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Clark v. Kraft Foods, Inc.

Court: Court of Appeals for the Fifth Circuit
Date filed: 1994-04-19
Citations: 18 F.3d 1278
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                     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.


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     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

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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).

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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.

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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).

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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.




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