United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE
this Court is Defendant INTEGRIS Baptist Medical Center,
Inc.'s Motion to Dismiss (Doc. 6). The matter is fully
briefed and at issue. See Docs. 6, 9-10. For the
reasons stated herein, the Court DENIES Defendant's
Court takes as true all well-pleaded factual allegations in
the complaint and views them in the light most favorable to
Plaintiff. See Burnett v. Mortg. Elec. Registration Sys.,
Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). Plaintiff
Allison Nazinitsky brings claims under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq., and the Equal Pay Act
(“EPA”), 29 U.S.C. § 206(d)(1). See
Doc. 1, at 3-5. Plaintiff is a board-certified physician of
internal medicine and infectious disease, and she was hired
by Defendant in this capacity in 2015. Id. at
While employed with Defendant, Plaintiff was paid less than
her male counterparts for substantially similar work;
specifically, a male transplant nephrologist and a male
medical director each received salaries falling within the
ninety-ninth percentile of compensation for their positions,
while Plaintiff's salary fell within the twenty-fifth
percentile for her position. Id. at 2-3. Moreover,
she was not provided adequate support staff, including no
secretarial, nursing, or medical assistance, during her
employment with Defendant. Id. at 3. Plaintiff
complained about this mistreatment, but Defendant did not
address her concerns. Id. After an accusation of
inappropriate conduct was lodged against Plaintiff-which she
asserts was false and retaliatory-she was constructively
discharged on May 17, 2017. Id. at 2-3.
on these allegations, Plaintiff brings charges of
discriminatory and retaliatory discharge, unequal pay, and a
hostile work environment-all in violation of Title VII- and
unequal pay in violation of the EPA. Id. at 3-5.
Defendant moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
See Doc. 6.
Legal Standards for a Fed.R.Civ.P. 12(b)(6) Motion to
legally-sufficient complaint must include “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a). In operation, the
rule requires that a complaint contain “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face'” to survive a
motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This standard “is ‘a
middle ground between heightened fact pleading . . . and
allowing complaints that are no more than labels and
conclusions or a formulaic recitation of the elements of a
cause of action.'” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008)). That is, the plaintiff's complaint “need
only give the defendant fair notice of what the claim is and
the grounds upon which it rests.” Id. at 1192
(internal quotation marks and citations omitted). While
assessing plausibility is “a context-specific task . .
. requir[ing] . . . court[s] to draw on [their] judicial
experience and common sense, ” Iqbal, 556 U.S.
at 679, complaints “‘plead[ing] factual content
that allows the court to . . . reasonabl[y] infer that the
defendant is liable for the misconduct alleged'”
are facially plausible. See S.E.C. v. Shields, 744
F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556
U.S. at 678).
makes three arguments in favor of dismissal: Plaintiff (1)
fails to plead sufficient factual content to indicate whether
her Title VII claims are timely, (2) failed to exhaust her
hostile work environment claim, and (3) fails to plausibly
state an EPA claim. See Doc. 6. These arguments are
Defendant's Exhaustion-Related Arguments
first two arguments center on whether Plaintiff timely and
properly exhausted her Title VII claims. Doc. 6, at 1-7.
Failure to exhaust is an affirmative defense. Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018).
Consequently, Defendant may raise it on a motion for dismiss
if the “grounds for the defense appear on the face of
the complaint.” Cirocco v. McMahon, No.
18-1096, ___ Fed.Appx. ___, 2019 WL 1594778, *3 (10th Cir.
April 15, 2019); cf. Sierra Club v. Okla. Gas & Elec.
Co., 816 F.3d 666, 671 (10th Cir. 2016) (“A
statute of limitations defense may be appropriately resolved
on a Rule 12(b) motion when the dates given in the complaint
make clear that the right sued upon has been
extinguished.” (internal quotation marks, citation, and
employee wishing to challenge an employment practice under
Title VII must first ‘file' a ‘charge' of
discrimination with the EEOC.” Montes v. Vail
Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007)
(quoting 42 U.S.C. § 2000e-5(e)(1)). “A plaintiff
normally may not bring a Title VII action based upon claims
that were not part of a timely-filed EEOC charge for which
the plaintiff has received a right-to-sue letter.”
Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194
(10th Cir. 2004) (internal quotation marks, citation, and
brackets omitted). The EEOC charge must be filed within a
specific time period-for Plaintiff, 300 days-after the
alleged unlawful employment practice occurred. 42 U.S.C.
§ 2000e-5(e)(1); see also Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 109 (2002).
the charge-filing clock begins to run depends on the type of
unlawful employment practice being alleged. For
“discrete retaliatory or discriminatory act[s], ”
such as “termination, failure to promote, denial of
transfer, or refusal to hire, ” a plaintiff must file a
charge covering these acts within 300 days of the date upon
which they happened. Morgan, 536 U.S. at 110, 114;
see also Martinez v. Potter, 347 F.3d 1208, 1210
(10th Cir. 2003) (“[E]ach discrete [discriminatory or
retaliatory] incident . . . constitutes its own unlawful
employment practice for which administrative remedies must be
exhausted.” (internal quotation marks and citation
omitted)). Title VII hostile work environment and disparate
pay claims operate differently. For hostile work environment
claims, “[i]t does not matter . . . that some of the
component acts of the hostile work environment fall outside
the statutory time period” so long as “an act
contributing to the claim occurs within the filing
period.” Morgan, 536 U.S. at 117. Similarly,
the time period for filing an EEOC charge alleging disparate
pay resets with “each paycheck affected by a
discriminatory decision.” Groesch v. City of
Springfield, 635 F.3d 1020, 1024 (7th Cir. 2011);
see also 24 U.S.C. § 2000e-5(e)(3) (“[A]n
unlawful employment practice occurs, with respect to
discrimination in compensation . . . when an individual is
affected by application of a discriminatory compensation
decision or other practice, including each time wages,
benefits, or other compensation is paid . . . .”);
Salemi v. Colo. Pub. Emps.' Ret. Ass'n, 747
Fed.Appx. 675, 689 n.7 (10th Cir. 2018) (noting that
“Congress, by way of the Lilly Ledbetter Fair Pay Act .
. . apparently subject[ed] claims based on disparate pay to
the continuing violation theory for purposes of exhaustion .
. . ”).
first argues that Plaintiff's complaint lacks
“specific time-references or dates for the acts alleged
or for the asserted bases of gender discrimination and
retaliation.” Doc. 6, at 1-2. Because Plaintiff
“asserts [only] a very broad and general time
frame” in her complaint, says Defendant, her Title VII
claims are improperly pled and subject to dismissal.
Id. 2, 6. The Court is not convinced by this
argument. To begin, the parties seem to agree on the 300-day
period applicable here: as Plaintiff filed her EEOC charge on
March 6, 2018, she could pursue claims relating to acts
occurring as early as May 10, 2017, 300 days prior to the
charge filing date. See Doc. 6, at 5-6; Doc. 9, at
4; see also Doc. 10, at 1. Moreover, Defendant's
assertion that “Plaintiff does not provide a date
reference for . . . alleged acts of discrimination or
retaliation” is inaccurate. Plaintiff states that her
employment with Defendant ended on May 17, 2017, the day she
was constructively discharged. See Doc. 1, at 2-4.
Plaintiff also asserts that her May 17, 2017, discharge was,
in addition to being discriminatory, retaliatory. See
id. at 4-5. By Defendant's own admission, claims
arising from this discharge would be timely exhausted because
they fell within the 300-day period running from May 10,
2017, to March 6, 2018. Likewise, as Plaintiff avers that she
suffered wage discrimination and ...