Jones v. Needham, 051217 FED10, 16-6156
|Opinion Judge:||KELLY, Circuit Judge.|
|Party Name:||BRYAN 'SHANE' JONES, Plaintiff-Appellant, v. JULIE NEEDHAM; NEEDHAM TRUCKING, L.L.C., Defendants-Appellees. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Amicus Curiae.|
|Attorney:||Bill V. Wilkinson, Tulsa, Oklahoma, for Plaintiff-Appellant. Joshua W. Solberg (Elizabeth Bowersox, with him on the brief), of McAfee & Taft A Professional Corporation, Oklahoma City, Oklahoma, for Defendants-Appellees. Philip M. Kovnat (P. David Lopez, General Counsel, Jennifer S. Goldstein, Ass...|
|Judge Panel:||Before KELLY, EBEL, and BACHARACH, Circuit Judges. BACHARACH, J., dissenting.|
|Case Date:||May 12, 2017|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:15-CV-00978-HE).
Bill V. Wilkinson, Tulsa, Oklahoma, for Plaintiff-Appellant.
Joshua W. Solberg (Elizabeth Bowersox, with him on the brief), of McAfee & Taft A Professional Corporation, Oklahoma City, Oklahoma, for Defendants-Appellees.
Philip M. Kovnat (P. David Lopez, General Counsel, Jennifer S. Goldstein, Associate General Counsel and Lorraine C. Davis, Assistant General Counsel, with him on the brief), of Equal Employment Opportunity Commission, Office of General Counsel, Washington, D.C., for Amicus Curiae.
Before KELLY, EBEL, and BACHARACH, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant Bryan "Shane" Jones appeals from the district court's dismissal of his Title VII sex discrimination claim against Defendant-Appellee Needham Trucking, LLC and his state law tort claim for wrongful interference with a contractual relationship against Defendant-Appellee Julie Needham. See Jones v. Needham, No. CIV-15-0978-HE, 2016 WL 2659618 (W.D. Okla. May 6, 2016). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.
Mr. Jones worked as a mechanic for Needham Trucking from May to November of 2014. 1 Aplt. App. 46. According to Mr. Jones, he was fired because he would not have sex with Ms. Needham, his direct supervisor and a shareholder of the business.
Mr. Jones completed an intake questionnaire with the EEOC. He checked the boxes for "Sex" and "Retaliation" as the reasons for his claims of employment discrimination, and also wrote out "sex har[as]sment." Id. at 43. He provided a comparator, another mechanic who "was treated better because he had sex with Ms. Needham." Id. And he listed two witnesses, both of whom would testify that they knew of the sexual harassment. Id. at 45. In response to questions seeking more detailed explanations, Mr. Jones wrote "[s]ee attached." Id. at 43. That referenced a six-paragraph statement by Mr. Jones, which concluded with "I was terminated because I refused to agree to Ms. Needham's sexual advances and I rejected all such efforts by her." Id. at 46.
Apparently the attachment never made it to the EEOC, nor did the EEOC alert Mr. Jones that it was missing. See 2 Aplt. App. 69-71. Nevertheless, the EEOC prepared the following charge form on behalf of Mr. Jones: I. I have been employed with Needham Trucking LLC since on or about May, 2014. During my employment I was subjected to sexual remarks by owner, Julie Needham. I complained to General Manager, Jonathan Needham and Stephanie Needham about the sexual harassment. Nothing was done. On or about November 3, 2014, Julie Needham terminated my employment.
II. No reason was given for the sexual harassment. No reason was given for not stopping the sexual harassment. No reason was given for my retaliatory termination.
III. I believe I have been discriminated against and retaliated against for participating in a protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended.
1 Aplt. App. 41.
After the EEOC issued a right-to-sue letter, Mr. Jones filed suit against Needham Trucking and Ms. Needham with claims of sexual harassment, negligence, negligent or intentional infliction of emotional distress, wrongful interference with a contractual or business relationship, and violation of the Oklahoma Employment Security Act of 1980 ("OESA"). Id. at 9-15. Mr. Jones made clear that his sexual harassment claim took the form of both hostile work environment discrimination and quid pro quo discrimination that culminated in a tangible employment action "result[ing] from his refusal to submit to a supervisor's sexual demands." Id. at 10.
Needham Trucking and Ms. Needham moved to dismiss all but Mr. Jones's hostile work environment claim, id. at 22-23, and Mr. Jones voluntarily dismissed his claims for negligence and infliction of emotional distress. Aplee. Supp. App. 16. The district court then granted the partial motion to dismiss. It held that Mr. Jones failed to exhaust his administrative remedies for his quid pro quo sexual harassment claim, that his state law tort claim was precluded by the Oklahoma Anti-Discrimination Act ("OADA"), and that his OESA claim failed for want of a private right of action. Jones, 2016 WL 2659618, at *1-3. Mr. Jones moved to dismiss with prejudice his remaining claim for hostile work environment sexual harassment, which the district court granted. Order Granting Motion to Dismiss, Jones v. Needham, No. 5:15-cv-00978-HE (W.D. Okla. June 7, 2016), ECF No. 35. This appeal followed.1
Although the district court described the exhaustion of administrative remedies as a jurisdictional requirement under Title VII, Jones, 2016 WL 2659618, at *1, our recent cases suggest that exhaustion in this context might be better characterized as a claims-processing obligation. See Gad v. Kan. State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015); see also Arabalo v. City of Denver, 625 F.App'x 851, 860 (10th Cir. 2015) (unpublished); Pham v. James, 630 F.App'x 735, 737-38 (10th Cir. 2015) (unpublished).2 Regardless, our review of the district court's dismissal for failure to state a claim or for lack of subject matter jurisdiction is de novo. SEC v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (Rule 12(b)(6)); McKenzie v. U.S. Citizenship & Immigration Servs., 761 F.3d 1149, 1154 (10th Cir. 2014) (Rule 12(b)(1)).
A. Quid Pro Quo Sexual Harassment and Exhaustion of Administrative Remedies
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1). Sexual harassment has long been included in this proscription of sex discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986); 29 C.F.R. § 1604.11(a). Such sexual harassment traditionally takes one of two forms. The first is "quid pro quo" harassment, in which a plaintiff "proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). The second is "hostile work environment" harassment, in which conduct that does not result in a tangible employment...
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