
    Jacklin GERAC-OGASHI, Plaintiff, v. IBERIA GENERAL HOSPITAL, Defendant.
    Civil Action No. 96-1604.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Nov. 8, 1996.
    Jacklin Gerac-Ogashi, New Iberia, LA, Pro Se.
   JUDGMENT

HAIK, District Judge.

Having reviewed the Report and Recommendation Suggesting Dismissal of Claims for Lack of Subject Matter Jurisdiction and the complete record including the objection filed by the plaintiff on October 18, 1996, I conclude that the recommendation contained ■within the Report and Recommendation is well supported by the law and the facts.

Accordingly,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiffs following claims are DISMISSED: (1) plaintiffs allegations of widespread racial animus by defendant towards all African-American nurses; (2) defendant’s denial of promotion; (3) transfer harassment; (4) staff policy discrimination in favor of Caucasian nurses over African-American nurses; (5) denial of opportunities for advancement through clinical programs and the posting or non-posting of advancement positions for both plaintiff and other African-American nurses; (6) non-enforcement of hospital policies with respect to Caucasian employees; (7) allegations of forcing plaintiff to work shifts for Caucasian employees who were participating in quality control seminars and then penalizing plaintiff for her lack of participation in such seminars; (8) defendant’s alleged use of any variable to terminate or deny further employment for plaintiff and other African-Americans; and (9) forcing plaintiff to train inexperienced Caucasian nurses who were, in turn, placed in supervisory positions over the plaintiff, as the court does not have subject matter jurisdiction to entertain these claims.

For purposes of clarification, IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the aforementioned ruling thus limits plaintiff’s further pursuit of this ease to the issues of: (1) her termination based upon leaving work early; and (2) whether or not her termination was based upon racial discrimination.

REPORT AND RECOMMENDATION SUGGESTING DISMISSAL OF CLAIMS FOR LACK OF SUBJECT MATTER JURISDICTION

METHVIN, United States Magistrate Judge.

In the course of reviewing plaintiffs motion for appointment of counsel, it came to the attention of the undersigned that the court lacks subject matter jurisdiction to entertain several of plaintiff’s' claims. It is therefore recommended that these claims be dismissed sua sponte.

BACKGROUND

Plaintiff, Jacklin Gerac-Ogashi, was discharged from her job as a registered nurse (“RN”) at the defendant hospital on December 12, 1994. Plaintiff filed a claim of discrimination with the Equal Employment Opportunity Commission (“EEOC”) which resulted in a finding of no discrimination. However, plaintiff received a right to sue letter and "filed this instant lawsuit on July 3, 1996.

• On July 3,1996, plaintiff also filed a motion for appointment of counsel under section 704(f) of Civil Rights Act. On July 18,1996, I ordered plaintiff to file a written statement setting forth any additional information establishing that she was discriminated against, and providing the names, addresses and telephone numbers and a brief summary of the anticipated testimony of all witnesses. Additionally, I ordered that the Equal Employment Opportunity Commission (EEOC) file a copy of their investigative file.

In her EEOC grievance, plaintiff claimed:

I. On December 12,1994,1 was wrongfully discharged from my job as an RN.
II. Bonnie Lebit, RN in charge of the Unit and the Vice President of Nursing, told me that I was terminated for leaving my station early.
III. I believe that I have been discriminated agianst (sic) because of my " race, Black in violation of Title VII of the Civil Rights Act of 1964, as amended, in that I was terminated from my job so that a White could take my place.

On May 31, 1996, the EEOC sent plaintiff a “dismissal and notice of rights” which informed plaintiff that after an investigation into her claims, the commission was unable to conclude that the information obtained established violations of the statutes. This dismissal also noticed plaintiff that, if she so chose, she could pursue her claims against the defendant in federal court.

Plaintiff then filed the instant complaint. The complaint, however, significantly expanded upon plaintiff’s original EEOC claims. Whereas her EEOC claim alleged unlawful discharge only, plaintiffs instant complaint states in pertinent part,

All black RN forced to quit or terminated @ the same time and replace w/ new graduate white RN. Denial of promotion, transfer harassment (harsh and unusual discipline) White nurse treated one way black nurse another. With black staff policy + procedure not followed. Plaintiff further complained that white nurses were given preferential schedules, the pay scales between white and black nurses were different, and she was discriminatorily harassed through disciplinary measures that would not have been taken against white nurses.

After receipt of the complaint, the undersigned issued a Ruling wherein plaintiff was ordered to supply the court with any additional information in her possession which would establish that she was discriminated against by the defendant. In response to this order, plaintiff enumerated her claims of racial bias by defendant:

Plaintiff alleges that defendant denied her and other blacks opportunities for advancement through clinical education programs, posting or non-posting of advancement positions, mandating that black employees invariably follow hospital policy, as they should, but not enforcing such policy against whites, forcing plaintiff to work shifts for white personnel who participate in quality control seminars, then docking plaintiffs record for not participating in such seminars, while using any variable, including personal illness, or discretionary rulings concerning policy to terminate or deny further employment for plaintiff and other blacks, while finally, imposing the final indignity of forcing plaintiff to train inexperienced white nurses to immediately be placed in a supervisory position over the plaintiff.
Accordingly, plaintiff argues that defendant hospital’s actions involve employment practices that may be seen as facially neutral in their treatment of different groups but the “axe” in fact falls more harshly in a pattern on blacks at the hospital, including plaintiff, than on whites and cannot be justified by business necessity.

After comparing plaintiffs EEOC grievance with her subsequent complaint and articulation of her claims, I find that plaintiff expanded the original scope of her claims. The court’s task, therefore, is to determine whether it has jurisdiction over these expanded claims. In the EEOC claim, plaintiff stated: (1) she was wrongfully terminated, and (2) this termination was the result of racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, so her job could be given to a Caucasian. Based upon this claim, the EEOC investigated plaintiffs violation of hospital policy when she left work early, plaintiffs alleged failure to attend to a patient, plaintiffs allegation that she was replaced and possible disciplinary incidents during the period of the investigation. The EEOC could not find evidence to support plaintiffs allegation that race was a factor in her discharge.

In the instant complaint, plaintiff supplemented these claims to include (1) allegations of widespread racial animus towards all African-American nurses, (2) denial of promotion, (3) transfer harassment, and (4) staff policy discrimination in favor of Caucasian nurses over African-American nurses. These allegations were then augmented by plaintiff in her brief in support of her request for appointment of counsel wherein she further claimed: (1) defendant denied her and other African-Americans opportunities for advancement through clinical programs and the posting or non-posting of advancement positions, (2) non-enforcement of hospital policies with respect to Caucasian employees, (3) forcing plaintiff to work shifts for Caucasian employees who were participating in quality control seminars and then penalizing plaintiff for her lack of participation in such seminars, (4) defendant’s use of “any variable” to terminate or deny further employment for plaintiff and other African-Americans, and (5) forcing plaintiff to train inexperienced Caucasian nurses who were, in turn, placed in supervisory positions over the plaintiff.

CONTROLLING LAW

The court must determine whether it has jurisdiction to hear these additional claims. The Fifth Circuit ruled, “[W]e have held” that “a judicial complaint filed pursuant to Title VII ‘may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the ease before the Commission.’ This is because “the civil action is much more intimately related to the EEOC investigation than to the words of the charge which originally triggered the investigation”.” National Association of Government Employees, et al. v. City Public Service Board of San Antonio, Texas, et al., 40 F.3d 698, 711 (5th Cir.1994), citing Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970). The Court further stated,

“The EEOC charge, enlarged only by such EEOC investigation as reasonably proceeds therefrom, fixed the scope of the charging party’s subsequent right to institute a civil suit. The suit filed may encompass only ‘the discrimination stated in the charge itself or developed in the course of a reasonable [EEOC] investigation of that charge’.”

Id., 40 F.3d at 711-12, citing King v. Seaboard Coast Line R. Co., 538 F.2d 581, 583 (4th Cir.1976) (footnote and citation omitted); See also Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir.1988) (suit may include “reasonably related” noncharged “new acts occurring during the pendency of the charge before the EEOC”) (emphasis added); Moore v. Sunbeam Corporation, 459 F.2d 811, 826 & n. 38, 828 (7th Cir.1972); Smith v. Joseph Horne Co., Inc., 438 F.Supp. 1207, 1213 (W.D.Pa.1977); Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1190-91, 1193-94 (D.C.Md.1977); 2 Larson, Employment Discrimination § 49.11(c)(1) at 9B-16 (“if an EEOC investigation has actually been conducted, most courts hold that the scope of the complaint is limited to the actual scope of the investigation”).

ANALYSIS

Plaintiffs instant suit may only encompass the discrimination alleged in the initial charge or that investigated by the EEOC. After review of the EEOC investigative report, supplied to the court as a result of my July 18, 1996 order, I find that the EEOC limited its investigation to the issues of (1) plaintiffs leaving early on December 12, 1994, (2) the unattended patient, (3) the fact that plaintiff was not replaced (either by an African-American or Caucasian nurse), (4) the lack of disciplinary action against any other nurse during the pendency of the investigation, and (5) the lack of support for the allegation that race was a factor in plaintiffs discharge. As plaintiffs additional claims were not addressed by the EEOC, plaintiff must limit any further action in this suit to those issues addressed in her grievance with the EEOC and those described by the EEOC in their correspondence of May 10,1996.

Rule 12(h)(3) of the Federal Rules of Civil Procedure states, “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)(3) (emphasis added). It is the duty of the court to determine, sua sponte whether it has jurisdiction over any case before it. Griffith v. Johnston, Individually and as Commissioner of the Texas Department of Human Services, 899 F.2d 1427, 1429 (5th Cir.1990), see also Bender v. Williamsport Area School District, 475 U.S. 534, 541-541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Therefore, after review of the plaintiff’s initial claims, the investigation conducted by the EEOC, plaintiffs instant complaint, her supplemental brief, the controlling ease law and the controlling rule of procedure, I find the court lacks jurisdiction to entertain plaintiffs additional claims.

For the foregoing reasons, it is recommended that plaintiffs claims be limited to those alleged in her initial EEOC grievance and any subsequently alleged claims be DISMISSED WITH PREJUDICE.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have ten (10) business days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party’s objections within ten (10) days after being served a copy of any objections or responses to the district judge at the time of filing.

Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within ten (10) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir.1996). 
      
      . Rec.Doc. 4.
     
      
      . Rec.Doc. 5.
     
      
      . Plaintiff EEOC Charge of Discrimination, p. 1.
     
      
      . EEOC's Dismissal and Notice of Rights, p. 1, attached to plaintiff's Complaint.
     
      
      . Id.
     
      
      . Plaintiff's Complaint, p. 1.
     
      
      . Id. at p. 2.
     
      
      . Rec.Doc. 5.
     
      
      . Id. at 3.
     
      
      . See attachment No. 1.
     
      
      . Plaintiff's Complaint, p. 1.
     
      
      . Rec.Doc. 6, pp. 2-3.
     
      
      . See attachment No. 2.
     