The opinion of the court was delivered by: Hon. Hugh W. Brenneman, Jr.
Plaintiff has filed a pro se civil rights action alleging that defendant Grand Traverse County ("the County') did not hire her because she filed civil rights complaints under state and federal law. This matter is now before the court on defendant's motion for summary judgment (docket no. 64).
Plaintiff set forth the following allegations in her complaint. In June, 2005, plaintiff resigned from her position as a federal employee. Compl. at ¶ 7.*fn1 On September 21, 2005, plaintiff filed an Equal Employment Opportunity complaint (the "EEO complaint") with the Federal Office of Civil Rights alleging that she was subject to discrimination during her federal employment. Id. That same month, plaintiff filed an application with the County's human resources ("HR") department to be considered for employment. Id. at ¶ 12. Plaintiff subsequently passed additional tests which enabled her to apply for employment with the County. Id. at ¶¶ 13-14. In October 2005, plaintiff applied for positions as an emergency telecommunicator (dispatcher) and corrections officer. Id. at ¶ 15. Plaintiff withdrew her application for the corrections officer position, with the understanding that she could take the test the next time a position became available. Id. at ¶ 17.
At the final interview for the dispatcher position, held in June 2006, the County's HR representative, later identified as Ms. Grockau, repeatedly questioned plaintiff as to why she left her federal employment. Id. at ¶ 19. Sometime after the interview, plaintiff called Ms. Grockau to ask about Grockau's "dissatisfaction to her prior employment resignation answer." Id. at ¶ 20. Ms. Grockau allegedly told plaintiff that she knew of the EEO complaint, that "it wasn't good," and that she wanted plaintiff to admit at the interview that this complaint was the reason plaintiff resigned from the federal employment. Id. Plaintiff replied that the EEO matter was confidential and that it "shouldn't matter in [p]laintiff's quest for other employment." Id. at ¶ 21. When plaintiff asked Ms. Grockau how she learned about the EEO complaint, Grockau stated that " 'it didn't matter how she knew' because if [p]laintiff was ever hired, [d]efendant had 'two very good detectives' who performed background checks and they would find out about the EEO complaint as it was something they needed to know about a prospective employee, and a background [sic] wasn't necessary since [p]laintiff hadn't been chosen for any of the open dispatch positions." Id. at ¶¶ 21-22.
Through September 2007, plaintiff allegedly applied with the County "for over 20 posted openings in the Courts, Corrections, Dispatch, Clerk's office, Veteran's Affairs, Commission on Aging and Homeland Security liason." Id. at ¶ 23. Plaintiff was qualified for each of these positions, but was only granted two interviews after June 2006. Id. at ¶¶ 23-24.
In a letter dated February 28, 2007, plaintiff notified the County's Administrator, Dennis Aloia, that the County had retaliated against her for participating in "prior protected activity." Id. at ¶ 25.*fn2 Plaintiff based her claim upon Ms. Grockau's knowledge of the EEO complaint and plaintiff's inability to secure interviews for other positions at the County. Id. When the County did not respond to the February 28th letter, plaintiff filed a complaint "for retaliation in a failure to hire for prior protected activity and possible age discrimination" with the Michigan Department of Civil Rights (MDCR)*fn3 on March 28, 2007. Id. at ¶ 26. Plaintiff alleged that her MDCR action resulted in " 'no resolution' mediation" in August 2007. Id. While plaintiff's complaint included a copy of a "Dismissal and Notice of Rights" from the U.S. Equal Employment Opportunity Commission ("EEOC") dated January 30, 2008, she did not include specific allegations regarding the EEOC proceedings. See docket no. 1-2.*fn4
Plaintiff filed the present civil action on April 28, 2008. In this action, plaintiff alleged that the EEO complaint was protected activity under the definition set forth in 42 U.S.C. § 2000e-3 (Title VII of the Civil Rights Act). Id. at ¶ 8. In addition, plaintiff alleged that the February 28, 2007 letter and the MDCR complaint were "protected activity." Id. at ¶ 27. Plaintiff summarized her claims as follows:
29. Upon Defendant's knowledge of (and apparent negative position to) Plaintiff's EEO complaints, Defendant used this against her by repeatedly blocking Plaintiff's ability to compete for positions for which she was qualified, and hired others.
30. Plaintiff has suffered detriment to her rights and a loss of earnings and benefits from Defendant's intentional failure to hire her because of her prior and present protected activity and the use of age as a factor for determining eligibility in hiring.
Id. at ¶¶ 29-30 (footnote omitted).
Mindful that "[p]ro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings," Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999), the court finds that plaintiff has alleged three claims. First, that the County retaliated against her in violation of Title VII, 42 U.S.C. § 2000e-3 for engaging in protected activity with a former employer. Second, that the County discriminated against her in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Third, that the County violated Michigan's Elliott-Larsen Civil Rights Act, M.C.L. § 37.2701(a) ("ELCRA"), because she "made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under [the] act." Id. At ¶ 9.
The court dismissed plaintiff's claim of age discrimination pursuant to a stipulation of the parties. See docket nos. 53 and 54. The County has moved for summary judgment on plaintiff's remaining claims of retaliation under Title VII and ELCRA.
After hearing the parties' arguments on the summary judgment motion, and reviewing additional authority submitted by plaintiff, it appeared that plaintiff had failed to exhaust her administrative remedies with respect to many of the alleged Title VII violations. "It is well settled that federal courts do not have subject matter jurisdiction to hear Title VII claims unless the claimant explicitly files the claim in an EEOC charge or the claim can be reasonably expected to grow out of the EEOC charge." Weigel v. Baptist Hospital of East Tennessee, 302 F.3d 367, 379 (6th Cir. 2002), quoting Strouss v. Michigan Dept. of Corrections, 250 F.3d 336, 342 (6th Cir. 2001). For this reason, the court issued an order to show cause as to why the court should not dismiss all of the alleged claims of retaliation except for the claims investigated by the EEOC. See docket no. 82.*fn5 Both parties filed responses to the show cause order.
The record reflects the following chain of events with respect to the exhaustion issue. Plaintiff received a letter dated March 19, 2007, from the EEOC, which referenced plaintiff's initial contact with that agency on March 13, 2007 and instructing her to file a questionnaire. See docket no. 83-5. Plaintiff filed a charge of discrimination with both the MDCR and EEOC on May 9, 2007, alleging retaliation and age discrimination. See docket no. 83-6.*fn6 A mediation session between plaintiff and the County was scheduled on August 1, 2007. See docket no. 83-7. There is no further record with respect to the May 9, 2007 discrimination charge filed with the MDCR.
Approximately five months later, on October 28, 2007, plaintiff completed an EEOC "Intake Questionnaire" alleging "retaliation for prior EEO discrimination complaint & possible age discrimination." See docket no. 83-10. In the Intake Questionnaire, plaintiff listed the date of the discriminatory acts as "6/06 ---> continuing." Id. Although plaintiff arguably limited her complaint to the June 30, 2006 interview, the EEOC's "right to sue" letter, dated January 28, 2008, identified two later incidents:
The investigation shows that Respondent interviewed you on June 30, 2006 for the position of emergency telecommunicator for the central dispatch department and in October 2006, you were interviewed for the position of office specialist with the commission on aging, and in January 2007 you were interviewed for a position as an office specialist in the county clerk's office.
See docket no. 65-9. The EEOC determined that plaintiff's allegation of retaliation was not substantiated by the record because respondent first became aware of her previous EEOC complaint after February 28, 2007, when plaintiff mailed a letter to County Administrator Dennis Aloia complaining that she had been discriminated against by the county because she filed the previous complaint. Id. As previously discussed, the EEOC entered its dismissal and notice of rights on January 30, 2008. See docket nos. 1-2, 65-10, and 83-11.
Plaintiff has not demonstrated that she exhausted the 20 (or more) Title VII claims referenced in her complaint. See Compl. at ¶ 23. Plaintiff has presented no evidence that the EEOC investigated, or should have investigated, any alleged violations other than the County's failure to hire her for the three positions referenced in the EEOC's January 28, 2008 letter. See Weigel, 302 F.3d at 379; Strouss, 250 F.3d at 342. Accordingly, plaintiff's Title VII claims for ...