United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court is the Motion to Dismiss Plaintiff's Petition
pursuant to Fed.R.Civ.P. 12(b)(6), filed by Defendant Triumph
Aerostructures - Tulsa, LLC (“Triumph”) Doc. 11.
Plaintiff Don Christensen opposes the motion. Doc. 12.
Don Christensen, a former Triumph employee, sued Triumph in
Tulsa County, Oklahoma, District Court on September 5, 2018,
alleging claims of discrimination based on disability in
violation of the Americans with Disabilities Act of 2008
(“ADA”), as amended by the ADA Amendments Act
(“ADAAA”), and the Age Discrimination in
Employment Act of 196 as amended, 29 U.S.C. § 621 et
seq. (“ADEA”). Petition, Doc. 2-2. Triumph
removed the case to federal court on October 3, 2018,
pursuant to 28 U.S.C. §§ 1331, 1441(a)-federal
question jurisdiction. Notice of Removal, Doc. 2.
pending motion, Triumph asserts that Plaintiff's claims
are subject to dismissal because he failed to timely exhaust
the administrative process with the Equal Employment
Opportunity Commission (“EEOC”), as required by
42 U.S.C. §2000e-5(e)(1), and-after receiving a Notice
of Right to Sue from the EEOC-failed to file his lawsuit
within 90 days, as required by 29 U.S.C. §626(e), 29
C.F.R. §1601.28(e)(1) and 42 U.S.C. §2000e-5(f)(1).
Federal Express Corp. v. Holowecki, 552 U.S. 389
(2008), Plaintiff argues he properly exhausted the
administrative process by completing and submitting his
General Intake Questionnaire to the EEOC on August 21, 2017,
via certified mail.
Allegations of the Complaint
state court petition alleges he was terminated by Triumph on
October 31, 2016. Doc. 2-2, Petition, ¶34. He filed his
charge of discrimination on October 18, 2017. Doc. 11-1, EEOC
Notice. On November 6, 2017, Plaintiff filed a perfected
Charge with the EEOC alleging age and disability
discrimination and retaliation against Triumph. Doc. 11-2,
EEOC Charge. The EEOC served its Notice and Right to Sue on
Plaintiff's attorneys on June 6, 2018. Doc. 11-3. The
notice gave Plaintiff a deadline of 90 days from receipt of
the notice-i.e., until September 4, 2018-to file his
ADA and ADEA claims in federal or state court. Id.
filed his Petition in Tulsa County District Court on
September 5, 2018-91 days after issuance of the Right to Sue
letter. The Petition asserts claims for discrimination and
retaliation pursuant to the Americans With Disabilities Act
(“ADA”), 42 U.S.C. §12101 et seq.,
as amended by the ADA Amendments Act (“ADAAA”),
and the Age Discrimination in Employment Act, 29 U.S.C.
§ 621, et seq. (“ADEA”). Triumph
removed the case to federal court, and subsequently filed a
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), alleging
that Plaintiff had failed to exhaust the required
administrative process and timely file his claims, and
therefore, his claims for retaliation and discrimination were
time-barred. Docs. 2, 11.
February 28, 2019-after briefing on the Motion to Dismiss was
complete-Triumph filed its Amendment to its Motion to
Dismiss. Doc. 18. In the Amendment, Triumph advised the Court
of the Tenth Circuit's opinion in Lincoln v. BNSF
Railway Company, 900 F.3d 1166 (10th Cir. 2018), which
overruled long-standing precedent that administrative
exhaustion is a jurisdictional prerequisite to suit and
submits the complaint to dismiss under Fed.R.Civ.P. 12(b)(1).
However, it argues the Complaint is still subject to
dismissal for failure to state a claim because it is clear,
from the face of the Complaint, that Plaintiff failed to
exhaust his administrative remedies.
Tenth Circuit has held that it is appropriate to resolve a
statute of limitations defense on a Rule 12(b)(6) motion
“when the dates given in the complaint make it clear
that the right sued upon has been extinguished.”
Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d
666, 671 (10th Cir. 2016) (internal quotation marks omitted);
see also Wei v. Univ. of Wyoming, --- Fed.Appx. ---,
209 WL 117081 (10th Cir. 2019).
appellate court has stated that, in light of
Lincoln, the “distinction between a
jurisdictional requirement and an affirmative defense is
immaterial, ” and that “[t]he characterization is
important . . . only when the defendant has waived or
forfeited the issue[.]” Smith v. Cheyenne Ret.
Inv'rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018)
(quoting McQueen v. Colo. Springs Sch. Dist. No. 11,
488 F.3d 868, 873 (10th Cir.2007). Moreover, courts have
continued to dismiss claims for failure to exhaust
administrative remedies when the issue is raised as an
affirmative defense. Id. (“[I]n light of
Lincoln, if we agree that [Plaintiff] failed to
exhaust [his] administrative remedies we may affirm the
district court on alternative grounds.”) (citation
omitted); O'Kane v. Mead Johnson Nutrition Co.,
18-CV-273-CVE-FHM, 2019 WL 148667, at *3 (N.D. Okla. Jan. 9,
clear, based on Plaintiffs Complaint, that Plaintiff failed
to timely and properly exhaust his administrative remedies.