byers, 150 F.3d at 174.
Although the movant must show the absence of a
genuine issue of material fact, he or she need not negate the
nonmovant’s claim. See, e.g., Jenkins v. Wood, 81 F.3d 988,
990 (10th Cir. 1996). Once the movant carries this burden,
the nonmovant cannot rest upon his or her pleadings, but
"must bring forward specific facts showing a genuine issue
for trial as to those dispositive matters for which [he or she]
carries the burden of proof." Id. "The mere existence of a
scintilla of evidence in support of the nonmovant’s position
is insufficient to create a dispute of fact that is "genuine’; an
issue of material fact is genuine only if the nonmovant
presents facts such that a reasonable jury could find in favor
of the nonmovant." Lawmaster v. Ward, 125 F.3d 1341, 1347
(10th Cir. 1997). If there is no genuine issue of material fact
in dispute, we determine whether the district court correctly
applied the substantive law. See Kaul v. Stephan, 83 F.3d
1208, 1212 (10th Cir. 1996).
6 a
I. Pre-1995 Retaliation Claims - Exhaustion Doctrine
A plaintiff must generally exhaust his or her
administrative remedies prior to pursuing a Title VII claim
in federal court. See, e.g., Khader v. Aspin, 1 F.3d 968, 970
(10th Cir. 1993). Thus, a plaintiff normally may not bring a
Title VII action based upon claims that were not part of a
timely-filed EEOC charge for which the plaintiff has
received a right-to-sue letter. See Seymore v. Shawver &
Sons, Inc., I l l F.3d 794, 799 (10th Cir. 1997), cert, denied,
118 S. Ct. 342 (1997). To be timely, a plaintiff must file the
charge with the EEOC within 180 days or with a state
agency within 300 days of the complained-of conduct. See
42 U.S.C. § 2000e-5(e)(l); 29 C.F.R. § 1601.13 (1998);
Gunnell v. Utah Valley St. College, 152 F.3d 1253, 1260 n.3
(10th cir. 1998). However, 29 C.F.R. § 1601.12(b) provides
that certain amendments may relate back to the filing date
of the original charge and, therefore, be considered timely
even if the amendment takes place after the deadlines set
forth in § 1601.13. To relate back, an amendment must (1)
correct technical defects or omissions; (2) clarify or amplify
allegations made in the original charge; or (3) add additional
Title VII violations "related to or growing out of the subject
matter of the original charge." Id. § 1601.12(b).
Mr. Simms argues that the 1996 amendment to his
second EEOC charge complies with § 1601.12(b) and that
his pre-1995 retaliation claims are therefore part of a timely-
filed EEOC charge. For this to be true, the amendment
must have either clarified or amplified allegations made in
Mr. Simms’ second EEOC charge or addressed matters that
related to or grew out of the race discrimination claim in
that charge.1 We agree with the district court that the 1996 *
‘Mr. Simms’ amendments are not technical amendments (e.g.,
correcting a name or address), rather they go to the substance of the
charge.
7a
amendment did not clarify or amplify allegations in the
second EEOC charge because the original charge, even
when construed liberally, contained no mention of the theory
of retaliation or facts supporting such a claim.
W hether the pre-1995 retaliation claims contained in
the 1996 amendment related to or grew out of the race
discrimination claim in the second EEOC charge is a closer
question. Some courts have held that this language
encompasses claims based on different legal theories that
derive from the same set of operative facts included in the
original charge. See Hornsby v. Conoco Inc., I l l F.2d 243,
247 (5th cir. 1985); Washington v. Kroger Co., 671 F.2d 1072,
1075-76 (8th Cir. 1982); Alexander v. Precision Machining,
Inc., 990 F. Supp. 1304, 1310 (D. Kan. 1997); Conroy v.
Boston Edison Co., 758 F. Supp. 54, 58 (D. Mass. 1991); cf.
Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 575 (7th Cir.
1998) (stating that disability discrimination claim would not
relate back to age discrimination claim, but court might have
been more sympathetic had plaintiff "alleged facts that
supported both claims" in the first complaint).2 Other
courts have concluded that an amendment will not relate
back when it advances a new theory of recovery, regardless
of the facts included in the original complaint. See Evans v.
Technologies Applications & Serv. Co., 80 F.3d 954, 963 (4th
Cir. 1996) (denying relation back for age discrimination
claim to sex discrimination claim); Pejic v. Hughes
Helicopters, Inc., 840 F.2d 667, 675 (9th Cir. 1988) (same);
Hopkins v. Digital Equip. Corp., 1998 WL 702339, at *2
(S.D.N.Y. Oct. 8,1998) (stating that retaliation and disability
claims in amended charge did not relate back to date of
2Some courts have gone further and held that an "amendment is
said to grow out of the same subject matter as the initial charge
where the protected categories are related, as is the case, for
example, with race and national origin." Conroy, 758 F. Supp. at 58.
That, however, is not the case here.
8a
original charge, which only alleged race discrimination, "even
though those claims are based on incidents described in the
original charge, since neither disability nor retaliation claims
flow from race discrimination claims"). In Gunnell v. Utah
Valley State College, 152 F.3d 1253,1260 n.3 (10th Cir. 1998),
this court followed the latter position, noting that when an
original EEOC claim alleged only retaliation, plaintiffs
amendment to add a sexual harassment claim did not relate
back to the original charge pursuant to 29 C.F.R. §
1601.12(b). Applying the analysis from Gunnell, we hold
that Mr. Simms’ retaliation charge does not relate back
under § 1601.12(b) because his 1996 amendment alleges a
new theory of recovery, retaliation, that he did not raise in
the second EEOC charge. Prohibiting late amendments that
include entirely new theories of recovery furthers the goals
of the statutory filing period - giving the employer notice
and providing opportunity for administrative investigation
and conciliation. See Evans, 80 F.3d at 954; cf. Ingels v.
Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994) (finding
exhaustion is not required for a retaliation claim filed during
the pendency of a discrimination claim and based on acts
that occurred after the filing of the discrimination claim
because the employer already has notice and there is little
chance a second administrative complaint would lead to
conciliation). Therefore, Mr. Simms’ pre-1995 retaliation
claims were not part of a timely-filed EEOC charge, and he
has not exhausted his administrative remedies with respect
to these claims.
Even though Mr. Simms did not properly exhaust
administrative remedies, our inquiry as to whether this court
may hear the retaliation claims has not come to an end.
This court has adopted a limited exception to the exhaustion
rule for Title VII claims when the unexhausted claim is for
"discrimination like or reasonably related to the allegations
of the EEOC charge." Ingels, 42 F.3d at 625 (quoting Brown
v. Hartshome Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10th
cir. 1988)). We have construed the "reasonably related"
9a
exception to include most retaliatory acts subsequent to an
EEOC filing. See Seymore v. Shawver & Sons, Inc.. I l l F.3d
794, 799 (10th Cir. 1997), cert, denied, 118 S. Ct. 342 (1997).
"However, where a retaliatory act occurs prior to the filing of
a charge and the employee fails to allege the retaliatory act
or a retaliation claim in the subsequent charge, the
retaliatory act ordinarily will not reasonably relate to the
charge." Id. (emphasis added); see also Hopkins. 1998 WL
702339, at *3.
In Seymore, the plaintiff filed a discrimination
complaint with the state human rights commission and was
subsequently discharged from her job. She filed an EEOC
complaint nine days after her termination which alleged race
and sex discrimination. In district court, though, plaintiff
also alleged retaliation. See Seymore, 111 F.3d at 796. This
court found the plaintiff had failed to exhaust administrative
remedies on the retaliation claim because she was aware of
the facts constituting that claim at the time of her EEOC
filing. See id. at 799-800. This case is analogous to Seymore.
All of Mr. Simms’ allegations of pre-1995 retaliation
concerned facts occurring prior to the filing of the second
EEOC complaint. Thus, Mr. Simms does not qualify for the
"reasonably related" exception, and we may not excuse his
failure to exhaust his administrative remedies with respect to
his pre-1995 retaliation claims. We affirm the district court’s
grant of summary judgment in favor of defendant on these
claims.3
II. Race Discrimination Claim - Pretext Analysis
In determining whether to grant summary judgment
on a Title VII claim, we apply the burden-shifting
3While plaintiff also included the post-1995 retaliation claims in
his brief, he concedes that he is not attempting to relitigate these
claims, upon which a jury passed judgment in Simms II.
10a
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this approach, the plaintiff
initially bears the burden of production to establish a prima
facie case of a Title VII violation. See McDonnell Douglas,
411 U.S. at 802. "To carry the initial burden of establishing
a prima facie case of race discrimination for a failure to
promote claim, the plaintiff must typically show that he or
she (1) belongs to a minority group; (2) was qualified for the
promotion; (3) was not promoted; and (4) that the position
remained open or was filled with a non-minority." Reynolds
v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523,1534 (10th
Cir. 1995). Once a plaintiff has met this burden,
discriminatory intent on the part of the defendant is
presumed and the burden shifts to the defendant to
"articulate a facially nondiscriminatory reason for the
challenged employment action." Id. at 1533; see also Beaird
v. Seagate Tech., 145 F.3d 1159, 1165 (10th Cir. 1998), cert.
denied. ~S. Ct.~, 67 U.S.L.W. 2182 (Dec. 14, 1998). If the
defendant provides a nondiscriminatoiy reason for the
employment action, the plaintiff may defeat summary
judgment by presenting sufficient evidence such that a
reasonable jury could conclude that the proffered
nondiscriminatory reason for the employment action is
pretextual, that is, "unworthy of belief." See Beaird, 145 F.3d
at 1165 (quoting Randle v. City o f Aurora, 69 F.3d 441, 451
(10th Cir. 1995)). But cf. id. at 1176 (Tacha, J., concurring
in part, dissenting in part) ("Not only must the plaintiff
produce evidence of pretext, but the pretextual evidence
must be of the nature or quality from which a reasonable
jury could infer illegal discrimination."). Evidence of pretext
may include, but is not limited to, the following: prior
treatment of plaintiff; the employer’s policy and practice
regarding minority employment (including statistical data);
disturbing procedural irregularities (e.g., falsifying or
manipulating hiring criteria); and the use of subjective
criteria. See Colon-Sanchez v. Marsh, 733 F.2d 78, 81 (10th
Cir. 1984); see also Beaird, 145 F.3d at 1168.
11a
Plaintiff has made a prima facie showing of race-
based discrimination. He was qualified for the position of
Fire and Safety Officer Supervisor, but DMHSAS awarded
the job to Mr. Valley, a non-minority. However, DMHSAS
has advanced a nondiscriminatory reason for its decision to
promote Mr. Valley over Mr. simms: Mr. Valley was more
qualified because he had significantly greater supervisory
experience. Indeed, the record reflects that Mr. Valley’s
supervisory experience far exceeds that of Mr. Simms.
Consequently, the issue becomes whether Mr. Simms has
provided sufficient evidence that the reason advanced by
DMHSAS is pretextual.
Mr. Simms offers a variety of evidence that he claims
shows pretext. Although he does not directly attack the
truthfulness of defendant’s nondiscriminatory reason for
promoting Mr. Valley (that Mr. Valley did not have more
supervisory experience than Mr. Simms), Mr. Simms
attempts to demonstrate that supervisory experience was not
the true reason for the defendant’s promotion decision.
After careful review, we find that the evidence offered by
Mr. Simms, even when taken in the light most favorable to
plaintiff, is insufficient for a reasonable jury to conclude that
defendant’s proffered reason for failing to promote Mr.
Simms is "unworthy of belief."
Mr. Simms claims that various "procedural
irregularities" lead to an inference of pretext. The alleged
irregularities include the decision to have a second round of
interviews, testimony that the candidate with the highest
first-round score is often selected for the job, the emphasis
on supervisory experience in the job posting, and the fact
that Stand LaBoon, the hospital superintendent, sat on the
second round interview panel when he usually only
interviews candidates for more senior positions. However,
these allegations of procedural irregularities do not support
a reasonable inference of pretext because they are consistent
with the defendant’s published policies for selecting
12a
candidates for promotion. For example, the job posting
itself indicated a second round of interviews might be held,
and this was consistent with DMHSAS policy. Similarly, the
fact that Simms scored slightly higher in the first round of
interviews4 does not show pretext, as the difference in
scores is minimal and plaintiff provides no evidence showing
DMHSAS has a policy of always hiring the candidate with
the highest first-round score. To the contrary, the difference
between Mr. Simms’ and Mr. Valley’s scores provides an
explanation for why an additional round of interviews was
warranted. The emphasis on supervisory experience in the
job posting also raises no suspicions considering the jo b -
Fire and Safety Officer Supervisor. Moreover, plaintiff has
provided no evidence that the supervisory preference was
illegitimate or that it was unusual to include such a
preference in a supervisor job posting. Cfi Randle, 69 F.3d
at 453-54 (denying employer’s summary judgment motion in
a failure to promote claim because employer’s assertion that
plaintiff was unqualified for a position due to insufficient
education was called into question by the fact that the
person who got the job also did not meet the education
requirement listed in the job posting); Mohammed v.
Callaway, 698 F.2d 395, 399-401 (10th Cir. 1983) (reversing
entry of judgment for employer where employer hired non
minority who did not meet specific job education
requirements over minority candidate who was fully
qualified). Finally, the fact that Stand LaBoon sat on the
interview panel is not particularly troubling, since he
retained ultimate hiring discretion for the position.
Additionally, Mr. LaBoon ranked the two candidates equally
in his evaluation, while the other two panel interviewers
scored Mr. Valley higher. In sum, there is nothing about
the defendant’s actions in the interview process to support
a reasonable inference of pretext.
4Mr. Simms scored 1,866 out of 2,000, whereas Mr. Valley scored
1,835 out of 2,000, a 1.55% difference.
13a
Mr. Simms also argues that defendant based the
decision not to promote him on subjective criteria. He
claims that the fact that he scored higher than Mr. Valley in
the first round of interviews is sufficient to show that factors
other than supervisory experience were involved in and led
to DMHSAS’s promotion decision. We disagree. As
mentioned earlier, even though plaintiff had the highest
score after the initial round of interviews, the small
difference between Mr. Simms’ and Mr. Valley’s scores is
insufficient to indicate illegitimate factors came into play in
the second round of interviews. Cfi Rea v. Martin Marietta
Corp., 29 F.3d 1450, 1458 (10th Cir. 1994) (finding
employer’s selection of a younger employee who had a
college degree for a position over an older employee who
had a higher departmental ranking but no degree created no
reasonable inference of pretext in an age discrimination suit
where the stated reason for hiring the younger employee was
his degree). Mr. Simms places great weight on the fact that
he had greater education and training as a fireman, which he
claims made him ore objectively qualified for the job.
However, an employee’s "own opinions about his ...
qualifications [do not] give rise to a material factual dispute."
Rabinovitz v. Pena, 89 F.3d 482, 487 (7th Cir. 1996). While
Mr. Simms may have had the edge in education and fire
training, Mr. Valley had substantially greater supervisory
experience. When two candidates are equally qualified in
that they both possess the objective qualifications for the
position and neither is clearly better qualified, "it is within
the employer’s discretion to choose among them so long as
the decision is not based on unlawful criteria." Colon-
Sanchez v. Marsh, 733 F.3d 78, 82 & n.l (10th Cir. 1984);
accord Lujan v. Walters, 813 F.2d 1051, 1057-58 (10th Cir.
1987).
In Colon-Sanchez, the first candidate had greater
administrative and supervisory skills while the second had
greater mechanical skills. Since the job description at issue
discussed significant administrative and supervisory
14a
responsibilities, we held that the employer’s decision to hire
the first candidate based on his administrative background
raised no question of pretext. See Colon-Sanchez, 733 F.2d
at 82. Similarly, DMHSAS’s decision to hire Mr. Valley
based on his supervisory experience is not the kind of
subjective decision that, by itself, suggests pretext. See
Beaird, 145 F.3d at 1169 (finding hiring decision based on
employment performance grade over performance points,
without more, "cannot reasonably be thought to evidence
pretext"). Our role is to prevent unlawful hiring practices,
not to act as a "super personnel department" that second
guesses employers’ business judgments. Vemiero v. Air Force
Academy Sch. Dist. No. 20, 705 F.2d 388, 390 (10th Cir.
1983); see also, e.g., Rabinovitz, 89 F.3d at 487.
Mr. Simms further asserts that defendant asked
improperly subjective second round interview questions,
thereby demonstrating pretext. However, he directs us to no
questions that are unrelated to legitimate business
considerations or blatantly subjective. Moreover, as we
discussed above, he provides no evidence that he was so
clearly better qualified than Mr. Valley that a jury could
reasonably conclude that DMHSAS based its decision on
something other than its proffered reason.
Mr. Simms also attempts to establish pretext by
utilizing his employment history with DMHSAS to impute a
discriminatory motive on the part of defendant. For
example, Mr. Simms suggests that Stand LaBoon and Carol
Kellison, who prevented him from immediately assuming his
supervisory duties as Fire and Safety Officer II in 1994,
somehow manipulated the entire supervisor selection process
so that he would not receive the promotion. However, we
can find nothing in this record to indicate that Mr. LaBoon
and Ms. Kellison’s involvement in the interview process was
so irregular or inconsistent with the defendant’s established
policies as to make its hiring explanation unworthy of belief.
To the contrary, their conduct is consistent with DMHSAS’s
15a
proffered nondiscriminatory reason for the promotion
decision. While the fact that Mr. LaBoon and Ms. Kellison
withheld Mr. Simms’ supervisory duties is relevant, on this
record, it is not enough to impute sinister motivations to
them during the supervisor selection process.
Similarly, Mr. Simms attempts to establish pretext by
reference to his prior settlement in Simms I, suggesting that
because DMHSAS had settled a prior discrimination claim,
its decision not to promote him to Fire and Safety Officer
Supervisor was based on discriminatory motives rather than
the reason proffered by defendant. Such a conclusive
assertion is not probative of pretext unless the prior
incidences of alleged discrimination can somehow be tied to
the employment actions disputed in the case at hand. Cf.
Rea v. Martin Marietta Corp., 29 F.3d 1450, 1457 (10th Cir.
1994) (holding that isolated comments in an ADEA case
must be linked to challenged employment action in order to
show discriminatory animus); Cone v. Longmont United
Hosp. Ass’n., 14 F.3d 526, 531 (10th Cir. 1994) (finding stray
comments in ADEA case were insufficient to create triable
issue of fact unless they were related to the challenged
action). Mr. Simms fails to establish such a connection, for
he does not link any of the parties involved in the current
employment action, particularly Mr. LaBoon or Ms.
Kellison, to the employment actions that were the subject of
the Simms 1 litigation.
In addition, Mr. Simms attempts to establish pretext
by alleging that he was disciplined for reading on the job,
whereas white employees were not. That event occurred in
April 1991, years before defendant made the promotion
decision at issue in this case. Thus, it is also not sufficiently
connected to the employment action in question to
demonstrate pretext. See Rea, 29 F.3d at 1457; Cone, 14
F.3d at 531.
16a
Finally, Mr. Simms makes much of the fact that the
EEOC had issued a favorable letter of determination
regarding his claim of race-based failure to promote, and
that he had presented the letter to the district court.
However, when the independent facts before the district
court judge fail to establish a genuine issue of material fact,
a favorable EEOC letter of determination does not create
one. But see Mitchell v. Office o f Los Angeles County
Superintendent o f Schools, 805 F.2d 844, 847 (9th Cir. 1986)
(stating that "an EEOC finding of reasonable cause is
‘sufficient at least to create an issue of fact’ requiring
proceedings beyond the summary judgment stage") (quoting
Gifford v. Atchison, Topeka, & Santa Fe Ry. Co., 685 F.2d
1149, 1156 (9th Cir. 1982)).
Even considering Mr. Simms’ circumstantial evidence
in its totality, as we must, see Beaird, 145 F.3d at 1174,
plaintiff has provided insufficient evidence for a reasonable
jury to conclude that defendant’s proffered reason for not
promoting Mr. Simms—that Mr. Valley was more qualified-
was unworthy of belief. Consequently, plaintiff has failed to
meet his burden of production and the district court
appropriately granted summary judgment in favor of
defendant on Mr. Simms’ race discrimination claim.
Conclusion
For the reasons discussed above, we conclude that
the district court did not err in granting summary judgment
in favor of the defendant in either its September 3 or
October 23 Order. AFFIRMED.
17a
No. CIV-96-2158-A
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
CEDRIC D. SIMMS.
Plaintiff,
v.
THE STATE OF OKLAHOMA ex rel.,
THE DEPARTMENT OF MENTAL
HEALTH AND SUBSTANCE ABUSE
SERVICES, a State Agency.
Defendant.
ORDER
Before the Court is the motion for partial summary
judgment filed by defendant on June 16, 1997.5 The Court
is familiar with the parties in this case, as this is the second
such case this year. In fact this is the third complaint filed
by Mr. Simms against his former employer.
Plaintiff has filed three EEOC charges in the course
of these proceedings: No. 311930053 (the 1992 charge), No.
311950136 (the 1994 charge), and No. 311950898 (the 1995
charge).
Plaintiffs first complaint against his then employer,
the Department of Mental Health, was filed in 1993 and was
5Plaintiffs original response to this motion, filed July 7, 1997,
included a cross motion. Plaintiff then filed a second response on
July 21, 1997. The second response withdrew the first response and
"replaced" it. As the second response contained no reference to a
cross motion, the cross motion is withdrawn and will not be
considered by the Court.
18a
settled by the parties. His second complaint (Simms II) was
filed on January 12, 1996. The complaint in Simms III
alleged continuing discrimination and retaliation. The
allegations in the complaint were based upon the 1994
charge and the 1995 charge that plaintiff filed with the
EEOC. The 1994 charge alleged racial discrimination that
occurred on August 15, 1994. At the time the complaint in
Simms II was filed, the plaintiff had not received a right-to-
sue letter from the EEOC on that charge. By order dated
Sept. 3, 1996, the Court dismissed the claims of
discrimination and retaliation relating to the 1994 EEOC
charge because plaintiff had not received a right-to-sue-
letter. O ther claims were decided by a jury on February 26,
1997.
Plaintiff received a right-to-sue-letter on the 1994
charge on October 2,1996. On December 31,1996, Plaintiff
filed his third complaint (Simms III). This complaint, now
pending before this Court, comprises four counts of
discrimination and retaliation. Simms III includes
allegations of retaliation similar to those dismissed in Simms
II. Defendant argues for summary judgment on the claims
of retaliation.
Summary Judgment Standard
Summary judgment is appropriate if the pleadings
and affidavits show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). "[A]
motion for summary judgment should be granted only when
the moving party has established the absence of any genuine
issue as to a material fact." Mustang Fuel Corp. v.
Youngstown Sheet & Tube Co., 561 F.2d 202. 204 (10th Cir.
1977).
In his response, plaintiff states that he "generally
objects, denies and controverts in its entirety Defendant’s
19a
recitation of the facts." However, plaintiffs specific
objections are not so much objections to the substance of
defendant’s version of the facts as a mere statement that the
facts set out by defendant are not material.6 Plaintiff goes
on to set out his own version of undisputed material facts,
and defendant has not objected to them. The Court
concludes that there is no genuine issue of material fact, and
thus the retaliation claims are a proper subject for summary
judgment. Facts will be considered in the light most
favorable to the non-moving party.
Exhaustion
A plaintiff must exhaust all administrative remedies
before he may file a suit in federal court. Khader v. Aspin,
1 F.3d 968, 970 (10th Cir. 1993). This means that each
claim set out in plaintiffs complaint must have been part of
a previous EEOC charge for which plaintiff received a right -
to-sue-letter. The exception to this rule is that claims
reasonably related to the allegations of an EEOC charge
may be included in the complaint. "When an employee
seeks judicial relief for incidents not listed in his original
charge to the EEOC, the judicial complaint nevertheless
may encompass any discrimination like or reasonably related
to the allegations of the EEOC charge, including new acts
occurring during the pendency of the charge before the
EEOC." Brown v. Hartshome Public School District, 864 F.2d
680, 682 (10th Cir. 1988).
sPlaintiff made one objection to the substance of defendant’s
facts. As Plaintiff notes, defendant’s undisputed fact number 5 is a
conclusion rather than a fact. However, the facts supporting number
5 are set out in supporting documents and appear to be undisputed.
20a
Amendment of the 1994 Charge
On October 31, 1994, plaintiff filed the 1994 EEOC
charge. Plaintiff checked the box on the form that indicated
race discrimination. He did not check the box indicating
retaliation as a claim. Plaintiff described the alleged
discrimination in the box marked "THE PARTICULARS
ARE," as follows:
I. Effective August 15, 1994, I was denied
promotion to the position of Fire and Safety
Officer Supervisor.
II. Carol Kellison (Director Management
Support Services) informed me by written
notice that a better experienced candidate
had been selected.
III. I believe I have been discriminated against
because of my race, Black, in Violation of
Title VII of the Civil Rights Act of 1964, as
amended.
On July 15, 1996, plaintiff amended the 1994 charge
adding claims of retaliation and continuing action. Plaintiff
described the alleged retaliation in the box marked "THE
PARTICULARS ARE," as follows:
I. Beginning in May of 1994 and continuing
until the present, I have had my supervisory
duties with held (sic) from my Fire and Safety
Officer II position in direct violation of a
court order entered in a previous EEOC
charge. Effective August 15, 1994, I was
denied promotion to the position of Fire and
Safety Officer supervisor.
21a
II. The reasons given for withholding of
supervisory duties and other disciplinary
action, I believe were pretextual. No other
reason has been given for the withholding of
supervisory duties. Carol Keilison (Director
Management Support Services) informed me
by written notice that a better experienced
candidate had been selected.
III. I believe that I have been discriminated
against because of my race, Black, and
retaliated against for filing previous charges,
and for objecting to unlawful employment
practices, in violation of Title VII of the Civil
Rights Act of 1964, as amended.
The complaint in Simms III indicates that plaintiff
believes the claims of retaliation are administratively
exhausted by the amendment. A copy of the amended
charge is attached to the complaint and is referred to
specifically in paragraphs 22 and 32 of the complaint.
Each instance of retaliation described in the
amendment occurred more than 300 days before July 15,
1996, the date when the amendment was filed. Three
hundred days is the longest period of time that may elapse
before the timely filing of an EEOC charge. 29 C.F.R. §
1601.13. Plaintiff apparently intended that the retaliation in
the amendment to the charge relate back to the
discrimination charged in the 1994 charge and thus avoid the
statute of limitations.
Amendment of an EEOC charge is permitted "to
cure technical defects or omissions ... or to clarify and
amplify allegations made therein, such amendments and
amendments alleging unlawful employment practices related
to or growing out of the subject matter of the original
charge will relate back to the date the charge was first
22a
received." 29 C.F.R. § 1601.12. For the July 15, 1995
amendment to relate back to the original date of filing, it
would have to either be a clarification or amplification of the
original charge, or to related to or growing out of the
original charge.
EEOC charges will be liberally construed in
recognition of the fact that they are drafted by laymen, a
liberal construction of the original 1994 filing does not yield
any indication of retaliation as a claim. Thus, the
amendment cannot be a clarification or amplification of the
original claim. Because the alleged retaliation in the
amendment occurs contemporaneously (failure to promote)
or earlier in time than the alleged race discrimination in the
original 1994 charge, it is impossible for the amendment to
be related to or growing out of the subject m atter of the
original charge. The Court finds that the amendment does
not relate back. The Court finds that the July 15, 1996
amendment of the 1994 charge was improper. Plaintiff may
not add claims out of time simply by titling them
"amendment." The retaliation claims in Simms III are not
administratively exhausted because they have not been the
subject of a valid EEOC charge.
Reasonably Related
Plaintiff argues that his retaliation claims are properly
before the Court because they are reasonably related to
EEOC charges. Plaintiff appears to argue alternatively that
they are related to the 1994 charge and the 1992 charge. To
determine whether they are reasonably related, the Court
will address the substance of the retaliation claims alleged in
Simms III. Counts I and II allege retaliation.
Count I lists what plaintiff characterizes as
"continuing" violations. They consist of a number of policy
decisions made by agents of defendant in 1994. Each
instance listed occurs before August 14, 1994, the date of the
23a
discrimination alleged in the 1994 EEOC charge. Paragraph
28, subparagraphs 1-m, of the complaint list instances of
alleged retaliation that occurred in 1995.7 The parties do
not specifically address the 1995 allegations of retaliation, so
the Court assumes they are not part of the motion for
partial summary judgment.
Plaintiff argues that the retaliation was continuing so
that in part it is later in time than the alleged discrimination.
The "continuing" violations were the continuing enforcement
or implementation of policies that were enacted prior to
August 14, 1994. "[Wjhere a retaliatory act occurs prior to
the filing of a charge and the employee fails to allege the
retaliatory act or a retaliation claim in the subsequent
charge, the retaliatory act ordinarily will not reasonably
relate to the charge." Seymore v. Shawver & Sons, Inc., I l l
F.3d 794, 799 (10th Cir. 1997). Acts occurring earlier in
time than the alleged discrimination cannot be reasonably
related to the discrimination.
Count II alleges failure to promote, which is the
exact substance of the discrimination claim in the 1994
EEOC charge. The rule described in Seymore indicates that
reasonably related means that the retaliatory action is in
retaliation for filing the EEOC charge. In this case, if the
motive for failing to promote was both race discrimination
and retaliation, then the retaliation would have to be related
to earlier protected activity. The Court finds that the
retaliation alleged Count I and Count II of Simms III is not
reasonably related to the 1994 EEOC charge.
In his response to the motion for partial summary
judgment, plaintiff argues that the retaliation charges
7The Court was astonished to find that these instances are the
claims of retaliation already presented to the jury in Simms II.
Defendant has not raised the defense of estoppel to these claims.
24a
reasonably relate to the 1992 charge. Plaintiffs brief
constantly stresses the word "original" in citing the rule that
acts reasonably related to the original charge need not be
included in an EEOC charge. Plaintiff reads this to mean
that anything reasonably related to the 1992 charge
(plaintiffs first and therefore original charge) is properly
before the Court.
In Seymore, Id., the Court of Appeals made it clear
that this rule allows acts that reasonably relate to a pending
charge. Id. at 799-800. The 1992 charge is not pending as
it was settled and administratively closed on April 22, 1994.
If plaintiff was aware of the acts of alleged retaliation during
the pendency of the 1992 charge, he could have included
them in that action. Otherwise, the proper course would
have been to file a timely EEOC charge alleging retaliation
or to state of claim of retaliation in the 1994 charge. He
failed to do so. Therefore, the claims of retaliation
occurring before 1995 that are alleged in Counts I and II of
Simms III are time barred.
Conclusion
The claims of retaliation occurring before 1995 in
Counts I and II are not properly before the Court. Partial
summary judgment is GRANTED to defendant as to claims
alleged in paragraph 26, and paragraph 28, subparagraphs a-
h of Count I, and Count II of the complaint. The claims set
out in paragraph 27 and paragraph 28, subparagraphs i-m of
Count I, and Counts III and IV remain.
1§L____________________________________
WAYNE E. ALLEY
UNITED STATES DISTRICT JUDGE
25a
No. 97-6366
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
CEDRIC D. SIMMS,
Plaintiff-Appellant,
v.
STATE OF OKLAHOMA, etc.,
Defendant-Appellee
ORDER
Filed February 24, 1999
Before TACHA, BRISCOE, and MURPHY, Circuit Judges.
Appellant’s petition for rehearing is denied.
The suggestion for rehearing en banc was transmitted
to all of the judges of the court who are in regular active
service as required by Fed. R. App. P. 35. As no member
of the panel and no judge in regular active service on the
court requested that the court be polled, the suggestion is
also denied.
Entered for the Court
PATRICK FISHER, Clerk of Court
by: Opal A. Carter
Deputy Clerk
26a
ADDITIONAL STATUTORY PROVISIONS
INVOLVED
42 U.S.C. § 2000e-5. Enforcement provisions
(a) Power of Commission to prevent unlawful
employment practices
The Commission is empowered, as hereinafter
provided, to prevent any person from engaging in any
unlawful employment practice as set forth in section 2000e-2
or 2000e-3 of this title.
(b) Charges by persons aggrieved or member of
Commission of unlawful employment practices by employers,
etc.; filing; allegations; notice to respondent; contents of
notice; investigation by Commission; contents of charges;
prohibition on disclosure of charges; determination of
reasonable cause; conference, conciliation, and persuasion
for elimination of unlawful practices; prohibition on
disclosure of informal endeavors to end unlawful practices;
use of evidence in subsequent proceedings; penalties for
disclosure of information; time for determination of
reasonable cause
Whenever a charge is filed by or on behalf of a
person claiming to be aggrieved, or by a member of the
Commission, alleging that an employer, employment agency,
labor organization, or joint labor-management committee
controlling apprenticeship or other training or retraining,
including on-the-job training programs, has engaged in an
unlawful employment practice, the Commission shall serve
a notice of the charge (including the date, place and
circumstances of the alleged unlawful employment practice)
on such employer, employment agency, labor organization,
or joint labor-management committee (hereinafter referred
to as the "respondent") within ten days, and shall make an
investigation thereof. Charges shall be in writing under oath
27a
or affirmation and shall contain such information and be in
such form as the Commission requires. Charges shall not be
made public by the Commission. If the Commission
determines after such investigation that there is not
reasonable cause to believe that the charge is true, it shall
dismiss the charge and promptly notify the person claiming
to be aggrieved and the respondent of its action. In
determining whether reasonable cause exists, the
Commission shall accord substantial weight to final findings
and orders made by State or local authorities in proceedings
commenced under State or local law pursuant to the
requirements of subsections (c) and (d) of this section. If
the Commission determines after such investigation that
there is reasonable cause to believe that the charge is true,
the Commission shall endeavor to eliminate any such alleged
unlawful employment practice by informal methods of
conference, conciliation, and persuasion. Nothing said or
done during and as a part of such informal endeavors may
be made public by the Commission, its officers or
employees, or used as evidence in a subsequent proceeding
without the written consent of the persons concerned. Any
person who makes public information in violation of this
subsection shall be fined not more than $1,000 or
imprisoned for not more than one year, or both. The
Commission shall make its determination on reasonable
cause as promptly as possible and, so far as practicable, not
later than one hundred and twenty days from the filing of
the charge or, where applicable under subsection (c) or (d)
of this section, from the date upon which the Commission is
authorized to take action with respect the charge.
* *
(e) Time for filing charges; time for service of notice of
charge on respondent; filing of charge by Commission with
State or local agency; seniority system
28a
(1) A charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful
employment practice occurred and notice of the charge
(including the date, place and circumstances of the alleged
unlawful employment practice) shall be served upon the
person against whom such charge is made within ten days
thereafter, except that in a case of an unlawful employment
practice with respect to which the person aggrieved has
initially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice or
to institute criminal proceedings with respect thereto upon
receiving notice thereof, such charge shall be filed by or on
behalf of the person aggrieved within three hundred days
after the alleged unlawful employment practice occurred, or
within thirty days after receiving notice that the State or
local agency has terminated the proceedings under the State
or local law, whichever is earlier, and a copy of such charge
shall be filed by the Commission with the State or local
agency.
42 U.S.C. § 2000e-12(a). Regulations
(a) The Commission shall have authority from time to
time to issue, amend, or rescind suitable procedural
regulations to carry out the provisions of this subchapter.
Regulations issued under this section shall be in conformity
with the standards and limitations of subchapter II of
chapter 5 of Title 5.
29a
EEOC Ch a r g e F il e d O c t o b e r 31, 1994
C H A R ' J F D IS C R IM IN A TIO N
This form is affected by the Privacy Act of 1974; See Privacy Act Statement before
completing th is form.
AGENCY
□ FEPA
E EEOC
CHARGE NUMBER,
311950136
Oklahoma Human Riehts Commission and EEOC
State o r loca l Agency, i f any
NAME ( I n d i c a t e Mr. . M s., M rs.J
Mr. Cedric D. Simms
HOME TELEPHONE ( I n c lu d e Area Code)
(405) 829-6886
STREET ADDRESS C ITY , STATE AND ZIP CODE
1808-B 12TH AVE. NE. NORMAN. OK 78071
DATE. OF BIRTH
1 1 / 2 2 / 6 6
NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE,
STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME (if acre than one list below.)
NAME
GRIFFIN MEMORIAL HOSPITAL
NUMBER OF EMPLOYEES, MEMBERS
Cat A (15-100)
TELEPHONE ( I n c lu d e /tree CodeJ
. LM51 321-4880
STREET ADDRESS C ITY , STATE ANO ZIP CODE
QOO E. MAIN. NORMAN. OK 78071
COUNTY
027
NAME TELEPHONE NUMBER ( In c lu d e A res Code)
STREET ADDRESS C ITY , STATE AND ZIP CODE COUNTY
CAUSE OF DISCRIMINATION BASED ON (C heck a p p r o p r ia te b o x (e s ) )
2] RACE □ COLOR O SEX □ RELIGION □ NATIONAL ORIGIN
□ retaliation O age □ DISABILITY CHI OTHER ( S p e c ir y )
DATE DISCRIMINATION TOOK PLACE
EARLIEST LATEST
0 8 / 1 5 / 9 4 0 8 / 1 5 / 9 4
□ CONTINUING ACTION
THE PARTICULARS ARE ( I f a d d i t io n a l s p a ce I s needed , a t ta c h e x t r a s h e e t ( s ) } :
I. Effective August 15, 1994, I was denied promotion to
the position of Fire and Safety Officer Supervisor.
II.
III.
Carol Kellison (Director Management Support Services)
informed me by written notice that a better experienced
candidate had been selected.
I believe I have been discriminated against because of
my race, Black, in violation of Title VII of the Civil
Rights Act of 1964, as amended.
□ I want th is charg# file d with both the EEOC and the State or
local Aflency, I f any, I w i l l advise the agencies If I change »y
address or telephone number and cooperate fu lly with the* In the
processing of my charge In accordance with their procedures
NOTARY - (When necessary for state and Local Requirements)
I swear or affirm that I have read the above charge and that
I t Is true to the best of ay knowledge, Information and belief.
I declare under penalty of perjury that the foregoing is true
and correct.
_0ate / f > -3 / - f y
tfcuL; r-'QRM 5 (Rev. 06/92)
Charging Party ( s ig n a tu r e )
SIGNATURE OF COMPLAINANT
SUBSCRIBED AND SWORN TO BEFCBEFORE MS THIS DATE
31a
EEOC Ch a r g e F il e d J u l y 15, 1996
CHA. OF DISCRIMINATION
This form is affected hy the Privacy Act of 1974; See Privacy Act Statement
completing this form.
AGENCY CHARGE NUMBER
□ FEPA AMENDED
ore
S EEOC 3 1 1 9 5 0 1 3 6
Oklahoma Human Rights Commission____ ___________ i_ and EEOC
State or local Agency, if any
NAME ( I n d i c a t e M r.. M s.. M r s . )
Mr. Cedric D. Simms
HOME TE L E P H 0 N E ( I n c l u d e Area Code)
(409) 329-68RR
STREET ADORESS C IT Y , STATE AND ZIP COOE
1303-B 12TH AVE. NE. Norman. OK 73071
DATE OF B I R T H
1 1 / 2 2 / 6 6
NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY APPRENTICESHIP COMMITTEE,
STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME fir m ore th a n o n e l i s t t e l o * . )
NAME NUMBER OF EMPLOYEES, MEMBERS TELEPHONE ( I n c lu d e A r c . Code)
GRIFFIN MEMORIAL HOSP (409) 321-4880
STREET ADDRESS C IT Y , STATE AND ZIP CODE
000 F,. MATN. Norman. OK 73071
COUNTY
027
NAME TELEPHONE NUMBER ( I n c lu d e Area Code)
STREET ADDRESS C IT Y , STATE AND ZIP CODE COUNTY
CAUSE OF DISCRIMINATION BASED ON (C heck a p p r o p r ia te o a x ( e s j )
HORACE □ COLOR □ SEX □ RELIGION □ NATIONAL ORIGIN
S ] RETALIATION O AGE □ D IS A B IL ITY d j OTHER ( S p e c i fy )
DATE D ISC R IM IN A TIO N TOOK PLACE
EARLIEST LATEST
05/01/94 09/22/95
W CONTIN UING ACTION
THE PARTICULARS ARE ( I f A d d it io n a l sp a ce I s n eed ed , a t ta c h e x tr a s h e e t ( s ) J :
I .
Beginning in May of 1994 and continuing until the present, I have
had my supervisory duties with held from my Fire and Safety Officer
II position in direct violation of a court order entered in a previous
EEOC charge. Effective August 15, 1994, I was denied promotion to the
position of Fire and Safety Officer Supervisor.
The reasons given for withholding of supervisory duties and other
disciplinary actions, I believe were pretextural. No other reason
has been given for the withholding of supervisory duties. Carol
Kellison (Director Management Support Services) informed me by
written notice that a better experienced candidate had been selected
III.
I believe that I have been discriminated against because of my race,
Black, and retaliated against for filing previous charges, and for
objecting to unlawful employment practices, in violation of Title
VII of the Civil Rights Act of 1964, as amended.
This charge has been amended to include retaliation,
violation.
and the continuing
1
Q I want this charge f ile d with both the EEOC and the State or
local Agency, i t any. I w i l l advlte the agencies IT 1 change my
address or telephone number and cooperate f u lly with them In the
processing of wy charge In accordance w ith th e ir procedures.
NOTARY - (When necessary for State and local Requirements)
I swear or affirm that 1 have read the above charge and that
I t is true to the best of my knowledge, information and be lie f.
I declare under penalty of perjury that the foregoing Is
and correct. -
true SIGNATURE OF COMPLAINANT
[Date Charging Party (S ig n a tu r e )
V (jL^T*£
CRIBEC
month, <
JS
SUBSCRIBED AND SWORN TO BEFORE ME THIS DATE
(Cay, month, and year) j 7 3 A
tfcUC FORM 5 (Rev. 06/92!