United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court is defendant M&M Precision Components,
LLC's (M&M Precision) motion to dismiss (Dkt. # 21).
Defendants M&M Manufacturing, Inc. (M&M
Manufacturing) and Kenneth Staton join the motion (Dkt. #
23). Defendants argue that plaintiff's suit should be
dismissed for failure to exhaust administrative remedies.
Plaintiff responds that she has properly exhausted her
administrative remedies by filing a charge of discrimination
with the Equal Employment Opportunity Commission (EEOC) and
subsequently receiving a right to sue letter from the EEOC on
her claims. Dkt. # 31.
is a former employee of M&M Precision and M&M
Manufacturing. Dkt. # 2-1, at 2. Plaintiff filed this
case in the District Court of Tulsa County, State of
Oklahoma, alleging claims for sex discrimination and
retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. (Title VII), and the
Oklahoma Anti-Discrimination Act, Okla. Stat. tit. 25, §
1101 et seq. (OADA). Id. at 5-9. Plaintiff
asserted in her petition that she had “exhausted her
administrative remedies, and received her Notice of Suit
Rights within the ninety (90) day period preceding the filing
of [the petition].” Id. at 5. Plaintiff also
attached the right to sue letter from the EEOC to her
petition. See id. at 10.
argue that plaintiff's suit should be dismissed for
failure to exhaust administrative remedies. Dkt. ## 21, 23.
The exhaustion of administrative remedies is a jurisdictional
prerequisite under Title VII, and therefore defendants'
motion should be treated as a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1). See Shikles v.
Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
2005); Woodman v. Runyon, 132 F.3d 1330, 1342 (10th
Cir. 1997). Motions to dismiss under Rule 12(b)(1)
“generally take one of two forms. The moving party may
(1) facially attack the complaint's allegations as to the
existence of subject matter jurisdiction, or (2) go beyond
allegations contained in the complaint by presenting evidence
to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin.
Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir.
2004) (internal citation and quotations omitted). As the
parties rely on evidence outside the pleadings-specifically,
plaintiff's EEOC charge of discrimination and right to
sue letter, a declaration from an employee of M&M
Precision, and emails between plaintiff's counsel and the
EEOC and between plaintiff's counsel and counsel for
M&M Precision-the Court will construe the motion as a
factual attack on the jurisdictional facts alleged by
plaintiff. In ruling on a factual attack on subject matter
jurisdiction, a court “has wide discretion to allow
affidavits, other documents, and a limited evidentiary
hearing to resolve disputed jurisdictional facts”
without converting the motion into a motion for summary
judgment. Stuart v. Colo. Interstate Gas Co., 271
F.3d 1221, 1225 (10th Cir. 2001) (quoting Holt v. United
States, 46 F.3d 1000, 1003 (10th Cir. 1995)); see
also Davis ex rel. Davis v. United States, 343 F.3d
1282, 1295-96 (10th Cir. 2003) (district court had authority
to review evidence outside the pleadings on issue of
exhaustion of administrative remedies without converting
defendant's motion to dismiss into a motion for summary
Precision argues that plaintiff has failed to prove she filed
a discrimination charge alleging either sex discrimination or
retaliation. Dkt. # 21, at 3. Amy Saum, vice president of
human resources for M&M Precision, states that she
received a notice of charge of discrimination for M&M
Precision that identified plaintiff as the complainant, but
did not include any details about the basis for the claim.
Dkt. # 21-1, at 1. Saum asserts that M&M Precision did
not receive any other documents related to plaintiff's
claims until plaintiff filed this lawsuit. Id. at 2.
M&M Precision argues that the notice of charge did not
satisfy Title VII, which states that:
Whenever a charge is filed by or on behalf of a person
claiming to be aggrieved . . . alleging that an employer . .
. has engaged in an unlawful employment practice, the [EEOC]
shall serve a notice of the charge (including the date, place
and circumstances of the alleged unlawful employment
practice) on such employer . . . within ten days, and shall
make an investigation thereof.
42 U.S.C. § 2000e-5(b). To the extent M&M Precision
is arguing that the EEOC's failure to comply with §
2000e-5(b) renders plaintiff's exhaustion incomplete, its
argument has been rejected by the Tenth Circuit. Whether the
EEOC failed to send M&M Precision sufficient notice of
the charge under Title VII is irrelevant to plaintiff's
exhaustion of administrative remedies because the Tenth
Circuit has clearly rejected the argument that the EEOC's
failure to provide an employer notice bars a plaintiff's
claim. Jones v. U.P.S., Inc., 502 F.3d 1176, 1185
(10th Cir. 2007) (“If we were to make notice to the
employer a determining factor for exhaustion, the plaintiff
would bear the burden of the EEOC's failure in handling a
charge. But it is the EEOC's, not the plaintiff's
duty to provide the charged party with notice within ten days
after a charge is filed; a plaintiff should not be penalized
for the EEOC's negligence in handling a charge.”)
M&M Precision filed its motion to dismiss,
plaintiff's counsel sent a copy of plaintiff's charge
of discrimination to all defendants. Dkt. # 31-13. The charge
of discrimination contains allegations of sex discrimination
and retaliation. Dkt. # 31-1, at 1. Plaintiff's counsel
has also provided emails with EEOC showing that he has
requested a copy of plaintiff's entire EEOC record.
See Dkt. # ##31-10, 31-11, 31-12. M&M Precision
filed a reply to plaintiff's response asking the Court to
stay its ruling on the motion to dismiss until the parties
have received the complete EEOC record. Dkt. # 34, at 1-2.
M&M Precision does not provide any authority to support
its argument or explanation for why the entire EEOC record
would be necessary to determine whether plaintiff has
exhausted her administrative remedies.
exhaust administrative remedies, a plaintiff must timely file
a charge of discrimination with the EEOC and receive a right
to sue letter. Noland v. City of Albuquerque, 779
F.Supp.2d 1214, 1222 (D.N.M. 2011) (citing Simms v. Okla.
ex rel. Dep't of Mental Health & Substance Abuse
Servs., 165 F.3d 1321, 1326 (10th Cir. 1999)). Plaintiff
alleged that she exhausted her administrative remedies in her
petition and attached her right to sue letter from the EEOC.
Plaintiff has also provided her signed charge of
discrimination that alleges sex discrimination and
retaliation. Plaintiff's entire EEOC record is
unnecessary to show that plaintiff has exhausted her
administrative remedies; her signed charge of discrimination
and right to sue letter from the EEOC are sufficient for the
Court to determine that plaintiff has complied with the
exhaustion requirement for her Title VII claims against
plaintiff has exhausted her administrative remedies related
to her OADA claim against M&M Precision by filing a
charge with the EEOC and receiving a right to sue letter.
See Okla. Stat. tit. 25, § 1350(B) (requiring a
plaintiff to file a charge of discrimination with the
Attorney General's Office of Civil Rights Enforcement
or the EEOC, and receive a right to sue letter,
before filing a claim under the OADA in a court of law).
plaintiff has established that she exhausted her
administrative remedies as to M&M Precision, the Court
does not have enough information at this time to determine
whether it has jurisdiction over M&M Manufacturing and
Staton. The charge of discrimination and right to sue letter
list M&M Precision as the employer that allegedly
discriminated against plaintiff. Plaintiff has presented no
evidence that she exhausted her claims against M&M
Manufacturing or Staton. Further, while an individual may
qualify as an employer under Title VII for the purpose of
imputing liability to the true employer, the individual is
the alter ego of the employer and may not be sued in his
personal capacity. Haynes v. Williams, 88 F.3d 898,
899 (10th Cir. 1996). Because M&M Manufacturing and
Staton joined M&M Precision's motion and did not
brief subject matter jurisdiction as to them specifically,
the Court will provide M&M Manufacturing and Staton the
opportunity to submit briefs in support of their joinder in
the motion to dismiss (Dkt. # 23) and plaintiff the
opportunity to respond, before ruling on the motion to
dismiss the claims against M&M Manufacturing and Staton.
IS THEREFORE ORDERED that defendant M&M
Precision Components, LLC's motion to ...