Yocham v. Glanz et al

Filing 13

OPINION AND ORDER by Judge Claire V Eagan ; terminating party Tulsa County Board of County Commissioners ; granting 6 Motion to Dismiss Party (Re: State Court Petition/Complaint ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

PATTY S. YOCHAM,
Plaintiff,
v.
STANLEY GLANZ, TULSA COUNTY
BOARD OF COUNTY
COMMISSIONERS, and TULSA COUNTY
SHERIFF’S DEPARTMENT,

Defendants.

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Case No. 12-CV-0284-CVE-PJC

OPINION AND ORDER
Now before the Court is the Motion and Brief to Dismiss by Defendant Board of County
Commissioners of Tulsa County (Dkt. # 6). Defendant Board of County Commissioners of Tulsa
County (the Board) argues that the Court does not have jurisdiction over plaintiff’s claims pursuant
to Fed. R. Civ. P. 12(b)(1) because plaintiff failed to exhaust her administrative remedies before
asserting a claim under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA) and
because plaintiff has failed to state a claim on which relief can be granted pursuant to Fed. R. Civ.
P. 12(b)(6). Plaintiff has not responded to the motion and her time to do so has passed. In the Joint
Status Report submitted by the parties, plaintiff states that she “does not object to the dismissal of
claims against [the Board] only.” Dkt. # 11 at 2. Because plaintiff has not exhausted her
administrative remedies against the Board, the Court need not address the Board’s argument that
plaintiff has failed to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

I.
Plaintiff Patty S. Yocham was employed by the Tulsa County Sheriff’s Office (TCSO) as
a detention officer from December 1, 2006, until her termination on May 19, 2009. Plaintiff alleges
that, on March 4, 2007, she suffered an on-the-job injury. She alleges that she was diagnosed with
cervical strain, thigh/hip strain, thoracic strain, and contusion of the elbow. Plaintiff alleges that she
was released to return to work on March 12, 2007, with restrictions on her physical activity. She
returned to work on light duty on April 20, 2007. Plaintiff alleges that she required two surgeries
on her back as a result of her injury, one on July 20, 2007, and one on August 11, 2008. Plaintiff
returned to work “off and on” with restrictions after each surgery. Dkt. # 2 at 7. She took Family
and Medical Leave Act (FMLA) leave on August 12, 2008. On February 20, 2009, TCSO advised
plaintiff that she had used all of her available FMLA leave as of November 8, 2008. Yocham
returned to work at TCSO on March 19, 2009, with permanent restrictions on her physical activity.
As an additional term of her release, plaintiff alleges that she was to have no contact with any
inmates. This restriction was stated in the fax cover sheet of her release to work.
When plaintiff returned to work, her days off had been changed and she had been moved
from weekday shifts to evening shifts. Plaintiff alleges that TCSO never made any effort to assign
her to a position in which she would have no contact with inmates. On April 1, 2009, plaintiff wrote
to TCSO’s Human Resource Manager, stating that because she was still in contact with inmates in
her position at the front desk, and because this was against her physician’s orders, she was unable
to return to work. Plaintiff stated that she would return to work when a suitable position was
provided. Plaintiff received a letter dated May 19, 2009, advising her of her discharge effective that
date.

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Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) on March 29, 2010. Dkt. # 6-1 at 3. The EEOC charge identified only the
“Tulsa County Sheriff’s Dept.” as plaintiff’s employer.

Id.

Plaintiff alleged claims of

discrimination based on her disability and claimed that her employer had retaliated against her for
complaining of discriminatory conduct. Plaintiff subsequently received a received a Right to Sue
Letter from the EEOC.
Plaintiff initially filed suit in Tulsa County District Court on October 29, 2010, and that
action was dismissed without prejudice on October 26, 2011. Plaintiff filed the instant petition in
Tulsa County District Court on April 25, 2012. The petition alleges failure to accommodate,
retaliation, and disability discrimination in violation of the ADA. The petition also alleges a state
claim of wrongful termination against TCSO.1 Defendants removed the case to federal court on the
basis of federal question jurisdiction. Dkt. # 2.
II.
The exhaustion of administrative remedies is a jurisdictional prerequisite under the ADA,
and the Board’s motion is treated as a 12(b)(1) motion. See Shikles v. Sprint/United Management
Co., 426 F.3d 1304, 1317 (10th Cir. 2005); Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir.
1997). When considering a motion to dismiss under Rule 12(b)(1), a court must determine whether
the defendant is facially attacking the complaint or challenging the jurisdictional facts alleged by
plaintiff. In Holt v. United States, 46 F.3d 1000 (10th Cir. 1995), the Tenth Circuit stated:

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The petition alleges “violations of 85 O.S. §§ 5 and 6.” Dkt. # 2 at 10. However, OKLA.
STAT. tit. 85, §§ 5 and 6 have been repealed and replaced by OKLA. STAT. tit. 85, § 341.
Because the petition does not allege state claims against the Board, this discrepancy is not
material to the instant motion.
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Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction
take two forms. First, a facial attack on the complaint’s allegations as to subject
matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial
attack on the complaint, a district court must accept the allegations in the complaint
as true. Second, a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends. When reviewing
a factual attack on subject matter jurisdiction, a district court may not presume the
truthfulness of the complaint’s factual allegations. . . . In such instances, a court’s
reference to evidence outside the pleadings does not convert the motion to a Rule 56
motion.
Id. at 1002-03. The Board relies on evidence outside the pleadings, specifically the EEOC charge,
and the Court will construe the motion as a factual attack on the jurisdictional facts alleged by
plaintiff. When ruling on a factual attack to the complaint, a court “has wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional
facts” without converting the motion into a motion for summary judgment. Stuart v. Colorado
Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal quotations omitted); see also
Davis v. United States, 343 F.3d 1282, 1295-96 (10th Cir. 2003). To defeat a defendant’s Rule
12(b)(1) motion, a “plaintiff must present affidavits or other evidence sufficient to establish the
court’s subject matter jurisdiction by a preponderance of the evidence.” Southway v. Central Bank
of Nigeria, 328 F.3d 1267, 1274 (10th Cir. 2003).
III.
The Board argues that, because plaintiff did not name it as her employer in her EEOC charge,
she has not exhausted her administrative remedies as to the Board. To proceed against a party on
an ADA claim, the plaintiff must name the defendant as her employer in an EEOC charge.
Knowlton v. Teltrust Phones, Inc., 189 F.3d 1177, 1185 (10th Cir. 1999). The Tenth Circuit has
recognized two narrow exceptions to this rule in situations when “the defendant was informally
referred to in the body of the charge or where there is sufficient identity of interest between the
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respondent and the defendant to satisfy the intention of [the ADA] that the defendant have notice
of the charge and the EEOC have an opportunity to attempt conciliation.” Romero v. Union Pac.
R.R., 615 F.2d 1303 (10th Cir. 1980). In Romero, the Tenth Circuit stated four factors that should
be considered when a plaintiff attempts to bring an employment discrimination claim against a
defendant not named in the plaintiff’s EEOC charge:
1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; 2)
whether, under the circumstances, the interests of a named party are so similar as the
unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence from the EEOC proceedings resulted in actual
prejudice to the interests of the unnamed party; 4) whether the unnamed party has in
some way represented to the complainant that its relationship with the complainant
is to be through the named party.
Id. at 1312 (internal quotations omitted).
When considering whether a plaintiff’s EEOC charge adequately names a party, a court must
keep in mind that “complaints to the EEOC must be liberally construed in order to accomplish the
purposes of the [ADA], since such complaints are written by laymen not versed either in the
technicalities of pleading or jurisdictional requirements of the [ADA].” Gonzalez–Aller Balseyro
v. GTE Lenkurt, Inc., 702 F.2d 857, 860 (10th Cir. 1983). However, the burden is on plaintiff to
show that she exhausted her administrative remedies. McBride v. CITGO Petroleum Corp., 281
F.3d 1099, 1106 (10th Cir. 2002); see also Karnes v. Boeing Co., 335 F.3d 1189, 1193 (10th Cir.
2003).
The Court has reviewed plaintiff’s EEOC charge and finds that it does not name the Board
as plaintiff’s employer. Further, the Board is not referred to informally by plaintiff in the charge.
There are no facts in the record that would support a finding pursuant to the factors set forth in

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Romero that there is a sufficient identity of interest between the Board and the TCSO such that the
Board did not need to be named in the EEOC charge. Finally, plaintiff has stated that she does not
object to the dismissal of her claims against the Board.
IT IS THEREFORE ORDERED that the Motion and Brief to Dismiss by Defendant Board
of County Commissioners of Tulsa County (Dkt. # 6) is granted. The Tulsa County Board of
County Commissioners is dismissed as a party to this action.
DATED this 5th day of July, 2012.

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