The stereotype of judges is that they are boring and wouldn’t relate well to an audience. I have attended several CLE’s where judges were the speakers, and that stereotype is just not true. Of course, some are better than others, but that is true with every speaker you here. One of the great CLE speakers, who also happens to be a judge, is a gentleman named Mark Bennett, a District Court judge in the Northern District of Iowa. He speaks in a plain language, doesn’t take himself too seriously in a good way, and isn’t afraid to speak his mind. If you ever get a chance to attend a CLE where he is one of the speakers, you will not be disappointed.
At any rate, in a prior blog entry, we discussed what it means for a defendant to be on notice as to the type of charge that they may be facing when the EEOC complaint is filed. This particular case, the section of it that we will focus on anyway, contains a slightly different question. That is, when can a defendant be presumed to be on notice of an EEOC charge even if they are not technically the defendant named in the EEOC filing? This may happen more than you think as a lot of corporations have very complicated structures. As has been my usual practice of late, I have divided the blog entry into four sections: facts, Issue, Reasoning, and Takeaways. The reader is free to concentrate on any or all of those sections.
The case of Whitney v. Franklin General Hospital _F. Supp. 2d_, 2014 WL 360106 (N.D. Iowa, February 3, 2014), explores the issue of what happens when a plaintiff files an EEOC charge and the actual defendant, legally speaking, is not named in that charge because of the complexity of corporate structure. Does the legally responsible defendant then get a get out of jail free card?
In this case, a medical records clerk and receptionists alleged that the medical director of the County Hospital medical Center for which she worked subjected her to sexual harassment, sexual assault, sexual abuse and sexual exploitation during her employment. In particular, according to the complaint, he sexually harassed her by propositioning her, making sexually offensive comment towards her, showing her pornography on his computer, and masturbating in her presence. While the plaintiff thought that she was the only one being subject to the abuse, in January of 2012, other women began reporting that the same person was sexually harassing and assaulting them as well. On June 1, 2012, the medical director was fired for sexually harassing, insulting, abusing, and exploiting at least eight women at the hospital. So far so good but what happened next is a bit strange. On June 28, 2012, the defendant disciplined the plaintiff for engaging in sexual relations on their premises and on company time based upon the medical director’s sexual abuse, assault and exploitation of her. Further, they went on to discipline his other victims for sexual relations on company property and on company time. As a result of the sexual abuse, assault and exploitation, the plaintiff suffered from major depressive disorder and posttraumatic stress disorder. When she requested Family and Medical Leave Act leave to deal with the mental health issues, she was instead greeted with disciplinary action. Plaintiff filed her administrative civil rights complaint against the defendants on September 12, 2012. About two weeks a later, the Iowa Board of Medicine suspended the medical director’s medical license for, among other things, a pattern of sexual misconduct including nonconsensual sexual conduct with female patients and coworkers. The defendant knew of this action by the Iowa Board of Medicine shortly after the Iowa board suspended his license. When the plaintiff returned from FMLA leave, she was again disciplined and the defendant refused to provide any instances of the alleged misconduct when asked to do so by the plaintiff. The complaint alleged that other employees that had not reported sexual harassment, abuse, and exploitation by hospital doctors or who had not filed civil rights complaints were not disciplined for such minor infractions. After receiving a right to sue letter from the EEOC, she brought suit against Franklin General Hospital, Franklin County Iowa, Mercy Health Services (Iowa Corporation), Mercy Health Network, Inc., and Kim Price. The EEOC filing did not name the Mercy defendants. Instead, the only defendant named in the administrative filing with the EEOC were Franklin General Hospital, Dr. Hansen (the medical director), and Kim Price.
The Mercy defendants claimed that since they were not named in the EEOC filing, that the right to sue letter the plaintiff received gave her no leave to commence a civil action against them.
The court wasn’t buying Mercy’s defense for several reasons:
1. In the Eighth Circuit, the notice requirement is satisfied if a party sought to be included as a defendant knew or should have known that his or her or its conduct might be the subject of the administrative filing.
2. The plaintiff alleged that Mercy defendants operated and managed the hospital even though the hospital is owned and legally controlled by the county.
3. The plaintiff alleged that her amended complaint contained sufficient factual allegations to support an inference that the Mercy defendants were aware of the administrative complaints and had every opportunity to respond to them and to participate in the administrative process.
4. The Mercy defendants did not argue that they were unaware of her claims or that they were prevented from participating in the administrative process.
5. The plaintiff’s pleadings plausibly suggested that the Mercy defendants were substantially identical to Franklin General Hospital and that they knew or should’ve known that a claim was asserted against them.
6. Since the complaint alleged that the Mercy defendants managed and were doing business as the Franklin General Hospital and that certain supervisory personnel, such as Kim Price, were agents of the Mercy defendants, it was plausible to say that the Mercy defendants knew or should’ve known that the interrelationship between them and Franklin County General Hospital would result in them being implicated in the suit.
7. The court noted that failure to exhaust administrative remedies is an affirmative defense. Further, the affirmative defense of failure to exhaust administrative remedies where there is a complex relationship among the corporate entities that is not even apparent to an employee of the hospital, is a particularly inappropriate basis for dismissal.
1. In many ways, this case reminds me of the apparent agency theory that you often see in health law. That is, emergency room doctors are rarely employed by the hospital that they work at. Nevertheless, many courts have held over the years, that it is reasonable for the consumer to assume that the ER doctor was an employee of the hospital even though in fact that was not the case (apparent agency), and therefore, the hospital can be vicariously liable for the negligence of the employee.
2. This decision is published, or will be published shortly in F. Supp., and therefore, has precedential value.
3. With respect to the filing of the EEOC complaint with the EEOC, plaintiffs are going to have a little bit more leeway with respect to whom they named in the filing. Under this decision, a plaintiff could reasonably list all parties that they feel may have something to do with the case, but if they miss one, they still may be okay if the party they miss would reasonably be on notice as to the filing coming down at them. Considering that oftentimes the EEOC filing is not done by a lawyer, this leeway is very significant to plaintiffs. Of course, when it comes to actually filing the complaint itself, the plaintiff will want to add, via an amended complaint or otherwise, as soon as possible, all the parties that have something to do with the case. On the plaintiff’s side, this is really normal operating procedure. That is, a plaintiff wants to include as many defendants as possible from the get go that reasonably have something to do with the case and then worry about dismissing them later so as to ensure that they are within the statute of limitations.
4. On the defense side, this case makes it difficult for the defense to rely on a technicality that they weren’t named in the EEOC filing, especially where the EEOC filing is such that one could reasonably expect that other defendants not named in the EEOC filing are very much involved.
5. An interesting point is raised by the court referencing that the plaintiff pointed out that the Mercy defendant never argued that they were unaware of her claims or that they were prevented from participating in the administrative process. In fact, the plaintiff argued that the Mercy defendants had every opportunity to participate in the administrative process through their contracting hospital and the administrator, Kim Price, who was named in the EEOC filing. I will leave it to the defense lawyers who litigate these things to evaluate whether it is worthwhile for them to participate in the administrative process when they know they are very much involved from the get go even when they have not been named.
6. Will we see a new name, “Twom-bal,” for the cases of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)? Those cases, as I discuss in my book, arguably changed the pleading standards and federal courts from pure notice pleading to one of stating enough facts to put the defendant upon reasonable notice as to what the case is involved.
7. It is never a good idea to retaliate against an employee for seeking a medical leave under the Family and Medical Leave Act or as a reasonable accommodation. More generally, it simply isn’t a good idea to retaliate whenever an employee asserts their rights under the law. Also, where an employee(s) is subject to sexual abuse, exploitation, and harassment by another employee, the employer should be very careful about disciplining the person who was abused, exploited, or harassed. I can certainly understand why such a person may need leave and/or accommodation to deal with that, but disciplining that person where the incidents were clearly not consensual is not something to be recommended. One wonders how much coordination this company had between human resources department and the legal counsel’s office. On the preventive law side, a company would want to ensure that human resources and legal counsel have a very close working relationship.