Anna Agolli v. Office Depot, Inc. , 548 F. App'x 871 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2458
ANNA MARIA AGOLLI,
Plaintiff – Appellant,
v.
OFFICE DEPOT, INC.,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:11-cv-02806-JFM)
Argued: September 18, 2013 Decided: December 18, 2013
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew D. Fyock, LAW OFFICES OF DAVID A. BRANCH &
ASSOCIATES, PLLC, Washington, D.C., for Appellant. Kevin
Michael Kraham, LITTLER MENDELSON, P.C., Washington, D.C., for
Appellee. ON BRIEF: David A. Branch, LAW OFFICES OF DAVID A.
BRANCH & ASSOCIATES, PLLC, Washington, D.C., for Appellant.
Jaime L. Novikoff, LITTLER MENDELSON, P.C., Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The plaintiff in these proceedings, Anna Maria Agolli,
appeals from the district court’s dismissal of her complaint, in
which she alleged claims against her former employer, defendant
Office Depot, Inc., pursuant to Title VII of the Civil Rights
Act of 1964. As explained below, we affirm.
I.
On September 29, 2011, proceeding pro se, Agolli filed a
thirty-one-page complaint in the District of Maryland, along
with a right-to-sue letter that had been issued on June 30,
2011, by the Equal Employment Opportunity Commission (the
“EEOC”). 1 On October 3, 2011, Agolli submitted a forty-eight-
page amended complaint. Office Depot countered with a motion
for a more definite statement under Federal Rule of Civil
Procedure 12(e), asserting that the amended complaint was so
disorganized and incoherent that Office Depot could not
reasonably prepare a response. The district court granted
Office Depot’s motion and afforded Agolli fourteen days to file
1
The right-to-sue letter notified Agolli that, “[b]ased
upon its investigation, the EEOC is unable to conclude that the
information obtained establishes violations of the statutes.”
J.A. 46. The letter elaborated, however, that “[t]his does not
certify that the respondent is in compliance with the statutes.”
Id. (Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
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a more definite statement. Agolli attempted to comply, but the
court deemed her statement to be no less “prolix and confusing”
than the defective complaint, and thus dismissed the entire
action. See Agolli v. Office Depot, Inc., No. 8:11-cv-02806,
slip op. at 1 (D. Md. Apr. 27, 2012), ECF No. 35 (Memorandum
explaining that “[a]lthough the pleadings of a pro se litigant
should be liberally construed, neither an opposing party nor the
court can be required to glean through an unintelligible
complaint to ascertain the claim or claims that a plaintiff may
be asserting”).
Agolli moved to reconsider the dismissal and reopen her
case, acknowledging deficiencies in her prior pleadings and
advising that she was preparing a second amended complaint with
the assistance of counsel. On June 19, 2012, following the
district court’s grant of Agolli’s motion, her newly obtained
lawyer filed the more coherent fifteen-page second amended
complaint — the “Complaint” at issue in this appeal. The
Complaint alleged claims under Title VII for disparate treatment
based on race, retaliation, and hostile work environment.
Significantly, the Complaint specified that Agolli was
discharged by Office Depot on October 31, 2008, because of her
race (Caucasian) and in retaliation for her prior complaints
about harassment and discrimination. Relevant to the hostile
work environment claim, the Complaint detailed multiple acts of
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harassment, each occurring more than 300 days before Agolli
filed her EEOC charge of August 25, 2009. The Complaint did not
allege that Agolli’s termination — which happened within 300
days of her administrative charge — was part and parcel of the
hostile work environment. 2
In response, Office Depot made a Rule 12(b)(6) motion to
dismiss the Complaint for failure to state a claim upon which
relief can be granted. Specifically, Office Depot contended
that Agolli’s hostile work environment claim was time-barred,
because each act of harassment alleged in the Complaint occurred
more than 300 days before Agolli filed her EEOC charge. Office
Depot further maintained that Agolli failed to exhaust Title VII
administrative remedies with respect to her race discrimination
and retaliation claims.
Office Depot attached to its dismissal motion a copy of
Agolli’s EEOC charge, as the charge had been provided to Office
Depot by the EEOC. That version of Agolli’s charge consisted of
a self-prepared one-page form, on which Agolli checked the boxes
for race discrimination, sex discrimination, and retaliation,
but, when asked to provide “particulars,” described only a
2
In addition to the race discrimination, retaliation, and
hostile work environment claims, the Complaint asserted a Title
VII claim for failure to accommodate religious needs. Agolli
has since abandoned the religious discrimination claim.
4
sexually hostile work environment. See J.A. 22. The form
instructed that, “if additional space is needed, attach[] extra
sheet(s).” Id. Consistent with that instruction, Agolli’s
description of her “particulars” included the statement, “SEE
ATTACHED FOR GENERAL EXPLANATION, AND ONGOING INFO ALSO.” Id.
Nevertheless, having received solely the one-page form from the
EEOC, Office Depot was led to believe that Agolli had not
actually attached extra sheets. Accordingly, Office Depot
argued that it was entitled to dismissal because Agolli had
endeavored to exhaust only her (otherwise time-barred) hostile
work environment claim.
With her opposition to Office Depot’s motion to dismiss,
Agolli produced twenty-three pages of “continuation sheets” that
she had submitted to the EEOC on August 26, 2009 — one day after
she had filed the one-page form. At the top of each page of the
continuation sheets was the heading “ANNA MARIA AGOLLI
COMPLAINANT CONTINUATION SHEETS EEOC COMPLAINT August 25, 2009.”
See J.A. 23-45. Unlike the Complaint, the continuation sheets
alleged that Agolli’s discharge was part and parcel of the
hostile work environment. See id. at 25. The continuation
sheets also included sections entitled “Reverse discrimination”
and “retaliation.” Id. at 41, 43. Seeking to avert dismissal
of the Complaint, Agolli urged the district court to count her
termination as the ultimate act of harassment underlying her
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(thus timely) hostile work environment claim, and to view the
continuation sheets as adequate to exhaust her race
discrimination and retaliation claims.
In reply, Office Depot maintained that the timeliness of
Agolli’s hostile work environment claim had to be measured by
the allegations of the Complaint, which identified only pre-
discharge acts of harassment occurring more than 300 days before
Agolli filed her EEOC charge. Office Depot further asserted
that the continuation sheets fell short of exhausting Agolli’s
race discrimination and retaliation claims, both because the
EEOC had not provided the continuation sheets to Office Depot (a
fact sworn to by Office Depot’s in-house counsel in an attached
declaration), and because the continuation sheets, much like
Agolli’s early pro se complaints, were indecipherable.
By its Order of August 22, 2012, the district court granted
Office Depot’s motion to dismiss the Complaint pursuant to Rule
12(b)(6). The accompanying Memorandum reflects that the court
agreed with Office Depot that Agolli’s hostile work environment
claim was time-barred on the face of the Complaint, and that
Agolli failed to exhaust administrative remedies with respect to
her race discrimination and retaliation claims. In making the
latter ruling, the court deemed the continuation sheets to be an
inadequate mode of exhaustion, explaining that the continuation
sheets were not provided by the EEOC to Office Depot, and that
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they were “disjointed and rambling and . . . not sufficiently
focused to alert either the EEOC or Office Depot to [Agolli’s
claims].” See Agolli v. Office Depot, Inc., No. 8:11-cv-02806,
slip op. at 2 n.1 (D. Md. Aug. 22, 2012), ECF No. 52.
Subsequently moving under Federal Rule of Civil Procedure
59(e) to alter or amend the judgment, Agolli recapped various
arguments against dismissal of the Complaint. Additionally,
Agolli underscored that it would be manifestly unjust to punish
her for the EEOC’s failure to provide the continuation sheets to
Office Depot, and she insisted that the continuation sheets were
clear enough to put Office Depot on notice of her race
discrimination and retaliation claims. Agolli also defended the
timeliness of her hostile work environment claim as alleged,
without seeking to amend the Complaint to assert that her
discharge was part and parcel of Office Depot’s campaign of
harassment.
By its Order of November 6, 2012, the district court denied
Agolli’s motion to alter or amend the judgment. The
accompanying Memorandum, while making no mention of the EEOC’s
failure to provide the continuation sheets to Office Depot,
reiterated the court’s conclusion that the continuation sheets
were too “disjointed and rambling” to fairly notify the EEOC and
Office Depot of Agolli’s race discrimination and retaliation
claims. See Agolli v. Office Depot, Inc., No. 8:11-cv-02806,
7
slip op. at 1 (D. Md. Nov. 6, 2012), ECF No. 57. The court also
stood by its ruling that the hostile work environment claim, as
alleged in the Complaint, was time-barred.
Following the district court’s refusal to alter or amend
the judgment, Agolli timely noted this appeal. Because the
dismissal of her Complaint was with prejudice, we possess
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A.
We review de novo the district court’s dismissal of
Agolli’s Complaint under Federal Rule of Civil Procedure
12(b)(6), including the dismissal of her hostile work
environment claim as time-barred. See Pressley v. Tupperware
Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Upon consideration of the Complaint and controlling authorities,
we are convinced that the hostile work environment claim was
untimely and therefore properly dismissed.
Under Title VII, Agolli was required to file her EEOC
charge within 300 days “after the alleged unlawful employment
practice occurred.” See 42 U.S.C. § 2000e-5(e)(1). As the
Supreme Court has clarified, a hostile work environment claim
such as Agolli’s “is composed of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’”
8
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
If “an act contributing to the claim occurs within the filing
period, the entire time period of the hostile work environment
may be considered by a court for the purposes of determining
liability.” Id.; see also Gilliam v. S.C. Dep’t of Juvenile
Justice, 474 F.3d 134, 141 (4th Cir. 2007) (“Under Morgan, an
incident falling within the applicable limitations period need
only, in order for the continuing violation doctrine to apply,
have contributed to the hostile work environment.”).
Unfortunately for Agolli, however, each act of harassment
alleged in the Complaint took place more than 300 days before
she filed her EEOC charge. Although Office Depot discharged
Agolli within the filing period, the Complaint did not assert
that Agolli’s termination was part and parcel of the hostile
work environment. Rather, the Complaint attributed the
discharge decision solely to race discrimination and
retaliation. Accordingly, we affirm the district court’s Rule
12(b)(6) dismissal of Agolli’s hostile work environment claim as
time-barred.
B.
We also review de novo the district court’s dismissal of
Agolli’s race discrimination and retaliation claims for failure
to exhaust Title VII administrative remedies. See Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir.
9
2013). We note, however, that because this Court has
characterized exhaustion as a jurisdictional requirement, see
id., that issue may have been more properly addressed under Rule
12(b)(1), instead of Rule 12(b)(6). In any event, we ultimately
affirm the dismissal of the race discrimination and retaliation
claims on alternate Rule 12(b)(6) grounds, as we are entitled to
do because “such grounds are apparent from the record.” See
Ellis v. La.-Pac. Corp., 699 F.3d 778, 786 (4th Cir. 2012)
(internal quotation marks omitted).
In order to exhaust her administrative remedies, Agolli was
first required to file a charge with the EEOC. See 42 U.S.C.
§ 2000e-5(b), (f). The EEOC was then obliged to send a notice
and copy of the charge to Office Depot. See id. § 2000e-5(b);
29 C.F.R. § 1601.14(a). We accept that Agolli’s charge included
not only the one-page form that she filed on August 25, 2009,
but also the twenty-three pages of continuation sheets that she
explicitly intended to be part of her charge and promptly
submitted one day later (still within 300 days of her
discharge). As such, the EEOC was duty-bound to provide the
continuation sheets to Office Depot along with the one-page
form. Nevertheless, to the extent that the district court
dismissed Agolli’s race discrimination and retaliation claims as
a result of the EEOC’s neglect, the court erred. See Edelman v.
Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002) (“Once a
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valid charge has been filed, a simple failure by the EEOC to
fulfill its statutory duties regarding the charge does not
preclude a plaintiff’s Title VII claim.”); cf. Balas, 711 F.3d
at 408 & n.5 (concluding that there was no exhaustion of Title
VII claims discussed only in private plaintiff-EEOC
communications that predated formal charges, because no
authority required or otherwise authorized EEOC to share those
communications with employer).
Of course, the district court’s principal concern seemed to
be that the continuation sheets were too incoherent to put the
EEOC and Office Depot on notice of Agolli’s race discrimination
and retaliation claims. And indeed, the continuation sheets are
a grueling read, covering everything from Agolli’s mundane
workplace complaints to her belief that she has a stalker who
has recruited and trained others — including Office Depot
employees and customers — to use superficially benign gestures
to harass and intimidate her. Importantly, however, the
continuation sheets intermittently describe Agolli’s theories of
race discrimination and retaliation, such as her conjecture that
African American supervisors hired and then more than fifteen
months later fired her as an act of race-based retribution. See
J.A. 42 (“I got the impression that I was hired for the precise
reason of teaching me some kind of lesson and firing me for it.
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I mean, who did I think I was, being white, and having whatever
perceived advantages they thought I had and all that?”).
Under the applicable regulations, Agolli’s EEOC charge
merely “should” have included “[a] clear and concise statement
of the facts, including pertinent dates, constituting the
alleged unlawful employment practices.” See 29 C.F.R.
§ 1601.12(a)(3). The regulations specifically allow that “a
charge is sufficient when the [EEOC] receives from the person
making the charge a written statement sufficiently precise to
identify the parties, and to describe generally the action or
practices complained of.” Id. § 1601.12(b). Furthermore, we
have long recognized that pro se EEOC claimants like Agolli are
entitled to a substantial amount of indulgence. See Alvarado v.
Bd. of Trs., 848 F.2d 457, 460 (4th Cir. 1988) (“Title VII does
not require procedural exactness from lay complainants: EEOC
charges must be construed with utmost liberality since they are
made by those unschooled in the technicalities of formal
pleading.” (internal quotation marks omitted)).
In these circumstances, we cannot agree with the district
court that the continuation sheets were inadequate to exhaust
administrative remedies. Agolli did what was required by
providing a written statement specific enough to ascertain the
parties and to explain generally her race discrimination and
retaliation claims — however dubious. An EEOC charge simply is
12
not held to the same standard as a federal court complaint,
which, under Federal Rule of Civil Procedure 8(a)(2), requires
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” Yet, while Agolli’s
continuation sheets were sufficient to exhaust administrative
remedies, her Complaint — alleging the same speculative and
conclusory claims, albeit in a more streamlined manner — cannot
survive Rule 8(a)(2) scrutiny. See generally Francis v.
Giacomelli, 588 F.3d 186 (4th Cir. 2009) (evaluating legal
sufficiency of complaint, applying standard articulated in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009)). Accordingly, we affirm the
district court’s Rule 12(b)(6) dismissal on the alternative
ground that the Complaint does not “state[] on its face a
plausible claim for relief,” as required by Rule 8(a)(2). See
id. at 193.
III.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
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