United States District Court, W.D. Oklahoma
LA DONNA J. SALINAS, Plaintiff,
TRIPLE F. TRUCKING, Defendant.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
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
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. To demonstrate the exhaustion of
administrative remedies, the Complaint states in pertinent
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.
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.
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
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.
Overstock.com, 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).
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
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).
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).
Administrative Exhaustion of Plaintiff's Gender