Hartman v. Sonic Restaurants, Inc. et al
Filing
23
MEMORANDUM AND ORDER granting in part and denying in part 8 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 8/24/2018. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RICHARD E. HARTMAN,
Plaintiff,
vs.
Case No. 18-cv-01057-EFM-TJJ
SONIC RESTAURANTS, INC.,
Defendant.
MEMORANDUM AND ORDER
Plaintiff Richard Hartman initiated this action on February 21, 2018 against his former
employer, Defendant Sonic Restaurants, Inc. (“Sonic”), alleging age discrimination in violation of
the Age Discrimination in Employment Act (“ADEA”), disability discrimination in violation of
the Americans With Disabilities Act (“ADA”), and retaliation in violation of the ADEA and ADA.
This matter comes before the Court on Sonic’s motion to dismiss. For the reasons stated below,
Sonic’s Motion to Dismiss Plaintiff’s Complaint (Doc. 8) is granted in part and denied in part.
Sonic’s motion to dismiss is granted with respect to Hartman’s ADA claim, and denied with
respect to the remaining claims.
I.
A.
Factual and Procedural Background1
The Complaint
Hartman was born in 1954, and he has a birth defect in his left ear, leaving the ear deformed
with 50% hearing loss. He joined Sonic in July 1999, working there for more than 17 years, until
Sonic terminated his employment on January 1, 2017. At the time Sonic fired him, he was 62, and
was Sonic’s oldest Supervising Partner in the Midwest Region. Hartman is currently retired from
the workforce.
Throughout his career, Hartman was promoted numerous times. In December 2006,
Hartman was promoted to Director of Operations in Wichita, Kansas. He served in that capacity
until July 2011 when he was offered the position of Senior Supervising Partner, where he managed
12 Sonic Drive-Ins and earned a salary of approximately $180,000 per year. His new position was
technically a demotion in rank, but Hartman believed it to be more of an opportunity than a
demotion, as his salary increased by approximately $75,000 per year.
When Hartman became the Senior Supervising Partner, Jacques Grondin became the new
Director of Operations. Grondin was approximately 20 years younger than Hartman, and felt
threatened by Hartman’s previous experience as Director and stature within the company. Grondin
often taunted and ignored Hartman, and even threatened Hartman’s compensation.
In December 2013, Sonic replaced Grondin with Doug Scott as Director of Operations in
Wichita. During the transition period, Grondin expressed his opinions about Hartman’s age and
disability issues. When Hartman introduced himself to Scott—who is approximately 10 years
1
The following facts are derived from Hartman’s Complaint and his response to Sonic’s motion to dismiss.
See Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (“A court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”) (citations
omitted).
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younger than Hartman—Scott stated that the two were going to have problems. While working
together, Scott would pick on Hartman due to his age and the disability in his left ear. Scott would
often raise his voice at Hartman, despite the fact that Hartman can still hear reasonably well. Scott
would also ridicule Hartman’s ability to use a computer and to complete managerial tasks.
In May 2016, Scott was put on a 90-day Personal Improvement Plan (“PIP”). Scott
ultimately failed the PIP, and Sonic eliminated Scott’s position. On the eve of his termination,
however, Scott placed Hartman on a PIP, which started on September 1, 2016. On December 12,
2016, Hartman was notified that he failed the PIP. He was officially terminated without severance
pay on January 1, 2017.
On March 20, 2017, Hartman submitted an Intake Questionnaire to the Equal Employment
Opportunity Commission (“EEOC”) at their Kansas City office. The EEOC’s Kansas City office
forwarded Hartman’s Intake Questionnaire to the EEOC’s Oklahoma City office, where it was
received on April 3, 2017.
“Due to the EEOC’s extensive delays and oversight,” Hartman’s Charge of Discrimination
(“Charge”) “was not filed until November 16, 2017.” The EEOC issued Hartman his right to sue
letter on November 24, 2017, stating that Hartman must file his lawsuit within 90 days of receiving
the right to sue letter (notifying Hartman that his lawsuit must be filed by February 22, 2018).
“The EEOC acknowledged its oversight in February 2018, and thus, deemed Mr. Hartman’s claims
timely filed, stating that the date the EEOC’s Oklahoma City office received Mr. Hartman’s Intake
Questionnaire on April 3, 2017 is the action and date that preserves Mr. Hartman’s timeliness of
filing.”
Hartman filed this action on February 21, 2018. In Count I, Hartman brings a claim of
discrimination under the ADEA. In Count II, Hartman brings a claim of discrimination under the
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ADA. In Count III, Hartman brings a claim of retaliation in violation of the ADEA and ADA.
Hartman did not attach any exhibits to the Complaint.
On April 27, 2018, Sonic filed the present motion to dismiss under Fed. R. Civ. P. 12(b)(1).
Sonic argues that Hartman failed to timely and fully exhaust his administrative remedies with
respect to the Charge forming the basis for his lawsuit, and seeks to have Hartman’s lawsuit
dismissed.
B.
Exhibits Attached to Hartman’s Response
Attached to his Response, Hartman included copies of his Charge, emails he and his
counsel exchanged with the EEOC, the EEOC’s right to sue letter, his Intake Questionnaire, and a
photograph of his ear.
1.
Hartman’s Intake Questionnaire
The Intake Questionnaire was signed by Hartman on March 20, 2017. There is a disclaimer
at the top of the first page, which states: “REMEMBER, a charge of employment discrimination
must be filed within the time limits imposed by law, within 180 days or in some places within 300
days of the alleged discrimination.”
In response to Question 2, Hartman indicated that he believed he was discriminated against
by his employer, Sonic. Question 4 contains 10 check-boxes to answer “[w]hat is the reason (basis)
for your claim of employment discrimination?” Hartman checked two boxes: age, and retaliation.
The remaining boxes, including the disability box, were not checked. Hartman handwrote most
of his allegations against Sonic in the lines provided for Questions 5–8.
The third page of the Intake Questionnaire explains that Questions 9–12 should be
answered “only if you are claiming discrimination based on disability. If not, skip to question 13.”
Hartman proceeded to fill out questions 9–12. Regarding Question 9, Hartman checked a box
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indicating that “Yes, I have a disability.” To the side, Hartman handwrote “50% hearing loss due
to a birth defect!” Question 10 asks “[w]hat is the disability that you believe is the reason for the
adverse action taken against you? Does this disability prevent or limit you from doing anything?”
Hartman answered: “I have a birth defect which gives me a 50% hearing loss which my last
supervisor must have thought I couldn’t hear him because he was always yelling at me ‘Rich, Rich,
Rich, Rich.’ ”
On the fourth and final page, after the final question the form contains the following
message:
Please check one of the boxes below to tell us what you would like us to do with
the information you are providing on this questionnaire. If you would like to file a
charge of discrimination, you must do so either within 180 days from the day you
knew about the discrimination, or within 300 days from the day you knew about
the discrimination . . . . If you do not file a charge of discrimination within the time
limits, you will lose your rights. If you would like more information before filing
a charge or you have concerns about EEOC’s notifying the employer, union, or
employment agency about your charge, you may wish to check Box 1. If you want
to file a charge, you should check Box 2.
Box 1 provides: “I want to talk to an EEOC employee before deciding whether to file a charge. I
understand that by checking this box, I have not filed a charge with the EEOC. I also understand
that I could lose my rights if I do not file a charge in time.” And Box 2 provides: “I want to file a
charge of discrimination, and I authorize the EEOC to look into the discrimination I described
above.” Hartman checked Box 1, leaving Box 2 blank.
Hartman signed and dated the Questionnaire. Below the signature and date lines, the
questionnaire contains a Privacy Act Statement.
The statement provides, in relevant part:
“Consistent with 29 CFR 1601.12(b) and 29 CFR 1626.8(c), this questionnaire may serve as a
charge if it meets the elements of a charge.”
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2.
Hartman’s Correspondence With the EEOC
Exhibit B contains a copy of an email chain between Hartman and Tamra James, a Federal
Investigator with the EEOC. The first email was sent from James to Hartman; it does not contain
a date. It reads:
Dear Mr. Hartman:
This is in reply to your telephone message on 6/20/17. I am the Federal Investigator
assigned to your charge. I have received all the information that you have sent me
to file a charge. I will begin the filing process soon. I plan to e-mail you a draft of
your charge of discrimination during the week of July 1, 2017. However, this is
not a quick process as I am required to work on cases in the date order in which I
receive them, and I receive many new ones each week. There are some cases that
I have received before I received yours that I must work on before I can work on
your case. Therefore, you will not be contacted by me unless or until I have
information for you or I need an action or information from you. This doesn’t mean
that the [sic] I have forgotten about you or your charge, it is just the fact that I have
many charges that require the same or similar amount of attention, so that contact
and/or communication on each must be limited to make time for my investigation
all of them [sic]. Additionally, I prefer to communicate by e-mail. Thank you.
Hartman responded to this email on September 25, 2017. He wrote: “Tamra, excuse me, but I was
wondering if you might be able to update me as to where I stand in this investigation! Thank you,
Rich.” On October 3, 2017, Ms. James replied: “Dear Mr. Hartman, I am working on your charge.
I will contact you as needed. Thank you.”
Exhibit C contains another copy of an email chain between Hartman and Ms. James. The
first email does not include a date, but it was sent by Ms. James to Hartman, explaining:
Attached is your charge of discrimination for your review and signature. If you are
unable to down load or open it and print it, let me know and I will mail a hard copy
to you. Please review the wording. If you need any corrections, please e-mail me
the paragraph number and the wording that you want for that paragraph. You may
not change paragraph III as it is standard for the Commission. If you do not need
any corrections, please sign it and return it to me by e-mail, fax, or regular mail.
Thank you.
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Because this email did not include a date, it is unclear what date Hartman first received the charge
from the EEOC, but Hartman responded on November 14, 2017. He wrote:
Tamra, thank you so much for investigating my charge, but since I am not familiar
with the process I have a question and a comment.
Question, upon signing this document, does this give me the “right to sue” or is this
a formal “official” charge and you are documenting the specifics?
Comment: Doug Scott, my immediate Supervisor was relieved of his position
effective August 15th when Alex Marizcurrena was then put into position and
became my Supervisor. Doug drove from Kansas City, Missouri to Wichita and
met with me at 4:30 pm to deliver the PIP on August 31st. I believe that he did not
have the authority to put me on a PIP because he was no longer the Director of
Operations at the time. I believe that this additionally shows his mission (even
though he had no power to do so) to blatantly discriminate against me to get me out
of the company and forcing me into retirement.
[By the way], I was able to print this off, but I did not know if you wanted to add
this very significant bit of information. Please let me know!
James’s reply was sent on November 16, 2017:
Attached is your charge of discrimination with the information added that you
requested. After I receive the signed charge of discrimination, I will issue the notice
of “right to sue” letter to you. Once you receive the notice of right to sue, you must
file a suit in Federal Court within 90 days of the date on the notice of right to sue
letter. If you do not file a suit within the 90-day period, you will lose your right to
sue over this matter.
The EEOC received Hartman’s formal Charge, signed and dated on November 16, 2017.
Hartman’s right to sue letter (attached to the Response as Exhibit D) was signed by Tamra James
for Holly Waldron Cole, the EEOC’s Area Office Director on November 24, 2017.
Finally, Exhibit E is an email from Holly Cole to an attorney for each of the parties on
February 27, 2018. The email provided:
Our records show that we received your client’s, Richard Hartman, intake
questionnaire on April 3, 2017. This is the initial inquiry date with the EEOC as
he was contacting us for the purpose of filing a Charge of Discrimination. The 300day time limit stopped on that day; not on the date the Charge of Discrimination
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(Form 5) was signed by him. It is not unusual for the Form 5 to be drafted and
signed on a date later than the initial inquiry date. We treated Mr. Hartman’s charge
to be timely filed with the EEOC and processed it accordingly. Hopefully, this
clarifies the issue. Thank you.
3.
Hartman’s Formal Charge
Hartman’s Charge was signed under penalty of perjury, dated November 16, 2017. The
section indicating what Hartman’s discrimination is based on contains 10 checkboxes. Only two
were checked: Retaliation and Age. The disability box was not checked. The “particulars” section
contained, in relevant part, the following allegations:
I had never received any below target performance evaluation, no letters of any
disciplinary action in my personnel file, or any negative correspondence until Doug
Scott became my supervisor in December of 2013. I suffered harassment from
Supervisor, Doug Scott, age 50’s frequently. He often threatened my income and
my job. He made fun of my computer skills. He made Ageist remarks saying,
“Rich, there are new inventions out there called computers”, and “I would rather
do it himself than take the time to teach you or show you how to do it”, inferring
that my age made me unfamiliar with computers and slow to learn how to use them.
Also, Supervisor Doug Scott repeated my name loudly, “Rich, Rich, Rich”, when
he spoke to me as though he thought I could not hear him since I was older. He
treated younger employees better than he treated me. I complained many times of
the harassment and the age discrimination I experienced to Human Resources.
Nothing was done to address my complaints. In retaliation for my repeated
complaints, Supervisor, Doug Scott, placed me on a 90-day [PIP] beginning August
31, 2017. . . I believe that this additionally shows his mission . . . to blatantly
discriminate against me to get me out of the company and forcing me into
retirement.
Hartman then explained: “I believe that I have been discriminated against because of my age, (62),
and retaliated against for my complaints of Age Discrimination, in violation of the Age
Discrimination in Employment Act of 1967, as amended.
The Charge indicates that the
discrimination took place from December 6, 2013 until January 1, 2017.
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II.
Legal Standard
Sonic seeks to dismiss Hartman’s claims under Fed. R. Civ. P. Rule 12(b)(1) for lack of
subject matter jurisdiction. Rule 12(b)(1) motions generally take the form of facial attacks on the
complaint or factual attacks on the accuracy of its allegations.2 Sonic challenges the face of the
complaint, so the Court presumes the accuracy of plaintiff’s factual allegations.3 “Courts may
exercise jurisdiction only when specifically authorized to do so, and must dismiss the cause at any
stage of the proceeding in which it becomes apparent that jurisdiction is lacking.”4 Because federal
courts are courts of limited jurisdiction, the law imposes a presumption against jurisdiction.5
Hartman bears the burden of showing that jurisdiction is proper, and must demonstrate that the
case should not be dismissed.6
III.
Discussion
Sonic now moves to dismiss the Complaint, advancing two arguments. First, Sonic argues
that Hartman failed to timely file the Charge within the 300-day limitation period and therefore
this action is time-barred and should be dismissed. Second, Sonic argues that Hartman failed to
exhaust his administrative remedies regarding his ADA claim for alleged disability discrimination,
and his disability claim is therefore jurisdictionally barred. The Court will address each argument
in turn.
2
Id. at 1002–03 (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).
3
See id.
4
Myers v. United States, 2013 WL 5596813, at *1 (D. Kan. 2013) (citations and internal quotation marks
omitted).
5
Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).
6
Myers, 2013 WL 5596813, at *1 (citing Marcus, 170 F.3d at 1309; Jensen v. Johnson Cty. Youth Baseball
League, 838 F. Supp. 1437, 1439–40 (D. Kan. 1993)).
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A.
Timely Filing of a Charge
A plaintiff must exhaust his administrative remedies before he may file suit under the
ADEA or the ADA, and may do so by timely filing a charge with the EEOC.7 For Hartman’s
ADEA and ADA claims to be timely, he must have filed an administrative “charge” within three
hundred days after his discharge.8 Sonic argues that Hartman did not file a timely Charge, so he
did not administratively exhaust his claims, thus his lawsuit is barred. According to Sonic, the
charge was not filed until November 16, 2017, more than 300 days after the last allegedly
discriminatory act identified in his charge took place (January 1, 2017). Hartman counters that his
Intake Questionnaire constitutes his charge of discrimination, and that was timely filed with the
EEOC on April 3, 2017.
The Supreme Court has resolved two issues directly relevant to this case: “what is a charge
as the ADEA uses that term” and was Hartman’s Intake Questionnaire “a charge?”9 Regarding
the first issue, the Court determined that, to be considered a charge, a plaintiff’s documents must
provide “the information required by the regulations, i.e., an allegation and the name of the charged
party,” and also “it must be reasonably construed as a request for the agency to take remedial action
to protect the employee’s rights or otherwise settle a dispute between the employer and the
employee.”10 The Court acknowledged “that under this permissive standard a wide range of
7
See Riley v. Tulsa Cty. Juvenile Bureau ex rel. Tulsa Cty. Bd. of Comm’rs, 421 F. App’x 781, 783 (10th
Cir. 2010); EEOC v. Wal-Mart Stores, Inc., 1999 WL 1244485, at *3 (10th Cir. 1999).
8
See Carson v. Cudd Pressure Control, Inc., 299 F. App’x 845, 847 (10th Cir. 2008); Brown v. Unified Sch.
Dist. 501, Topeka Pub. Schs., 465 F.3d 1184, 1186 (10th Cir. 2006) (citations omitted); see also Holmes v. Utah,
Dep’t of Workforce Servs., 483 F.3d 1057, 1061–62 (10th Cir. 2007) (dismissing allegations which did not occur
within the 300-day filing period).
9
Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 395 (2008).
10
Id. at 402.
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documents might be classified as charges,” but found this result “consistent with the design and
purpose of the ADEA,” particularly because most charges are filed by laypersons.11 The standard
would also serve to “separate information requests from enforcement requests.”12
The Court then resolved the second question in favor of the plaintiff, determining that his
completed intake form and the attached affidavit provided all the necessary information and, as
construed, amounted to “a request for the agency to act.”13 The Court concluded that it did not
matter that the plaintiff subsequently filed a formal, but untimely, charge.14
Before Holowecki, the Tenth Circuit held that a document filed with the EEOC constitutes
a charge where: (1) the document satisfies the requirements of 29 C.F.R. § 1601.12; (2) “the
evidence demonstrated that the complainant sought to activate the EEOC’s administrative
process;” and (3) “the EEOC treated the document as a charge.”15 In light of Holowecki, however,
the Tenth Circuit clarified two points regarding these three factors. “With respect to the second
factor, we must now evaluate whether a filing constitutes a complainant’s request for remedial
action from an objective viewpoint only.”16 And “[w]ith respect to the third factor, we now make
plain that we do not require evidence that the EEOC actually treated a filing as a charge to construe
11
Id.
12
Id. at 401.
13
Id. at 405.
14
Id. at 406.
15
Semsroth v. City of Wichita, 304 F. App’x 707, 713 (10th Cir. 2008) (citing Jones v. U.P.S., Inc., 502 F.3d
1176, 1183 (10th Cir. 2007)).
16
Id. (citing Holowecki, 552 U.S. at 402 (“[T]he filing must be examined from the standpoint of an objective
observer to determine whether, by a reasonable construction of its terms, the filer requests the agency to activate its
machinery and remedial processes . . . .”)) (emphasis in original).
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that document as such.”17
“Instead, the EEOC’s subsequent conduct merely informs our
determination regarding whether the document can reasonably be construed as a request for agency
action.”18
With this standard in mind, the Court considers whether Hartman’s Intake Questionnaire
constitutes a charge. First, the Intake Questionnaire contains all five types of information required
by § 16.01.12. Second, the Court must determine whether the Intake Questionnaire objectively
constitutes a request for remedial action. The Intake Questionnaire, standing alone, cannot
reasonably be construed as “a request for the agency to take remedial action” because it contains
only factual information about Hartman’s allegations of discrimination and makes no requests of
the agency.19 Hartman explicitly checked the box that provides: “I want to talk to an EEOC
employee before deciding whether to file a charge. I understand that by checking this box, I have
not filed a charge with the EEOC. I also understand that I could lose my rights if I do not file a
charge in time.” This suggests that the Intake Questionnaire does not constitute a charge.
The Court’s inquiry, however, does not end with the responses Hartman provided on the
Intake Questionnaire. Like here, the Tenth Circuit in Semsroth concluded that, standing alone, the
plaintiffs’ intake questionnaires “cannot reasonably be construed as ‘a request for the agency to
take remedial action.’ ”20 However, the Semsroth Court noted that,
[a]fter submitting the questionnaires to the EEOC, each plaintiff received one or
two letters from the EEOC. These letters informed the [plaintiffs] that they had not
17
Id. (citing Holowecki, 552 U.S. at 404).
18
Id.
19
See id. (noting that plaintiffs’ intake questionnaires “cannot reasonably be construed as ‘a request for the
agency to take remedial action’ because they relate only factual information about the [plaintiffs’] allegations of
discrimination and make no requests of the agency”) (citation omitted).
20
Id. (citing HOlowecki, 552 U.S. at 402).
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filed charges as a result of the questionnaires and directed the [plaintiffs] to take
additional steps, including contacting the EEOC, if they wished to file a charge.
The letters also indicated that if the [plaintiffs] elected to file a charge, “it is likely
the case would immediately be closed. A Dismissal/Right-to-Sue document would
then be issued to you.”21
The record indicated that two of the plaintiffs received Right-to-Sue letters. “Given the discourse
in the letters from the EEOC as well as the existence of the Right-to-Sue letters,” the Tenth Circuit
concluded “that as a result of their subsequent actions,” those two plaintiffs’ intake questionnaires
“reasonably constitute[d] charges . . . .”22 “The letters from the EEOC indicate[d] that the [two
plaintiffs] needed to take additional steps to demonstrate the requisite desire to start the EEOC
administrative process and that if they did so, the EEOC would likely close their cases and issue
Right-to-Sue letters.”23 Thus, the presence of the Right-to-Sue letters suggested that plaintiffs “in
fact took the affirmative steps necessary to signal their desire to the EEOC to start its administrative
process.”24
Semsroth is instructive here. Although Hartman’s Intake Questionnaire, standing alone,
cannot reasonably be construed as a request for the EEOC to take action, the surrounding evidence
objectively demonstrates that Hartman sought to activate the EEOC’s administrative process. Just
like two of the plaintiffs in Semsroth, Hartman received a right-to-sue letter from the EEOC on
November 24, 2017. The presence of Hartman’s right-to-sue letter is strong evidence that Hartman
21
Id. at 714.
22
Id.
23
Id.
24
Id.
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“took the affirmative steps necessary to signal [his] desire to the EEOC to start its administrative
process.”25
Additionally, Hartman’s correspondence with the EEOC demonstrates that Hartman
sought to activate the EEOC’s administrative process after he submitted his Intake Questionnaire.
Hartman called and left a message with Tamra James, a Federal Investigator with the EEOC on
June 20, 2017. Ms. James replied:
This is in reply to your telephone message on 6/20/17. I am the Federal Investigator
assigned to your charge. I have received all the information that you have sent me
to file a charge. I will begin the filing process soon. I plan to e-mail you a draft of
your charge of discrimination during the week of July 1, 2017. However, this is
not a quick process as I am required to work on cases in the date order in which I
receive them, and I receive many new ones each week. There are some cases that
I have received before I received yours that I must work on before I can work on
your case. Therefore, you will not be contacted by me unless or until I have
information for you or I need an action or information from you. This doesn’t mean
that the [sic] I have forgotten about you or your charge, it is just the fact that I have
many charges that require the same or similar amount of attention, so that contact
and/or communication on each must be limited to make time for my investigation
all of them [sic].
Although the contents of Hartman’s June 20 message were not provided to the Court, it is clear
that based off this email that Hartman expressed his desire for the EEOC to start its administrative
process. This conclusion is further supported by Hartman’s September 25, 2017 email response.
He wrote: “Tamra, excuse me, but I was wondering if you might be able to update me as to where
I stand in this investigation! Thank you, Rich.” Ms. James returned his email, telling him that she
was working on his charge.
25
See id.; see also Halsey v. U.P.S., 2015 WL 73685, at *4 (D. Kan. 2015) (citing Semsroth, 304 F. App’x
at 714) (“The Tenth Circuit determined that the right-to-sue letters were strong evidence that those two plaintiffs took
the additional steps directed by the EEOC in the post-questionnaire correspondence, while the lack of a right-to-sue
letter for the third plaintiff strongly suggested that she did not take the required additional steps.” (emphasis added)).
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The Tenth Circuit no longer requires “evidence that the EEOC actually treated a filing as
a charge to construe that document as such.”26 Even so, such evidence was presented in this case.
On February 27, 2018, the EEOC Office Director wrote, in an email: “[o]ur records show that we
received your client’s, Richard Hartman, intake questionnaire on April 3, 2017,” and that “[t]his
is the initial inquiry date with the EEOC as he was contacting us for the purpose of filing a Charge
of Discrimination.” According to the Director, “[t]he 300-day time limit stopped on that day; not
on the date the Charge of Discrimination (Form 5) was signed by him.” Thus, the Director noted,
“[w]e treated Mr. Hartman’s charge to be timely filed with the EEOC and processed it
accordingly.”
Accordingly, the evidence, including the EEOC’s subsequent conduct, objectively
demonstrates that the complainant sought to activate the EEOC’s administrative process.27
Hartman’s Intake Questionnaire was therefore the operative charge filed with the EEOC. It was
filed on April 3, 2017, well within the 300-day limitation period. Because Hartman’s charge was
timely filed, any federal claims that are included within the scope of Hartman’s timely allegations
are not barred.
B.
Scope of the Allegations Raised in the EEOC Charge
Next, Sonic argues that neither the Intake Questionnaire nor the formal charge reference
disability discrimination, and therefore Hartman failed to administratively exhaust his disability
claim. Hartman counters that the contents of his Intake Questionnaire, which is the operative
26
Semsroth, 304 F. App’x at 713 (citing Holowecki, 552 U.S. at 403–04).
27
See id. at 714 (“Here, we consider the EEOC’s subsequent conduct only as evidence that [two of the
plaintiffs] must have contacted the EEOC subsequent to filing the intake questionnaire to request EEOC action,
because the EEOC had advised these two plaintiffs that it would not issue right-to-sue letters to them in the absence
of express requests for action. Accordingly, we conclude that [the two plaintiffs] filed charges with the EEOC.”).
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charge of discrimination, sufficiently alleges a claim for discrimination based on his deformed ear
and hearing loss.
A plaintiff normally may not bring an ADA claim “based upon claims that were not part
of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.”28 “This
individual filing requirement is intended to protect employers by giving them notice of the
discrimination claims being brought against them, in addition to providing the EEOC with an
opportunity to conciliate the claims.”29 “[E]ach discrete incident of [discriminatory or retaliatory]
treatment constitutes its own ‘unlawful employment practice’ for which administrative remedies
must be exhausted.”30 “In the tenth circuit, a plaintiff must exhaust her claims before the EEOC
as a prerequisite to federal court jurisdiction over her ADA claims.”31
Administrative exhaustion is addressed in three steps. First, the Court must analyze
whether the document filed with the EEOC constitutes a charge.32 Second, the Court must
“determine which allegations included in the charge, if any, are timely.”33 Third, the Court must
“determine whether the federal claims are included within the scope of those timely allegations.”34
Above, the Court concluded that Hartman’s Intake Questionnaire is the operative questionnaire,
and that the allegations included in the charge are timely. Thus, the issue currently before the
28
Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004) (internal quotation marks omitted).
29
Id. at 1195 (citations omitted).
30
Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citing Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 110–13 (2002)).
31
MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (citations omitted).
32
Semsroth, 304 F. App’x at 712.
33
Id.
34
Id.
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Court is whether Hartman’s ADA claim is included within the scope of the allegations included in
the Intake Questionnaire.
Sonic argues that Bland v. Kansas City, Kansas Community College35 is instructive. There,
the plaintiff’s intake questionnaire contained allegations to support claims under the ADEA and
the ADA.36 Later, the plaintiff filed a timely charge, on which she marked only the box referencing
age discrimination.37 In the “particulars” section of the charge, she wrote: “I believe that I am
being discriminated against because of my age (49) in violation of the [ADEA].”38 The charge
“fail[ed] to mention any claim that might arise under the ADA.”39 Nonetheless, the plaintiff filed
suit alleging violations of the ADA.40 The defendant moved to dismiss the ADA claim on the
grounds that the plaintiff failed to exhaust her administrative remedies.41
The Bland Court ultimately dismissed the disability claim and declined to “reach beyond
the body of her charge for exhaustion purposes.”42 In reaching this decision, the court found “that
the Tenth Circuit’s decision in [Welsh v. City of Shawnee], albeit unpublished, strongly suggests
that the Circuit would reject plaintiff’s reliance on her intake questionnaire for exhaustion
purposes.”43 The court explained:
35
271 F. Supp. 2d 1280 (D. Kan. 2003).
36
See id. at 1284.
37
Id. at 1283.
38
Id. at 1283–84.
39
Id. at 1284.
40
Id. at 1282.
41
Id. at 1283.
42
Id. at 1284.
43
Id. at 1285.
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Here, plaintiff’s intake questionnaire is not even signed by plaintiff much less
signed under oath. The fact that the plaintiff’s information sheet in Welsh was
unverified was a critical component in the Circuit’s decision. Thus, the court
believes that the Circuit would similarly disregard the intake questionnaire here.
Moreover, there is simply no evidence before the court that plaintiff intended the
EEOC to investigate the allegations contained in the intake questionnaire. As the
Circuit indicated in Welsh, while submission of the completed questionnaire itself
“may be some indication that at some point she intended [the EEOC] to investigate
her [disability discrimination] allegations,” her subsequent timely filed formal
charge, signed under oath, containing only allegations of age discrimination
effectively negated the questionnaire.44
Thus, although the plaintiff’s intake questionnaire contained allegations supporting an ADA claim,
her subsequently-filed formal charge did not, and the court dismissed the plaintiff’s ADA claim
for failure to exhaust her administrative remedies.45
While Bland is instructive, the facts of this case are distinguishable. Here, Hartman’s
Intake Questionnaire is the operative charge, even though a formal, albeit untimely charge was
later filed.46 Although the Intake Questionnaire was not verified,47 Supreme Court jurisprudence
makes clear that verification of the original document does not dictate whether that document can
44
Id. (citing Welsh v. City of Shawnee, 1999 WL 345597, at *5 (10th Cir. 1999)) (internal citation omitted)
(alterations in original).
45
See id.
46
Bland and Welsh are distinguishable because in those cases, a formal charge was timely filed after the
intake questionnaire had been filed. To the extent that Bland and Welsh can be read to support the conclusion that an
untimely formal charge can also negate any claims contained in a previously-submitted intake questionnaire, the Court
agrees that Hartman’s ADA claim would have to be dismissed. Hartman’s formal charge clearly did not contain any
reference to his disability, so it would negate any disability claim that he raised in the Intake Questionnaire if such a
claim was properly raised. See Green v. JP Morgan Chase Bank Nat’l Assoc., 501 F. App’x 727, 731 (10th Cir. 2012)
(holding that “it would defeat the statutory scheme to find exhaustion where an employee includes a claim in the
intake questionnaire, but then omits it in a timely subsequent formal charge . . . ”) (citation omitted).
47
See 42 U.S.C. § 2000e-5 (“Charges shall be in writing under oath or affirmation and shall contain such
information and be in such form as the Commission requires.”); 29 C.F.R. § 1601.9 (requiring a charge to be in writing,
signed, and verified).
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be considered a charge because subsequent verification can relate back to the original filing.48
Thus, the Intake Questionnaire—not the formal charge—told “the EEOC what to investigate,” and
“provide[d] it with the opportunity to conciliate the claim.”49
Thus, the Court must “determine the scope of the allegations raised in” the Intake
Questionnaire, because “[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.”50 However, in this case, the Court’s analysis is guided by
the “discriminatory acts alleged in” Hartman’s Intake Questionnaire, because it is the operative
charge.51
In other words, the Intake Questionnaire “must contain facts concerning the
discriminatory and retaliatory actions underlying each claim.”52
Sonic argues that an ADA claim is not within the scope of the allegations raised in the
Intake Questionnaire, because Hartman only checked the boxes for age and retaliation, and when
asked for any other bases of discrimination, he simply wrote: “hostile work environment because
of my age.”
Hartman admits that he failed to mark the “Disability” box on the Intake
Questionnaire, but counters that the Intake Questionnaire certainly alleges the pervasive
harassment from Hartman’s manager Doug Scott relating to his deformed ear. He cites question
48
See Edelman v. Lynchburg Coll., 535 U.S. 106, 113–14 (2002) (concluding that the verification
requirement can be cured by a later document that relates back to the original filing). Here, Hartman’s formal charge
was verified, and it relates back to the operative charge, the Intake Questionnaire.
49
Bland, 271 F. Supp. 2d at 1283 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 799 (10th Cir.
1997); Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989)).
50
Jones, 502 F.3d at 1185–86 (internal quotation marks and citation omitted).
51
See id. (concluding that the plaintiff’s intake questionnaire satisfied the EEOC’s requirements for a charge
before determining whether the plaintiff exhausted her administrative remedies by analyzing the scope of the
allegations raised in the operative charge—the intake questionnaire).
52
Id. at 1186.
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9 on the Intake Questionnaire, where he marked the “Yes, I have a disability” box, and handwrote
beside that “50% hearing loss due to a birth defect!” He also cites question 10, where he wrote “I
have a birth defect which gives me a 50% hearing loss which my last supervisor must have thought
I couldn’t hear him because he was always yelling at me with ‘Rich, Rich, Rich, Rich.’ ” However,
as Sonic points out, Hartman did not include any allegations that Sonic took adverse action against
him because of his alleged hearing loss, nor did he request any accommodation from Sonic because
of his hearing loss.
“The failure to mark a particular box creates a presumption that the charging party is not
asserting claims represented by that box.”53 “The presumption may be rebutted, however, if the
text of the charge clearly sets forth the basis of the claim.”54 The Court concludes that Hartman
has not rebutted this presumption, because the Intake Questionnaire does not contain allegations
that Hartman was harassed due to his disability, nor does it contain allegations that Hartman was
terminated due to his disability. Hartman simply noted that he had “a 50% hearing loss due to a
birth defect,” and that his “last supervisor must have thought I couldn’t hear him” because he
always yelled “Rich, Rich, Rich, Rich.” The text of the Intake Questionnaire simply does not
contain facts that would prompt an investigation of Hartman’s claim that Sonic discriminated
against him based off his disability. Hartman did not allege that Sonic discriminated against him
because of his disability and his allegations did not go beyond age discrimination. None of the
53
Id. (citing Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998)).
54
Id. (citing Gunnell, 152 F.3d at 1260) (emphasis added).
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allegations in the Intake Questionnaire suggest that Hartman intended to make a disability
discrimination claim.55
Indeed, it appears that the EEOC, after reviewing the Intake Questionnaire, chose not to
investigate a claim for disability discrimination. The EEOC spent months drafting a formal charge
for Hartman. When the EEOC eventually submitted the draft to Hartman for his approval, there
was no reference to a claim for disability. Rather, the “Disability” box was unchecked on the
formal charge, and the “particulars” section provided: “Supervisor Doug Scott repeated my name
loudly, ‘Rich, Rich, Rich,’ when he spoke to me as though he thought I could not hear him since I
was older.” This also leads the Court to conclude that the text of the Intake Questionnaire does
not contain facts that would prompt an investigation of Hartman’s disability claim.
Based off the simple allegation in the Intake Questionnaire, an investigation into whether
Hartman was discriminated against due to his disability cannot “reasonably be expected to follow.”
Hartman has therefore failed to exhaust his administrative remedies with respect to his ADA claim.
Accordingly, Count II of the Complaint is dismissed.
IV.
Conclusion
Contrary to Sonic’s assertions, Hartman’s Intake Questionnaire was the operative charge
filed with the EEOC. It was filed on April 3, 2017, well within the 300-day limitation period.
Because Hartman’s charge was timely filed, any federal claims that are included within the scope
of Hartman’s timely allegations are not barred. However, only Hartman’s ADEA and retaliation
claims are included within the scope of his Intake Questionnaire. Accordingly, Hartman’s
55
Cf. Rader v. U.S.D. 259 Wichita Pub. Schs., 844 F. Supp. 2d 1206, 1210–11 (D. Kan. 2011) (concluding
that nothing in the plaintiff’s charge suggests that plaintiff intended to make a national origin claim when plaintiff
“did not allege that defendant discriminated against her because of any nation from which her African ancestry may
have come and her allegations did not go beyond race”).
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disability discrimination claim is dismissed for failure to exhaust administrative remedies. The
Court denies Sonic’s motion as to Hartman’s ADEA and retaliation claims.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 8) is
GRANTED IN PART AND DENIED IN PART.
The motion is granted with respect to Count II (ADA disability discrimination claim).
Count II is the only claim that is dismissed.
IT IS SO ORDERED.
Dated this 24th day of August, 2018.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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