Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SUSAN K. SUMRALL,

Plaintiff,

vs. CASE NO.: 4:03cv103-SPM

JOHN E. POTTER, Postmaster General,

United States Postal Service,

Defendant.

__________________________________/

ORDER DENYING MOTIONS TO DISMISS AND LIMIT EVIDENCE

This cause comes before the Court for consideration of Defendant’s

motion to limit and dismiss claims (doc. 157), Plaintiff’s response (doc. 159),

Plaintiff’s first motion in limine (doc. 158), and Defendant’s Response (doc. 161).

I. MAY 25, 2006 TERMINATION

Defendant argues that Plaintiff’s retaliation claim for her second

termination on March 25, 2006 should be dismissed for failure to exhaust

administrative remedies. It is undisputed that Plaintiff did not timely seek EEO

counseling, nor did she pursue or exhaust her administrative remedies with the

Postal Service with regard to this claim. Nevertheless, dismissal of this claim is

not appropriate.

Case 4:03-cv-00103-SPM-AK Document 166 Filed 04/22/07 Page 1 of 5
Page 2 of 5

CASE NO.: 4:03cv103-SPM

A complainant need not file a separate administrative complaint for

retaliation arising after the filing of an initial EEOC complaint. Baker v. Buckeye

Cellulose Corp., 856 F.2d 167, 168-69 (11th Cir. 1988). This position has long

been established in the Eleventh Circuit. Id. at 169. The practical reason for not

requiring a second filing is that it would serve no purpose. Id. A retaliation claim

arising after the filing of an initial EEOC complaint falls within the scope of the

EEOC investigation that is likely to grow out of the initial complaint. Id. A second

filing would only “create additional procedural technicalities” and “a single filing

would comply with the intent of Title VII.” Id.

Defendant argues, nevertheless, that dismissal is required because

unexhausted claims involving discrete employment actions must be separately

grieved. Defendant cites to the Supreme Court’s opinion in National Rail Road

Passenger Corporation v. Morgan , 536 U.S. 101 (2002), for the proposition that

the continuing violation doctrine is not applicable to discrete incidents of

discrimination. Defendant concludes therefrom that regardless of whether

Plaintiff’s second termination falls within the scope of the initial EEOC

investigation, she must separately exhaust administrative remedies as to that

claim.

Defendant’s position has been accepted by the Tenth Circuit Court of

Appeals. Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir. 2003). As

Plaintiff notes, however, the position has been rejected by other federal courts,

Case 4:03-cv-00103-SPM-AK Document 166 Filed 04/22/07 Page 2 of 5
Page 3 of 5

CASE NO.: 4:03cv103-SPM

including the Eighth and Sixth Circuits. See Wedow v. City of Kansas City, 442

F.3d 661, 673-74 (8th Cir. 2006); Delisle v. Brimfield Township Police Dep’t, No.

02-3050, 2004 WL 445181, at *4-6, 94 Fed. Appx. 247, 251-54 (6th Cir. Mar. 8,

2004) (not selected for publication in the Federal Reporter). The Eleventh Circuit

has not addressed the issue.

This Court agrees with the position taken by the Eighth and Sixth Circuits. 

As noted by those courts, Morgan addressed the timeliness of administrative

complaints and the applicability of the continuing violation doctrine to save claims

that have not been timely filed. Morgan did not address the issue of whether

related, after-occurring incidents can be included within the scope of a timely filed

administrative complaint.

The law in the Eleventh Circuit currently provides that a related, afteroccurring incident of retaliation can be included within the scope of a timely filed

administrative complaint. Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-

69 (11th Cir. 1988). The Morgan decision is not clearly contrary to the law in the

Eleventh Circuit, which this Court must follow. Accordingly, Defendant’s motion

to dismiss Plaintiff’s retaliation claim for her second termination on March 25,

2006 will be denied.

II. EVIDENTIARY RULINGS

Both sides seeks to limit certain categories of evidence from being 

admitted during the course of the trial; specifically, settlement of past grievances,

Case 4:03-cv-00103-SPM-AK Document 166 Filed 04/22/07 Page 3 of 5
Page 4 of 5

CASE NO.: 4:03cv103-SPM

lay opinion testimony of motive, stray remarks, remarks by non-decision makers,

“me too” evidence, “comparables” evidence, evidence that is too old, evidence of

sexual harassment, evidence of favorable treatment, and the arbitral decision. 

The parties do not claim that any category of evidence is subject to blanket

exclusion from trial. Furthermore, few particulars have been revealed about the

disputed evidence. 

A preliminary ruling of admissibility can be made only as to the past

grievances and the arbitral decision.

A. Past Grievances

 The Court has some recollection of the evidence offered at the first trial

of this case in 2005. Consistent with the ruling at the first trial, the Court finds

that evidence regarding Plaintiff’s past grievances are admissible.

Plaintiff’s retaliation claim rests in substantial part on disciplinary action

taken against her, which she claims was unfounded or overblown. Plaintiff’s

grievances regarding the disciplinary action are probative of what people involved

in this case did and the reasons they gave for doing so. The grievances provide

essential context for the jury to understand the facts of this case. 

B. Arbitral Decision

An arbitral decision may be admitted as evidence at an employment

discrimination trial. Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974). 

In this case, the Court finds that the arbitral decision is relevant to the issue of

Case 4:03-cv-00103-SPM-AK Document 166 Filed 04/22/07 Page 4 of 5
Page 5 of 5

CASE NO.: 4:03cv103-SPM

whether Defendant had legitimate reasons for terminating Plaintiff for a second

time on March 25, 2006. Plaintiff’s concerns about misleading or confusing the

jury can be addressed through argument. The danger of unfair prejudice does

not outweigh probative value.

III. DOCUMENTS NOT PRODUCED

Plaintiff seeks to exclude from evidence all documents Defendant failed to

produce during discovery. Most or all of these documents were available to

Plaintiff. Unless Plaintiff can demonstrate prejudice, the Court is not inclined to

exclude them from evidence.

Based on the foregoing, it is

ORDERED AND ADJUDGED:

1. The motions in limine (docs. 157 and 158) are denied.

2. The Court may reconsider its evidentiary rulings as the evidence is

offered in context at trial. 

DONE AND ORDERED this 22nd day of April, 2007.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

Case 4:03-cv-00103-SPM-AK Document 166 Filed 04/22/07 Page 5 of 5