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Salinas v. Trucking

United States District Court, W.D. Oklahoma

March 10, 2017




         Before the Court is Defendant's Motion to Dismiss [Doc. No. 7], filed pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). The Motion challenges the existence of subject matter jurisdiction over Plaintiff's claim under Title VII of the Civil Rights Act of 1964 as amended (“Title VII”), 42 U.S.C. § 2000e et seq., due to an alleged failure to exhaust administrative remedies. The Motion also challenges the sufficiency of the Complaint to state a timely claim of gender discrimination under Title VII and Oklahoma law, and to state common law claims of breach of contract and intentional infliction of emotional distress. Plaintiff has filed a timely response to the Motion, and Defendant has replied. The Motion is thus fully briefed and at issue.

         As pertinent to the Motion, the Complaint states that Defendant employed Plaintiff and her husband as truck drivers, that Plaintiff's husband quit working for the company, and Defendant then terminated Plaintiff's employment based on her female gender. Plaintiff alleges she was treated less favorably than similarly situated male employees during her employment and Defendant discharged Plaintiff because her husband resigned. Based on these allegations, Plaintiff asserts claims of gender discrimination under Title VII and Oklahoma's Anti-Discrimination Act (“OADA”), Okla. Stat. tit. 25, § 1101 et seq., and supplemental state law claims of breach of an employment contract and intentional infliction of emotional distress.[1] To demonstrate the exhaustion of administrative remedies, the Complaint states in pertinent part:

Plaintiff has caused to be filed a charge of discrimination with the Equal Employment Opportunity Commission, and a true and accurate copy of which is attached hereto as Exhibits “1”, [sic] . . . . On or about August 18, 2016, Plaintiff received a Notice of Right to Sue letter which was issued by the Equal Employment Opportunity Commission, with respect to the charge as set forth in Exhibit “1”. A copy of said Notice of Right to Sue is attached hereto as Exhibit “2”.

Compl. [Doc No. 1], ¶ 2. Plaintiff filed this lawsuit on October 13, 2016.

         Defendant asserts in its Motion that Plaintiff did not exhaust administrative remedies for the Title VII claim asserted in the Complaint because, except for the allegation that she was terminated due to her husband's resignation, the factual allegations underlying her gender discrimination claim were not included in her EEOC charge. Defendant also asserts that Plaintiff's Title VII and OADA claims regarding her termination are untimely. Defendant alleges that Plaintiff actually filed two EEOC charges and received two right-to-sue dismissal notices, but she filed suit only after the second notice, which was more than 90 days after she received the first notice. Based on this factual assertion, Defendant contends any Title VII or OADA claim of gender discrimination in Plaintiff's termination - which was asserted in the first EEOC charge and the subject of an EEOC notice issued in December 2015 - is time barred.

         Defendant thus mounts a two-pronged attack on Plaintiff's discrimination claim challenging (a) the sufficiency of Plaintiff's EEOC charge to administratively exhaust the gender discrimination claim asserted in the Complaint and (b) the timeliness of this suit. In support of its Motion, Defendant submits copies of Plaintiff's two EEOC charges and two dismissal notices. See Def.'s Mot. Dismiss, Exs. 1-4 [Doc. Nos. 7-1 to 7-4]. Plaintiff does not dispute the authenticity of these documents and, in fact, submits the same documents with her response brief. See Pl.'s Resp. Br., Exs. 1-4 [Doc. Nos. 8-1 to 8-4].

         Regarding the issue of whether an EEOC charge satisfies the administrative exhaustion requirement for the claim asserted, a plaintiff must show the claim is within “the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge.” See Jones v. UPS, Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (emphasis omitted). “In the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to suit” and may properly be raised by motion under Rule 12(b)(1). Id. at 1183; see Bertsch v., 684 F.3d 1023, 1030 (10th Cir. 2012); Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005); but see Gad v. Kans. State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015) (some administrative requirements are not jurisdictional).

         It is well settled that the 90-day time limit for filing suit after receiving a right-to-sue notice from the EEOC “is not jurisdictional, but is a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Jarrett v. U.S. Sprint Commc'ns Co., 22 F.3d 256, 259-60 (10th Cir. 1994); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983); see also Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995). However, the obligation to demonstrate a timely filing “is a condition precedent to suit and thus a burden for plaintiffs to carry.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007). This issue may properly be raised by a motion to dismiss under Rule 12(b)(6).[2]

         Standard of Decision

         “Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based.'” City of Albuquerque v. United States Dep't of Interior, 379 F.3d 901, 906 (10th Cir. 2004) (citing Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002)). Where “the movant goes beyond the allegations in the complaint and challenges the facts upon which subject matter jurisdiction depends . . ., the court must look beyond the complaint and has wide discretion to allow documentary and even testimonial evidence.” Paper, Allied Indus., Chem. & Energy Workers Int'l Union v. Continental Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005); see Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).

         “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Consideration of a Rule 12(b)(6) motion is limited to the face of the complaint, but “‘the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.'” See Alvarado v. KOB TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).


         A. Administrative Exhaustion of Plaintiff's Gender ...

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