HAGÅTÑA (The Guam Daily Post) — The University of Guam is seeking to dismiss the discrimination lawsuit filed by Ye-Kyoung Kim, arguing that her case failed to state a valid claim. The motion was filed by Deputy Attorney General Darlow Graham Botha and Special Assistant AG William Pole for the Office of the Attorney General.
Kim, representing herself, filed suit at the District Court of Guam in late November 2023. She alleged that the university discriminated against her by not hiring her to fill the associate director position for UOG’s Global Learning and Engagement office. Instead, the university hired or promoted a younger, less-qualified candidate from a different race and origin, Kim stated in court documents.
She also stated that she believes the alleged treatment may be in retaliation for her past Equal Employment Opportunity Commission claims against UOG. She stated the university violated a settlement reached in a prior EEOC case.
Kim opposes the attempt to dismiss her lawsuit and is calling for the court to grant a default judgment based on her not receiving timely responses to her complaint. The OAG opposes that request, arguing that the motion to dismiss the case was filed on time, despite Kim not being noticed of the filing initially.
Botha and Pole submitted a memorandum supporting their motion to dismiss, which argued in part that Kim alleged insufficient facts against UOG because her allegations do not constitute direct evidence of discrimination, that she failed to allege a “prima-facie” case of discrimination, and that her claims under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act are not plausible.
Botha and Pole also argued that there is no jurisdiction to hear the case.
After getting passed over for the GLE associate directorship, Kim, at first, submitted another EEOC complaint against UOG, alleging discrimination.
The EEOC dismissed her charge in August 2023, stating that it would not proceed further with its investigation and informed Kim of her right to sue. However, the EEOC also stated that the dismissal did not mean Kim’s claim had no merit.
According to Botha and Pole, six of the defendants in the lawsuit – all individuals – were not named in the EEOC complaint.
“As a general rule, Title VII claimants may sue only those named in the EEOC charge because only they had an opportunity to respond to charges during the administrative proceeding. … Further, the failure to name an employer in an EEOC charge under the ADEA is not a jurisdictional bar to an action against that employer. Instead, it is a condition precedent to filing an action, which is subject to waiver,” their memorandum stated.
Botha and Pole went on to say that Kim only named the university in the EEOC charge and has not pleaded any facts that show an exception to the general rule applies to any of the six individuals.
“Further, for plaintiff’s ADEA claims against these defendants, the plaintiff has failed to meet the prerequisite of naming them in the EEOC that would give this court the jurisdiction to hear these claims,” the memorandum stated.
Also regarding jurisdiction, the memorandum stated that the six defendants are not employers under Title VII or the ADEA and that Kim sued them in their individual capacities, not official ones. The memorandum also stated that some of Kim’s claims are untimely and that some of her allegations were not included in the EEOC charge and are not actionable.
In her opposition papers, Kim stated that her complaint “presents a plausible claim of discrimination that warrants further judicial exploration.”
Kim also stated that her decision to include additional defendants compared to the EEOC charge is based on their “direct involvement and influential roles in the alleged discriminatory practices.” She also stated that the timeliness of her claims are justified through the “continuing violation doctrine,” and new allegations are included to present a complete and accurate picture “of the systemic issues of employment practices” at UOG.
The University of Guam entrance sign Tuesday, Jan. 2, 2023, in Mangilao.
