United States District Court, S.D. Ohio, Western Division
HENRI V. BOTTER, Plaintiff,
TUESDAY MORNING, Defendants.
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
Henry V. Botter filed a pro se complaint against defendant
Tuesday Morning under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2OOOe, et seq. ("Title
VII") on December 3, 2018. (Doc. 1). A redacted
complaint was filed on December 11, 2018. (Doc. 3). On
January 17, 2019, defendant filed a motion to dismiss the
complaint under Fed.R.Civ.P. 12(b)(6) for failure to properly
exhaust administrative remedies. (Doc. 6). Plaintiff has not
responded to the motion to dismiss to date.
complains of "unfair treatment in [a] hostile
environment" and verbal accusations during his
employment with defendant Tuesday Morning. (Doc. 3). As
relief, plaintiff asks that the Court allow him to
"continue to work for Tuesday Morning," and he
seeks restitution for lost wages and stress. (Id.).
Plaintiff has attached to the complaint his W2 statements for
2016 and 2017; his pay statement dated June 6, 2018; and
Counseling Statement/Corrective Action Forms dated November
29, 2017 and June 11, 2018. (Id.). Plaintiff has
also attached a charge he filed with the Equal Employment
Opportunity Commission (EEOC) on September 25, 2018,
alleging: (1) discrimination on the basis of his race
(Caucasian), religion (Protestant), age (85), and national
origin (Dutch); and (2) retaliation for filing two prior EEOC
charges in 2015 and 2016. (Id. at 11).
moves to dismiss the complaint based on plaintiffs failure to
properly exhaust his administrative remedies. (Doc. 6).
Defendant asserts that plaintiff has filed three charges with
the EEOC and/or the Ohio Civil Rights Commission (OCRC), two
of which defendant has attached to its motion. (Id.
at 3; Exhs. A, C). Plaintiff filed his first charge with the
OCRC on October 5, 2015, alleging age discrimination.
(Id. at 3; Exh. A). The charge was dual filed with
the EEOC. (Id., Exh. A). The OCRC issued a
Letter of Determination dismissing plaintiffs charge with a
finding of "no probable cause" on February 4, 2016.
(Id.; Exh. B). Plaintiff filed a second charge of
age discrimination with the OCRC on November 9, 2016, which
was also dual filed with the EEOC. (Id. at 3, Exh.
C). The OCRC dismissed the second charge by a Letter of
Determination on August 17, 2017, finding "no probable
cause." (Id. at 3; Exh. D). Plaintiff filed a
third charge with the EEOC on September 25, 2018, which is
the charge attached to the complaint. (Id. at 3;
Doc. 3 at 11). Defendant asserts that it first received
notice of the third charge when plaintiff filed this lawsuit.
(Doc. 6 at 3). Defendant states it is not aware that the EEOC
has issued a right-to-sue letter on the third
charge. (Id.). Defendant argues that
because plaintiff did not timely file suit on the first two
charges, and absent "evidence" the EEOC has
provided a notice of right-to-sue to plaintiff on the third
charge, his complaint should be dismissed. (Id. at
deciding a motion to dismiss under Rule 12(b)(6), the Court
must accept all factual allegations as true and make
reasonable inferences in favor of the non-moving party.
Total Benefits Planning Agency, Inc. v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th
Cir. 2008). The complaint must give the defendant "fair
notice of what the claim is and the grounds upon which it
rests." Nader v. Blackwell, 545 F.3d 459, 470
(6th Cir. 2008) (quoting Erickson v. Pardus, 551
U.S. 89, 93 (2007)). The complaint must also present
"enough facts to state a claim to relief that is
plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
se complaint should be liberally construed, Boswell v.
Mayer, 169 F.3d 384, 387 (6th Cir. 1999), and be held to
less stringent standards than formal pleadings drafted by
lawyers. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
However, the Sixth Circuit has recognized that the Supreme
Court's liberal construction case law has not had the
effect of "abrogating] basic pleading essentials"
in pro se suits. Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989).
deciding a motion to dismiss, the Court can consider
"the [c]omplaint and any exhibits attached thereto,
public records, items appearing in the record of the case and
exhibits attached to [the] defendant's motion to dismiss
so long as they are referred to in the [c]omplaint and are
central to the claims contained therein." Bassett v.
Nat'l Collegiate Athletic Ass `n, 528 F.3d 426, 430
(6th Cir. 2008). EEOC charges and related documents,
including right-to-sue notices, are public records that the
court may take judicial notice of when ruling on a motion to
dismiss without having to convert the motion into one for
summary judgment. Kovac v. Super. Dairy, Inc., 930
F.Supp.2d 857, 862-63 (N.D. Ohio 2013) (citing Williams
v. Steak 'NShake, No. 5:1 lcv833, 2011 WL 3627165,
at *3 (N.D. Ohio Aug. 17, 2011)). OCRC records are also
public records of which the court can take judicial notice.
Id. (citing Bass v. Wendys of Downtown,
Inc., No. 11-cv-940, 2012 WL 1552264, at *2, n. 1 (N.D.
Ohio May 1, 2012); Felix v. Dow Chem. Co., No.
2:07-CV-971, 2008 WL 207857, at *2, n. 1 (S.D. Ohio Jan. 23,
of administrative remedies is a precondition to filing a
Title VII lawsuit. Lockett v. Potter, 259 Fed.Appx.
784, 786 (6th Cir. 2008) (citing McFarland v.
Henderson, 307 F.3d 402, 406 (6th Cir. 2002);
Benford v. Frank, 943 F.2d 609, 612 (6th Cir.
1991)). An individual may not file a discrimination suit
under Title VII without first filing an administrative charge
with the EEOC or the appropriate state or local agency.
See Williams v. NW, Airlines, Inc., 53 Fed.Appx.
350, 351-52 (6th Cir. 2002) (citation omitted). Once the EEOC
dismisses the charge and issues a right-to-sue letter, the
plaintiff has 90 days to file a civil action. Id. at
352 (citing 42 U.S.C. § 2OOOe-5(f)(1)). A Letter of
Determination from the OCRC is not a substitute for an EEOC
notice of right-to-sue. Reddy v. JPMorgan Chase
Bank, No. 2:09-cv-1152, 2011 WL 1641261 at *3 (S.D. Ohio
May 2, 2011). However, when an EEOC notice of right-to-sue on
a dual-filed charge is not part of the record, it can
reasonably be assumed that the EEOC adopted the findings of
the OCRC and issued a notice of right-to-sue within a few
months of the OCRC's determination. See Id.
(finding the plaintiffs lawsuit was not timely where an EEOC
notice of right-to-sue on the charge was not part of the
record, and "reasonably assuming" the EEOC adopted
the finding of the OCRC and issued a notice of right-to-sue
within a few months of the OCRC's decision).
plaintiff files suit before he receives the right-to-sue
letter, the district court must dismiss "the premature
action for failure to exhaust administrative remedies."
Mitchell v, Chapman, 343 F.3d 811, 820, n.
10 (6th Cir. 2003) (citing Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir.
2000)). A Title VII action that is filed beyond the 90-day
period may be dismissed for failure to timely exhaust
administrative remedies. See Williams, 53 Fed.Appx.
at 351 (citation omitted). The 90-day time limit is subject
to waiver, estoppel and equitable tolling. Id.
(citing Zipes v. TWA, 455 U.S. 385, 392-98 (1982).
The plaintiff must allege facts showing he was diligent in
pursuing his claim to prevail on these defenses. Id.
(citing Morgan v. Washington Mfg. Co., 660 F.2d 710,
712 (6th Cir. 1981)).
the allegations of the complaint, construed together with the
attachments to the complaint, do not permit a finding that
plaintiff timely exhausted his administrative remedies on the
first two discrimination charges he filed. Plaintiff
received a Letter of Determination from the OCRC for the
first two charges in February 2016 and August 2017. (Doc. 6,
Exhs. B, D). Plaintiff has not alleged that he received a
notice of right-to-sue from the EEOC on either charge, and he
has not attached a notice of right-to-sue for those charges
to the complaint. Nor has plaintiff refuted defendant's
allegations in the motion to dismiss related to the first two
charges. It is therefore reasonable to assume that the EEOC
adopted the OCRC's findings and issued a notice of
right-to-sue on each charge within a few months of the
OCRC's decision. See Reddy, 2011 WL 1641261 at
*3. If so, plaintiffs complaint was filed well past the
90-day time limit. Because there are no allegations or
documents that indicate otherwise, the only permissible
conclusion to be drawn from the record is that plaintiff
failed to timely exhaust his administrative remedies for his
first two discrimination charges.
the complaint and attachments contain no indication that
plaintiff properly exhausted his administrative remedies for
the September 25, 2018 discrimination charge before filing
this lawsuit. Plaintiff filed the complaint less than three
months after he filed his third charge with the EEOC.
Plaintiff does not allege in the complaint that he received a
notice of right-to-sue on the September 2018 charge from the
EEOC, and he did not attach a notice of right-to-sue to the
complaint. Moreover, plaintiff has not responded to
defendant's allegation that as of the date the motion to
dismiss was filed, defendant was not aware that a
right-to-sue letter had been issued on the 2018 charge.
together, plaintiffs complaint and the administrative filings
of record do not permit a reasonable inference that plaintiff
properly exhausted his administrative remedies on any of the
three discrimination charges he filed with the OCRC and/or
EEOC. Plaintiff has not proffered any reason for his apparent
failure to diligently pursue a discrimination and retaliation
charge and to exhaust his administrative remedies before
filing suit in this Court. Plaintiffs complaint should be
dismissed for failure to fulfill the condition precedent of
exhaustion of his administrative remedies.
IS THEREFORE ...