The opinion of the court was delivered by: Chief Judge Paul L. Maloney
Denying the Plaintiff's Motion for Reconsideration of 659 F. Supp.2d 858 (W.D. Mich. Sept. 11, 2009) (Dismissing the Title VII Claim for Failure to Exhaust Administrative Remedies); Amending the Judgment to Dismiss the Title VII Claim with Prejudice Surgical technician Melissa White brought this pregnancy-discrimination action against her former employer, Northern Michigan Regional Hospital ("the hospital") under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 200e(k). White also asserted pendent claims for sex and pregnancy discrimination and retaliation under Michigan's Elliott-Larsen Civil Rights Act. White began working for the hospital as an at-will employee in September 2007, subject to a probationary period during which she was not eligible for vacation or progressive discipline procedures. The parties agreed that White informed the hospital that she was pregnant on October 1, 2007, and her employment ended on December 19, 2007, towards the end of her probationary period. The hospital moved to dismiss on the ground that White failed to exhaust her administrative remedies. In the alternative, the hospital moved for summary judgment on the ground, inter alia, that White could not show a genuine issue of material fact as to some of the elements of a prima facie case of pregnancy discrimination. After hearing oral argument in September 2009, the court dismissed the Title VII claim without prejudice for failure to exhaust administrative remedies, and declined supplemental jurisdiction over the state-law claims. See White v. Northern Michigan Hospital, 659 F. Supp.2d 858 (W.D. Mich. Sept. 11, 2009) (Maloney, C.J.).
White is 25 years old and has earned two Associate's degrees from Mott Community College and a Surgical Technician Certification from Northern Michigan University, White, 659 F. Supp.2d at 859. White was hired on a probationary basis as an entry-level Surgical Technologist I for the hospital in Petoskey, Michigan. She was employed in that capacity from September 17, 2007 until her termination on December 19, 2007. Her job was to assist physicians during surgery. She acknowledges that a surgical tech's schedule is based on the surgeries being performed at the hospital, which therefore needs sufficient staff available at the time each surgery is scheduled, id. The position was White's first following graduation and, like other new employees at the hospital, she was subject to a 180-day probationary period, during which she was ineligible for time off or progressive discipline procedures, id. at 859. White understood that the training was important and that the hospital spent significant money and staff time to prepare new Surgical Techs for the transition to a regular surgical schedule. She also understood that her supervisor, Jeanette Rockwell, was concerned about her inconsistent attendance because Rockwell was responsible for scheduling surgical techs in the ORs and the hospital needed White to be present and doing her job, id. at 860.
The training required White to rotate through each OR surgical specialty -- general/vascular, urology/gynecology, ENT/plastics, neurosurgery, and orthopedics -- during which she was observed and supervised by more-experienced surgical techs called preceptors, who provided feedback and evaluations; they submitted weekly progress reports, which Education Coordinator Rockwell reviewed with White and the other probationary employees, id. at 861. White presented progress reports which she characterizes as praising her performance and attitude throughout September, October and November, primarily September. The court reproduced those evaluations, and other evaluations submitted by defendant NMH, at length, id. at 862-63.
Rockwell oversaw the orientation program for new surgical techs, meeting with them, bringing mistakes to their attention, inspecting surgical suites, observing surgeries, and stopping techs in the hallway to discuss issues and point out errors. White testified that she has no reason to believe that Rockwell did not point out errors to other new surgical techs, id. at 863.
On October 1, 2007, upon hearing the news that White was pregnant, department manager Kathleen English allegedly said to her, "This is just what we need." Id. at 863. White alleges that thereafter, her supervisors subjected her to greater scrutiny and increasingly criticized her performance, e.g., Rockwell was constantly watching her through the OR windows. Unspecified supervisors allegedly made comments such as "you need to manage your pregnancy better." Id.
The remainder of the factual background is set forth at White, 659 F. Supp.2d at 863-69 (White's acknowledged absences and latenesses, the alleged effect of these absences and latenesses on surgical staffing, and the specific comments which White alleges hospital supervisors and employees made about her pregnancy, and White's conversations with supervisors English and Rockwell up to and including the December 11, 2007 meeting which resulted in White being fired).
The hospital moved for summary judgment in June 2009, and in July 2009 White filed an opposition brief and the hospital filed a reply brief. In August 2009, as directed by the court, the hospital filed a supplemental reply brief further developing its contention that the complaint should be dismissed for failure to exhaust administrative remedies. White did not file a response to the supplemental reply or seek an extension of time in which to do so. This court dismissed White's complaint for failure to properly exhaust administrative remedies. White seeks reconsideration.
In the ruling which White seeks to reconsider, this court reasoned as follows with regard to the Title VII claim:
As the United States Supreme Court has declared,
In Title VII Congress set up an elaborate administrative procedure, implemented through the EEOC, that is designed to assist in the investigation of claims of . . . discrimination in the workplace and to work towards the resolution of these claims through conciliation rather than litigation.
Patterson v. McLean Credit Union, 491 U.S. 164, 180-81 (1989) (citing 42 U.S.C. § 2000e-5(b)). Likewise, our Circuit emphasizes that "the purpose of Title VII's administrative scheme is 'to encourage reconciliation and arbitration of employee grievances prior to litigation.'" Steiner v. Henderson, 354 F.3d 432, 437 (6th Cir. 2003) (quoting Morgan v. Washington Mfg. Co., 660 F.2d 710, 711 (6th Cir. 1981)). See also Scott v. Eastman Chem. Co., 275 F. App'x 466, 471 (6th Cir. 2008) ("The policy or purpose of the exhaustion requirement 'is to trigger an investigation, which gives notice to the alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures in an attempt to avoid litigation.'") (quoting Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (citation omitted)); EEOC v. Watkins v. Motor Lines, Inc., 463 F.3d 436, 439 (6th Cir. 2006) (referring to "the EEOc's conciliation efforts (required in ADA actions)") . . . ; Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) ("The purpose of this requirement is to trigger an investigation, which gives notice to the alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures in an attempt to avoid litigation.") (emphasis added) . . . .
It is undisputed that White filed her Charge of Discrimination with the Michigan Department of Civil Rights ("MDCR") on February 15, 2008, attesting under oath, "I also want this charge filed with the EEOC." [Only about sixty days later], White and her counsel contacted the MDCR and requested withdrawal of the charge "because I will pursue the issues raised in my complaint in court," because on that date MDCR Rights Representative Janet Dillard sent White a notice acknowledging that White had done so, and quoting White's exact language to that effect.
White alleged that she withdrew only her MDCR charge, without withdrawing her EEOC charge or terminating her participation in the EEOC process. The court rejects this interpretation of White's action as untenable. Along with the notice acknowledging White's request to withdraw her charge and proceed in court instead, the MDCR attached a form, entitled Information for the Charging Party - How to Obtain an EEOC Notice of Right to Sue, which clearly advised her, in pertinent part:
This means your charge of discrimination filed with the Michigan Department of Civil Rights (MDCR) and dually filed with the Equal Employment Opportunity Commission (EEOC) will be closed, because your intent is to sue the respondent company in federal court.
Notices of Right to Sue are issued by the EEOC.
To receive your RTS: Sign a withdrawal form suppled by the MDCR. Your signature on the withdrawal form acknowledges your intent to close your case with the MDCR and to receive a Notice of Right to Sue from the EEOC.
MDCR will submit your withdrawal to the EEOC, along with your request for a[n] RTS.
Your case will be closed with the EEOC when your RTS is issued.
This process usually takes two months or longer.
At oral argument, White's counsel emphasized that White had no authority or power to prevent the EEOC from continuing to investigate and, if it chose, to take action against the hospital in the enforcement of Title VII. The court agrees, of course, that a private party lacks statutory or regulatory authority to dictate whether the EEOC initiates or continues an investigation. See Walker v. UPS, Inc., 240 F.3d 1268, 1273 (10th Cir. 2001) ("Private parties such as Walker do not have the power to take away EEOC's enforcement authority . . . .") (citing EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999) ("Significantly, an individual may not, in an effort to effectuate her own interests, take away the enforcement authority of the EEOC even if she wishes to withdraw her charge of discrimination.")).*fn1
Accord EEOC v. Sherwood Med. Indus., Inc., 452 F. Supp. 678, 681 (M.D. Fla. 1978), where the court dismissed the EEOC's action to enforce Title VII's prohibitions on race and sex discrimination, stating,
If the Commission is to seek relief in federal court it must be prepared to show that it has satisfied the jurisdictional prerequisites including submitting the matters in issue to conciliation. It has not done so here and it therefore follows that suit on the sex discrimination claim was premature.
But White's argument in this regard conveniently overlooks the fact that investigation is not the only major purpose of the administrative process. Nor is enforcement litigation (by the aggrieved employee or the EEOC) the only outcome contemplated by Congress. On the contrary, litigation from either source is decidedly not the outcome preferred by Congress, as our precedents make clear.
Rather, as our Circuit has emphasized, "'Voluntary compliance is Title VII's preferred method for promoting the goal of nondiscrimination; it is also the reason for the EEOC's existence.'" Steiner, 354 F.3d at 437 (quoting St. John . . . (9th Cir. 1981) and citing Alexander . . . 415 U.S. 36, 44 (1974) ("stating that '[c]ooperation and voluntary compliance" were selected by Congress as the preferred means of assuring equality of employment opportunities by eliminating discrimination, and '[t]o this end, Congress created the [EEOC]' and established a procedure by which the EEOC and cooperating local agencies would have an opportunity to settle disputes through conference and conciliation before the aggrieved party was allowed to file a lawsuit."); see also Randolph v. Dep't of Youth Servs., 453 F.3d 724, 724, 731-32 (6th Cir. 2006) ("This requirement exists so that the EEOC will have an opportunity to convince the parties to enter into [a] voluntary settlement, which is the preferred means of disposing of such claims.") (citing Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 873 (6th Cir. 1984)) (emphasis added).
By unequivocally terminating her involvement in the EEOC administrative process, White thwarted "the EEOC's function as an efficient conciliator", which is "central to Title VII's statutory scheme." Gavette v. Brady . . . 1993 WL 384902, *2 (6th Cir. Sept. 28, 1993); cf. Jackman v. NLRB, 784 F.2d 759, 764 (6th Cir. 1986) (referring to "the generally accepted doctrine of promoting settlement agreements, which has been characterized as the 'lifeblood of the administrative process,' and is of the utmost importance to the administration of the Act." ) (citation omitted).
By definition, "conference" and "conciliation" are impossible when one of the parties indicates that she will no longer participate. Cf., e.g., Shikles . . . 426 F.3d 1304, 1311 (10th Cir. 2005) ("[W]e hold that a private sector employee must cooperate with the EEOC in order for the employee to exhaust his or her administrative remedies . . . ."); Adair . . . . 102 F. Supp.2d 1092, 1097 (S.D. Iowa 1999) (because employee failed to cooperate with state ...