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Turner v. Aurora Australis Lodge

United States District Court, Fifth Circuit

September 10, 2013

WANDA TURNER, Plaintiff,
v.
AURORA AUSTRALIS LODGE, a/k/a AURORA AUSTRALIS LODGE, LLC; VANGUARD HEALTH CARE SERVICES, LLC and JOHN DOE DEFENDANTS 1-10, Defendants.

MEMORANDUM OPINION

SHARION AYCOCK, District Judge.

Plaintiff worked as a Certified Nursing Assistance (CNA) at the Columbus, Mississippi, Aurora Australis facility. She was discharged in October of 2011, and subsequently filed an EEOC Charge in January of 2012. After receiving her Right to Sue letter, Plaintiff filed suit in this court. Defendants seek dismissal of Counts 3, 5, 6, and 7 for various reasons. After reviewing the motions, responses, rules and authorities, the Court finds as follows:

Factual and Procedural Background

As noted above, Plaintiff was hired as a CNA in December of 2001. She was allegedly discharged on October 7, 2011, for causing a work stoppage. Her EEOC Charge alleges that at the time of her discharge, Plaintiff was fifty-two years old, and in an effort to save money, Aurora Australis began laying off older workers who would, under the union contract, qualify for $11.00 an hour, while younger CNAs could be paid $8.00 an hour. Plaintiff also claims she was retaliated against for making union complaints and/or calls to the Attorney General's Office against the Director of Nursing and the Administrator for failing to investigate misconduct against a resident. Plaintiff specifically checked the boxes for "Age" and "Retaliation" on the EEOC Charge.

Plaintiff's complaint alleges she was terminated because of her race in violation of Section 1981 and Title VII and suffered a hostile work environment because of her age. Additionally, she alleges Defendants intentionally inflicted emotional distress on her and used "outrageous and revolting... slanderous language... toward the plaintiff."

Defendants seek dismissal of Plaintiff's race discrimination claim under Title VII and her hostile work environment allegations under the Age Discrimination in Employment Act (ADEA) for Plaintiff's failure to exhaust her administrative remedies. Further, Defendants contend Plaintiff failed to state a claim for either state law causes of action, or alternatively, did not file her state law claims within the statute of limitations necessary.

Discussion and Analysis

1. Failure to Exhaust

a. Race Discrimination Claim

Defendants contend Plaintiff failed to sufficiently allege a race discrimination claim under Title VII in her charge to the EEOC. Indeed, Plaintiff did not check the box for race discrimination on her Charge filed with the EEOC. Plaintiff did not raise any objection or argument as to Defendants' contention that she failed to exhaust her administrative remedies as to this claim. Because a race discrimination claim cannot be said to have been reasonably expected to grow out of Plaintiff's charge of age discrimination, this claim was not exhausted and is therefore, dismissed. Pacheco v. Mineta , 448 F.3d 783, 789 (5th Cir. 2006)

b. Hostile Work Environment Claim

Plaintiff asserts that she was subjected to a hostile work environment because of her age. Hostile work environment claims are cognizable under the ADEA, Dediol v. Best Chevrolet, Inc. , 655 F.3d 435, 441 (5th Cir. 2011); however, any ADEA claim must be administratively exhausted. See 29 U.S.C. ยง 626(d) (prohibiting the filing of any civil action pursuant to the ADEA until "after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission"). Plaintiff asserts she exhausted her administrative remedies as to her hostile work environment claim because there was no particular box to check to allege hostile working environment and that that claim would fall under her retaliation claim.

A claim is sufficiently exhausted where it falls within "the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Pacheco , 448 F.3d at 789 (quoting Sanchez v. Standard Brands, Inc. , 431 F.2d 455, 466 (5th Cir. 1970)). On Plaintiff's EEOC Charge, she marked the "age" discrimination and "retaliation" boxes. She explained that she was terminated because her age qualified her for a higher hourly wage and she filed union grievances and called the Attorney General's office regarding patient care. No allegations of hostile work environment exist on the face of the Charge. After reviewing the Charge, the Court is convinced that a hostile work ...


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