Equal Emp't Opportunity Comm'n v. Horizontal Well Drillers, LLC

• Decision Date: 18 June 2018
• Docket Number: Case No. CIV-17-879-R
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and WILBERT GLOVER, individually, and on behalf of all others similarly situated, Plaintiff-Intervenor, v. HORIZONTAL WELL DRILLERS, LLC, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,andWILBERT GLOVER, individually, and onbehalf of all others similarly situated, Plaintiff-Intervenor, v. HORIZONTAL WELL DRILLERS, LLC, Defendant.

Case No. CIV-17-879-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

June 18, 2018

ORDER

Before the Court are Defendant's Motion to Dismiss Claims 1-5 of Plaintiff's Amended Complaint (Doc. 12) and Motion to Dismiss Class Action Claims 3-5 of Plaintiff-Intervenor's Complaint (Doc. 24). The EEOC brought eight claims in August, 2017, under the Americans with Disabilities Act, Genetic Information Non-Discrimination Act, Age Discrimination in Employment Act, and the Civil Rights Acts of 1964 and 1991, after which former employee Wilbert Glover intervened with two related individual claims and three class action claims. The Court hereby dismisses Glover's Claim 5 as duplicative of the EEOC's Claim 3 and otherwise denies the motions for the reasons set forth herein.

I. Background

The Court accepts as true the following facts from Plaintiff's Amended Complaint (Doc. 4) and Plaintiff-Intervenor's Complaint (Doc. 17).

A. HWD Employment Practices

Plaintiff-Intervenor Wilbert Glover applied for a derrickhand drilling position with HWD on January 11, 2013. Doc. 4-2. The application—used by 3,289 job applicants from January 1, 2012, through June 30, 2014—solicited information on age, family and personal health history, doctors' care status, prescription drug use, and current health issues. Doc. 4-1; Doc. 17, at 5-6. Before it scheduled an interview with Glover, HWD engaged a third-party vendor to perform a workers' compensation background search on him, just as it did with all applicants during this period. Doc. 4, at 6; Doc. 17, at 6. HWD preferred to hire applicants without a history of workers' compensation injuries or claims, and it destroyed the applications for those whom its CEO declined to interview. Doc. 4, at 6.

On February 6, 2013, HWD interviewed Glover and offered him a job, conditional on answering questions about his workers' compensation and disability history. Doc. 4-3; Doc. 17, at 6. Glover began working for HWD the next day. Doc. 17, at 6-7. Consistent with company policy, HWD subjected him to a new-hire medical exam on February 11. Doc. 4-4. HWD's doctor found that Glover was "medically qualified to perform the job described." Doc. 17, at 7. Furthermore, Glover satisfactorily performed his job responsibilities. Doc. 4-4. Even so, HWD terminated his employment shortly following the exam for failure "to perform duties within first 90 days." Doc. 4-5; Doc. 17, at 7-8. Glover's supervisor admitted that the termination was because of his high blood pressure. Doc. 17, at 8.

HWD allegedly discriminated against other applicants as well based on disability status and age. Mr. Stephan Mayfield applied for a drilling rig position with HWD in 2013. Doc. 4, at 7-8. He had four years of relevant experience, but indicated on his applicationthat he had suffered a work-related injury and received worker's compensation payments. Id. at 8. That injury did not affect his ability to work for HWD, but HWD never interviewed him for a position. Id. Kurt Branch applied for a position in early 2012 and indicated on his application that he was over forty years old at the time he applied. Id. at 7. Despite approximately twenty-one years of relevant experience, HWD did not hire him. Id. Similarly, James Cargal applied for a position in 2012 and 2017 to no avail. Cargal had four to five years of relevant experience and indicated he was over forty years old. Id.

B. EEOC Investigations

Plaintiff-Intervenor Wilbert Glover filed a charge of discrimination with the EEOC on or about April 1, 2013. Doc. 4, at 4; Doc. 24-2. He alleged that his termination and post-offer medical exam violated the Americans with Disabilities Act ("ADA"). Id. Moreover, Glover alleged violations of the Genetic Information Nondiscrimination Act ("GINA") because HWD forced him to submit genetic information in the employment application and pre-offer questions. Id. The EEOC's Oklahoma City ("OKC") Office notified HWD of Glover's charge on April 1, 2013, and requested information and records relevant to the charge of discrimination and similar conduct during the relevant period—January 1, 2012, through March 31, 2013. Docs. 29-1, 29-2. It then issued to HWD a "Notice of Expanded Investigation and Request for Additional Info" regarding Glover's charge on October 1, 2014. Doc. 29-10. "[T]he scope of the [EEOC's] investigation of [the] Charge has been expanded to include all applicants (hired and not hired) during the relevant time period which has also been extended to at least" June 30, 2014—when HWD removed from its application "Applicant and Family Health, Worker's Compensation, and Disability Pensionhistory questions." Doc. 29-10, at 1. The EEOC issued its letter of determination on February 3, 2016, finding reasonable cause to believe that HWD violated the ADA, GINA, and Title VII. Doc. 4, at 4. On December 7, 2016, following a conciliation conference between the EEOC, HWD, and Glover, the EEOC's OKC Office issued a notice of conciliation failure regarding Glover's charge under the ADA and GINA. Doc. 17, at 4.

On December 4, 2014, the EEOC's St. Louis Office initiated a charge against HWD, this time under the Age Discrimination in Employment Act ("ADEA"). Doc. 4, at 4. The EEOC's OKC Office issued a letter of determination about two years later, finding reasonable cause to believe that HWD violated the ADEA. Id.

C. EEOC's Amended Complaint

On August 16, 2017, Plaintiff EEOC brought the following claims:

(1) ADEA Failure to Hire: Since at least January 2012, HWD subjected applicants, including Kurt Branch and James Cargal, to a pattern or practice of discriminatory failure to hire based on age that violated the ADEA, 29 U.S.C. § 623(a);

(2) ADA Failure to Hire: Since at least January 2012, HWD used applicants' workers' compensation history that it gathered to subject them, including Stephan Mayfield, to a pattern or practice of discriminatory failure to hire based on disability that violated the ADA, 42 U.S.C. § 12112(a);

(3) ADA Unlawful Disability-Related Inquiry: Since at least January 2012, HWD conducted workers' compensation background searches on applicants that violated the ADA, 42 U.S.C. § 12112(d)(2)(A);(4) ADA and GINA Failure to Maintain Confidentiality: Since at least January 2012, HWD failed to separate its employees' and applicants' medical information in violation of the ADA, 42 U.S.C. § 12112(d)(3)(B) and (4)(C), and the GINA, 42 U.S.C. § 2000ff-5;

(5) ADA Failure to Retain Records: Since at least January 2012, HWD failed to preserve records relevant to unlawful employment practices and destroyed employment applications and historic applicant data in violation of the ADA, 42 U.S.C. § 12117(a);

(6) ADA Unlawful Medical Exam: On February 11, 2013, HWD's doctor performed a post-hire medical exam on Glover that violated the ADA, 42 U.S.C. § 12112(d)(3);

(7) ADA Termination: On February 11, 2013, HWD terminated Glover because it regarded him as disabled in violation of the ADA, 42 U.S.C. § 12113(a);

(8) Title VII Failure to File EEO-1 Reports: Since at least January 2012, HWD, an employer of over 100 employees, failed to create, maintain, and file EEO-1 reports in violation of 42 U.S.C. §§ 2000e-8, 2000ff-6, 12117, and 29 C.F.R. § 1602.7.

Doc. 4, at 8-16. Defendant moved to dismiss Claims 1-5 on October 23, 2017. Doc. 12.

D. Plaintiff-Intervenor Glover's Complaint

On October 23, 2017, Glover intervened in this action as a matter of right. See Docs. 6, 8. He then filed his complaint on October 27, alleging:

(1) ADA Unlawful Medical Exam: On February 11, 2013, HWD's doctor performed a post-employment medical exam on Glover that violated the ADA, 42 U.S.C. § 12112(d)(4)(A);(2) ADA Termination: On February 11, 2013, HWD terminated Glover because it regarded him as disabled in violation of the ADA, 42 U.S.C. § 12113(a);

(3) ADA Unlawful Medical Inquiry: From January 1, 2012, through June 30, 2014, HWD asked Glover and 3,288 other applicants medical questions that elicited disability information in violation of the ADA, 42 U.S.C. § 12112(d)(2)(A);

(4) GINA Unlawful Family Medical History Inquiry: From January 1, 2012, to June 30, 2014, HWD requested genetic information, including family medical history, from Glover and 3,288 other applicants in violation of the GINA, 42 U.S.C. § 2000ff-1;

(5) ADA Unlawful Disability-Related Inquiry: From January 1, 2012, through June 30, 2014, HWD conducted workers' compensation background searches on Glover and 3,288 other applicants before extending conditional offers that violated the ADA, 42 U.S.C. § 12112(d)(2)(A);

Doc. 17, at 8-13. Glover brings Claims 1 and 2 individually and Claims 3 through 5 as a class action under Rule 23(a) and (b)(3) on behalf of "himself and the other 3,288 job applicants during the [relevant] period" who allegedly applied to HWD with the unlawful application and were subjected to unlawful pre-offer workers' compensation searches. Id. at 13-15. Defendant moved to dismiss Claims 3-5 on November, 2017. Doc. 24.

II. Discussion

Defendant raises various arguments for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In a 12(b)(1) motion for lack of subject-matter jurisdiction due to failure to exhaust administrative remedies, plaintiff has the burden to show jurisdiction. McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002). Acomplaint may also be dismissed under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Dismissal is proper "if, viewing the well-pleaded factual allegations in the complaint as true and in the light most favorable to the non-moving party, the complaint does not contain 'enough facts to state a claim to relief that is plausible on its face.'" MacArthur v. San Juan County, 497 F.3d 1057, 1064 (10th Cir. 2007) (...