EEOC v. Jackson National Life Insurance Company
Filing
136
ORDER by Judge Philip A. Brimmer on 09/13/2018, re: 53 Defendants' Consolidated Partial Motion to Dismiss Plaintiffs' Second Amended Complaint and First Amended Complaint in Intervention is DENIED. (sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-02472-PAB-SKC
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
LA’TONYA FORD,
KIMBERLY FUNCHESS,
MARCUS ADAMS,
KENNETH CONLEY,
ALCENA GANNAWAY,
THE ESTATE OF KONTAR TONEE MWAMBA, and
MARIETTA VARGAS,
Intervenor Plaintiffs,
v.
JACKSON NATIONAL LIFE INSURANCE COMPANY,
JACKSON NATIONAL LIFE DISTRIBUTORS, LLC, and
JACKSON NATIONAL LIFE INSURANCE COMPANY OF NEW YORK,
Defendants.
ORDER
This matter comes before the Court on Defendants’ Consolidated Partial Motion
to Dismiss Plaintiffs’ Second Amended Complaint and First Amended Complaint in
Intervention [Docket No. 53]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
The Equal Employment Opportunity Commission (“EEOC”) filed this lawsuit on
September 30, 2016. Docket No. 1. The Second Amended Complaint, filed on
January 27, 2017, asserts claims on behalf of nine former employees of defendants
“and other aggrieved individuals” who were allegedly subjected to discrimination,
retaliation, and harassment on the basis of race, sex, color, and/or national origin.
Docket No. 31 at 1-2. On December 1, 2016, seven of the employees represented in
the EEOC action – La’Tonya Ford, Kimberly Funchess, Marcus Adams, Kenneth
Conley, Alcena Gannaway, The Estate of Kontar Tonee Mwamba, and Marietta Vargas
– moved to intervene in the lawsuit. Docket No. 9. The motion to intervene was
granted on January 9, 2017, Docket No. 20, and on February 23, 2017, intervenor
plaintiffs filed their First Amended Complaint in Intervention [Docket No. 51]. On March
2, 2017, defendants filed their consolidated partial motion to dismiss. Docket No. 53.
Defendants seek dismissal of allegations asserted in both the First Amended Complaint
in Intervention and the EEOC’s Second Amended Complaint. On March 23, 2017, the
EEOC and the intervenor plaintiffs filed a consolidated response in opposition to
defendants’ motion, Docket No. 58, to which defendants replied on April 7, 2017.
Docket No. 62. The facts stated below are taken from the First Amended Complaint in
Intervention and the Second Amended Complaint and are presumed to be true for
purposes of this motion to dismiss.
A. Second Amended Complaint
The Second Amended Complaint asserts claims for race discrimination, sex
2
discrimination, national origin discrimination, retaliation, and hostile work environment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq., on behalf of
Marcus Adams, Kenneth Conley, La’Tonya Ford, Kimberly Funchess, Alcena
Gannaway, the Estate of Kontar Mwamba, Marietta Vargas, George Thomas Minas Hill,
Robert Blanchette, and other aggrieved individuals. Docket No. 31 at 1, 29-32. At all
times relevant to this lawsuit, defendants Jackson National Life Insurance Company
(“JNL”), Jackson National Life Distributors, LLC (“JNLD”), and Jackson National Life
Insurance Company of New York (“JNL - New York”) operated as a joint employer
and/or integrated enterprise offering and distributing financial products. Id. at 3, ¶ 7.
As discussed in more detail below, all of the aggrieved individuals worked in various
sales representative positions in defendants’ Denver office between 2007 and 2012.
Those positions included Internal W holesaler, Business Development Consultant
(“BDC”), and External Wholesaler, with External Wholesaler being the highest paid
position. Id. at 4-5, ¶ 17.
1. La’Tonya Ford
La’Tonya Ford, a black female, was hired in February 2006 as an Internal
Wholesaler in defendants’ Atlanta, Georgia office. Id. at 5, ¶ 25. In 2007, Ms. Ford
was transferred to the headquarters of JNLD in Denver, where she began reporting to
Corey Walker, the Desk Director of the Regional Broker Dealer Channel (“RBD
Channel”). Id. at 6-7, ¶¶ 26, 28, 43, 45. 1 Following Ms. Ford’s transfer to headquarters,
1
“Channel” is not defined in either the Second Amended Complaint or the First
Amended Complaint in Intervention. The term appears to refer to a particular division
or department of JNLD.
3
she overheard or was directly targeted with a number of racist and/or sexist comments,
including comments relating to the size of her breasts and the breasts of other female
employees and racial slurs in reference to President Obama. Id. at 6-7, ¶¶ 32-35, 3637. Despite Ms. Ford’s success as an Internal W holesaler and her ultimate promotion
to BDC in or around March 2009, she was not given quarterly evaluations by Mr.
Walker and was placed on a written performance plan on or about September 10,
2009. Id. at 7, ¶¶ 40-45. After the filing of a formal charge of discrimination with the
EEOC on or about December 7, 2009 and an internal investigation into Ms. Ford’s
complaints of discriminatory treatment, Ms. Ford’s performance plan was expunged and
she was reassigned to the supervision of Robert Blanchette, Jackson’s Vice President
of National Sales Development. Id. at 8, ¶¶ 49, 51-52. Both Mr. W alker and James
Bossert, Jackson’s Senior Vice President of Sales Development and Mr. Blanchette’s
supervisor, pressured Mr. Blanchette to discipline Ms. Ford. Id. at 8-9, ¶¶ 56, 59, 62.
Mr. Blanchette refused, finding no evidence that Ms. Ford’s job performance was
unsatisfactory, and ultimately recommended Ms. Ford for an External Wholesaler
position in December 2009. Id. at 8-9, ¶¶ 59, 63-64. Mr. Bossert stated that sh e would
not get the position, and Ms. Ford was never interviewed. Id., ¶¶ 65-66. Ms. Ford
subsequently applied for at least eight External Wholesaler positions in 2010. Id. at 10,
¶¶ 79-82. Six of those positions were filled with less qualified White males. Id. at 1011, ¶¶ 80, 83. After being subjected to additional incidents of racial and sexual
harassment, Ms. Ford was constructively discharged in October 2010. Id., ¶ 92.
4
2. Kimberly Funchess
Kimberly Funchess, a black female, was hired by defendants in October 2005 as
an Internal Wholesaler in the Atlanta, Georgia office. Id. at 11, ¶ 93. In 2006, Ms.
Funchess was transferred to Denver, where she was promoted to a Desk Director
position. Id. at 12, ¶¶ 94-95. In 2008, Ms. Funchess began reporting to Mr. Bossert,
who referred to Ms. Funchess and Ms. Ford as “lazy,” “prima donnas,” “bitches from
Atlanta,” and “our two resident street walkers.” Id., ¶¶ 97-98. Mr. Bossert excluded Ms.
Funchess from lunches and meetings with other, white desk directors in his office. Id.,
¶ 100. When Ms. Funchess complained to CEO Clifford Jack about race discrimination
in the company, Mr. Bossert warned Ms. Funchess to be careful. Id., ¶ 102. In
November 2009, Mr. Bossert subjected Ms. Funchess to unwarranted discipline. Id.,
¶ 103. The following month, she filed a charge of discrimination. Id., ¶ 104. After
being subjected to unwarranted discipline a second time in April 2010, Ms. Funchess
was fired on April 14, 2010. Id. at 13, ¶¶ 105-06.
3. Marietta Vargas
Marietta Vargas, an African-American female of Cabo Verdean national origin,
was hired by defendants as an Internal W holesaler in May 2008. Id. at 13, ¶ 109. Ms.
Vargas was supervised by Mr. Walker. Id., ¶ 110. Despite her success as an Internal
Wholesaler and her completion of additional training requirements, Ms. Vargas was not
promoted to a higher Internal Wholesaler position and was told that she was not
qualified to apply for a BDC position, which was ultimately filled by a white male with
less experience. Id. at 13-14, ¶¶111-116. In November 2009, two months after she
5
complained to Human Resources about discriminatory treatment, Ms. Vargas was
involuntarily transferred to the Bank Channel. Id. at 14, ¶¶ 117-118. In December
2009, Ms. Vargas filed a charge of discrimination alleging retaliation and discrimination
on the basis of race, sex, and national origin. Id., ¶ 119. Beginning in April 2010, Ms.
Vargas reported to Elizabeth Griffith, a white female, who was in turn supervised by Mr.
Bossert. Id., ¶¶ 120-22. Ms. Griffith, Mr. Bossert, and other supervisors actively
ignored Ms. Vargas and did not respond reliably to her emails. Id., ¶¶ 123-24. Ms.
Vargas was constructively discharged in May 2010. Id., ¶ 125.
4. Kontar “Tonee” Mwamba
Kontar “Tonee” Mwamba, a black male, was hired by defendants as a BDC in
October 2008. Id., ¶ 126. In January 2009, Mr. Mwamba overheard an External
Wholesaler make racist comments regarding another black employee. Id. at 15, ¶ 128.
When he complained, Mr. Mwamba was told that the company allowed the External
Wholesaler to do what he wanted. Id., ¶ 129. Mr. Mwamba also complained to
management that white employees were throwing foam stress balls at him during work.
Id., ¶ 130. After management ordered that the ball-throwing stop, Mr. Bossert sent an
email to all employees overturning that directive and referring to Mr. Mwamba as an
“outsider who does not understand the nature of the job.” Id., ¶¶ 130, 132-33.
Sometime after September 2009, Mr. Mwamba – who had a number of contacts at
Merrill Lynch based on his prior employment with the company – applied for a position
designed to deal exclusively with Merrill Lynch. Id. at 16, ¶¶ 139-141. Although Mr.
Mwamba was originally scheduled for an interview, his interview was cancelled by Desk
6
Director Jake Milder. Id., ¶ 142. A white male employee who was less qualified than
Mr. Mwamba was selected for the position. Id., ¶ 144. In September 2009, after
complaining to Human Resources about not being interviewed and about being treated
less favorably than white employees, Mr. Mwamba was placed on a performance
improvement plan. Id. at 17, ¶¶ 145-46. Mr. Mwamba was removed from the plan on
December 7, 2009, the same day Ms. Ford filed a charge of discrimination with the
EEOC. Id., ¶ 149. Mr. Mwamba received a negative performance evaluation in
January 2010. Id., ¶ 153. On January 26, 2010, he filed a charge of discrimination with
the EEOC. Id., ¶ 154. After being subjected to continued discriminatory treatment, Mr.
Mwamba was constructively discharged in April 2012. Id. at 18, ¶¶ 155-56.
5. Kenneth Conley
Kenneth Conley, a black male, was hired by defendants as a BDC in March
2008. Id. at 18, ¶ 157. After President Obama’s election, Mr. Conley’s coworkers told
Mr. Conley to be careful not to celebrate. Id., ¶ 160. Mr. Conley began reporting to
Desk Directors Jake Milder and James Horvath in July 2009. Id., ¶ 161. Despite Mr.
Conley’s success as a BDC, Mr. Milder and Mr. Horvath gave Mr. Conley low scores on
his performance evaluations. Id. at 18-19, ¶¶ 163-170. In March 2010, Mr. Conley filed
a charge of discrimination alleging race and national origin discrimination. Id. at 19,
¶ 172. In September and October 2010, Mr. Conley was given two unwarranted
disciplinary actions. Id. at 20, ¶¶ 181-82. Mr. Conley was discharged on October 25,
2010. Id., ¶ 184.
7
6. Marcus Adams
Marcus Adams, a black male, was hired by defendants as an Internal
Wholesaler in February 2007. Id. at 21, ¶ 185. During his first year of employment,
Desk Directors Greg Sodja and Corey Walker only spoke with Mr. Adams when
necessary. Id., ¶ 188. Mr. Bossert also did not speak to Mr. Adams even though he
spoke often with white employees. Id., ¶ 189. In June 2008, Mr. Adams inquired about
the possibility of working as an External Wholesaler. Id., ¶ 191. Divisional Vice
President John Poulson told Mr. Adams that he would not succeed as an External
Wholesaler due to his weight. Id., ¶ 192. Although Mr. Adams subsequently lost 60
pounds, he was not selected for an External Wholesaler position and an employee who
weighed significantly more was promoted to the position. Id., ¶¶ 193-94. In 2008 and
2009, Mr. Adams pursued two professional training opportunities – “The Academy” and
“Boot Camp.” Id. at 22, ¶¶ 196-203. Mr. Adams failed the boot camp test in October
2009 and was initially denied permission to retake it. Id. at 23, ¶¶ 205-06. In June
2010, Mr. Poulson finally agreed that Mr. Adams could retake the test on the condition
that Mr. Adams kept his mouth shut. Id., ¶ 207. Mr. Adams interpreted this statement
to mean that Mr. Adams was not allowed to join or support other black employees who
had filed charges of discrimination. Id., ¶ 208. After Mr. Adams retook the test, Mr.
Sodja applied such a stringent standard to Mr. Adams’ answers that Mr. Adams ended
up failing the test a second time. Id., ¶¶ 211-12. On July 30, 2010. Mr. Adams filed a
charge of discrimination with the EEOC. Id., ¶ 213. Mr. Sodja and Mr. Bossert stopped
interacting with Mr. Adams and, on September 2, 2010, Mr. Adams was terminated.
8
Id. at 23-24, ¶¶ 214-16.
7. Alcena Gannaway
Alcena Gannaway, a black male, was hired by defendants as an Internal
Wholesaler in January 2005. Id., ¶ 217. In 2008 and 2009, despite his strong
performance as an Internal Wholesaler, Mr. Gannaway was denied five separate Desk
Director positions, all of which were ultimately given to white employees. Id., ¶¶ 22023. Mr. Gannaway was discharged in November 2009 for allegedly sending an
unapproved email that had been approved for distribution in earlier emails. Id. at 25,
¶¶ 224-25.
8. George Thomas Minas Hill
George Thomas Minas Hill, a black male of Ethiopian descent, was hired by
defendants as an intern in 2009. Id., ¶ 226. In January 2010, he was hired as a Level I
Internal Wholesaler selling fixed-income annuities, after being passed over for a more
lucrative position selling variable annuities, which was given to a less experienced white
female intern. Id. at 25-26, ¶¶ 228-33. During his employment, Mr. Hill was referred to
as “Minus,” “C Minus,” and “Montel Williams.” Id. at 26, ¶¶ 234, 236. In addition, other
employees would make “clicking” noises around Mr. Hill in reference to his African
descent. Id., ¶ 235.
Mr. Hill completed all the training requirements to be promoted to a Level II
Internal Wholesaler position; however, he was not promoted. Id., ¶¶ 239, 242. Desk
Directors Elizabeth Griffith and Peter Meyers would not give Mr. Hill any guidance other
than to say that they needed “more.” Id. at 26-27, ¶¶ 243-44. In November 2011, Mr.
9
Hill assisted another employee who was studying to retake a training exam. Id. at 27, ¶
246. Mr. Hill was subsequently discharged for his coaching efforts, even though other
employees were not discharged for similar efforts. Id., ¶ 247.
9. Robert Blanchette
Robert Blanchette, a white male, was hired by defendants in July 2009 to be the
Vice President of JNLD’s sales desk. Id., ¶ 249. In that role, Mr. Blanchette directly
supervised 13 Desk Directors and indirectly supervised 250 Internal Wholesalers and
BDCs. Id., ¶¶ 251-52. Mr. Blanchette reported to Mr. Bossert and Ex ecutive Vice
President Greg Salsbury. Id. at 28, ¶ 253. Mr. Bossert instructed Mr. Blanchette to
look for reasons to fire Ms. Funchess and Ms. Ford. Id., ¶ 257. In January 2010, two
other Vice Presidents suggested to Mr. Blanchette that he would be fired if he did not
fire Ms. Funchess and Ms. Ford. Id. at 28-29, ¶¶ 262-67. Mr. Blanchette informed the
Vice Presidents that both employees were performing well. Id. at 29, ¶ 268. On
February 18, 2010, a day after Mr. Blanchette gave Ms. Ford a “Meets Expectations” on
her performance evaluation, Mr. Bossert fired Mr. Blanchette. Id., ¶¶ 269-70.
10. Pre-Litigation Conciliation Efforts
As indicated above, La’Tonya Ford, Kimberly Funchess, Marietta Vargas, Kontar
“Tonee” Mwamba, Kenneth Conley, Marcus Adams, and Alcena Gannaway all filed
charges of discrimination with the EEOC more than thirty days prior to the EEOC’s
initiation of this lawsuit. Id. at 4, ¶ 10. After providing defendants with notice of the
charges, the EEOC issued Letters of Determination finding reasonable cause that
defendants had violated Title VII. Id., ¶¶ 11-12. Despite efforts at conciliation, the
10
EEOC was unable to resolve the charges against defendants and, on September 30,
2015, the EEOC issued defendants Notices of Failure of Conciliation. Id., ¶¶ 14-15.
The complaint alleges that all conditions precedent to the filing of this lawsuit have been
satisfied. Id., ¶ 16.
B. First Amended Complaint in Intervention
The First Amended Complaint in Intervention asserts claims for hostile work
environment, race and/or color discrimination, sex discrimination, and retaliation on
behalf of intervenor plaintiffs La’Tonya Ford, Kimberly Funchess, Marcus Adams,
Kenneth Conley, Alcena Gannaway, The Estate of Kontar Tonee Mwamba, and
Marietta Vargas. Docket No. 51 at 18-22. 2 The allegations asserted in the First
Amended Complaint in Intervention are substantially similar to those included in the
Second Amended Complaint and will not be repeated here. To the extent the First
Amended Complaint in Intervention differs or asserts additional facts, those differences
are not material to the Court’s resolution of defendants’ motion to dismiss.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged–but it has not shown–that the
2
Of the individuals represented in the EEOC’s action, only George Thomas
Minas Hill and Robert Blanchette did not intervene as plaintiffs.
11
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal
quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (“A
plaintiff must nudge [his] claims across the line from conceivable to plausible in order to
survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s
allegations are “so general that they encompass a wide swath of conduct, much of it
innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191
(quotations omitted). Thus, even though modern rules of pleading are somewhat
forgiving, “a complaint still must contain either direct or inferential allegations respecting
all the material elements necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration m arks
omitted ).
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if
the Court lacks subject matter jurisdiction over claims for relief asserted in the
complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction, the Court
“must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). To the extent the defendant attacks the factual basis for
12
subject matter jurisdiction, the Court “may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.” SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.
1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately,
and in either case, plaintiffs have “[t]he burden of establishing subject matter
jurisdiction” because they are “the party asserting jurisdiction.” Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
III. ANALYSIS
A. Claims Based on Acts of Discrimination Occurring Before February 10,
2009
Defendants argue that the Title VII claims in this case are limited to acts of
discrimination occurring on or after February 10, 2009, which was 300 days before the
first former employee of defendants filed a charge of discrimination with the EEOC.
Docket No. 53 at 2; Docket No. 62 at 1. “An em ployee 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). Such a
charge must be filed within “three hundred days after the alleged unlawful employment
practice occurred.” 42 U.S.C. § 2000e-5(e)(1). 3 If the alleged unlawful incident occurs
3
The 300-day period only applies in states that have “an entity with the authority
to grant or seek relief with respect to the alleged unlawful practice.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); see also § 2000e-5(e)(1).
Otherwise, the charge of discrimination must be filed within 180 days. § 2000e-5(e)(1).
There appears to be no dispute in this case that the 300-day period applies. Docket
No. 53 at 8; Docket No. 58 at 11.
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outside the 300-day window, a plaintiff will “lose the ability to recover for it.” Morgan,
536 U.S. at 110. Thus, with respect to claims based on discrete acts of discrimination,
incidents occurring outside the 300-day period may not be considered for purposes of
determining liability. Id. at 114.
Although Morgan abrogated the use of the continuing violation doctrine for
claims of discrete acts4 of discrimination and retaliation, see id. at 114-15, different
rules apply to hostile work environment claims. As the Supreme Court recognized in
Morgan, “[h]ostile environment claims are different in kind from discrete acts.” Id. at
115. “Such claims are based on the cumulative effect of individual acts” and “therefore
cannot be said to occur on any particular day.” Id. Accordingly, “the entire time period
of the hostile environment may be considered by a court for the purposes of
determining liability,” provided that at least one act “contributing to the [hostile work
environment claim] occur[red] within the filing period. Id. at 117.
Defendants contend that the complaints assert claims for discrete acts of
discrimination that are time-barred under § 2000e-5(e)(1). Docket No. 53 at 8. In
response, plaintiffs argue that the challenged allegations relate to “component acts” of a
hostile work environment and are thus properly considered in determining defendants’
liability. Docket No. 58 at 6. Plaintiffs further assert that such acts can be considered
as “background evidence” of discriminatory intent. Id. at 11.
4
Relying on Morgan, the Court interprets “discrete acts” to mean instances of
discrimination or retaliation that are independently actionable. See Morgan, 536 U.S. at
111 (identifying as “discrete acts” actions that qualify as “unlawful employment
practice[s]” under Title VII). Defendants appear to have adopted a similar definition.
See Docket No. 62 at 3 (arguing that, “[w]hen an alleged act is actionable on its own,
the continuing violation doctrine does not apply”).
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Morgan does not directly address whether discrete acts of discrimination falling
outside the 300-day window may be considered in conjunction with a hostile work
environment claim. See Royal v. Potter, 416 F. Supp. 2d 442, 448 (S.D. W . Va. 2006)
(“The Morgan decision does not expressly address . . . whether discrete acts of
discrimination falling outside the relevant time period may be considered in holding the
defendant vicariously liable for hostile work environment.”); see also Williams v.
Paulson, 2007 WL 9652983, at *14 (N.D. Ga. Dec. 24, 2007) (noting split in authority
“as to whether discrete acts can form a basis for a hostile work environment claim”).
While this Court has not found any decisions by the Tenth Circuit expressly confronting
the issue, other jurisdictions have taken competing approaches. Some courts have
relied on Morgan to hold that discrete acts of discrimination can never be considered as
part of a hostile work environment claim because they are qualitatively different from
the type of conduct that would create a hostile work environment. See, e.g., O’Connor
v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (finding that “discrete acts” of
discrimination could not be aggregated under a continuing violations theory); Porter v.
Cal. Dep’t of Corrs., 419 F.3d 885, 892 (9th Cir. 2005) (stating that, although “it would
be tempting to conclude that all the offensive activities that Porter allegedly
encountered between 1995 and 2001 are both timely and actionable as different parts
of the same unlawful employment practice[,] . . . . such an approach would blur to the
point of oblivion the dichotomy between discrete acts and a hostile environment”
(internal quotation marks, citations, and brackets omitted)); Williams, 2007 WL
9652983, at *15 (holding, consistent with Eleventh Circuit precedent, that discrete acts
15
could not form the basis of a hostile work environment claim); Krause v. Lexisnexis,
2007 WL 201023, at *4-5 (E.D. Mich. Jan. 23, 2007) (rejecting argument that discrete
acts of discrimination occurring outside of 300-day period could be considered as part
of hostile work environment claim on ground that “non-discrete acts which make up
hostile environment claims are different in kind from discrete acts” (internal quotation
marks omitted)); Stremple v. Nicholson, 2006 WL 1744316, at *4 (W.D. Pa. June 22,
2006) (finding that “[t]here is a qualitative different between the types of evidence that
support a hostile work environment claim and a traditional discrimination case”).5 Other
courts have rejected the position that Morgan stands for such a categorical rule. See,
e.g., Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011) (holding that discrete acts
of discrimination may comprise a hostile work environment claim as long as they
5
Some courts have distinguished the question of whether time-barred discrete
acts may be used to support a hostile work environment claim from the question of
whether discrete acts may generally be relied upon to support a hostile work
environment claim. See, e.g., Guessous v. Fairview Property Investments, LLC, 828
F.3d 208, 222-23 (4th Cir. 2016) (distinguishing Morgan on ground that plaintiff was not
“rely[ing] on the continuing-violation doctrine to revive time-barred discrete acts” and
stating that sole issue in case was “whether non-time-barred discrete acts [could] be
considered part of the ‘series of separate acts that collectively’ create a hostile work
environment thus rendering a hostile-environment claim timely under the continuingviolation doctrine”); Vargas v. Johnson, 2015 WL 13667419, at *21 n.8 (D.N.M. Oct. 14,
2015) (finding Morgan irrelevant because Vargas did “not involve a consideration of
which Plaintiff’s claims occurred outside a particular finding period”). But such a
distinction is inconsistent with the reasoning in Morgan. As the court explained in
Williams, “[i]f discrete acts could constitute hostile work environment claims, then an
untimely discrete act would certainly serve as a basis for liability if it were brought with a
related, timely discrete act because hostile work environment claims permit untimely
acts to create liability if they are related to timely events.” 2007 WL 9652983, at *15;
see also Morgan, 536 U.S. at 117 (“It does not matter . . . that some of the component
acts of the hostile work environment fall outside the statutory time period. Provided that
an act contributing to the claim occurs within the filing period, the entire time period of
the hostile environment may be considered by a court for the purposes of determining
liability.”).
16
“collectively meet the independent requirements of that claim . . . and [are] adequately
connected to each other . . . as opposed to being an array of unrelated discriminatory or
retaliatory acts” and finding “no authority for the idea that particular acts cannot as a
matter of law simultaneously support different types of Title VII claims” (internal
quotation marks omitted)); Royal, 416 F. Supp. 2d at 449-51 (holding that discrete acts
of discrimination falling outside the charge filing period may be considered, “not just as
background evidence . . . , but as conduct for which an employer is liable” under a
hostile work environment theory); Huntsberger v. City of Yerington, 2015 WL 112802, at
*5 (D. Nev. Jan. 8, 2015) (“The Court is perplexed how Defendants have purported to
extract a rule from [Morgan] that any acts that would be time barred under Title VII if
brought as discrete acts of discrimination cannot be included as part of [a hostile
workplace environment] claim. The case quite clearly stands for the opposite
proposition.”); see also Vargas, 2015 WL 13667419, at *21 & n.8 (citing cases
appearing to allow claims for hostile work environment “based on the same discrete
acts that form the basis for a discrimination claim,” but not addressing whether timebarred discrete acts could be considered in conjunction with a hostile work environment
claim); Heshley v. City of Albuquerque, 2015 WL 13665457, at *9 (D.N.M. Mar. 27,
2015) (agreeing with the D.C. Circuit that discrete or “stand-alone” violations of Title VII
may be used to support a hostile work environment claim so long as the acts
collectively meet the hostile work environment standard); Yonemoto v. Shinseki, 3 F.
Supp. 3d 827, 845 n.10 (D. Haw. 2014) (noting that, although the court was bound by
the Ninth Circuit’s decision in Porter “to the extent it addresses the scope of
17
discrimination and hostile work environment claims that are based on untimely events,”
the Ninth Circuit had, in other contexts, “considered discrete acts as part of a hostile
work environment claim”). In Baird, the D.C. Circuit held that, “although a plaintiff may
not combine discrete acts to form a hostile work environment claim without meeting the
required hostile work environment standard, neither can a court dismiss a hostile work
environment claim merely because it contains discrete acts that the plaintif f claims
(correctly or incorrectly) are actionable on their own.” 662 F.3d at 1252. The court
approved of prior case law cited by the district court only to the extent that those cases
stood for the proposition that “acts giving rise to a hostile work environment claim must
collectively meet the independent requirements of that claim . . . and . . . be adequately
connected to each other . . . as opposed to being an array of unrelated discriminatory or
retaliatory acts.” Id. (internal citations omitted).
The Court is persuaded by the D.C. Circuit’s approach. Morgan’s discussion of
the differences between “discrete acts” and hostile work environment claims concerned,
not the conduct underlying those claims, but the nature of the claims themselves.
Accordingly, nothing in Morgan establishes that stand-alone acts of discrimination –
even those acts falling outside the 300-day filing period – may not be considered as
part of a hostile work environment claim. See Royal v. Potter, 416 F. Supp. 2d 442,
451 (S.D. W. Va. 2006) (“The Morgan opinion does not command district courts to
literally divide the alleged discriminatory acts into two separate lists, one for discrete
and one for non-discrete . . . . Instead, the Morgan opinion reinforces the two types of
claims brought under Title VII as different unlawful practices and discusses how the
18
statutory filing language applies to both.”). Morgan’s silence on this issue is particularly
notable given that the Court of Appeals expressly considered discrete acts of
discrimination falling outside the limitations period in conjunction with the plaintiff’s
hostile work environment claim. See Morgan v. National R.R. Passenger Corp., 232
F.3d 1008, 1017 (9th Cir. 2000) (stating that “[e]vidence of the Yard’s pre-limitations
period hostile environment include[d] the decision to hire Morgan at a lower grade than
others, Morgan’s multiple disciplines and denial of training, the use of racially
derogatory language, and the overall racially-laden environment”), rev’d in part, 536
U.S. 101 (2002); see also id. at 1016 & n. 16 (analyzing the plaintiff’s “claims of
discrimination, hostile environment, and retaliation discretely,” but noting that “the
evidence of each alleged violation significantly overlaps, and segregating them is both a
difficult and artificial task”).
The Court also finds that a rule categorically barring the use of discrete acts to
support a hostile work environment claim is not necessary to “prevent employees from
‘piggy-backing’ unexhausted claims of discrete discriminatory acts onto properly
exhausted ones.” Runkle v. Gonzales, 391 F. Supp. 2d 210, 229 n.15 (D.D.C. 2005).
As the D.C. Circuit recognized in Baird, such concerns are already addressed by the
requirements that the component acts of discrimination and harassment (1) be
“adequately linked into a coherent hostile environment claim” and (2) “collectively meet
the independent requirements of that claim.” Baird, 662 F.3d at 1251-52 (internal
quotation marks omitted).
In summary, the Court declines to adopt the rule urged by defendants, which
19
would categorically bar consideration of discrete acts of discrimination falling outside
the limitations period in conjunction with plaintiffs’ hostile work environment claims.
Ordinarily, the next step would be to “determine whether the acts about which [plaintiffs]
complain[ ] are part of the same actionable hostile work environment practice, and if so,
whether any act falls within the statutory time period.” Hansen v. SkyWest Airlines, 844
F.3d 914, 923 (10th Cir. 2016) (quoting Morgan, 536 U.S. at 120). The Tenth Circuit
has “recognized several non-exclusive factors to guide the analysis,” including whether
the acts were “related by type, frequency, and perpetrator” and “whether the acts
occurred when the employee was working in the same place.” Id. (internal quotation
marks omitted). However, defendants do not apply these factors or make any
argument that the challenged allegations are unrelated to the other component acts of
plaintiffs’ hostile work environment claims. Because defendants have not asserted any
basis – other than the categorical rule rejected above – for dismissing plaintiffs’
allegations related to acts falling outside the 300-day window, their motion to dismiss
will be denied as to this issue. 6
B. Claims Lacking a Temporal Context
Defendants also move to dismiss a number of allegations for which plaintiffs
6
As plaintiffs argue, conduct falling outside the 300-day window may also be
considered as “background evidence” of discriminatory intent for purposes of plaintiffs’
discrimination and retaliation claims. See Sunderman v. Westar Energy Inc., 307 F.
App’x 224, 229 (10th Cir. 2009) (unpublished) (holding that district court “should have
considered the prior retaliation alleged by plaintiff as background evidence when
considering plaintiff’s claim that he was terminated in retaliation for filing his complaint
with the [Kansas Human Rights Commission]”); Pitre v. W. Elec. Co., Inc., 843 F.2d
1262, 1267 (10th Cir. 1988) (“Particularly when a company’s decision-making process
has not changed, evidence of prior discrimination might in some circumstances support
the inference that such discrimination continued.” (internal quotation marks omitted)).
20
have failed to provide a specific date or temporal context. See Docket No. 53 at 9.
According to defendants, plaintiffs “must allege that discrete acts of discrimination
occurred within 300 days of the filing of a charge or else the alleged acts are subject to
dismissal.” Id.
Defendants’ argument is predicated on an assumption that the Court may not
consider any discriminatory act falling outside of the 300-day window for purposes of
determining liability. As discussed above, however, such acts may be considered in
conjunction with plaintiffs’ hostile work environment claims under a continuing violation
theory. See Morgan, 536 U.S. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.”).
The cases defendants cite do not support a contrary conclusion. In Mitchell v.
Geo Group, Inc., No. 05-cv-197-PSF-CBS, 2005 WL 1489658 (D. Colo. June 23, 2005),
the court suggested that the plaintiff’s negative evaluations and suspension could not
serve as a basis for a charge of retaliation where the plaintiff had failed to provide a
date for when those actions occurred. Id. at *6. However, the plaintiff in that case had
not asserted a claim for hostile work environment. See id. at *1-2 (discussing claims
asserted in complaint). Similarly, although the plaintiff’s failure to plead specific dates
was fatal to her claims of gender discrimination in DD v. Lincoln Hall, 2010 WL 695027
(S.D.N.Y. Feb. 19, 2010), it is not clear whether the court’s holding applied to a hostile
work environment claim. See id. at *5. Even if it did, Lincoln Hall is distinguishable
from this case. There, the plaintiff failed to allege any acts of discrimination occurring
21
within the 300-day window, which contravenes the rule that a plaintiff asserting a hostile
work environment claim must still assert at least one discriminatory act falling within the
statutory time period. Id.; see also Morgan, 536 U.S. at 117. Here, in contrast,
defendants do not argue that plaintiffs have failed to allege any acts of discrimination
occurring within the 300-day window.
Because plaintiffs in this case have asserted claims for hostile work environment,
even acts falling outside the statutory time period may be considered for purposes of
determining liability so long as they are sufficiently related to the acts falling within the
300-day window. See Morgan, 536 U.S. at 118. Defendants have not demonstrated
that the challenged allegations are unrelated to plaintiffs’ hostile work environment
claims. Accordingly, the mere fact that the allegations lack specific dates or temporal
context does not entitle defendants to dismissal.
C. Claims Asserted on Behalf of Robert Blanchette and George Thomas
Minas Hill
Defendants move to dismiss any claims asserted by the EEOC on behalf of Mr.
Blanchette or Mr. Hill on the ground that neither Mr. Blanchette nor Mr. Hill exhausted
his administrative remedies by filing a charge of discrimination. Docket No. 53 at 11.
Before filing suit under Title VII, a plaintiff must exhaust his administrative
remedies with the EEOC. Shikles v. Sprint/United Management Co., 426 F.3d 1304,
1317 (10th Cir. 2005). The exhaustion of administrative remedies is a jurisdictional
prerequisite in the Tenth Circuit and, therefore, appropriate for resolution under Rule
12(b)(1). Id. (“Unlike many other circuits, we have held that a plaintiff’s exhaustion of
his or her administrative remedies is a jurisdictional prerequisite to suit under Title VII 22
not merely a condition precedent to suit.”). 7 The Court is permitted to exercise
jurisdiction over claims falling within “the scope of the administrative investigation that
can reasonably be expected to follow the charge of discrimination submitted to the
EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (quotation marks
and citation omitted). “[B]ecause failure to exhaust administrative remedies is a bar to
subject matter jurisdiction, the burden is on the plaintiff as the party seeking federal
jurisdiction to show, by competent evidence, that she did exhaust.” McBride v. CITGO
Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
Plaintiffs argue that Mr. Blanchette and Mr. Hill were not required to exhaust their
administrative remedies because the EEOC “may bring an enforcement action for
victims of discrimination discovered during the course of a charge investigation, without
regard to whether the individuals have themselves filed charges of discrimination.”
Docket No. 58 at 12. The Court agrees. As courts have previously held, “[t]he EEOC is
permitted to pursue claims on behalf of non-charging parties in its enforcement
capacity, regardless of whether it brings these claims under Section 706 (42 U.S.C.
§ 2000e-5) or Section 707 (42 U.S.C. § 2000e-6) of Title VII.” EEOC v. Jetstream
Ground Servs., Inc., 134 F. Supp. 3d 1298, 1328 (D. Colo. 2015); see also EEOC v.
7
Subsequent decisions “have limited this holding to situations in which a plaintiff
entirely failed to file anything like a charge with the EEOC.” Reveles v. Catholic Health
Initiatives, No. 16-cv-2561-WJM-CBS, 2017 WL 2672112, at *2 (D. Colo. June 21,
2017); see, e.g., Gad v. Kansas State Univ., 787 F.3d 1032, 1034, 1038 (10th Cir.
2015) (holding that Title VII’s verification requirement is non-jurisdictional); see also
Cirocco v. McMahon, 294 F. Supp. 3d 1086, 1093-95 (D. Colo. 2018) (f inding that
Shikles has not been overruled and determining, under Rule 12(b)(1), that “Plaintiff’s
failure to cooperate in the EEOC investigation and subsequent proceedings divest[ed]
the court of subject matter jurisdiction”).
23
Darden Restaurants, Inc., 2016 WL 9488709, at *2 (S.D. Fla. June 1, 2016) (“[T ]he
Court has uncovered no legal authority supporting the Defendants’ position that all of
the individuals represented by the EEOC in an enforcement action must also exhaust
their administrative remedies.”); EEOC v. Unit Drilling Co., 4 F. Supp. 3d 1257, 1265
(N.D. Okla. 2013) (“[T]he EEOC may pursue ‘any violations that it ascertains in the
course of a reasonable investigation of the charging party’s complaint.’” (brackets
omitted) (quoting Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 331 (1980));
EEOC v. Bare Feet Shoes of PA, Inc., 2006 WL 328355, at *3 (E.D. Pa. Feb. 10, 2006)
(“[T]he EEOC may bring claims on behalf of individuals who have not filed a charge of
discrimination with the agency.”).
In their reply brief, defendants appear to concede that the EEOC m ay bring
claims on behalf of non-charging parties, see Docket No. 62 at 7 (“Although the EEOC
can arguably bring an enforcement action on behalf of individuals who have not filed a
charge of discrimination, . . . its ability to do so is strictly limited.”), but they argue that
the EEOC’s reasonable cause determination and pre-litigation conciliation efforts were
insufficient to provide defendants with notice of, and an opportunity to conciliate, the
claims against Mr. Blanchette and Mr. Hill. Id. at 7-9. Because defendants did not
raise the argument of inadequate notice or challenge the sufficiency of the EEOC’s
determination letter in their opening brief, the Court will not consider these arguments in
ruling on defendants’ motion to dismiss. See Tran v. Trustees of State Colleges in
Colorado, 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief
24
are deemed abandoned or waived.” (internal quotation marks omitted)).8 Defendants
did assert that the claim against Mr. Blanchette “was never investigated by the EEOC,
nor was it ever part of the requisite pre-filing conciliation efforts.” Docket No. 53 at 13.
However, defendants do not support this argument by reference to the second
amended complaint. Nor do they cite any evidence that would allow the Court to
determine whether the claims against Mr. Blanchette were investigated by the EEOC or
included in the Commission’s pre-litigation conciliation efforts. See EEOC v. NM, Dep’t
of Corrs., 2017 WL 6001752, at *3 (D.N.M. Dec. 4, 2017) (declining to resolve notice
issue on motion to dismiss where the evidence was insufficient to allow the court to
determine whether the defendant had sufficient pre-litigation notice of claims). In any
event, defendants appear to raise only a facial challenge to the Court’s jurisdiction, see
Docket 53 at 11 (asserting that the EEOC had failed to “carry its burden [of establishing
jurisdiction] in the [second amended complaint]), which would make consideration of
evidence outside of the pleadings inappropriate. See Holt, 46 F.3d at 1002 (“In
reviewing a facial attack on the complaint, a district court must accept the allegations in
the complaint as true.”).
Because the EEOC has not had an opportunity to respond to the argument that
8
Defendants’ argument that the claims brought on behalf of Mr. Blanchette and
Mr. Hill do not qualify for the single filing exception is both distinct from their argument
on inadequate notice and inapplicable to this case. “[T ]he single filing rule relates to an
individual’s ability to intervene in an existing lawsuit without first filing a charge with the
EEOC and satisfying the required administrative prerequisites.” Unit Drilling Co., 4 F.
Supp. 3d at 1265. It “does not address the scope of the charges that may be brought
by the EEOC in an enforcement action.” Id.; see also Bare Feet Shoes of PA, Inc.,
2006 WL 328355, at *3 n.3 (finding that defendant’s arguments regarding the “single
filing rule” were inapplicable because “[t]he EEOC’s authority to pursue claims on behalf
of Ms. Watson in th[e] case [was] not based on the single filing rule”).
25
defendants were not given adequate notice of, or an opportunity to conciliate, the
claims asserted on behalf of Mr. Blanchette and Mr. Hill, defendants’ motion to dismiss
will be denied as to those claims.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Defendants’ Consolidated Partial Motion to Dismiss Plaintiffs’
Second Amended Complaint and First Amended Complaint in Intervention [Docket No.
53] is DENIED.
DATED September 13, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
26
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