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Jones v. Standard Consulting

United States District Court, W.D. Oklahoma

March 24, 2017

KANDI JONES, Plaintiff,



         Defendant Standard Testing and Engineering has filed a Motion to Dismiss (Doc. No. 28), to which Plaintiff has filed a response. Defendant filed a reply in support of its motion and the Court granted Plaintiff leave to file a sur-reply in support of her position. Defendant filed an additional reply in support of its position. Following the filing of the briefs on the motion to dismiss, Plaintiff filed a Notice of Additional Authority (Doc. No. 29). In reaction thereto Defendant filed a Motion to Strike (Doc. No. 31), to which Plaintiff filed a response. Having considered the parties' submissions, the Court finds as follows.[1]

         Defendant's Motion to Strike (Doc. No. 31) is hereby DENIED. The Court is capable of discerning whether the authority provided by Plaintiff as a supplement to her prior filings is applicable in this action without the need for a motion by Defendant, necessitating a response by Plaintiff, and potentially a reply by Defendant. The Court therefore turns to Defendant's motion to dismiss.

         Defendant contends dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate because Plaintiff did not exhaust her Title VII, ADEA, and OADA claims against it, because Standard testing and Engineering Company was not named as a respondent in her EEOC charge.[2] The Tenth Circuit's position on whether exhaustion is jurisdictional or merely a condition precedent has been in a state of evolution in recent years. Recently, in Wickware v. Manville, ___ Fed.Appx. ___ (10th Cir. Jan. 17, 2017), a panel of the court noted:

We acknowledge that we have previously held that “[i]n the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to suit.” Jones v. U.P.S, Inc., 502 U.S. 1176, 1183 (10th Cir. 2007). . . . However, subsequently in Gad v. Kansas State University, 787 F.3d 1032 (10th Cir. 2015), in holding that the EEOC's “verification requirement”─that is, the EEOC's requirement that charges be verified (i.e., notarized or signed under penalty of perjury) was “not jurisdictional, ” id. at 1036, we analyzed recent Supreme Court precedent and “reexamined the issue of whether exhaustion of administrative remedies is jurisdictional, ” Hung Thai Pham v. James, 630 Fed.Appx. 735, 737 (10th Cir. 2015). Gad raises the question of whether the district court's jurisdictional rationale here remains legally viable. . . . However, we need not resolve that question. . . . [E]xhaustion of administrative remedies is still an important condition precedent to a lawsuit under the ADA and, because [Defendant] has never waived or forfeited its exhaustion defense, [Plaintiff] must still establish that he exhausted his retaliation claim.

Id. at *11 n. 4. Despite the Tenth Circuit's apparent criticism of the District Court in Wickware, as noted by the Circuit, in Arabalo v. City of Denver, 625 Fed.Appx. 851 (10th Cir. 2015), the circuit, and accordingly this Court, are “bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.” Id. at 859 (quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)). As such, the Court concludes that it is appropriate to address this motion under Rule 12(b)(1).

         Generally, to proceed against a party on a Title VII or ADEA claim, a plaintiff must name the defendant as her employer in an EEOC charge. Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10th Cir.1999). There are two narrow exceptions to this rule, when “the defendant was informally referred to in the body of the charge or where there is sufficient identity of interest between the respondent and the defendant to satisfy the intention of Title VII [and the ADEA] that the defendant have notice of the charge and the EEOC have an opportunity to attempt conciliation.” Romero v. Union Pac. R.R., 615 F.2d 1303 (10th Cir.1980).[3] The Romero Court identified four factors for the Court to consider when a plaintiff seeks to bring an employment discrimination claim against a defendant not named in her EEOC charge:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named party are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Id. at 1312 (internal quotations omitted). The Court must keep in mind that “complaints to the EEOC must be liberally construed in order to accomplish the purposes of the Act, since such complaints are written by laymen not versed either in the technicalities of pleading or jurisdictional requirements of the Act.” Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 860 (10th Cir.1983)(quoting Romero, 615 F.2d at 1311).

         In its reply brief, Defendant contends Plaintiff cannot meet the Romero factors. The Court finds, however, that Plaintiff has sufficiently provided evidence in support of the Romero factors to avoid dismissal. The first factor weighs against Plaintiff, as she clearly was or should have been aware throughout her employment about the existence and relationship between StanTech and Standard Testing and Engineering Company to enable her to name both parties in her EEOC charge.[4] The Court finds, however, that the remaining factors weigh against dismissal of this action.

         The second factor is whether the interest of the named party is so similar to that of the unnamed party that for purposes of obtaining voluntary conciliation and compliance it would be unnecessary to include Standard Testing and Engineering in the EEOC proceedings. Defendant contends the majority owner of Standard Testing and Engineering is different from the majority owner of StanTech. In support of this argument, Defendant provides the affidavit of Eddie Proffitt, Chief Financial Officer of Standard Testing and Engineering Company. Mr. Proffitt avers that Standard Testing is majority owned by STEC Resources Corporation and that StanTech, LLC, is majority owned by Mary Kelly, and that they are separate companies, “with separation ownership interests.” Doc. No. 23-1. Plaintiff, however, presents a declaration stating that she worked at the North Office, known as StanTech, which was located 4300 N. Lincoln, but that her office and an office at 3400 N. Lincoln were referred to, interchangeably, as StanTech or Standard Testing and Engineering. She asserts that StanTech and Standard Testing and Engineering shared certain services including accounting, payroll, benefits, and human resources. Plaintiff contends that her sick and vacation leave were tracked by employees of Standard Testing and Engineering, and that although her paycheck indicated the payor was StanTech, LLC, she submitted her time sheets to Standard Testing and Engineering and its accounting department issued the checks. She further contends her health benefits were administrated by Standard Testing and Engineering. Finally, she outlines common management between the two entities, including the President, Tom Kelly, her supervisor, Rick Mudd, who served as Vice President of Standard Testing and Engineering, Eddie Proffitt, who was comptroller and human resources manager for both. She further contends that these persons identified the employees at both entities as employees of the same company, that the companies shared budgets and resources, and expenses for advertising and promotional materials. Finally, StanTech gave the “StanTech/Standard Testing and Engineering Company Employee Handbook” to Plaintiff. It refers throughout to “the Company, ” without specifying to which entity its terms applied. Given the alleged overlap in ownership and management interests, the Court finds that both StanTech and Standard Testing and Engineering had the same interests for purposes of conciliation and compliance. Mr. Kelly, the alleged decision maker, is purported to be in charge of both entities, and thus, would have had knowledge of the charge. Similarly, because Plaintiff alleges shared human resources functions, it is reasonable to assume at this juncture that Defendant Standard Testing and Engineering would have received notice of the charge against StanTech.

         Additionally, Defendant Standard Testing and Engineering Company has not alleged, nor can the Court conceive of prejudice as a result of Plaintiff's failure to include the entity in her EEOC charge. There was no settlement of Plaintiff's claims against Defendant Standard Consulting (successor of StanTech) such that Standard Testing and Engineering was deprived of an opportunity to settle its claims at the same time. Finally, with regard to the final Romero factor, Plaintiff alleges that Tom Kelly treated the entities as a single unit in many respects, including with regard to the employee handbook Plaintiff was provided. The facts set forth in her declaration and unrebutted by Defendant indicate that in many respects the companies and their respective employees were treated as a single entity.

         For these reasons, the Court concludes that Defendant Standard Testing and Engineering Company is not entitled to dismissal for lack of subject matter jurisdiction. Furthermore, even if the issue is not jurisdictional, Plaintiff has presented sufficient evidence to avoid dismissal under the single employer theory of liability or under Romero, despite her failure to include the movant in her EEOC charge.

         Defendant argues in its reply brief that Plaintiff's EEOC charge was untimely filed because it was not filed until 207 days after her termination. Defendant contends that because Plaintiff filed her charge with the EEOC and not the Oklahoma Office of Civil Rights Enforcement that she is not ...

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