Dolin v. Thyssenkrupp Elevator Corp.

• Decision Date: 31 March 2017
• Docket Number: No: 2:16-cv-00529-MCA-GBW,: 2:16-cv-00529-MCA-GBW
• Parties: LJ DOLIN, Plaintiff, v. THYSSENKRUPP ELEVATOR CORPORATION, Defendant.
• Court: U.S. District Court — District of New Mexico

LJ DOLIN, Plaintiff, v. THYSSENKRUPP ELEVATOR CORPORATION, Defendant.

No: 2:16-cv-00529-MCA-GBW

UNITED STATES DISTRICT COURT IN THE DISTRICT OF NEW MEXICO

March 31, 2017

Memorandum Opinion and Order

THIS MATTER is before the Court upon Defendant ThyssenKrupp Elevator Corporation's (TKE's) Motion to Dismiss or, in the Alternative, for Summary Judgment (Motion), filed on June 5, 2016. [Doc. 7] Plaintiff L.J. Dolin (Dolin) responded on August 19, 2016. [Doc. 13] TKE replied on September 2, 2016. [Doc. 15] The Court has considered the parties' submissions and the relevant law, and is otherwise fully informed. For the following reasons, the Court GRANTS TKE's Motion as to Dolin's hostile-work-environment claim. The Court DENIES TKE's Motion in all other respects.

I. Background

TKE manufactures, installs, and services elevators throughout the United States. [Doc. 7-1, pg. 3 (asserting this fact); Doc. 13 (not disputing this fact)] Its mechanics who maintain those elevators are represented by the International Union of Elevator Constructors (IUEC). [Id.] The IUEC and TKE entered into a Collective Bargaining Agreement (CBA) which governs wages and employment of those mechanics. [Id.] In addition, "Local Representative (LR)" agreements govern mechanics who work in remote locations and provide for additional terms and conditions of employment. [Id.] Dolin worked in such a remote location and was subject to an LR agreement. [Doc. 7-1, pg. 3 (referencing the LR agreement applicable to Dolin); Doc. 13, pg. 3 (not disputing this fact)]

The LR agreement governing Dolin in 2008 included a wage provision stating that

[t]he Employee will be paid based upon the Local No. 131 wage rate in accordance with the prevailing wages, fringes, and Local Expense Agreement negotiated between the Company and the Local., [sic] During the first six (6) months of this assignment, she will be paid six-percent (6%) above the mechanic rate and shall thereafter be paid twelve and one-half (12.5%) above scale as long as she is assigned to the Roswell, NM Local Office.

[Doc. 7-3; see also Doc. 13, Ex. A, pg. 5 (2009 local office assignment with the same provision)] Dolin was paid consistently with this provision until March, 2010, when she was terminated. [Doc. 7-1, pg. 4 (stating this fact); Doc. 13, pg. 3 (not disputing this fact)]

In April, 2010, Dolin filed a complaint with the New Mexico Department of Workforce Solutions/Equal Employment Opportunity Commission (EEOC) alleging wrongful termination on the basis of sex and sexual orientation. [Doc. 7-1, pg. 4 (stating this fact); Doc. 13, pg. 3 (not disputing this fact)] The parties settled the dispute in August, 2010. As part of the settlement, Dolin agreed to withdraw her complaint and the New Mexico Department of Workforce Solutions closed its file related to Dolin's charge. [Doc. 7-1, pg. 4 (stating that the file was closed); Doc. 13, pg. 3 (stating that Dolin requested that the file be closed)] In addition, TKE agreed to pay Dolin a lump sum of $29,266 and to reinstate her to "her former position" at the "prevailing negotiated Mechanic's wage rate of IUEC Local 131." [Doc. 7-1, pg. 4 (stating these facts); Doc. 13, pg. 3 (not disputing these facts); Doc. 7-5 (the Settlement Agreement)]

The present dispute arises out of TKE's failure to pay Dolin the 12.5% supplement over the base wage rate for Service Mechanics. From August, 2010 to February, 2016, when Dolin was transferred to another TKE location, she was paid the base mechanic's wage without the 12.5% supplement. [Doc. 1, ¶ 44 (stating that TKE discriminated against her "whenever [it] issued [Dolin] pay checks that withheld the 12.5% LR Service Mechanic rate."); Doc. 7-1, pg. 4 n. 4; Doc. 13, pg. 3 (referencing the "plus rate")] Dolin contends that she never agreed in the Settlement Agreement to a wage rate that did not include the 12.5% supplement. [Doc. 13, pg. 3, ¶ 4]

Dolin filed a second EEOC complaint in January 2014, alleging discrimination based on sex and sexual orientation, as well as retaliation. [Doc. 7-8] The form alleged that the discrimination was a "continuing action" that took place from August 11, 2010 to January 17, 2014. [Doc. 7-8] The EEOC issued a "Notice of Right to Sue" to Dolin in March 2016. [Doc. 1, ¶ 7]

In June 2016, Dolin filed a Complaint in this Court alleging that TKE discriminated against her based on her sex by paying her less than it paid similarly situated male workers performing similar work. [Doc. 1] Dolin also alleges that TKE retaliated against her for filing the 2010 claim of discrimination with the EEOC. [Doc. 1, ¶¶ 51, 53-54; Doc. 13, pg. 4, ¶ 9]

TKE now moves for dismissal of Dolin's claims. TKE argues that some of Dolin's claims should be dismissed for lack of jurisdiction under Rule 12(b)(1) and that other claims should be dismissed for failure to state a claim under Rule 12(b)(6). TKE also argues, in the alternative, that it should be granted summary judgment on Dolin's pay discrimination claims under Rule 56. [Doc. 7]

II. Discussion

TKE makes three arguments. First, that Dolin's hostile-work-environment and retaliation claims must be dismissed because Dolin failed to exhaust administrative remedies. TKE argues that such failure deprives this Court of jurisdiction over these claims under Rule 12(b)(1). Second, that Dolin has inadequately pled sex discrimination and retaliation claims under Rule 12(b)(6). Third, that it is entitled to summary judgment because there is no dispute that Dolin agreed to forego the 12.5% supplement in the 2010 Settlement Agreement. These arguments are addressed in turn.

Motion to Dismiss Under Rule 12(b)(1)

TKE argues that this Court does not have subject matter jurisdiction over Dolin's harassment/hostile-work-environment and retaliation claims because Dolin failed to exhaust administrative remedies regarding those claims. [Doc. 7-1, pg. 7-8]

Motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) "generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Here, TKE's challenge rests on the facts behind Dolin's 2014 EEOC complaint. Therefore, TKE mounts a factual attack on this Court's jurisdiction. "In reviewing a factual attack, a court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts," and a court's reference to such materials does not necessarily convert such a factual attack into a Rule 56 motion. Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal quotation marks and citation omitted). Unless it is shown that no re-drafting of the pleadings could cure the jurisdictional defect, a dismissal for lack of subject-matter jurisdiction generally is not a decision on the merits and, therefore, constitutes a dismissal without prejudice. Hollander v. Sandoz Pharm. Corp., 289 F.3d 1193, 1216 (10th Cir. 2002) (holding that a dismissal based on jurisdiction did not address the merits and should be without prejudice); see Fed. R. Civ. P. 41(b).

Harassment/Hostile Work Environment

TKE maintains that Dolin's harassment/hostile-work-environment claims were not included in her 2014 EEOC charge and that this Court lacks "jurisdiction over claims that are not part of a timely EEOC charge." [Doc. 7-1, pg. 8] The Court notes that there is no explicit claim of "harassment" or "hostile work environment" in Dolin's Complaint. However, she does reference harassment and hostile work environment in two of her assertions. [Doc. 1, ¶¶ 50, 59] To the extent that Dolin makes harassment or hostile-work-environment claims, such claims must be dismissed because they were not exhausted through the EEOC administrative process.

Although there are cases stating that failure to exhaust administrative remedies raises jurisdictional questions, recent cases have held that some aspects of exhaustion are merely preconditions to suit, not jurisdictional. In Shikles v. Sprint/United Management Co., our Tenth Circuit stated 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." 426 F.3d 1304, 1317 (10th Cir. 2005). In Gad v. Kansas State University, however, the Tenth Circuit held that Title VII's requirement that an EEOC charge be verified, although a requirement for filing for an administrative remedy, is not jurisdictional. 787 F.3d 1032, 1038 (10th Cir. 2015). Instead, the verification requirement is an important component of an EEOC claim that may be raised (or waived) as a defense. Id. at 1040 (stating that "[h]olding verification non-jurisdictional does not imply any diminution in the need for plaintiffs to comply with this Title VII requirement" and that "an employer that identifies and raises a verification defect may still achieve the dismissal of a plaintiff's suit," and calling the verification requirement "a waivable claim processing provision that does not invoke our subject matter jurisdiction" (alterations, internal quotation marks and citation omitted)). Although the Gad Court did not expressly overrule Shikles, it stated that Shikles depended on earlier cases that preceded United States Supreme Court cases addressing Title VII jurisdictional issues and that "the subsequent development of the law underscores the limited force our earlier cases retain today." Gad, 787 F.3d at 1040. In Zipes, the United States Supreme Court stated that compliance with the filing deadlines in Title VII was not jurisdictional, indicating that not every aspect of the administrative requirements is jurisdictional. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). See Arabalo v. City of Denver, 625 F. App'x 851, 859-60 (10th Cir....