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Walker v. Spirit Aerosystems, Inc.

United States District Court, N.D. Oklahoma

September 5, 2017

TONYA A. WALKER, Plaintiff,



         Before the Court is Defendant's Motion to Dismiss (“Motion to Dismiss”) (Doc. 12) pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).

         I. Factual Allegations in Complaint

         Plaintiff Tonya Walker was employed by Defendant Spirit Aerosystems, Inc. from May 19, 2006 until her discharge on October 13, 2015. In November of 2011, Plaintiff was diagnosed with Multiple Sclerosis (“MS”), which creates muscle weakness and fatigue. Plaintiff provided medical documentation of her diagnosis to Defendant in January of 2012 and requested a reasonable accommodation. Defendant treated Plaintiff in a retaliatory fashion, prompting Plaintiff to file a Charge of Discriminating with the Equal Employment Opportunity Commission (“EEOC”) on August 27, 2012, Charge No. 564-2012-01314 (“2012 Charge”). After Plaintiff received a right to sue letter, Plaintiff and a member of Defendant's human resources department, Martha Webb Jones, were able to resolve the issues to Plaintiff's satisfaction, and Plaintiff elected not to sue.

         In May of 2015, Plaintiff was working on an assignment referred to as “Center and Outboard D-Beams” (“D-Beams”). She was happy with this assignment and alleges she could perform the job without any accommodation. (Compl. ¶ 25.) After returning from a three-week medical leave, Plaintiff was removed from the D-Beams position and assigned to other jobs that were more demanding and required training she never received. Plaintiff alleges she “requested to be accommodated by being returned to the Center and Outboard D-Beams position” but that Defendant did not engage in a good-faith interactive process and denied her request. (Id. ¶ 34.) Plaintiff further alleges she began receiving write-ups and counseling for deficient work. Ultimately, she was placed on suspension and then terminated on October 13, 2015.

         On August 3, 2016, Plaintiff executed a second Charge of Discrimination, Charge 564-2016-01393 (“2016 Charge”), which is set forth in detail below. Plaintiff received her right to sue letter on the 2016 Charge and filed a Complaint in this Court asserting two causes of action. First, Plaintiff asserts a claim for “unlawful discrimination in employment/failure to accommodate, ” in violation of 42 U.S.C. § 12111(8) of the American with Disabilities Act (“ADA”). This claim is based on Defendant's failure to accommodate Plaintiff or engage in any interactive process when Plaintiff requested to return to the D-Beams position. (Compl. ¶¶ 53-55.) Second, Plaintiff asserts a claim for “unlawful discrimination in employment/retaliation, ” in violation of 42 U.S.C. § 12203. This claim is based on Defendant's alleged retaliatory actions of writing her up for deficient performance, suspending her, and ultimately discharging her after she requested the accommodation of returning to the D-Beams position. (Compl. ¶¶ 60-63.)

         II. Construction of Motion

         Defendant moves to dismiss because Plaintiff failed to exhaust administrative remedies as to the two claims asserted in the Complaint because they are not within the scope of the 2016 Charge. Specifically, Defendant contends Plaintiff failed to identify either of the two discrete employment actions alleged in the Complaint - failure to accommodate and retaliation - in her 2016 Charge. Defendant styled its motion as one pursuant to Rule 12(b)(6) and urges the Court to consider it as such. Plaintiff does not object to this procedure and cites the Rule 12(b)(6) standard in her response brief.

         The Tenth Circuit, and this Court, have traditionally treated exhaustion of administrative remedies as a jurisdictional prerequisite to a Title VII suit. See, e.g., Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (“Unlike many other circuits, we have held that a plaintiff's exhaustion of his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII not merely a condition precedent to suit.”). However, the Tenth Circuit held in 2015 that “verification” of an EEOC charge was not a jurisdictional requirement and was instead merely a condition precedent to filing suit. See Gad v. Kansas State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015). The Gad court called into question whether other “exhaustion requirements” - including whether the claim filed in district court is within the scope of the EEOC charge - should properly be treated as jurisdictional. See Id. (stating that logic in Shikles and similar Tenth Circuit precedent “is at odds with the Supreme Court's instructions”); see also Arabalo v. City of Denver, 625 F. App'x 851, 859-60 (10th Cir. 2015) (explaining that Gad “called into question some of our circuit's earlier decisions concluding we lacked subject-matter jurisdiction for other failures to meet Title VII's requirement” declining to overrule precedent such as Shikles; but then treating issue of whether rape was within scope of EEOC charge as a “condition precedent” rather than a jurisdictional requirement). In light of Gad and Arabalo, at least one judge in this district treated a Rule 12(b)(1) motion based on failure to exhaust remedies as a Rule 12(b)(6) motion. See Munoz v. Navistar Int'l Corp., No. 13-CV-357-JED-FHM, 2015 WL 5775183, at *2 (N.D. Okla. Sept. 30, 2015) (“The Court will instead determine the motion under Rule 12(b)(6), because the Tenth Circuit recently called into doubt prior decisions that Title VII exhaustion requirements are jurisdictional.”).[1]

         The Court follows the course outlined in Arabalo and Munoz. The Court assumes that, under the reasoning of Gad, any and all administrative exhaustion requirements that are not located in Title VII's jurisdictional subsection, 42 U.S.C. § 2000e-5(f)(3), are merely conditions precedent to suit rather than jurisdictional prerequisites. Neither party has urged that the Court treat the issue as jurisdictional, and the Court concludes that this treatment is best supported by Tenth Circuit law as a whole. Accordingly, the Court will consider the motion under the Rule 12(b)(6) standard.

         III. Rule 12(b)(6) Standard[2]

         In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief may be granted. “To survive a motion to dismiss, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original).

         The Tenth Circuit has interpreted “plausibility, ” the term used by the Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248.

         IV. ...

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