Lead Opinion
OPINION
Plаintiff-Appellant Rosia L. Scott (“Scott” or “Plaintiff’) appeals the order of the district court granting Defendant-Ap-pellee Eastman Chemical Company’s (“Eastman” or “Defendant”) Motion for Summary Judgment on her employment discrimination claims. Scott alleges: (1) that she was denied promotions based on sex and in retaliation for engaging in protected activity occurring from November, 1996, through 2005;
I.
A. Background
Scott’s employer, Eastman, manufactures chemicals, fibers, and plastics in Tennessee. Scott has worked for Eastman since August of 1976, when she began as a General Laborer. In 1977, she entered Eastman’s apprenticeship program, which she completed in June, 1981. During the course of this lawsuit, Scott worked as a pipe fitter. Scott maintains that throughout her career at Eastman, she sought, but never received, a permanent promotion, that her male co-workers were promoted to jobs for which she was qualified, and that she experienced workplace hostility based on her sex.
In 1995, Eastman initiated the Team Manager Development System (“TMDS”) for selecting “Team Managers,” developed with the assistance of an outsidе consultant. Through TMDS, interested candidates were evaluated by the entire management team within each division, which would make its own selections, based on a variety of criteria. Those interested in being a Team Manager had to meet minimum eligibility criteria and pass a written Paper and Pencil Test (“PPT”), among other things. When no women were selected as Team Managers in the two divisions to which Scott applied during the 1996/97 cycle, she filed a charge of discrimination with the EEOC on September 22, 1997, against Eastman. (Charge of Discrimination, Joint Appendix (“J.A.”) 409.) On January 29, 2003, the EEOC issued a determination letter, finding that Scott “was not promoted based on her sex (female), as alleged.” (EEOC Determination Letter, J.A. 466.)
Scott’s failure to promote claims involve Team Manager jobs and Special Selection jobs in the Polymers Division and Centralized Maintenance & Services Division (“CM&S”). Scott describes Special Selection as a policy and practice for promoting employees to jobs, other than Team Manager jobs, that does not entail a uniform method of promotion. Scott states that jobs filled by Special Selection are rarely posted, employees do not generally know when Special Selection opportunities are available, what criteria are used, if any, or which employees are being considered, or who makes the decision. Thus, an employee may never find out that a comparable employee was promoted. Scott identifies three Special Selection promotional job opportunities occurring in 1997, for which she maintains that she was interested in and qualified for, but not selected.
B. Procedural History
On August 27, 2003, Scott filed her Complaint, alleging sex discrimination and retaliation under Title VII. On February 27, 2004, the district court issued a Scheduling Order setting a May 28, 2004 deadline, for amending pleadings. On February 8, 2005, after the expiration of the deadline for amending the pleadings, Scott filed a Motion to Stay all remaining deadlines, seeking time to file a Motion to Amend. The Motion was referred to a Magistrate Judge, who denied it on February 16, 2005. Scott filed no objections to that Order. Eastman filed a Motion for Summary
II.
The issues presented on appeal are whether the district court erred in: (1) dismissing Scott’s hostile environment claim, her post-EEOC charge failure to promote claims other than to Team Manager, and her retaliation claims other than those associated with the filing of her EEOC charge; (2) granting summary judgment to Eastman on Scott’s 1997, 1998, and 1999, failure to promote to Team Manager claims; (3) granting summary judgment to Eastman on Scott’s retaliation claim arising out of the EEOC charge; and (4) denying Scott’s Motion to Amend her Complaint.
This court exercises de novo review of a district court’s decision granting summary judgment, using the same standard under Rule 56(c) used by the district court. Williams v. Mehra,
This court also exercises de novo review of a district court’s decision to dismiss for lack of subject matter jurisdiction. Dixon v. Ashcroft,
III.
A. Exhaustion of Administrative Remedies
Under Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice for an employer to discriminate against an employee based on sex, 42 U.S.C. § 2000e-2; or because an employee has opposed unlawful discrimination; or because an employee has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. 42 U.S.C. § 2000e-3(a). Title VII requires that a charge of discrimination be timely filed with the EEOC. 42 U.S.C. § 2000e-5(e)(1).
As a prerequisite to bringing suit under Title VII, a claimant must exhaust his or her administrative remedies. Weigel v. Baptist Hosp. of E. Tenn.,
Scott argues that the district court erred in dismissing her hostile environment claim, her post-EEOC charge failure to promote claims other than to Team Manager, and retaliation claims other than those associated with the filing of her EEOC charge, for failure to exhaust her administrative remedies. The general rule is that a plaintiff may file suit only in regard to the claims asserted in the EEOC charge and those within the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. See Dixon,
In this case, the district court held that: Plaintiff has simply not set forth any legitimate basis to believe that sufficient facts were alleged to prompt the EEOC to investigate claims other than her failure to be promoted to Team Manager in 1997, 1998, and 1999, or retaliation for the filing of her charge.
Scott v. Eastman Chem. Co.,
The district court then dismissed Scott’s hostile environment claim, her other post-EEOC charge failure to promote claims other than to Team Manager, and her retaliation claims other than those associated with the filing of her EEOC charge. The district court concluded that “the primary focus of [Scott’s] charge ... was her failure to be promoted to team manager in 1997. ” Id. at *2. However, the district court judge found that Scott’s claim for failure to promote to Team Managеr in 1998 and 1999 were within the scope of her EEOC charge, as well as her retaliation claim growing out of the EEOC charge. Scott argues that the district court’s determination of the “primary focus” of her EEOC charge was in error, as the correct standard under applicable law should have been the “scope of investigation” test.
1. Dismissal of Scott’s Claim for Failure to Promote by Special Selection to Welding Inspector in 1997
In dismissing all of Scott’s claims for failure to exhaust administrative remedies “other than her claim that she was denied Team Manager positions in 1997, 1998, and 1999” and Scott’s retaliation
In June, 1997, a welding inspector job was filled with a male employee with less experience, qualifications, and service. This position was not posted and employees were not canvassed for interest in the position. Other male employees are given special assignment and speсial training to groom them for promotional opportunities and women are not given the same benefits or opportunities.
(Charge of Discrimination, J.A. 414.) Eastman responded to the EEOC charge with information about the Welding Inspector position that was given to Michael Gass (“Gass”) as well as about the Special Selection process. On appeal, Eastman agrees that the 1997 Welding Inspector position was identified in the EEOC charge. Because Scott’s claim for failure to promote by Special Selection to Welding Inspector in 1997 was identified in her EEOC charge, it was clearly within the scope of the EEOC’s investigation. Therefore, the district court erred in dismissing this claim for failure to exhaust administrative remedies. Accordingly, we conclude that the case should be reversed and remanded back to the district court for determination on the merits.
The dissent argues that, although the district court erred in dismissing this claim for failure to exhaust administrative remedies, summary judgment should be granted in Eastman’s favor on the ground that, as a matter of law, Gass was better qualified than Scott because he had more relevant education and more experience. Thus, thе dissent concludes that Eastman has articulated a legitimate non-discriminatory reason for selecting Gass over Scott, and that Scott has not presented evidence that this reason is pretextual. However, because of the confused state of the record before this court, as discussed below, we conclude that it would be inappropriate for this court to grant summary judgment.
Scott’s EEOC charge describes a position that was not posted and for which employees were not canvassed. She also states that she had more experience than the person selected. In response to the EEOC charge, Eastman states:
Ms. Scott was considered during the final selection for the job assignment, along with 20 other candidates, but she and 19 of the candidates were not selected for the job. Ten candidates were ranked higher than Ms. Scott, and ten candidates were ranked the same as Ms. Scott. Nine of the male candidates who were ranked higher than Ms. Scott were not selected as the most qualified candidate for the job assignment.
(J.A. 623.) In its Motion for Summary Judgment at the trial level, Eastman identified the selected employeе as Gass, and explained that he had a longer length of service and more relevant education. (Gass had a two-year degree in Welding Technology and had been performing the job in an “acting” capacity for several months, whereas Scott had a Welder Inspector’s certificate.) In Scott’s Opposition to Summary Judgment, she did not directly respond to Eastman’s identification of Gass, nor did she discuss the Welding Inspector position at all. However, in her response to Defendant’s Separate Statement of Undisputed Facts, which the district court required her to file in conjunction with its consideration of Defendant’s Summary Judgment Motion, Scott did not dispute that Gass was selected in June, 1997, but she also stated that Jeff Estepp (“Estepp”) was selected “in ap
Eastman has not moved for summary judgment regarding Estepp. As the district court did not address any claim regarding Estepp, and as the record raises sufficient concerns regarding whether Gass is the person whom Scott references in her EEOC charge, we hereby REVERSE the district court’s decision and REMAND Scott’s claim for failure to promote by Special Selection to Welding Inspector in 1997 back to the district court for consideration on the merits.
2. Dismissal of Scott’s Other Post-EEOC Charge Failure to Promote by Special Selection Claims
Before the district court, and on appeal, Scott divided her post-EEOC charge failure to promote claims into Team Manager promotions and Special Selection promotions. The district court did not exercise jurisdiction over Scott’s post-EEOC charge failure to promote by Special Selection claims and dismissed them for failure to exhaust administrative remedies. The district court further concluded that Scott did exhaust her remedies on the post-EEOC charge Team Manager promotions arising in 1998 and 1999, even though Sсott did not file any additional EEOC charges regarding these claims.
Scott argues that, like the post-EEOC charge Team Manager promotions in 1998 and 1999, over which the district court did exercise jurisdiction, the post-EEOC charge Special Selection promotions are reasonably related to the pre-EEOC charge Special Selection promotion described in Scott’s EEOC charge and, thus, are within the scope of the EEOC investigation. Scott maintains that the fact that the EEOC more thoroughly investigated the Team Manager promotions is not determinative of the jurisdictional issue regarding her Special Selection claims. See Dixon,
In applying the expected scope of investigation test to this case, we conclude that the factual allegations in Scott’s EEOC charge were not sufficient to put the EEOC on notice of Scott’s post-EEOC charge failure to promote by Special Selection claims. Indeed, Scott did not use the term Special Selection in describing her claim. The only reference in Scott’s EEOC charge to what Scott now describes as a Special Selection promotion is the 1997 Welding Inspector position. This was given as an example of promotions that occurred at Eastman without a process. It is not reasonable to expect that the EEOC would investigate other promotional opportunities that were not put in front of them. See Cedar v. Premier Indus. Corp.,
3. Dismissal of Scott’s Post-EEOC Charge Retaliation Claims
In dismissing “all other claims,” the district court dismissed Scott’s post-EEOC
Courts have held that retaliation growing out of the EEOC charge is reasonably foreseeable and therefore a plaintiff is not required to file yet another EEOC charge.
taliation claim based on the write-up she received in 2001. Therefore, we AFFIRM the district court’s dismissal of this claim, as it was not within the scope of the EEOC investigation, and thus Scott failed to exhaust her administrative remedies on this claim.
4. Dismissal of Scott’s Hostile Environment Claim
The district court dismissed Scott’s hostile environment claim because it determined that it was not the “focus” of her EEOC charge and because Scott did not allege sufficient facts to prоmpt the EEOC to investigate the claim. The plain language of Scott’s EEOC charge does not allege that she was subjected to a hostile environment. Though the captions outlining her EEOC charge are not dispositive, they are some evidence of which claims Scott was seeking to pursue before the EEOC. Scott argues that her hostile environment claim was within the scope of her EEOC charge because she alleged instances of harassment and inappropriate conduct. However, there is no evidence that the EEOC viewed Scott’s charge, or investigated her charge, as alleging a hostile environment claim. Rather, her descrip
For these reasons, we AFFIRM the district court’s conclusion that Scott failed to exhaust her hostile environment claim, as she offered no evidence that the EEOC actually investigated this claim or that such claims could reasonably be expected to grow out of the charge.
B. Scott’s Failure to Promote Claims Decided on the Merits
1. McDonnell Douglas Framework
The district court exercised jurisdiction over Scott’s claims that she was not promoted to Team Manager in 1997, 1998, and 1999, and granted summary judgment in favor of Defendant in respect to each such claim. There was no dispute that Scott established a prima facie case of gender discrimination under McDonnell Douglas Corp. v. Green,
2. Eastman’s Articulated, NonDiscriminatory Reason
Scott argues that the district court erred in granting Eastman summary judgment because Eastman’s non-discriminatory explanation lacks clarity and specificity as required by Tex. Dep’t of Cmty. Affairs v. Burdine,
The district court found that Eastman “sеt forth a legitimate non-discriminatory reason for its failure to promote the plaintiff to Team Manager, that is, that those selected for the Team Manager position
Scott argues that Eastman did not offer a clear, reasonably specific, or legally sufficient explanation as required by Burdine because the numeric values on the spreadsheets provide no factual basis to explain why management rated Scott lower than male selectees on certain subjective criteria. The rating assignment on the spreadsheets consist of a 7-9 for outstanding, 4-6 for fully acceptable, and 1-3 for less than acceptable. (See Performance and Capability Assessment, J.A. 1245, 1247.) In support of her argument, Scott cites Goos-by v. Johnson & Johnson Med., Inc.,
Eastman argues that Scott did not raise this argument below and thus waived it. However, Scott did argue that the spreadsheet scores “demonstrate excessive subjectivity.” (J.A. 751-52.) The district court’s opinion stated that, “plaintiff attempts to equate subjectivity in the selection process with pretext. However, the plaintiff cites no authority for this proposition, nor is such authority likely to exist.” Scott,
This circuit and other circuits have recognized the problems with subjective evaluations under Title VII. In Rowe, the cour't summarized as follows:
This Court has previously noted the problems inherent in selection procedures which rely solely upon ... subjective evaluations.... See, e.g., Senter v. General Motors Corp.,532 F.2d 511 , 528-29 (6th Cir.), cert. denied,429 U.S. 870 ,97 S.Ct. 182 ,50 L.Ed.2d 150 (1976); Shack v. Southworth,521 F.2d 51 , 55-56 (6th Cir.1975). While such procedures are not per se violative of Title VII, Hester v. Southern Railway Co.,497 F.2d 1374 , 1381 (5th Cir.1974), they do provide a ready mechanism for discrimination, permitting racial prejudice to affect and often control promotion and hiring decisions. [Citations omitted.] While we recognize that, in some circumstances, employment decisions may be made on the basis of such subjective criteria, any procedure employing such subjective evaluations will be carefully scrutinized in order to prevent abuse. Jenkins v. Caddo-Bossier Association for Retarded Children,570 F.2d 1227 , 1229 (5th Cir.1978).
Rowe,
Moreover, in Thurman v. Yellow Freight Sys.,
The use of subjective criteria is permissible in the selection of candidates for employment. Employers, not the courts, ought to be able to choоse which employees to hire. Rather, the ultimate issue in each case is whether the employer’s subjective criteria were used to disguise discriminatory action.
Id.
We need not decide whether close scrutiny is required here, because even were we to closely scrutinize Eastman’s articulated, non-discriminatory reason for not promoting Scott, we find that Eastman met its burden. Eastman gave a legitimate, non-discriminatory reason for not promoting Scott and put forth evidence showing that others were promoted ahead of her because they were more qualified, based on criteria which included both an objective as well as a subjective component.
3. Pretext
The district court concluded that Scott failed to show that Eastman’s articulated, legitimate non-discriminatory reason was pretextual. To demonstrate pretext, a plaintiff is required to show either: “(1) that the proffered reasons had no basis in fact; (2) that the proffered reasons did not actually motivate the decision; or (3) that they were insufficient to motivate the employment decision.” Mitchell,
a. Adverse Inference to Prove Pretext
Here, Scott argues that she is entitled to the benefit of an adverse inferеnce. Scott alleges that Eastman illegally destroyed the primary documents from which the numeric scores on the spreadsheets produced by Eastman were generated. Scott maintains that, “Eastman destroyed documents for the 1996-1998 selections to Team Manager, including candidates’ Applications, Qualifying Tests, PCAs [Performance and Capability Assessments], and notes and raw score sheets for the Team Exercise and Interviews.” (App. Br.37.) Eastman admits that some of the underlying documents, from which the spreadsheets were created, are missing. The district court did not discuss Scott’s argument for an adverse inference.
Scott argues that when an employer fails to maintain documents that it is required by law to maintain,
Spoliation is the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for the destruction. [Citation omitted.] The rules that apply to the spoiling of evidence and the range of appropriate sanctions are defined by state law; in this case, the law of Tennessee. Nationwide Mut. Fire Ins. Co. v. Ford Motor Co.,174 F.3d 801 , 804 (6th Cir. 1999).
Id. at 782. Under Tennessee law, which applies in this case as well, no adverse inference may arise absent evidence of bad faith.
Howеver, apart from these general claims and arguments, Scott has failed to point to any record evidence, such as deposition testimony or an affidavit showing that the relevant documents were destroyed intentionally, in bad faith or for an improper purpose. Thus, we do not find Scott’s argument for the benefit of an adverse inference to be meritorious.
b. The EEOC Letter to Prove Pretext
Scott argues that the EEOC determination letter in her favor demonstrates a genuine dispute of material fact sufficient to defeat summary judgment. It is within the discretion of the court to accept the EEOC’s final determination. See Williams v. Nashville Network,
Eastman argues that Scott was required to offer admissible evidence to show pretext, and that the EEOC determination letter was inadmissible; thus, the district
Though there is no basis from which we can determine the weight, if any, that the district court gave the EEOC determination letter, we find that there is only information in regard to the 1996/97 Polymers Team Manager position which might arguably be considered in support of her claim and that information is already reflected in the record, as discussed below. The EEOC determination letter notes in regard to the 1996/97 Polymers Team Manager position that: (1) Scott received a higher score on the objective portions of the test than many of the male selectees; (2) yet, she received the lowest rating on the subjective portions of the test; and (3) the evidence in her personnel file concerning her leadership skills, oral communication and customer service was inconsistent with the low ratings she received. (EEOC Determination Letter, J.A. 465.) However, the record upon which the EEOC relied, primarily the spreadsheets discussed bеlow, does not support these findings. Furthermore, there is no substantive information in the EEOC determination letter showing that Eastman’s articulated, nondiscriminatory reasons for not promoting Scott to Team Manager in 1996/97 for the CM&S Division, 1997/98, or 1998/99 were pretextual. Therefore, we find that the EEOC determination letter does not preclude summary judgment in Eastman’s favor on any of Scott’s failure to promote to Team Manager claims.
c. Eastman’s Spreadsheets to Prove Pretext
Finally, Scott argues that Eastman’s own spreadsheets provide evidence establishing that Eastman’s articulated, non-discriminatory reason for not promoting her to Team Manager for either the Polymers Division or the CM&S Division in 1996/97 was pretextual. As discussed below, we disagree.
The Team Manager selections for the Polymers Division in 1996/97 were made using TMDS, a process that assessed candidates’ scores on four different components: the objective PPT, and three subjective tests, the PCA, the Team Exercise (“TE”), and the Structured Interview (“SI”). Each component was evaluated by different managers. First, Eastman selected twenty-two finalists based on their scores on the PPT and the PCA.
Scott points to the fact that, according to the TMDS spreadsheets for the 1996/97 Polymers Division Team Manager selection process, she scored higher on the objective PPT than many men who were promoted. However, although Scott scored higher than four of the six selectees on the PPT, she ranked only ninth among the twenty-two finalists on this component. The skill sets that the PPT measured were Reading Comprehension, Graphic Arithmetic, and Following Policies and Procedures. While these skill sets are undoubtedly important, they represent only a few of the many skills evaluated by TMDS. Therefore, Scott’s argument that her performance on this component should be representative of her performance on other components or in the overall selection process is not well-taken.
Scott argues that the overwhelmingly subjective nature of the test discriminated against female employees, but she has failed to present evidence suggesting any bias in the way the test was conducted. While Scott did poorly on two of the subjective components (scoring near the bottom on both the PCA and the SD, she did well on the other subjective component (scoring first among all the finalists in the TE).
There is also no evidence that the additional calculations masked discrimination. For example, Scott points out that she received varying scores within a particular skill set; however, this is explained by the fact that different managers evaluated each component. For the same reason, the fact that her scores on particular subsets changed from year to year does not, without more, indicate pretext. In addition, Scott points out that some of the selectees’ individual sub-component scores were lower than hers, but that after the “re-ranking” these candidates were selected instead of her. However, the court notes that TMDS (in particular, the additional calculations) was designed to identify the candidates’ average score. None of thеse facts suggest that Eastman’s selection process was a disguise for discrimination. Nor does the fact that the evaluators used a Special Selection form to do these calculations indicate pretext. In sum, Scott has not presented evidence to support her contention that she was better
With regard to the 1996/97 Team Manager selection for the CM&S Division, Plaintiff argues in a footnote that because the spreadsheets for the 1996/97 CM&S Team Manager selection were not in the record before the district court (due to an oversight by Defendant), summary judgment should be reversed and the case should be remanded on this claim. We disagree. The district court properly found that Plaintiff had failed to raise a genuine issue of material fact as to pretext based on the evidence before it, including the lack of adverse inference and the EEOC determination letter, as discussed above. Nothing in the spreadsheets would change that determination. The spreadsheets indicate that Scott did not score high enough on the first two components to earn a spot as a finalist. Her score of 49 was much lower than the scores оf the eighteen finalists, who ranged from 56 to 62. (CM&S 1996 TMDS Process Data, App. Br., Addendum 6.) As such, Scott has failed to show that Eastman’s process for selecting Team Managers for the Polymers and CM&S Divisions in 1996/97 was either not credible or motivated by discriminatory animus.
Therefore, we find that Scott has failed to put forth sufficient evidence to raise a genuine issue of material fact regarding whether Eastman’s ai'ticulated, non-discriminatory reasons were pretextual for the 1996/97 Team Manager selections for the Polymers and CM&S Divisions. Accordingly, we AFFIRM the district court’s finding that Scott failed to prove pretext on her claim for discriminatory failure to promote to Team Manager in 1996/97. Furthermore, we AFFIRM the district court’s finding that Scott failed to prove pretext on her claim for discriminatory failure to promote to Team Manager in 1997/98 and 1998/99 because Scott has failed to come forward with competent evidence to support these claims.
C. Scott’s Retaliation Claims Decided on the Merits
The district court concluded in regard to Scott’s retaliation claims growing out of her EEOC charge that Scott failed to produce evidence that Eastman decisionmakers knew that she filed an EEOC charge in 1997. Scott,
1. The Element of Employer Knowledge
Regarding the element of employer knowledge, the district court concluded,
The undisputed facts reflect that the only supervisory employee who had knowledge of the plaintiffs charge was Don Sanders, who testified that he told no one about the charge. No allegation is made that Mr. Sanders engaged in retaliatory conduct. Plaintiff has failed to establish that each of the decision-makers, as to each alleged adverse employment action that she contends was in retaliation for the filing of her charge, had knowledge of the charge. Because the plaintiff has failed to pinpoint facts sufficient to establish a material dispute as to whether the decision-makers had knowledge of her charge, she cannot prove a prima facie case of retaliation. Id. at *4.
Scott argues that the district court prematurely terminated the analysis of her
[T]o support a claim for retaliation under Title VII a -“plaintiff must establish: (1) that he engaged in activity protected by Title VII; (2) that he was the subject of adverse employment action; and (3) that there exists a casual [sic] link between his protected activity and the adverse action of his employer.”
Id. (citing Jackson v. RKO Bottlers of Toledo, Inc.,
Regardless of whether employer knowledge is a stand-alone element of a prima facie case of retaliation, it is fairly clear from Sixth Circuit case law that employer knowledge of a plaintiffs protected activity is required. As Eastman asserts, even to prove a causal connection, Scott must establish that the decisionmakers involved in the promotions at issue had knowledge of the protected activity, as one cannot retaliate against an employee for engaging in protected activity unless he knew the employee had done so.
2. Direct Evidence of Employer Knowledge or Evidence From Which a Jury Could Infer Employer Knowledge
Knowledge may be inferred from evidence in the record. See, e.g., Proffitt v. Metro. Gov’t of Nashville & Davidson County,
Scott maintains that she pointed to evidence in the record showing either directly, or by inference, that there was at least a genuine issue of material fact as to whether decisionmakers at Eastman had knowledge of her protected activities. Scott has made a number of arguments and pointed to general policies which she maintains show that decisionmakers generally have knowledge of charges filed by employees. However, she still has not specified those persons responsible for not promoting her, nor has she established that those persons likely had knowledge of her protected activity.
Because Scott has not pointed to evidence in the record, either direct or circumstantial, from which a reasonable fact-finder could conclude, or infer, that those
D. Plaintiffs Attempt to Amend her Complaint
On Februаry 8, 2005, Scott filed a Motion for a Stay, requesting that the court stay the remaining deadlines in the Amended Scheduling Order to provide her with additional time in which to file a Motion to Amend the Complaint. On February 16, 2005, the Magistrate Judge denied that Motion, based primarily on the futility of Plaintiffs potential Motion to Amend and the fact that the deadline for amended pleadings had passed nine months earlier without any request to extend it. (Magistrate Judge’s Order, J.A. 718.) The Magistrate Judge observed,
This action was filed in August of 2003.... While the EEOC charge made reference to the fact that the plaintiff was filing claims of sex discrimination on behalf of herself and all women similarly situated, no class action allegations appear in this action, other than a line in the complaint saying the plaintiff “reserves the right to seek class certification.”
The original scheduling order required that “any motions to amend the pleadings or add new parties must be filed by May 28, 2004.” The original trial date was January 18, 2005. This case has been continued twice by joint motions. The first of these motions was filed on July 12, 2004, well after the May 28th deadline. Neither of the orders granting these continuances extended the deadline for amending the pleadings or adding additional parties.
(Id. at 718-19.) The Magistrate Judge then concluded that there were no compelling circumstances justifying an amendment of the Complaint after the deadline.
Scott did not object to the Magistrate Judge’s Order. Thereafter, on May 6, 2005, while Eastman’s Motion for Summary Judgment was pending, Scott filed a Motion to Amend/Revise Complaint. (ECF No. 64, 65; J.A. 9.) Scott’s Motion to Amend her Complaint was pending when the district court granted Eastman’s Motion for Summary Judgment and dismissed Scott’s claims, though in the district court’s order granting summary judgment to Defendant, it stated: “nor has the plaintiff sought to amend her complaint to pursue a claim for disparate impact” when it ignored her statistical evidence. Scott,
Scott argues that the district court erred by not permitting her to amend her complaint to allege a class action claim and a disparate impact claim. Scott asks this court to reverse and order the district court to permit her to amend her Complaint. Eastman argues that because Scott failed to object to the Magistrate Judge’s Order, she has waived her right to assign error to that decision under Fed. R.Civ.P. 72.
Federal Rule of Civil Procedure 72(a) states, in relevant part,
Magistrate Judges; Pretrial Orders
Nondispositive Matters, (a) A magistrate judge to whom a pretrial matter not dispositive of a claim or defense of a party is referred to hear and determine shall promptly conduct such proceedings as are required and when appropriate enter into the record a written order setting forth the disposition of the matter. Within 10 days after being served with a copy of the magistrate judge’s order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate*484 judge’s order to which objection was not timely made.
Fed.R.Civ.P. 72(a).
As Scott did not object, she has waived her right to assign error to the Magistrate Judge’s order. Furthermore, decisions on motions to amend are reviewed for an abuse of discretion. Miller v. Metro. Life Ins. Co.,
IV.
In conclusion, for the foregoing reasons, we AFFIRM the district court’s decision to dismiss Scott’s failure to promote claims other than to Team Manager, with the exception that we find Scott’s failure to promote by Special Selection to Welding Inspector in 1997 was not unexhaustеd, and, thus, we REVERSE the district court’s decision and REMAND that claim for consideration on the merits. We AFFIRM the district court’s dismissal of Scott’s retaliation claims, other than those associated with the filing of her EEOC charge, for failure to exhaust her administrative remedies. Likewise, we AFFIRM the district court’s dismissal of Scott’s hostile environment claim for failure to exhaust.
We AFFIRM the district court’s granting of summary judgment to Eastman on Scott’s failure to promote claims for failure to prove pretext, and we AFFIRM the district court’s granting of summary judgment to Eastman regarding Scott’s retaliation claims associated with the filing of her EEOC charge. Finally, we AFFIRM the district court’s determination that Scott not be permitted to amend her Complaint.
Notes
. Scott conceded before the district court that her claims for discrete acts of disparate treatment arising prior to November 26, 1996, are time-barred.
. Courts have held that "it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge! ] [because] the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before the court." Ang v. Procter & Gamble Co.,
. Scott argues that all of her post-EEOC charge claims are based on retaliation, as well as sex discrimination (therefore there is more than one post-EEOC charge retaliation claim), and that a jury could conclude that the motivating factor behind any alleged adverse action by Eastman (i.e., post-EEOC charge failures to promote) was either based on sex discrimination or retaliation for her complaints of sex discrimination. To the extent Scott is arguing "retaliatory failure to promote” based on her protected activity other than the filing of the EEOC charge in 1997, those claims would not be within the expected scope of the EEOC charge and, thus, are unexhausted for the same reasons that her retaliation claim based on her 2001 internal complaint was not within the expected scope of her EEOC charge. The district court determined that any post-EEOC charge retaliation claims stemming from anything other than the EEOC charge itself were unexhaust-ed.
. Scott points to 29 C.F.R. § 1602.14 (2007), which states, in relevant part:
Any personnel or employment record made or kept by an employer (including ... application forms submitted by applicants and other records having to do with hiring, promotion, ... and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.... Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII or the ADA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The term "personnel records relevant to the charge,” for example, would include personnel or employment records relating to the aggrieved*478 person and to all other employees holding positions similar to that held or sought by the aggrieved person and application forms or test papers completed by an unsuccessful applicant and by all other candidаtes for the same position as that for which the aggrieved person applied and was rejected ____
29C.F.R. § 1602.14.
. See Tucker v. Gen. Motors Corp.,
. Scott admits that, during this stage, Eastman sometimes adds additional candidates as finalists, in the interest of diversity. Scott herself benefited from this action in certain years. However, in the 1996/97 Polymers Division selection, her score was sufficiently high to earn her a place as a finalist.
. The EEOC determination letter refers to multiple objective components, and states that Scott performed well on all objective portions and performed poorly on all subjective portions. Thus, it appears that the EEOC characterized the TE, on which Scott ranked first, as objective. However, because the TE consisted of managers grading candidates' performances on group tasks, we find that this component is subjective.
Dissenting Opinion
dissenting in part.
I would affirm the district court’s grant of summary judgment for Eastman in its entirety. Therefore, though I agree with the bulk of the majority’s opinion, I dissent from the majority’s decision to remand one of Scott’s failure-to-promote claims.
With respect to the Welding Inspector position, discussed in Part III.A.1 of the majority’s opinion, I agree with the majority that Scott exhausted her administrative remedies and that the district court was wrong to conclude otherwise. I do not think, however, that this conclusion should be the end of our inquiry. An appellate court “may affirm on any grounds supported by the record even if different from the reasons of the district court.” Aber-crombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc.,
Eastman’s non-discriminatory explanation for not giving Scott the Welding Inspector job is simple: others were more qualified, and the majority opinion does not appear to contradict this. There is uncontroverted evidence that the man awarded the job, Miсhael Gass, had more experience (thirty years of service to Scott’s twenty-one), had more relevant education (a two-year degree in welding technology rather than a welding inspector’s certificate), and had been performing the Welding Inspector job on a temporary basis for four months. Scott did not present any competent evidence that she was actually more qualified or that Eastman’s personnel decision was motivated by discriminatory animus. On that basis, I would affirm the district court’s grant of summary judgment for Eastman.
The majority opinion now contemplates that perhaps the Welding Inspector job given to Gass was not actually the subject
In her documents below, one of only two comparable references to Estepp is in response to an interrogatory concerning evidence for her claims of disparate treatment, in which she names at least 72 persons (JA 1195-1200) who were involved in one activity or another that she references, at least five of whom are referred to as receiving positions as Welding Inspector, and in which Estepp is referenced without any date. (JA 1196). The other passing reference to Estepp is in the context of Scott’s response to “undisputed fact No. 131” (JA 1746). After a series of responses concerning Gass and others, there is a statement of “additional material facts” saying Estepp was selected for Welding Inspector “in approximately 1997-98.” I believe this wholly insufficient to put either Eastman or the district judge on notice that Estepp’s promotion, rather than Gass’s, is the event complained of in the charge, as it must have been, in order to meet the exhaustion requirement that the panel has now agreed was met. In order to survive summary judgment, a plaintiff has some obligation to indicate with specificity if she disputes the interpretation that has been placed on an ambiguous complaint by the non-moving party. A complainant cannot simply “lie in the weeds” and contend later that the charge actually had to do with a completely separate promotion.
In any event, however, I would understand the court’s remand to apply only to consideration of this allegation, that it was actually the Estepp promotion that was referenced in the EEOC charge and exhausted thereby. The EEOC determination letter itself makes no specific reference to this allegation, as it found all of the charges other than the team leader promotions to be unfounded or outside the period covered by the charge.