Karmid v. Midwest Regional Medical Center LLC
ORDER denying 5 Defendant's Motion Dismiss, STAYING this matter until after the Plaintiff resubmits her Charge of Discrimination to the EEOC so it can fulfill its statutory obligation of conciliation, and directing the Plaintiff to notify the Court when she is ready to proceed with the case (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 11/17/2017. (ks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MIDWEST REGIONAL MEDICAL
CENTER, LLC, d/b/a
ALLIANCE HEALTH MIDWEST,
CASE NO. CIV-17-929-M
Before the Court is the Defendant Midwest Regional Medical Center’s (“Defendant”)
Motion to Dismiss or Stay, filed on September 5, 2017. Plaintiff Kathy Karmid (“Plaintiff”) filed
a response and objection on September 20, 2017. Defendant filed a reply on September 27, 2017.
Having reviewed the parties’ submissions, the Court makes its determination. The Court finds an
evidentiary hearing is not necessary.
Plaintiff filed her Charge of Discrimination (“Charge”) and received her Notice of Right
to Sue (“Notice”) from the Equal Employment Opportunity Commission (“EEOC”) on March 10,
2017. Plaintiff’s Charge alleged she was paid less than younger co-workers who had less
education, professional experience or licenses after she was hired. See Charge of Discrimination,
Exh. 1, Plaintiff’s Response and Objection to Defendant’s Motion to Dismiss or Stay
Defendant moves to dismiss Plaintiff’s complaint because the EEOC issued Plaintiff her
Charge and Notice on the same day, March 10, 2017. Therefore, Defendant argues the EEOC
failed to carry out its statutorily prescribed obligations to notify the charged employer, investigate
the charge, and attempt informal methods of dispute resolution, pursuant to 29 U.S.C. § 626(d)(2).
Defendant further argues the EEOC’s failure to fulfill its statutory responsibilities prejudiced
Defendant because it could not determine how to answer Plaintiff’s allegations and had to incur
Due to the EEOC’s abdication of its responsibilities, Defendant claims Plaintiff failed to
exhaust her administrative remedies and this case should be dismissed or in the alternative stayed
and Plaintiff ordered to resubmit her Charge of Discrimination with the EEOC so it can fulfill its
statutory obligation. Defendant further contends this Court must dismiss this action for lack of
subject matter jurisdiction.
Standard for Motion to Dismiss under Rule 12(b)(1)
Regarding the standard for determining whether to dismiss a claim pursuant to Federal
Rule of Civil Procedure 12(b)(1), the United States Supreme Court has held that the party asserting
jurisdiction bears the burden of proving that the court has subject matter jurisdiction over her
claims. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Rule 12(b)(1) motions generally take one or two forms. First, a
moving party may make a facial attack on the complaint’s
allegations as to the existence of subject matter jurisdiction. In
reviewing a facial attack, the 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 is based. . . . 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. In the course of a factual attack under Rule
12(b)(1), a court’s reference to evidence outside the pleadings does
not convert the motion into a Rule 56 motion.
Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (internal quotations and
citations omitted); Equal Employment Opportunity Commission v. Unit Drilling Co., 4 F. Supp.
3d 1257, 1261 (N.D. Okla. 2013).
Under Title VII of the Civil Rights Act, a plaintiff must obtain a right to sue letter from the
EEOC as a prerequisite to suit. See Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 623 et seq. 1
Plaintiff asserts she exhausted her administrative remedies when she filed her Charge of
Discrimination to the EEOC on March 10, 2017 and received her Notice of Right to Sue on the
same day, March 10, 2017. Exhs.1, 2 to Plaintiff’s Response. It is indisputable that Plaintiff
submitted her Charge with the EEOC, well within the 300 days of Plaintiff discovering the alleged
unlawful practice of discrimination. Subsequently, the EEOC issued a Notice to Plaintiff. Plaintiff
then filed suit in district court within ninety (90) days of the issuance of the Notice. See Petition
Ex.2 [Docket no. 1]. There is no dispute that Plaintiff exhausted her administrative remedies.
Defendant argues, however, that the EEOC failed to fulfill its statutory obligation to the
employer prior to Plaintiff filing her lawsuit. The Court agrees.
The United States Supreme Court has held:
ADEA combines both elements of the Fair Labor Standards Act, see 29 U.S.C. § 201 et seq., and Title VII of the Civil
Rights Act (“Title VII”), see 42 U.S.C. § 2000 et seq. The United States Supreme Court has held courts must
construe the charge filing requirements of the ADEA and Title VII consistently. See Oscar Mayer & Co. v. Evans, 441
U.S. 750, 756 (1979). Therefore, Title VII cases apply to ADEA cases and vice versa. See, e.g. Shikles v. Sprint/United
Mgmt. Co., 426 F.3d 1304, 1308 (10th Cir. 2005).
Title VII, as the Government acknowledges, imposes a duty on the EEOC 2 to
attempt conciliation of a discrimination charge prior to filing a lawsuit. That
obligation is a key component of the statutory scheme. In pursuing the goal of
bringing employment discrimination to an end, Congress chose cooperation and
voluntary compliance as a preferred means. Accordingly, the statute provides, as
earlier noted, that the Commission “shall endeavor to eliminate an alleged unlawful
employment practice by informal methods of conference, conciliation, and
persuasion.” 42 U.S.C. § 2000e-5(b). That language is mandatory, not precatory.
And the duty it imposes serves as a necessary precondition to filing a lawsuit. Only
if the Commission is “unable to secure” an acceptable conciliation agreement – that
is, only if its attempt to conciliate has failed - may a claim against the employer go
forward. § 2000e-5(f)(1).
The statute provides certain concrete standards pertaining to what that endeavor
might entail. Again, think of how the statute describes the obligatory attempt: “to
eliminate the alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion.” §2000e-5(b). Those specified methods
necessarily involve communication between the parties, including exchange of
information and views.
So the EEOC, to meet the statutory condition, must tell the employer about the
claim – essentially, what practice has harmed which person or class—and must
provide the employer with an opportunity to discuss the matter in an effort to
achieve voluntary compliance. If the Commission does not take those specified
actions, it has not satisfied Title VII’s requirement to attempt conciliation.
Furthermore, the appropriate scope of the [judicial] review enforces the statute’s
requirements …that the EEOC afford the employer a chance to discuss and rectify
a specified discriminatory practice ---but goes no further. Such limited review
respects the expansive discretion that Title VII gives to the EEOC over the
conciliation process, while still ensuring that the Commission follows the law.
Mach Mining, LLC v. Equal Employment Opportunity Commission, 135 S. Ct. 1645, 1651-52
(2015) (internal quotations and citations omitted).
In this case, the EEOC has failed to satisfy Title VII’s requirement to attempt conciliation
prior to Plaintiff filing her lawsuit. Defendant submitted an affidavit from Dana Leach (“Leach”),
Human Resource Director for Defendant. Leach states she never received a copy of Plaintiff’s
Charge of Discrimination or Notice of Right to Sue Letter. Affidavit of Dana Leach Defendant
In Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), while the EEOC was the plaintiff rather than an individual,
the court was describing EEOC’s statutory duties of conciliation pursuant to Title VII.
Ex.1. Leach also avers that the EEOC never contacted Defendant in an attempt to resolve
Plaintiff’s allegations. Defendant Ex.1.
Plaintiff has not shown that the EEOC has met its statutory requirement of attempting to
eliminate an alleged unlawful employment practice by informal methods of conference,
conciliation, and persuasion. 42 U.S.C. § 2000e-5(b). However, Defendant presented evidence the
EEOC did not tell Defendant about the claim nor provide it the opportunity to discuss the matter
in an effort to achieve voluntary compliance. See Mach Mining, LLC, 135 S. Ct. at 1652.
Therefore, the Court finds this case must be stayed until the EEOC fulfills its statutory obligations.
Accordingly, the Court:
DENIES Defendant’s Motion Dismiss [Docket No. 5];
STAYS this matter until after the Plaintiff resubmits her Charge of Discrimination
to the EEOC so it can fulfill its statutory obligation of conciliation; and
DIRECTS the Plaintiff to notify the Court when she is ready to proceed with the
IT IS SO ORDERED this 17th day of November, 2017.
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