1 United States Court of Appeals,

Fifth Circuit.

No. 93-1839

Summary Calendar.

Vonda S. Brehm CLARK, Plaintiff-Appellant,

v.

KRAFT FOODS, INC., Defendant-Appellee.

April 20, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Ju dge, HIGGINBOTHAM and DeMOSS, Circuit

Judges.

POLITZ, Chief Judge:

Vonda Sue Brehm Clark appeals an adverse summary judgment in

her Title VII sex-discrimination suit against Kraft General Foods.

We vacate and remand.

Background

Clark was fired in December 1988 after being employed as a

line technician by Kraft for several years. Shortly thereafter she

filed a charge of discrimination with the Equal Employm ent

Opportunity Commission, the primary thr ust of which was an

allegation of sexual harassment and retaliation for grievances she

filed in response to that harassment. In 1991 Clark filed the

instant action, claiming that she was pressured to take a lower

paying position and was ultimately fired because of her gender.

The sexual harassment claim, the dominant theme in her EEOC

complaint, was not advanced, apparently because it was time-barred.1 Tolbert v. United States, 916 F.2d 245 (5th Cir.1990).

2 Clark asserts that she exhausted administrative remedies on

her claim of retaliation for filing a 1988 gender discrimination

grievance. The summary judgment only addresses her disparate

treatment claim. If a retaliation claim in fact exists, it is

not properly before us on appeal.

3 Bodenheimer v. PPG Industries, Inc., 5 F.3d 955 (5th

Cir.1993).

4 See Young v. City of Houston, 906 F.2d 177 (5th Cir.1990);

Sandom v. Travelers Mortg. Services, 752 F.Supp. 1240

(D.N.J.1990) (sexual harassment and disparate treatment are

distinct; assertion of one before the EEOC does not exhaust

2 Kraft moved for summary judgment asserting that Clark had not

raised her disparate treatment claim before the EEOC and,

therefo re, had not exhausted administrative remedies. 1 The

magistrate judge accepted Kraft's cha llenge and recommended that

summary judgment be granted because the "disparate treatment claim

... was not presented to the EEOC, nor was it within the scope of

the EEOC investigation of plaintiff's charge." That recommendation

was adopted without comment by the district court. Clark timely

appealed.

Analysis

Clark maintains that she properly rai sed the disparate

treatment issue before the EEOC. 2 Kraft counters that although

Clark' s EEOC complaint included claims of sexual harassment and

retaliation for that harassment, it did not include a separate

allegation of disparate treatment on the basis of gender. We

review the district court's grant of summary judgment de novo. 3

As a jurisdictional predicate Cla rk had to exhaust EEOC

remedies for the sex-based discrimination advanced in this action. 4administrative remedies as to the other). We note, however, that

this proposition does not preclude Clark from offering more than

one basis of discrimination in a single EEOC claim, or from

relying on a single set of facts in support of more than one

basis. Cf. Fellows v. Universal Restaurants, Inc., 701 F.2d 447

(5th Cir.), cert. denied, 464 U.S. 828, 104 S.Ct. 102, 78 L.Ed.2d

106 (1983).

5 Young; Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

Cir.1970).

6 Cf. Nat'l Union Fire Ins. Co. v. Kasler Corp., 906 F.2d 196

(5th Cir.1990) (courts construe language to avoid rendering terms

meaningless); Fed.R.Civ.P. 8(e), (f) (encouraging liberal

construction of complaints).

3 The sole issu e before us is exhaustion and our sole inquiry is

whether the d isparate treatment claim pursued in the present

litigation was advanced before the EEOC. We decide that question

in the affirmative because the EEOC investigation of that claim was

a reasonable consequence of Clark's EEOC complaint and supporting

documentation. 5

We look first to Clark's original "Charge of Discrimination."

This document sets forth several claims, the most important of

which are: "1. I was harassed because of my sex, female. 2. I

w as sexually harassed." Viewed in isolation the first complaint

reasonabl y could be read as either an allegation of sexual

haras sment or as a claim that she had been persecuted in her job

because of her gender. These points, however, were presented in

tandem. Were we to read Clark's first claim as simply alleging

sexual harassment, we would render her second cla im redundant.

Long established principles of interpretation 6 and Cl ark's p ro se7 Fellows, 701 F.2d at 451 ("liberal construction [is]

accorded EEOC charges, especially those by unlawyered

complainants").

8 Kraft suggests that Clark, having refused to "bust off" her

job, cannot claim this episode as discrimination. This argument

ignores the fact that she was fired shortly after her refusal.

4 status at the time of her EEOC complaint 7 milita t e against such a

construction of her filing.

We conc lude that Clark's statements to the EEOC presented a

sufficient predicate upon which one reasonably woul d expect the

agency to inv estigate a disparate treatment claim. Her EEOC

affidavit explained that females on her line "were forced to bust

off their job and take lower bracket pay jobs." Her EEOC Discharge

Questionnaire expanded on this point, noting that "[d]ue to the cut

in Matinence [sic] Dept. they wanted the women off the line

operators jobs to place the xtra [sic] men." 8 These statements at

least raise inferences supporting Clark's claim of gender- based

harassment. Her allegation that women on her line were removed to

lower paying jobs to make room for men should have given the EEOC

investigators reasonable cause to examine whether she was pressured

to do the same or whether her ultimate firing resulted from

systematic replacement of any female in her position.

Despite its present position on appeal, at the time of Clark's

EE OC complaint Kraft apparently considered Clark to be claiming

disparate treatment on the basis of gender. In answer to the

EEOC's request for information Kraft denied the existence of any

"evidence that female employees are more frequently terminated or

otherwise more harshly treated in the disciplinary process." Kraft9 Young (applicable standard is not scope of actual

investigation but what we reasonably would expect the EEOC to

investigate).

5 concluded its response by noting that Clark's termination "had

nothing to do with her sex." If Clark had presented no colorable

allegation of disparate treatment that reaction would have been a

non sequitur.

Albeit mindful that the actual scope of an EEOC investigation

does not determine whether a claimis exhausted, 9 we are also

mindful that investigation of a particular claim creates a strong

inference that such a claim was presented. In the instant case the

EEOC investigated Clark's gender-based disparate treatment claim.

Its determination expressly mentions a gender-based harassment

claim which it treats as distinct from claims of sexual harassment

or retaliation for reporting such harassment. The first half of

the EEOC report deals exclusively with Clark's "sexual harassment

allegation." The determination then separately addresses "[t]he

Charging Party's allegation that she was harassed because of her

sex, and in retaliation for complaining about sexual harassment."

EEOC inquiries discussed thereunder include the question whether

ma les and other females in Clark's position received comparable

work assignmen ts and duties. These questions, like Kraft's

representation that males and females are treated equally,

manifestly are consistent with an EEOC inquiry into a gender-based

disparate treatment claim. The EEOC determination concluded that

"[t]he investigation discovered no evidence that Charging Party was

asked to resign and was subsequently discharged because of her sex,6

female, or because she complained of sexual harassment."

It is apparent that sexual harassment and retalia tion for

reporting sexual harassment were Clark's principal allegations at

the administrative stage. It is also apparent in the statements of

Clark, Kraft, and the EEOC that Clark raised a gender-based

disparate treatment claim sufficient to prompt an EEO C

investigation. Suggesting no particular resolution on the merits,

we conclude that administrative remedies for the instant complaint

of gender-based disparate treatment were exhausted and that Clark's

claim is properly before the district court.

The district court's judgment in favor of Kraft is therefore

VACATED and the cause is REMANDED for further proceedings

consistent herewith.