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Harmon v. Horizon Financial Management

United States District Court, N.D. Indiana, Hammond Division

April 26, 2017




         Tykeyia Harmon has brought an employment discrimination case against her former employer, Horizon Financial Management. Her complaint contains five counts but the only one presently at issue is Count IV which is captioned “Retaliation Based on Religious Discrimination” under Title VII. [Id. at 9-10.] Horizon seeks the dismissal of Count IV because Harmon did not exhaust her administrative remedies before the EEOC as it relates to that count. [DE 12.]

         Title VII requires that, before a lawsuit is filed, charges of discrimination be timely filed with the EEOC. 42 U.S.C. §2000e-5(e)(1). “The requirement that a plaintiff timely file an administrative charge with the EEOC serves two purposes: it promotes the prompt and less costly resolution of the dispute by settlement or conciliation and ensures timely notice to the employer of the grievance.” Porter v. New Age Services Corp., 463 Fed.Appx. 582, 584 (7th Cir. 2012), citing Teal v. Potter, 559 F.3d 687, 691 (7thCir. 2009). The exhaustion requirement is not jurisdictional; it's a condition precedent to bringing an employment discrimination action to court. Volovsek v. Wisconsin Dep't of Agr., Trade & Consumer Prot., 344 F.3d 680, 687 (7th Cir. 2003). Determining whether Harmon's retaliation claim is within the scope of her EEOC charge is a question of law. Moore v. Vital Products, Inc., 641 F.3d 253, 257 (7th Cir. 2011).

         The gist of Harman's claim in Count IV is that she was retaliated against for opposing a supervisor's religion-based harassment of a co-worker, Kim Kimberly. Kimberly is a Jehovah's Witness. Count IV alleges that Harmon was terminated by her supervisor, Graciela Biancardi, who associated Harmon with Kimberly's religious beliefs, and retaliated against Harmon for her complaints about Biancardi's treatment of Kimberly:

The defendant engaged in illegal employment terminating Ms. Harmon one day after Kimberly complained about Biancardi's religious based harassment of her and her harassment of Harmon to defendant's Director of Operations and for previously defending Kimberly's right to adhere to her religious beliefs, thereby retaliating against her for engaging in protected activity.

[DE 1 at 10.]

         In her Charge of Discrimination, Harmon checked only the box for discrimination based on race, and did not check the boxes for retaliation or discrimination on the basis of religion. [DE 18.] In its entirety, the facts provided in the charge read:

I am Black. I was hired on 11/26/2012 as a Recovery Specialist. My last position was Team-Lead. My manager, Grace Biancardi is Hispanic. My performance and attendance was good.
On 9/29/15 Mgr. Grace called me into the office and said that employees had accused me of telling them that they were going to get a whopping for asking stupid questions. I told her that I was joking.
On 10/7/2015 Mgr. Grace terminated me for violating company policy. I am aware that Team-Lead, Suzanna Piskoluska (Non-black) received employee complaints for being rude and having a bad attitude. She was not disciplined or terminated. I am aware that Matthew Plummer (White) received employee complaints for not being approachable and having a bad attitude. He was not disciplined or terminated.
I believe that I have been discriminated against because of my Race, in violation of Title VII of the Civil Rights Act of 1964 as amended[.]


         “A plaintiff may pursue a claim not explicitly included in an EEOC complaint only if her allegations fall within the scope of the earlier charges contained in the EEOC complaint.'” Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005), quoting Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). To determine whether the claim in Harmon's Count IV falls within the scope of her EEOC charge, “we look to whether the allegations are like or reasonably related to those contained in the EEOC complaint.” Ezell, 400 F.3d at 1046. “Claims are reasonably related if there is a factual relationship between them, ” which at a minimum means “that the EEOC charge and complaint must describe the same conduct and implicate the same individuals.” Id. (citations omitted); see also Reynolds v. Tangherlini, 737 F.3d 1093, 1100 (7th Cir. 2013).

         Harmon's charge contains no references to her co-worker, Ms. Kimberly, nor do they reference anyone's religious practices or beliefs. There isn't so much as a whiff of a reference to the supervisor's harassment of Ms. Kimberly for being a Jehovah's Witness and Harmon's complaint about the harassment. This is a problem because claims of retaliation, discrimination and harassment, even if all based on the same protected classification, “are not ‘like or reasonably related' to one another to permit an EEOC charge of one type of wrong to support a subsequent civil suit for another.” Sitar v. Indiana Dept. of Transp., 344 F.3d 720, 726 (7th Cir. 2003), citing Cheek v. Western & Southern Life Ins. Co., 31 F.3d ...

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