United States District Court, W.D. Tennessee, Eastern Division
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL
THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.
Lakiesha Holmes filed this action against her former
employer, Southwest Human Resource Agency
(“Southwest”), alleging that she was subjected to
unlawful retaliation and discrimination on the basis of her
religion and was ultimately terminated in violation of Title
VII of the 1964 Civil Rights Act, as amended, 42 U.S.C.
§ 2000e et seq. Defendant Southwest has filed a
motion to dismiss Plaintiff's claim of religious
discrimination in its entirety and her retaliation claim to
the extent that it is based on the events leading up to her
2016 charge of discrimination on the ground that Plaintiff
did not exhaust her administrative remedies on these claims.
(ECF No. 13.) Plaintiff has filed a response to
Defendant's motion (ECF No. 14), and Defendant has filed
a reply to the response. (ECF No. 15.) For the reasons set
forth below, Defendant's motion for partial dismissal is
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). A complaint need not contain “detailed factual
allegations, ” but it must contain more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action....”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint does not “suffice if it tenders
‘naked assertions' devoid of ‘further factual
enhancement.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). In deciding whether the
plaintiff has set forth a plausible claim, the court must
accept the factual allegations in the complaint as true.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). This
presumption is not applicable to legal conclusions, however.
Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555). The failure to exhaust administrative remedies
is a condition precedent to an action in district court and
may be asserted in a Rule 12(b)(6) motion. See McKnight
v. Gates, 2007 WL 1849986 at *2 (M.D. Tenn. 2007)
(“[A] failure to exhaust administrative remedies . . .
is not a jurisdictional bar, but rather a condition precedent
to an action in federal court, ” and, therefore, the
exhaustion issue is analyzed under Rule 12(b)(6) rather than
well-settled that exhaustion of administrative remedies is a
prerequisite to filing a district court lawsuit alleging
discrimination under Title VII, see Brown v. General
Serv. Admin., 425 U.S. 820, 823-33 (1976), and that a
plaintiff may only bring a Title VII action in district court
after she has exhausted the administrative remedies provided
under 42 U.S.C. § 2000e-16. Thus, timely filing a charge
with the Equal Employment Opportunity Commission
(“EEOC”) and subsequently filing a complaint in
federal district court in a timely manner are prerequisites
to maintaining a Title VII action. See Lomax v. Sears,
Roebuck, & Co., 2000 WL 1888715 at *6 (6th Cir. Dec.
19, 2000) (reiterating that “when a claim is not first
presented to the EEOC, the claim may not be brought in
“[p]rocedural requirements established by Congress for
gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for particular
litigants.” Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984). Jurisdictional filing
requirements may not be set aside just because a plaintiff
initiates an action without the assistance of counsel and is
unfamiliar with the mechanics of Title VII. See Askew v.
Stone, 1996 WL 135024 at *3 (6th Cir. Mar. 25, 1996)
(“Despite the fact that Askew initiated this action
without the assistance of counsel and was unfamiliar with
Title VII's procedural requirements, she failed to comply
with the strict procedural and time limitations imposed by
order to exhaust Title VII's administrative remedies, a
plaintiff must “trigger the investigatory and
conciliatory procedures of the EEOC so that the Commission
may first attempt to obtain voluntary compliance with the
law.... These investigatory and conciliatory procedures
notify potential defendants of the nature of plaintiffs'
claims and provide them with the opportunity to settle the
claims before the EEOC rather than litigate them.”
Davis v. Sodexho, Cumberland College Cafeteria, 157
F.3d 460, 463 (6th Cir. 1998). A plaintiff must exhaust her
administrative remedies for each and every claim.
Davis, the court determined that the plaintiff could
not bring an action in federal court under the Age
Discrimination in Employment Act when her EEOC charge of
discrimination indicated “race” and
“other” as the motivations for the discrimination
and “[n]owhere on the form did she indicate age as a
potential cause of discrimination.” Id.
Likewise, in Younis v. Pinnacle Airlines, 610 F.3d
359, 362 (6th Cir. 2010), the Sixth Circuit held that a Title
VII plaintiff did not exhaust his retaliation claim when he
failed to check the “RETALIATION” box on the
charge form or include any allegations of retaliation in his
exception that the Sixth Circuit has recognized to permit a
plaintiff to file a complaint in federal court when the
claims were not included in the EEOC charge is for claims
“reasonably expected to grow out of the charge of
discrimination.” Davis, 157 F.3d at 463
(quoting EEOC v. McCall Printing Corp., 633 F.2d
1232, 1235 (6th Cir. 1980). To meet this criteria, the EEOC
investigation of one charge must “in fact reveal[ ]
evidence of a different type of discrimination against the
plaintiff.” Davis, 154 F.3d at 463 (citing
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466
(5th Cir. 1970)). The reason for the “expanded rule is
that charges are frequently filed by lay complainants, and
the courts recognize that subsequent actions should not be
restricted by the failure of a complainant to attach the
correct legal conclusion to the EEOC claim, conform to
procedural technicalities, or include ‘the exact
wording which might be required in a judicial
pleading.'” Davis, 157 F.3d at 463
(quoting Bailey, 563 F.2d at 447; McCall
Printing, 633 F.2d at 1235). However, this exception
does not mean “that plaintiffs are excused from filing
charges on a particular discrimination claim before suing in
federal court.” Davis, 157 F.3d at 463. If
that were to occur, then the “charge filing requirement
would be written out of the law, and the triggering and
conciliation functions disabled.” Id. at 464.
present case, Plaintiff completed a charge of discrimination
with the EEOC on November 17, 2016. (First Charge, ECF No.
13-2.) Plaintiff checked only the box for
discrimination based on “religion.” In the
narrative, she stated, “I believe I have been
discriminated against based on my religion (Jehovah Witness),
in violation of Title VII….” (Id.) The
EEOC issued a dismissal and notice of rights letter on
November 18, 2016. (2016 Right-to-Sue Letter, ECF No. 13-3.)
The letter stated, in pertinent part: “Your lawsuit
must be filed WITHIN 90 DAYS of your receipt
of this notice; or your right to sue based on this
charge will be lost.” (Id. (emphasis in
filed a second charge of discrimination with the EEOC on
February 3, 2017. (Second Charge, ECF No. 13-4.) This time,
Plaintiff checked only the box for discrimination based on
retaliation. The narrative stated, in part, that “I
believe that I have been discriminated against due to my
filing a previous charge of discrimination....”
(Id.) There is no mention of religion or religious
discrimination in the second charge. The EEOC issued a
dismissal and notice of rights letter on February 8, 2017.
(2017 Right-to-Sue Letter, ECF No. 13-5.) Plaintiff filed her
complaint in this Court on April 19, 2017, which was 152 days
after the 2016 right-to-sue letter was issued.
contends that any retaliation claim contained in the first
charge of discrimination is time-barred and should be
dismissed. To the extent that Plaintiff alleged a retaliation
claim in the first charge for events occurring prior to the
date of her first charge (and it does not appear that she did
so), Defendant is correct that that claim must be dismissed
because this lawsuit was filed more than ninety days after
the first right-to-sue letter was issued. SeePage v. Metro Sewer Dist. of Louisville & Jefferson
Cnty., 84 F. App'x 583, 584 (6th Cir. 2003)
(“Before filing a Title VII claim, a plaintiff must
receive a right-to-sue letter from the EEOC and then file
suit within ninety days after receiving the right-to-sue
letter.”). However, Plaintiff has exhausted her
administrative remedies and has ...