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No Retaliation Claim in EEOC Charge

An African-American power plant employee cannot sue his employer for retaliation and wage discrimination based on race because he did not include these claims in his EEOC charge, and the Richmond U.S. District Court grants summary judgment to employer.

Plaintiff failed to check the form’s “retaliation” box and failed to allege retaliatory discharge or facts that could reasonably be construed to constitute retaliation, anywhere on his EEOC charge. The facts listed in the EEOC charge do not discuss anything other than plaintiff’s termination and cannot be construed to allege wage discrimination. The EEOC charge lists plaintiff’s termination date of May 8, 2007, as the earliest and latest date discrimination took place. The EEOC charge clearly does not indicate wage discrimination.

Also, these claims cannot be expected to follow from a reasonable administrative investigation of the EEOC charge, especially given the time limitation in the EEOC charge. More tellingly, the record before this court is bereft of any EEOC investigation into wage discrimination issues or into retaliation, all of which plaintiff tells this court occurred well before his EEOC filing. Here, the EEOC simply concluded there is no evidence to support plaintiff’s claim that he was terminated based on race.

Even if the court found the EEOC questionnaire sufficiently alleged wage discrimination and retaliation, nothing in this record suggests defendant received notice of these allegations as part of the EEOC investigative process, because this court has no record that any such investigation commenced.

The court now turns to the merits of plaintiff’s discriminatory discharge claim, the sole claim over which this court has subject matter jurisdiction. Plaintiff cannot show that at the time employer terminated him, he was performing at a level that met its legitimate expectations. The evidence before this court is that the plant’s director of operations had made a determination that plaintiff falsified his time card and subsequently lied about his whereabouts on April 30, 2007. Plaintiff argues this determination was wrong, but his own testimony cannot establish a genuine issue as to whether he was meeting the employer’s expectations. Plaintiff also has failed to demonstrate his position was filled by a similarly qualified applicant outside the protected class. While employer originally hired a Caucasian employee to replace plaintiff, it discharged that employee less than a week later, and plaintiff’s position then was filled for the long term by an African American employee.

Finally, no evidence before the court suggests that employer terminated plaintiff for any reason other than his belief that plaintiff falsified his time card and lied about it.

However, the court finds an award of expenses against plaintiff would be unjust, and it denies employer’s request for $2,230 in attorney’s fees.

Summary judgment for employer.

Graves v. Industrial Power Generating Corp. (Lauck) No. 3:09cv717, Jan. 5, 2011; USDC at Richmond, Va. VLW 011-3-048, 36 pp.

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