Cirocco v. United States Small Business Administration, The et al

Filing 26

ORDER granting 7 Motion to Dismiss. This action is DISMISSED without prejudice. By Magistrate Judge Nina Y. Wang on 2/14/2018. (Attachments: unpublished case law)(nywlc1, )

Dolin v. ThyssenKrupp Elevator Corporation, Slip Copy (2017)
2017 WL 1551990, 2017 Fair Empl.Prac.Cas. (BNA) 108,748

2017 WL 1551990
United States District Court,
D. New Mexico.
LJ DOLIN, Plaintiff,
v.
THYSSENKRUPP ELEVATOR
CORPORATION, Defendant.
No: 2:16-cv-00529-MCA-GBW
|
Signed 03/31/2017
Attorneys and Law Firms
Amelia P. Nelson, Rio Grande Attorneys at Law, PC,
Albuquerque, NM, for Plaintiff.
Frank Leo Kollman, Joseph Garrett Wozniak, Kollman
& Saucier, PA, Timonium, MD, for Defendant.
Opinion
Memorandum Opinion and Order
M. CHRISTINA ARMIJO, CHIEF UNITED STATES
DISTRICT JUDGE
*1 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 sixpercent (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) ]

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Dolin v. ThyssenKrupp Elevator Corporation, Slip Copy (2017)
2017 WL 1551990, 2017 Fair Empl.Prac.Cas. (BNA) 108,748

*2 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 hostilework-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-workenvironment 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
*3 TKE maintains that Dolin's harassment/hostilework-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.

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Dolin v. ThyssenKrupp Elevator Corporation, Slip Copy (2017)
2017 WL 1551990, 2017 Fair Empl.Prac.Cas. (BNA) 108,748

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 nonjurisdictional 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 Fed.Appx. 851, 859-60
(10th Cir. 2015) (discussing the impact of Gad and stating
that Gad “called into question some of our circuit's earlier
decisions concluding we lacked subject-matter jurisdiction
for other failures to meet Title VII's requirements.”).
These limitations on the jurisdictional effect of certain
aspects of the administrative process aside, it appears
that the basic rule that the scope of “[a] plaintiff's claim
in federal court is generally limited by the scope of
the administrative investigation that can reasonably be
expected to follow the charge of discrimination submitted
to the EEOC” remains good law. Jones v. U.P.S., Inc., 502

F.3d 1176, 1186 (10th Cir. 2007) (internal quotation marks
and citation omitted). In Arabalo, the Tenth Circuit held
that, even if the Gad holding abrogated the jurisdictional
nature of some exhaustion requirements, “[a]s a condition
precedent to suit, even if not a jurisdictional prerequisite,
[a plaintiff is] required to notify the ... EEOC of
the alleged [facts underlying a hostile-work-environment
claim] before she could later rely on [those facts] in support
of her hostile-work-environment claim.” Arabalo, 625
Fed.Appx. at 860.
*4 Whether framed as a jurisdictional matter or a
condition precedent to suit, this principle promotes the
general purposes of exhaustion, one of which is to “protect
employers by giving them notice of the discrimination
claims being brought against them and provid[e] the
EEOC with an opportunity to conciliate the claims.”
Gad, 787 F.3d at 1040 (alterations, internal quotation
marks, and citations omitted). In either case, it is Dolin's
burden to demonstrate that she met Title VII's exhaustion
requirements. Id. at 1041 (stating that a condition
precedent to suit is “a burden for plaintiffs to carry”);
Arabalo, 625 Fed.Appx. at 860 (holding that the plaintiff's
“need to disclose her bases supporting her alleged claim
[to EEOC] is a condition precedent to her suit, not a mere
affirmative defense for which the defendant must bear the
burden”).
In reviewing whether Dolin exhausted her hostilework-environment claim, a court “liberally construe[s]
charges filed with the EEOC in determining whether
administrative remedies have been exhausted as to [that]
claim.” Jones, 502 F.3d at 1186. Neither party included
the EEOC's “Notice of Right to Sue” in their pleadings.
However, TKE did attach a copy of Dolin's 2014 EEOC
charge. 1 [Doc. 7-8]
“To prevail on her hostile[-]work[-]environment claim
under Title VII, [Dolin] must show that a rational
jury could find that the workplace is permeated with
discriminatory intimidation, ridicule, and insult[ ] that
is sufficiently severe or pervasive to alter the conditions
of her employment and create an abusive working
environment.” Bird v. West Valley City, 832 F.3d 1188,
1205 (10th Cir. 2016) (alteration, internal quotation
marks, and citation omitted). In a similar case, the
Tenth Circuit affirmed the district court's ruling that a
hostile-work-environment claim was not addressed in an
EEOC charge. There, the complainant had “checked the

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Dolin v. ThyssenKrupp Elevator Corporation, Slip Copy (2017)
2017 WL 1551990, 2017 Fair Empl.Prac.Cas. (BNA) 108,748

boxes marked ‘race’ and ‘retaliation,’ ” as well as the
“box marked ‘continuing action.’ ” Mitchell v. City &
Cty. of Denver, 112 Fed.Appx. 662, 667–68 (10th Cir.
2004). The complainant also “filled in the blanks marked
‘earliest date’ of discrimination and the ‘latest date’ of
discrimination with the same date, September 4, 1996.”
Id. In the description of the charge, the complainant
wrote, “[the defendant] failed to promote me because of
my race/African American and in retaliation for engaging
in protected activity.” Id. (alterations, internal quotation
marks, and citation omitted). The complainant also wrote
that
(1) he had always been a ‘satisfactory to abovesatisfactory’ employee, (2) three Caucasian males with
less seniority and experience had been promoted in
the last six months, (3) throughout this period he had
consistently complained to his superiors regarding what
he perceived to be discriminatory treatment, (4) he had
filed a previous charge of discrimination around 1986,
(5) [one of the defendant's employees] allegedly stated,
“this nigger [complainant] ain't going anywhere as long
as he works for me,” and (6) he remained employed “at
a lesser step than he should be.”
Id.
The Tenth Circuit concluded that this charge
“could not reasonably be expected to lead to a
hostile[-]work[-]environment/racial[-]harassment claim”
and that “[n]othing in [the complainant]'s EEOC
complaint indicates a hostile work environment.” Id.
It also noted that “[the complainant's] EEOC charge
contains no factual allegations of treatment in manner or
degree sufficient to allege a hostile work environment.” Id.
at 668.
Here, Dolin's EEOC charge does not allege a hostile
work environment. On the EEOC form, in a box
labeled “DISCRIMINATION BASED ON (Check
appropriate box(es)):” Dolin checked “sex,” “retaliation,”
and “other.” [Doc. 7-8] Beside “other,” she entered
“Equal Pay.” [Doc. 7-8] In a box labeled “DATE(S)
DISCRIMINATION TOOK PLACE,” Dolin entered
“8/11/2010–01/17/2014” and checked a box labeled
“CONTINUING ACTION.” [Doc. 7-8]
In the description of her claim, she wrote

I began working for [TKE] in Roswell, New Mexico
on December 15, 2008 as an LR Service Mechanic.
On March 5, 2010, I was wrongfully terminated.
Shortly thereafter, I filed an EEOC complaint,
453-2010-00819, concerning gender. On or around
August 31, 2010, I agreed to withdraw my complaint
with the understanding that I would be reinstated to my
former position and would be paid 12.5% above union
scale mechanics wages. Since that date, my pay has been
lowered and [TKE] insists no such agreement exists.
In addition, female employees are paid much less than
male employees who are similarly situated. If a female
seeks equal pay, than [sic] she is subjected to her request
being turned over to an attorney with the company.
I also believe that my wage issue is due to the fact that
I lead an alternative lifestyle, as I am a lesbian.
I believe I am being retaliated against for filing an
EEOC complaint in violation of Title VII of the Civil
Rights Act of 1964, as amended. I believe I and other
females are being discriminated against with regard to
wages because of our sex (female), [sic] In violation of
Title VII of the Civil Rights Act of 1965, as amended, as
well as the Equal Pay Act of 1963. In addition, I believe
I am being discriminated against with regard to wages
due to my sex (male/gender stereotype), in violation of
Title VII of the Civil Rights Act of 1964.
[Doc. 7-8]
Moreover, in the Complaint, Dolin states that she
“filed charges with the New Mexico Department of
Workforce Solutions alleging [TKE] committed sex
discrimination, violations of the Equal Pay Act, and
unlawful retaliation.” [Doc. 1, ¶ 6] Thus, Dolin's own
description of her 2014 EEOC charge does not reference
harassment or hostile work environment.
In addition, the factual allegations in the Complaint
related to hostile work environment are not reflected
in the EEOC charge. The only reference to “hostile
work environment” in the Complaint includes a statement
that Dolin “became aware” that some of her male
colleagues “believed [that Dolin's] persistent complaints
about the LR rate pay inequity caused co-workers to
lose pay.” [Doc. 1, ¶ 50] This paragraph also alleges
that “some, not all, male LR Service Mechanics” did not
receive annual increases as provided for by the CBA. [Doc.

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2017 WL 1551990, 2017 Fair Empl.Prac.Cas. (BNA) 108,748

1, ¶ 50] None of these allegations were included in the
EEOC charge.

decision made outside the limitations period.” Ledbetter,
550 U.S. at 625.

*6 As in Mitchell, even construing Dolin's EEOC charge
liberally, the allegations in the charge failed to alert the
EEOC to a hostile-work-environment claim. Hence, Dolin
has failed to carry her burden to demonstrate compliance
with Title VII's requirements. Consequently, the hostilework-environment claim must be dismissed.

In contrast to the holding in Ledbetter, the Act provides
that

Retaliation
TKE makes a different exhaustion argument related to
Dolin's retaliation claims. TKE argues that, to the extent
that Dolin argues that TKE retaliated against her for her
2010 EEOC claim by withholding the 12.5% supplement,
the retaliation claim must be dismissed because the
decision to pay her the base wage rate only was made over
300 days before the 2014 EEOC charge was filed. [Doc.
7-1, pg. 9; Doc. 15, pg. 6]
The Court understands Dolin's claims to be that 1) TKE
paid her less than it paid male workers in similar positions
based on her sex, and 2) TKE paid her less than workers in
similar positions in retaliation for her 2010 EEOC charge.
Dolin's retaliation claim is, therefore, an alternative theory
for why she was paid less than other workers. Because
Dolin's retaliation claim is grounded in the way TKE paid
Dolin, it is differentiated from retaliation claims grounded
in a discrete, nonrecurring, act such as termination or
failure to promote.
Some background on the law related to timing
requirements for Title VII claims is necessary to place the
parties' arguments in context. The Lilly Ledbetter Fair
Pay Act of 2009 (the Act) “governs how long parties have
to file ‘discrimination in compensation’ claims.” Almond
v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1175 (10th
Cir. 2011). The Act was passed in response to the United
States Supreme Court's decision in Ledbetter v. Goodyear
Tire & Rubber Co., 550 U.S. 618 (2007), overturned due
to legislative action (Jan. 29, 2009). In that case, the
Supreme Court held that Ledbetter's claims were timebarred because she failed to bring them within 180 days
of the decision leading to her discriminatory pay. Id. at
643. It rejected Ledbetter's argument that “each paycheck
that offers a woman less pay than a similarly situated
man because of her sex is a separate violation of Title
VII with its own limitations period, regardless of whether
the paycheck simply implements a prior discriminatory

For purposes of this section,
an unlawful employment practice
occurs,
with
respect
to
discrimination in compensation in
violation of this subchapter, when
a discriminatory compensation
decision or other practice is adopted,
when an individual becomes subject
to a discriminatory compensation
decision or other practice, or
when an individual is affected
by application of a discriminatory
compensation decision or other
practice, including each time wages,
benefits, or other compensation is
paid, resulting in whole or in part
from such a decision or other
practice.
42 U.S.C. § 2000e-5(e)(3)(A). Thus, the Act permits
“discrimination in compensation” claims to accrue based
on one of three circumstances: when “a discriminatory
compensation decision or other practice is adopted;” when
the plaintiff is subject to that decision, or when the
plaintiff is paid pursuant to that decision. See Groesch v.
City of Springfield, Ill., 635 F.3d 1020, 1024 (7th Cir. 2011)
(“[T]he statute of limitations for filing an EEOC charge
alleging pay discrimination resets with each paycheck
affected by a discriminatory decision.”).
*7 TKE points to National Railroad Passenger Corp. v.
Morgan for the proposition that “each retaliatory adverse
employment decision constitutes a separate actionable
‘unlawful employment practice’ ” and that a plaintiff “can
only file a charge to cover discrete acts that ‘occurred’
within the appropriate time period.” [Doc. 7-1, pg. 9]
536 U.S. 101, 114 (2002). But Morgan was addressing
allegations of retaliation that did not implicate unequal
pay. Instead, the Morgan plaintiff alleged that “he was
consistently harassed and disciplined more harshly than
other employees on account of his race.” Morgan, 536
U.S. at 105 (internal quotation marks and citation
omitted). Moreover, Morgan predated passage of the Act.

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More recent cases addressing allegations of reductions in
compensation have held that such claims are not timebarred if a reduced paycheck is received by the plaintiff
within the 300-day period, even when the discriminatory
decision leading to that paycheck was made outside of
the charging period. For example, in Nelson v. Special
Administrative Board of St. Louis Public Schools, 873
F. Supp. 2d 1104, 1116–17 (E.D. Mo. 2012), the Court
held that, even though “the initial retaliatory act, the
decision to compensate [the p]laintiff at a lower salary,
may have occurred more than 300 days prior to the
filing of either charge of discrimination, under the [Act]
each subsequent instance of discriminatory compensation
is actionable, and [the p]laintiff may recover back pay
for up to two years preceding the filing of the charge
of discriminatory retaliation.” See also Groesch, 635
F.3d at 1025 (holding that white appellants' claims not
barred where they were denied credit for years of service
but African-American workers were granted such credit
because the appellants' claims “allege[d] ‘discriminatory
compensation decisions' and [we]re based on the payment
of wages resulting from those decisions”); Vuong v. N.Y.
Life Ins. Co., No. 03CIV.1075(TPG), 2009 WL 306391,
at *9 (S.D.N.Y. Feb. 6, 2009), aff'd sub nom. Pheng
Vuong v. N.Y. Life Ins. Co., 360 Fed.Appx. 218 (2d Cir.
2010) (holding that the plaintiff's claim “[wa]s expressly
declared to be timely by virtue of the [Act]” where the
plaintiff claimed that his compensation was less than it
would have been absent a discriminatory decision made
outside the required period). Cf. Hutchinson v. City of
Oklahoma City, 919 F. Supp. 2d 1163, 1170 n. 4 (W.D.
Okla. 2013) (rejecting the argument that the Act applies
to save retaliation claims for conduct falling outside the
charging period where the plaintiff did not allege that
the retaliation related to discriminatory compensation or
that she “was paid less than her male co-workers for
performing substantially the same work”); ZambranoLamhaouhi v. N.Y. City Bd. of Educ., 866 F. Supp. 2d
147, 167–68 (E.D.N.Y. 2011) (stating that “[c]ase law
in the Second Circuit and elsewhere makes clear that
the ... Act ... applies only to discriminatory employment
decisions specifically related to pay, and not to other
employment decisions, even where such decisions directly
affect pay” and that the Act did not apply where the
plaintiff had alleged only that she suffered a reduction
in pay, not that she was paid less than others similarly
situated).

Given Dolin's allegation that TKE retaliated against
her by making a compensation decision that resulted in
recurring paychecks that were less than those for similarly
situated male workers, her claim falls within the ambit of
the Act and is not time-barred.

Motion to Dismiss Under Rule 12(b)(6)
TKE also argues that Dolin has failed to state a claim
for pay discrimination under the Equal Pay Act, the New
Mexico Fair Pay for Women Act, or Title VII. [Doc 7-1,
pg. 10]
*8 In Bell Atlantic Corporation v. Twombly, 550 U.S.
544 (2007), the Supreme Court held that, “to withstand
a motion to dismiss, a complaint must have enough
allegations of fact, taken as true, ‘to state a claim to
relief that is plausible on its face.’ ” Kansas Penn Gaming,
LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011)
(quoting Twombly, 550 U.S. at 570). In applying this test,
a court accepts as true all well-pleaded facts alleged in
the plaintiff's complaint but does not accept the plaintiff's
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). In short, in ruling on a Rule 12(b)(6) motion,
“a court should disregard all conclusory statements of
law and consider whether the remaining specific factual
allegations, if assumed to be true, plausibly suggest the
defendant is liable.” Collins, 656 F.3d at 1214.
TKE argues that Dolin has failed to state pay
discrimination claims because she failed to 1) make
factual allegations about the duties, skills, and working
conditions of the male workers alleged to receive more pay
than Dolin, [Doc. 7-1, pg. 11] and 2) the male workers to
whom she compares her salary did not work in Roswell,
NM and thus did not work in the same “establishment” as
Dolin. [Doc. 7-1, pg. 12-13; Doc. 15, pg. 2]
To establish a prima facie case
under the EPA, [Dolin] has the
burden of proving that (1) she
was performing work which was
substantially equal to that of the
male employees considering the
skills, duties, supervision, effort and
responsibilities of the jobs; (2) the
conditions where the work was
performed were basically the same;
(3) the male employees were paid
more under such circumstances.

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Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1364
(10th Cir. 1997) (internal quotation marks and citation
omitted). The NM Fair Pay for Women Act is nearly
identical to the EPA. Compare 29 U.S.C. § 206(d) with
NMSA 1978, § 28-23-2(A) (2013). Similarly, under Title
VII, “the plaintiff ... bears the burden of proving that
the employer intentionally paid her less than a similarlysituated male employee.” Mickelson v. N.Y. Life Ins. Co.,
460 F.3d 1304, 1310 (10th Cir. 2006); see 42 U.S.C. §
2000e-2.
Dolin has adequately pled her claims. In the Complaint,
Dolin states that the 12.5% supplement was paid when
the Service Mechanic was required to work under certain
conditions, to wit, the Service Mechanic “was required
to be ‘on call’ on a 24/7 basis, was required to respond
to client service calls within two (2) hours, and when
the Mechanic's assigned route included servicing clients
located outside the geographic area identified in the
collective bargaining agreement as the ‘primary zone.’
” [Doc. 1, pg. 3, ¶ 16] Dolin states that, when she was
hired, she accepted assignment to the “same client service
route” as had been assigned to her male predecessor, who
was paid the 12.5% supplement. [Doc. 1, pg. 4, ¶ 17] She
states that in March 2010, when Dolin was terminated,
TKE “continued to pay other LR Service Mechanics who
were male and whose job assignments met the conditions
for the LR rate.” [Doc. 1, pg. 4, ¶ 21] She alleges that
when she was reinstated, she was “assigned [a] client route
outside the primary zone, required ... to be in on call status
24/7 for all clients in her route, and required ... to respond
to calls within two (2) hours.” [Doc. 1, pg. 4-5, ¶ 23] She
further alleges that in spite of being assigned work subject
to the conditions meriting the 12.5% supplement, she was
not paid the supplement. [Doc. 1, pg. 5, ¶¶ 25, 28] The
references to the “conditions” for the 12.5% supplement
are sufficient to support Dolin's assertions that 1) the
12.5% supplement is paid on performance under certain
conditions, 2) she worked under those conditions, 3) she
was not paid the supplement, but 4) male workers working
under those conditions were paid the supplement.
*9 While these allegations in the Complaint do not
reference skills and specific duties, the lack of such
reference does not constitute a failure to state a claim.
Dolin's suit does not rest on TKE's failure to pay her
as a Service Mechanic. Instead, it depends entirely on a
failure to pay the 12.5% supplement. Since the supplement

is dependent on working conditions, not skills or duties,
Dolin's factual allegations are sufficient.
Moreover, the Court is unpersuaded by TKE's argument
that Dolin failed to allege facts related to male workers
within the same “establishment” because Dolin did not
identify comparators who worked in Roswell, as she did.
[Doc. 15, pg. 2] Dolin does not dispute TKE's assertion
that while she was assigned to Roswell, NM, she was the
only Service Mechanic so assigned. [Doc. 7-1, pg. 4, ¶ 2
(stating this fact); Doc. 13, pg. 3 (not disputing this fact) ]
Consequently, there were no Service Mechanics working
in Roswell at the same time as Dolin to whom Dolin could
point as comparators.
Nevertheless, TKE's argument fails on two fronts. First,
Dolin identifies a Roswell employee who both preceded
her and succeeded her as a comparator and asserts
that he was paid the 12.5% supplement throughout his
assignment to Roswell. [Doc. 1, pg. 4, ¶¶ 17, 20] See 29
C.F.R. § 1620.13(b)(4) (1998) (referencing a successor as
a comparator).
Second,
under
the
circumstances
here,
the
“establishment” inquiry must be broader than TKE
suggests. Both the EPA and the NM Fair Pay for
Women Act reference “the establishment” in prohibiting
discrimination based on sex.
No employer shall discriminate, within any
establishment in which such employees are employed,
between employees on the basis of sex by paying wages
to employees in the establishment at a rate less than the
rate that the employer pays wages to employees of the
opposite sex in the establishment for equal work on jobs
the performance of which requires equal skill, effort
and responsibility and that are performed under similar
working conditions.
§ 28-23-3 (emphasis added). See 29 U.S.C. § 206(d).
TKE's argument rests on a narrow construction of the
term “establishment.” The Secretary of Labor defines
“establishment” as a physical location, stating that
“establishment” “refers to a distinct physical place of
business rather than to an entire business or ‘enterprise’
which may include several separate places of business.
Accordingly, each physically separate place of business
is ordinarily considered a separate establishment.”
29 C.F.R. § 1620.9(a). However, the Secretary also

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recognized that in “unusual circumstances,” “two or
more distinct physical portions of a business enterprise
[may warrant] being treated as a single establishment.”
29 C.F.R. § 1620.9(b). Such circumstances might
exist where “a central administrative unit may hire
all employees, set wages, and assign the location of
employment; employees may frequently interchange work
locations; and daily duties may be virtually identical
and performed under similar working conditions.” 29
C.F.R. § 1620.9(b). Consistent with this rubric, some
courts have found a single establishment based on
“central control and administration of disparate job
sites ... [including] centralized control of job descriptions,
salary administration, and job assignments or functions.”
Mulhall v. Advance Sec., Inc., 19 F.3d 586, 591 n. 11 (11th
Cir. 1994) (collecting cases). Other courts have declined to
read “establishment” broadly. See, e.g., Renstrom v. Nash
Finch Co., 787 F. Supp. 2d 961, 967 (D. Minn. 2011).
*10 Here, Dolin alleges, and TKE agrees, that “the terms
and conditions of [her] employment, including wages
and benefits, are covered ... by a collective bargaining
agreement.” [Doc. 1, pg. 3, ¶ 5; Doc. 7-1, pg. 3, ¶ 1] Further
terms of employment, including wages, are included in
“local representative agreements” for mechanics who
work in remote locations. [Doc. 7-1, pg. 3, ¶ 1 (stating this
fact); Doc. 13 (not disputing this fact) ] These agreements
indicate centralized control of job descriptions, salaries,
and assignments. In addition, it is the very nature of
Dolin's assignment by TKE that renders her unable to
identify any Roswell comparators. Indeed, it appears that,
under TKE's reasoning, none of their employees working
under “local representative agreements” would ever be
able to identify comparators in the same town.
Given that TKE hires Service Mechanics to
work independently out of remote locations, Dolin
appropriately identified other Service Mechanics as
comparators (in addition to the one Roswell employee) for
her wage discrimination claims, even if those mechanics
work in other locations.

Motion for Summary Judgment
In its final argument, TKE argues that it “paid Dolin
based on a legitimate, non-discriminatory reason, which
was based on a factor other than sex—settlement of a
grievance and EEOC charge.” [Doc. 7-1, pg. 14] See 29
U.S.C. § 206(d) (permitting “a [wage] differential based on
any other factor other than sex”). The Court interprets

this argument to be a request for summary judgment on
the ground that Dolin's pay was purely a function of the
Settlement Agreement. [See Doc. 7-1, pg. 1 (requesting
summary judgment in the alternative) ]
Summary judgment under Fed. R. Civ. P. 56(c) “shall be
rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). “When
a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse party's
pleading....” Fed. R. Civ. P. 56(e). Rather, “the adverse
party's response ... must set forth specific facts showing
that there is a genuine issue for trial.” Id. Judgment is
appropriate “as a matter of law” if the nonmoving party
has failed to make an adequate showing on an essential
element of its case, as to which it has the burden of proof
at trial. See Lopez v. LeMaster, 172 F.3d 756, 759 (10th
Cir. 1999).
In order to warrant consideration by the Court, the
factual materials accompanying a motion for summary
judgment must be admissible or usable at trial (although
they do not necessarily need to be presented in a form
admissible at trial). See Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). It is not the Court's role, however, to
weigh the evidence, assess the credibility of witnesses, or
make factual findings in ruling on a motion for summary
judgment. Rather, the Court assumes the evidence of the
nonmoving party to be true, resolves all doubts against
the moving party, construes all evidence in the light
most favorable to the non-moving party, and draws all
reasonable inferences in the non-moving party's favor. See
Hunt v. Cromartie, 526 U.S. 541, 551-52 (1999).
TKE's argument rests on its interpretation of the
language in the Settlement Agreement. For instance, TKE
maintains that it paid Dolin “the prevailing negotiated
mechanic's wage rate of IUEC Local 131, as provided for
in the [S]ettlement [A]greement.” [Doc. 7-1, pg. 4, ¶ 6]
TKE apparently understands the “prevailing negotiated
mechanic's wage rate of IUEC Local 131” to mean the
base wage rate only. In contrast, Dolin understands the
“prevailing negotiated mechanic's wage rate of IUEC
Local 131” to mean the base wage rate plus 12.5%

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as negotiated in the Local Representative Agreement.
[Compare Doc. 7-1, pg. 4 with Doc. 13, pg. 3, ¶¶ 4, 6]
*11 In her Response, Dolin disputes that she agreed to
forego the 12.5% supplement in settlement negotiations.
[Doc. 13, pg. 3, ¶ 4] However, in her own affidavit,
which Dolin attached to her response to TKE's motion to
dismiss, Dolin states that “[i]n order to get my job back,
I was left no choice by TKE except ... to accept only the
elevator mechanic base wage rate under the CBA.” [Doc.
13, Exh. A] She also states that she
was advised by [her] union representative ... that if
[she] accepted this settlement, including the agreement
between the IUEC and TKE that my pay would only be
the base mechanic rate upon my re-hire and assignment
to the same customer route, that once I resumed
performing the work ... the union would negotiate the
12.5% LR rate again as soon as feasible.... On this
basis and to get my job back, I agreed to accept the
settlement.
[Doc. 13, Exh. A (emphasis added) ]
Hence, Dolin's own affidavit contradicts her assertion
that she did not agree to forego the supplement in the
Settlement Agreement.
However, even if there were no question of fact as to the
terms of the Settlement Agreement, TKE is not entitled
to judgment as a matter of law. Although Dolin has
the burden of proof at trial to demonstrate that TKE
discriminated against her, the fact that she may have
agreed to forego the 12.5% supplement is not dispositive
on this issue because “the mere existence of a wage
agreement cannot be considered a ‘factor other than sex’
if the contract perpetuates pay differentials which would
themselves violate the [Equal Pay] Act.” Anderson v. Univ.
of N. Iowa, 779 F.2d 441, 444 (8th Cir. 1985); see Dean

v. United Food Stores, Inc., 767 F. Supp. 236, 240 n. 1
(D.N.M. 1991) (stating that “[a] person is not precluded
from bringing a claim under the Equal Pay Act because he
or she has agreed by contract to a certain level of pay.”).
When a wage differential is justified by “a factor other
than sex,” the defendant must demonstrate that the factor
(here, the Settlement Agreement) is “ ‘rooted in legitimate
business-related differences in work responsibilities and
qualifications for the particular positions at issue.’ ” Riser
v. QEP Energy, 776 F.3d 1191, 1198 (10th Cir. 2015)
(discussing whether a gender-neutral pay classification
system could serve as a “factor other than sex”) (quoting
Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 525
(2d Cir. 1992)). In other words, the fact that a plaintiff
agreed to a lesser wage than her counterparts is only a
defense to a sex discrimination charge if the defendant
can demonstrate that the wage differential is based on
legitimate business purposes.
As TKE makes no argument related to the business
purposes underlying the wage differential in the
Settlement Agreement, TKE is not entitled to judgment as
a matter of law and TKE's Motion for Summary Judgment
must be denied.

III. Conclusion
For the reasons stated herein, TKE's Motion to Dismiss
or, in the Alternative, for Summary Judgment, [Doc. 7]
is GRANTED as to Dolin's hostile-work-environment
claim, and DENIED in all other respects.
SO ORDERED this 31 st day of March, 2017.

All Citations
Slip Copy, 2017 WL 1551990, 2017 Fair Empl.Prac.Cas.
(BNA) 108,748

Footnotes

1

Dolin asserts that TKE improperly attached “extrinsic evidence” to its Motion and that the Court should strike such
evidence. [Doc. 13, pg. 5 n.1] However, the Court may properly consider the 2014 EEOC charge because it was referred
to in Dolin's Complaint and in her Response to TKE's Motion. [See Doc. 1, pg. 2, ¶ 6; Doc. 13, pg. 9-10] Moreover, “[i]n
reviewing a factual attack [on the Court's jurisdiction], 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, 271 F.3d at 1225 (internal quotation marks
and citation omitted). Although Dolin states in a footnote that the materials attached by TKE are “not authenticated,” this
is not sufficient to attack the document attached by TKE as the 2014 EEOC charge.

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End of Document

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