Deborah L. Jones v. Sumser Retirement Village

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0139P (6th Cir.)
File Name: 00a0139p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DEBORAH L. J ONES,
Plaintiff-Appellee,
v.
S UMSER R ETIREMENT
VILLAGE ,
Defendant-Appellant.
;>

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Nos. 98-4413/4436
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-01136—Ann Aldrich, District Judge.
Argued: January 28, 2000
Decided and Filed: April 19, 2000
Before: JONES, NORRIS, and SILER, Circuit Judges.
_________________
COUNSEL
ARGUED: Irene C. Keyse-Walker, ARTER & HADDEN,
Cleveland, Ohio, for Appellant. Edward L. Gilbert, Akron,
Ohio, for Appellee. ON BRIEF: Irene C. Keyse-Walker,
ARTER & HADDEN, Cleveland, Ohio, Thomas L. Feher,
KAUFMAN & CUMBERLAND, Cleveland, Ohio, for
Appellant. Edward L. Gilbert, Akron, Ohio, for Appellee.

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2 Jones v. Sumser
Retirement Village
Nos. 98-4413/4436
_________________
OPINION
_________________
SILER, Circuit Judge. Sumser Retirement Village
(“Sumser”), defendant, appeals judgment for Deborah Jones,
plaintiff, in this Americans with Disability Act (“ADA”)
claim. Sumser, the employer, asserted that Jones did not
administratively exhaust her claim, and, therefore, the district
court lacked subject matter jurisdiction. For the reasons
discussed below, we REVERSE.
BACKGROUND
Sumser employed Jones as a dietary aide from 1991 until
February 7, 1994. Dietary aides at Sumser generally worked
in pairs, with one taking responsibility for the kitchen duties,
and the other for the dining room duties. On August 6, 1993,
Jones fell at work and injured her hip and back. Her doctor
ordered her not to return to work until October 25, 1993.
When her doctor released her to return to work, he did so with
the restriction that she not lift any object heavier than 20
pounds.
Before returning to work, Jones met with Robert Houser, a
former administrator at Sumser, to discuss her medical
restrictions. Houser asked her if she could return to work
with her restrictions. Jones said she could if she did not have
to work by herself. Jones anticipated that as long as two aides
were working in tandem, she could arrange for her co-workers
to do the heavy lifting.
Jones returned to work, but continued to have problems
with her back. In November 1993, her doctor restricted her to
no more than 40 hours of work per week. Her back problems
worsened and her doctor ordered her not to work from
November 23, 1993, until December 13, 1993. When Jones
returned to work, her doctor ordered her to minimize her
bending, stooping, and crouching, to wear a back brace, and

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6 Jones v. Sumser
Retirement Village
Nos. 98-4413/4436
discrimination. She stated in her charge of discrimination that
she is disabled and that she believes her disability was a factor
in Sumser’s decision to fire her. She stated that she was laid
off on February 7, 1994, and that her last day at work was
January 11, 1994. A claim that she became unable to work on
that day due to a failure to accommodate does not reasonably
grow out of the initial charge. Therefore, Jones did not
administratively exhaust her failure to accommodate claim.
Jones failed to exhaust her administrative remedies by not
including the failure to accommodate allegation when she
filed her claim with the OCRC. Therefore, she was precluded
from bringing up that issue at the time she filed her claim in
court.
REVERSED.
Nos. 98-4413/4436 Jones v. Sumser
Retirement Village
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not to work more than 24 hours per week. On December 23,
1993, her doctor placed her on the restrictions that she not lift
over 20 pounds, that she engage in limited stooping, bending,
or crouching, and that she not work more than 24 hours per
week. Jones worked out an informal arrangement with her
co-workers. She asked them to do the dishes for the dinner
meal while she did the dishes for the lunch meal. Jones said
the lunch dishes were lighter and did not cause her to violate
the restrictions.
On January 11, 1994, the dietary aide working with Jones
became ill. A replacement was called in to work with Jones.
The replacement had an accident and left. Jones asked for
additional help, telling her supervisor, Ann Weigand, that she
had already washed the dishes once that day and could not
wash them again because of her back. Another employee,
Zorka Spehar, was sent to help Jones. Jones testified that she
asked Spehar to wash the dishes because she had already done
it once that day. Spehar refused to do the dishes, forcing
Jones to lift the heavy dish racks, aggravating her back injury.
The next day her doctor told her she could not work. On
January 27, 1994, Houser informed Jones that she would be
terminated if she did not return to work by February 7, 1994.
Jones did not return to work and was terminated on that date.
Jones filed an action alleging Sumser discriminated against
her because of her disability in violation of the ADA. A jury
found for her and awarded her compensatory damages.
DISCUSSION
This court reviews de novo “the legal question behind a
dismissal for subject matter jurisdiction.” Abeita v.
Transamerica Mailings, Inc., 159 F.3d 246, 254 (6th Cir.
1998).
Sumser contends that the district court lacked jurisdiction
because Jones did not administratively exhaust her federal
accommodation claim. Jones did not explicitly state in her
charge of discrimination filed on February 28, 1994, with the

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4 Jones v. Sumser
Retirement Village
Nos. 98-4413/4436
Ohio Civil Rights Commission (“OCRC”), that Sumser failed
to accommodate her disability. “Federal courts do not have
subject matter jurisdiction of Title VII claims unless the
claimant explicitly files the claim in an EEOC charge or the
claim can reasonably be expected to grow out of the EEOC
charge.” Id. at 254. The regulatory requirement that a
claimant’s written charge be “sufficiently precise to identify
the parties, and to describe generally the action or practices
complained of” has two purposes. Id. First, the requirement
provides the basis for the EEOC’s “attempt to obtain
voluntary compliance with the law.” Second, these attempts
“notify potential defendants of the nature of plaintiff’s claims
and provide them the opportunity to settle the claims before
the EEOC rather than litigate them.” Id.
A complainant need not “attach the correct legal
conclusion” to allegations in the charge, “conform to legal
technicalities,” or use “the exact wording which might be
required in a judicial pleading.” Davis v. Sodhexo, 157 F.3d
460, 463 (6th Cir. 1998). However, this expanded rule does
not maintain “that plaintiffs are excused from filing charges
on a particular discrimination claim before suing in federal
court.” Id. The claim must grow out of the investigation or
the facts alleged in the charge must be sufficiently related to
the claim such that those facts would prompt an investigation
of the claim. Id. at 464. Her claim did not meet this test.
Jones’s February 28, 1994, charge did not explicitly allege
that Sumser failed to accommodate her disability.
Furthermore, such a claim does not reasonably grow out of
the facts and claims she asserted. The written charge
specifically alleged only a termination claim. Nothing in the
charge pointed to any claim other than an improper refusal to
keep Jones’s job open while she recovered. The portion of
the form asking for the date the discrimination took place asks
the charging party to enter the earliest date that the
discrimination allegedly occurred. Jones did not mention the
date of the alleged failure to accommodate which was
January 11, 1994. The date she entered was February 7, 1994,
Nos. 98-4413/4436 Jones v. Sumser
Retirement Village
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1Facts relevant to a claim for failure to accommodate include: (1)
need for assistance washing dishes; (2) employer’s knowledge of
employee’s need for help washing dishes; (3) employee’s request for help;
(4) employer’s refusal to help; and (5) injuries resulting from washing
dishes on January 11.
Facts relevant to a claim for improper termination include: (1)
employee’s disability; (2) absence from work due to disability; (3)
employer’s policy on permissible leave; (4) reasons given for employee’s
termination; and (5) employee’s ability to return to work.
the termination date. A termination claim differs in kind and
date from an accommodation claim. Furthermore, the facts
relevant to the termination of February 7, and an alleged
failure to accommodate on January 11, are far different.1 The
accommodation claim did not “grow out of” the investigation
of her termination claim.
The OCRC investigated Jones’s termination claim and
informed her that her claim had been denied. Only then did
Jones allege new facts and a new claim. The OCRC refused
to accept the amended charge because it was untimely.
Jones’s counsel made no efforts to file this new charge with
the EEOC. Sumser had no notice of the new claim until
service of the district court complaint.
The district court found that Jones’s charge included the
date of January 11, as the last day worked, and that it was
filed pro se. From these two facts, the court concluded that a
claim for failure to accommodate “could reasonably be
expected to grow out of” the initial charge. The facts do not
support that conclusion. First, the inclusion of a single date,
identified only as the last day of work, does not trigger an
investigation into whether Jones was injured on that date as
a result of a failure to accommodate. Second, the liberal
construction to be given charges filed by lay complainants
pertains to legal and procedural technicalities. It cannot
extend to include facts and claims not alleged.
Jones’s claim of failure to accommodate could not
reasonably be expected to grow out of her initial charge of

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