United States District Court, N.D. Oklahoma
HARRY R. JOHNSON, Plaintiff,
WAL-MART STORES EAST, LP, Defendant.
OPINION AND ORDER
GREGORY K. FRlZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the court is the Motion for Partial Dismissal [Doc. No. 8] of
defendant Wal-Mart Stores East, LP. For the reasons set forth
below, the motion is granted in part and denied in part.
an employment discrimination lawsuit arising from plaintiff
Harry R. Johnson's employment with and termination from
Wal-Mart. Specifically Mr. Johnson alleges Wal-Mart failed to
accommodate his mental disability, terminated him, and
retaliated against him for requesting medical leave. He filed
a charge with the Equal Employment Opportunity Commission
(“EEOC”) to that effect on November 10, 2014. The
EEOC issued a determination in Mr. Johnson's favor on
August 24, 2016, and when conciliation efforts failed, issued
a right to sue letter on March 23, 2017. Mr. Johnson filed
suit in this court on June 16, 2017, bringing claims under
the Oklahoma Anti-Discrimination Act (“OADA”), 25
O.S. § 1101, et seq., and the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101,
et seq. Wal-Mart now moves to dismiss Mr.
Johnson's OADA claims and ADA claims for retaliation and
courts are courts of limited jurisdiction.” See
Celli v. Shoell, 24');">40 F.3d 324, 327 (10th Cir. 1994). To
that end, Fed.R.Civ.p. 12(b)(1) authorizes courts to dismiss
cases for lack of subject-matter jurisdiction. Challenges to
subject-matter jurisdiction “take one of two forms: (1)
facial attacks; and (2) factual attacks.” Paper,
Allied-Indus., Chem. & Energy Workers Int'l Union v.
Continental Carbon Co., 28 F.3d 1285');">428 F.3d 1285, 1292 (10th Cir.
2005). Facial attacks “merely challenge the sufficiency
of the complaint, requiring the . . . court to accept the
allegations in the complaint as true.” Id.
Factual attacks “go[ ] beyond the allegations in the
complaint and challenge[ ] the facts upon which
subject[-]matter jurisdiction depends.” See
Id. In such situations, the court has “wide
discretion” to consider documentary and testimonial
evidence. See Id. And the court need not convert a
motion to dismiss under Rule 12(b)(1) to a motion for summary
judgment under Fed.R.Civ.P. 56 unless the “resolution
of the jurisdictional question is intertwined with the merits
of the case.'” See Id. (quoting Holt
v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)).
moves to dismiss Mr. Johnson's OADA claims as
time-barred; it moves to dismiss his accommodation- and
retaliation-based ADA claims for failure to exhaust
administrative remedies. The court addresses each argument in
OADA prohibits employers from discharging or otherwise
discriminating against any individual with respect to
compensation, terms, conditions, or privileges of employment
on the basis of disability. 25 O.S. §§ 1302(A)(1),
1301(4). As a precondition to suit, “the OADA requires
a plaintiff to file a charge of discrimination” either
with the EEOC or the Oklahoma Attorney General's Office
“within 180 days from the last date of the alleged
discrimination.” Tolbert v. Ean Servs., LLC,
No. 15-CV-735-GKF-TLW, 2016 WL 796096, at *3 (N.D. Okla. Feb.
26, 2016) (citing 25 O.S. §1350(B)). That requirement is
jurisdictional. See Id. (citing Stuart v. Colo.
Interstate Gas Co., 271 F.3d 1221');">271 F.3d 1221, 1225 (10th Cir.
2004)). “[T]he timely filing of a charge is required
‘[i]n order to have standing in a court of law to
allege discrimination arising from an employment-related
matter.'” Id. (quoting 25 O.S. §
Mr. Johnson filed his charge well after the 180 days provided
by the OADA. Whether the date of alleged discrimination is
February 4, 2014-when Mr. Johnson requested medical leave-or
March 3, 2014-when he was terminated-Mr. Johnson did not file
his EEOC charge within 180 days. And he does not argue to the
contrary. Rather, Mr. Johnson contends that, because the EEOC
and Oklahoma's Office of Civil Rights Enforcement have a
worksharing agreement, in which each is designated as the
other's agent for purposes of receiving charges, the
deadline for filing a charge was extended to 300 days.
contention lacks merit. It is true that for a federal ADA
claim, a worksharing agreement extends the limitations period
to 300 days. Smith v. Oral Roberts Evangelistic
Ass'n, Inc., 84');">731 F.3d 684, 697 (10th Cir. 1984).
That is because a state filing need not be timely in order to
qualify for a federal extension-“state procedural
defaults cannot foreclose federal relief and [a] state
limitations period cannot govern the efficacy of [a] federal
remedy.” Id. at 690 (quotation marks and
citation omitted). But a timely federal filing cannot
remedially extend a state-law statute of limitations.
Forcum v. Via Christi Health System, Inc., 137 P.3d
1250, 1253 (Okla.Civ.App. 2006). To that end, Mr.
Johnson's OADA claims are “barred by the 180-day
filing period, and is not affected by the extended
federal” deadline. Id.; see also Lottinger
v. Shell Oil Co., 2d 743');">143 F.Supp.2d 743, 753 (S.D. Tex.
2001); Zysk v. FFE Minerals USA, Inc., 225 F.Supp.2d
482, 494 (E.D. Pa. 2001).
plaintiff must exhaust administrative remedies as a
precondition to suit under the ADA. See Owens v. City of
Barnsdall, 13-CV-749-TCK-PJC, 2014 WL 2197798, at *2
(N.D. Okla. May 27, 2014). And “remedies generally must
be exhausted as to each discrete instance of discrimination
or retaliation.” See Apsley v. Boeing Co., 691
F.3d 1184, 1210 (10th Cir. 2012). That requirement is
jurisdictional. See id.; Jones v. U.P.S.,
Inc., 2 F.3d 1176');">502 F.3d 1176, 1183 (10th Cir. 2007). “A
plaintiff's claim in federal court is generally limited
by the scope of the administrative investigation that can
reasonably be expected to follow the charge of ...