United States Court of Appeals,
Fifth Circuit.
No. 93-1839
Summary Calendar.
Vonda S. Brehm CLARK, Plaintiff-Appellant,
v.
KRAFT FOODS, INC., Defendant-Appellee.
April 20, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit
Judges.
POLITZ, Chief Judge:
Vonda Sue Brehm Clark appeals an adverse summary judgment in
her Title VII sex-discrimination suit against Kraft General Foods.
We vacate and remand.
Background
Clark was fired in December 1988 after being employed as a
line technician by Kraft for several years. Shortly thereafter she
filed a charge of discrimination with the Equal Employment
Opportunity Commission, the primary thrust of which was an
allegation of sexual harassment and retaliation for grievances she
filed in response to that harassment. In 1991 Clark filed the
instant action, claiming that she was pressured to take a lower
paying position and was ultimately fired because of her gender.
The sexual harassment claim, the dominant theme in her EEOC
complaint, was not advanced, apparently because it was time-barred.
1
Kraft moved for summary judgment asserting that Clark had not
raised her disparate treatment claim before the EEOC and,
therefore, had not exhausted administrative remedies.1 The
magistrate judge accepted Kraft's challenge and recommended that
summary judgment be granted because the "disparate treatment claim
... was not presented to the EEOC, nor was it within the scope of
the EEOC investigation of plaintiff's charge." That recommendation
was adopted without comment by the district court. Clark timely
appealed.
Analysis
Clark maintains that she properly raised the disparate
treatment issue before the EEOC.2 Kraft counters that although
Clark's EEOC complaint included claims of sexual harassment and
retaliation for that harassment, it did not include a separate
allegation of disparate treatment on the basis of gender. We
review the district court's grant of summary judgment de novo.3
As a jurisdictional predicate Clark had to exhaust EEOC
remedies for the sex-based discrimination advanced in this action.4
1
Tolbert v. United States, 916 F.2d 245 (5th Cir.1990).
2
Clark asserts that she exhausted administrative remedies on
her claim of retaliation for filing a 1988 gender discrimination
grievance. The summary judgment only addresses her disparate
treatment claim. If a retaliation claim in fact exists, it is
not properly before us on appeal.
3
Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th
Cir.1993).
4
See Young v. City of Houston, 906 F.2d 177 (5th Cir.1990);
Sandom v. Travelers Mortg. Services, 752 F.Supp. 1240
(D.N.J.1990) (sexual harassment and disparate treatment are
distinct; assertion of one before the EEOC does not exhaust
2
The sole issue before us is exhaustion and our sole inquiry is
whether the disparate treatment claim pursued in the present
litigation was advanced before the EEOC. We decide that question
in the affirmative because the EEOC investigation of that claim was
a reasonable consequence of Clark's EEOC complaint and supporting
documentation.5
We look first to Clark's original "Charge of Discrimination."
This document sets forth several claims, the most important of
which are: "1. I was harassed because of my sex, female. 2. I
was sexually harassed." Viewed in isolation the first complaint
reasonably could be read as either an allegation of sexual
harassment or as a claim that she had been persecuted in her job
because of her gender. These points, however, were presented in
tandem. Were we to read Clark's first claim as simply alleging
sexual harassment, we would render her second claim redundant.
Long established principles of interpretation6 and Clark's pro se
administrative remedies as to the other). We note, however, that
this proposition does not preclude Clark from offering more than
one basis of discrimination in a single EEOC claim, or from
relying on a single set of facts in support of more than one
basis. Cf. Fellows v. Universal Restaurants, Inc., 701 F.2d 447
(5th Cir.), cert. denied, 464 U.S. 828, 104 S.Ct. 102, 78 L.Ed.2d
106 (1983).
5
Young; Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir.1970).
6
Cf. Nat'l Union Fire Ins. Co. v. Kasler Corp., 906 F.2d 196
(5th Cir.1990) (courts construe language to avoid rendering terms
meaningless); Fed.R.Civ.P. 8(e), (f) (encouraging liberal
construction of complaints).
3
status at the time of her EEOC complaint7 militate against such a
construction of her filing.
We conclude that Clark's statements to the EEOC presented a
sufficient predicate upon which one reasonably would expect the
agency to investigate a disparate treatment claim. Her EEOC
affidavit explained that females on her line "were forced to bust
off their job and take lower bracket pay jobs." Her EEOC Discharge
Questionnaire expanded on this point, noting that "[d]ue to the cut
in Matinence [sic] Dept. they wanted the women off the line
operators jobs to place the xtra [sic] men."8 These statements at
least raise inferences supporting Clark's claim of gender-based
harassment. Her allegation that women on her line were removed to
lower paying jobs to make room for men should have given the EEOC
investigators reasonable cause to examine whether she was pressured
to do the same or whether her ultimate firing resulted from
systematic replacement of any female in her position.
Despite its present position on appeal, at the time of Clark's
EEOC complaint Kraft apparently considered Clark to be claiming
disparate treatment on the basis of gender. In answer to the
EEOC's request for information Kraft denied the existence of any
"evidence that female employees are more frequently terminated or
otherwise more harshly treated in the disciplinary process." Kraft
7
Fellows, 701 F.2d at 451 ("liberal construction [is]
accorded EEOC charges, especially those by unlawyered
complainants").
8
Kraft suggests that Clark, having refused to "bust off" her
job, cannot claim this episode as discrimination. This argument
ignores the fact that she was fired shortly after her refusal.
4
concluded its response by noting that Clark's termination "had
nothing to do with her sex." If Clark had presented no colorable
allegation of disparate treatment that reaction would have been a
non sequitur.
Albeit mindful that the actual scope of an EEOC investigation
does not determine whether a claim is exhausted,9 we are also
mindful that investigation of a particular claim creates a strong
inference that such a claim was presented. In the instant case the
EEOC investigated Clark's gender-based disparate treatment claim.
Its determination expressly mentions a gender-based harassment
claim which it treats as distinct from claims of sexual harassment
or retaliation for reporting such harassment. The first half of
the EEOC report deals exclusively with Clark's "sexual harassment
allegation." The determination then separately addresses "[t]he
Charging Party's allegation that she was harassed because of her
sex, and in retaliation for complaining about sexual harassment."
EEOC inquiries discussed thereunder include the question whether
males and other females in Clark's position received comparable
work assignments and duties. These questions, like Kraft's
representation that males and females are treated equally,
manifestly are consistent with an EEOC inquiry into a gender-based
disparate treatment claim. The EEOC determination concluded that
"[t]he investigation discovered no evidence that Charging Party was
asked to resign and was subsequently discharged because of her sex,
9
Young (applicable standard is not scope of actual
investigation but what we reasonably would expect the EEOC to
investigate).
5
female, or because she complained of sexual harassment."
It is apparent that sexual harassment and retaliation for
reporting sexual harassment were Clark's principal allegations at
the administrative stage. It is also apparent in the statements of
Clark, Kraft, and the EEOC that Clark raised a gender-based
disparate treatment claim sufficient to prompt an EEOC
investigation. Suggesting no particular resolution on the merits,
we conclude that administrative remedies for the instant complaint
of gender-based disparate treatment were exhausted and that Clark's
claim is properly before the district court.
The district court's judgment in favor of Kraft is therefore
VACATED and the cause is REMANDED for further proceedings
consistent herewith.
6