SANCHEZ v. CHEROKEE BRICK & TILE CO

• Court: District Court, M.D. Georgia
• Decided: May 30, 2023
• Docket: 5:23-cv-00072
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION

MAYLI SANCHEZ,

Plaintiff,

CIVIL ACTION NO. v. 5:23-cv-00072-TES

CHEROKEE BRICK AND TILE CO.,

Defendant.

ORDER

Before the Court is Defendant Cherokee Brick & Tile Co.’s Motion to Dismiss [Doc. 3]. In that Motion, Defendant contends that Plaintiff failed to “sufficiently allege she exhausted her administrative remedies.” [Doc. 3, p. 3]. However, Plaintiff need not attach a copy of her EEOC charge in order to meet the exhaustion requirement. As the Eleventh Circuit instructs, a charge filed with the EEOC is a condition precedent to bringing suit in federal court. Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 999–1000 (11th Cir. 1982).1 Because of that, a plaintiff need only satisfy Federal Rule of Civil Procedure 9(c)—which requires that a “plaintiff must generally allege in [her] complaint

1 Defendant’s Motion does not cite to Jackson. Instead, Defendant cites three unpublished Eleventh Circuit cases—but two of those cases do cite directly to Jackson. See [Doc. 3-1, p. 3 (citing Rizo v. Ala. Dep’t of Hum. Res., 228 F. App’x 832, 836 (11th Cir. 2007) and Burnett v. City of Jacksonville, 376 F. App’x 905, 907 (11th Cir. 2010))]. Therefore, those citations gave Plaintiff notice of the applicable law underlying Defendant’s arguments. that ‘all conditions precedent to the institution of the lawsuit have been fulfilled.’” Id. (citing former Fed. R. Civ. P. 9(c)). Rule 9(c) now provides that “it suffices to allege

generally that all conditions precedent have occurred or been performed.” Fed. R. Civ. P. 9(c). But that does not answer the exact question presented here. Defendant

challenged the “veracity of the plaintiff’s allegation” regarding administrative exhaustion. Jackson, 678 F.2d at 1010. Accordingly, Plaintiff “bears the burden of proving that the conditions precedent . . . have been satisfied.” Id.

Plaintiff’s Response [Doc. 5] only asserts that Plaintiff’s counsel emailed Defendant’s counsel about the applicable EEOC charge. [Doc. 5, p. 3]. However, that does not carry the burden of showing exhaustion. Indeed, Plaintiff failed to attach a copy of the EEOC charge or right-to-sue letter.2 Plaintiff only rehashed caselaw arguing

that she need not attach the EEOC charge to her Complaint. That is true—but it also misses the point. Once Defendant raised a challenge to Plaintiff’s exhaustion, that required Plaintiff to present evidence showing she appropriately exhausted her

remedies. Instead of deciding this narrow issue with only part of the story, the Court exercises its discretion and notifies the parties of its intention to convert Defendant’s Motion to Dismiss to a summary-judgment motion solely on the issue of exhaustion. See

2 To be clear, Defendant apparently didn’t request the file from the EEOC in order to review the charge. Tillery v. U.S. Dep't of Homeland Sec., 402 F. App’x 421, 423 (11th Cir. 2010); Prop. Mgmt. & Invs., Inc. v. Lewis, 752 F.2d 599, 605 (11th Cir. 1985) (requiring courts to give ten-days

notice when intending to convert a motion to dismiss to a motion for summary judgment); see also Mosby v. City of Byron, Ga., No. 21-10377, 2022 WL 1136835, at *1 (11th Cir. Apr. 18, 2022). In that converted motion, the Court will consider any evidence the

parties wish to enter into the record. Therefore, the parties must RESPOND with any evidence—related to the exhaustion issue—within TEN DAYS.

SO ORDERED, this 30th day of May, 2023.

S/ Tilman E. Self, III TILMAN E. SELF, III, JUDGE UNITED STATES DISTRICT COURT