UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth A. Bowen
v. Civil No. 15-cv-496-JD Opinion No. 2016 DNH 011 eLanes New Hampshire Holdings, LLC d/b/a Wendy's Old Fashioned Hamburgers
O R D E R
Elizabeth A. Bowen brings state and federal claims that
arose from her employment at a Wendy’s restaurant in West
Lebanon, New Hampshire. Wendy’s moves to dismiss Bowen’s claims
of sexual harassment and unequal pay that are brought under
Title VII of the Civil Rights Act of 1964 on the ground that
Bowen failed to exhaust those claims. Bowen did not file a
response to the motion to dismiss.1
Standard of Review
Wendy’s cites Federal Rule of Civil Procedure 12(b)(1) as
the basis for the motion to dismiss. Rule 12(b)(1) pertains to
motions to dismiss for lack of subject matter jurisdiction.
“Although typically a failure to exhaust administrative remedies
will bar suit in federal court, the exhaustion requirement is
not a jurisdictional prerequisite to filing a Title VII claim in
1Bowen is represented by counsel. federal court.” Vera v. McHugh, 622 F.3d 17, 29-30 (1st Cir.
2010) (internal quotation marks omitted). Therefore, Rule
12(b)(1) is inapposite to the exhaustion issue.
The motion to dismiss is reviewed under Rule 12(b)(6),
which addresses whether the complaint states a claim on which
relief may be granted. See, e.g., Jorge v. Rumsfeld, 404 F.3d
556, 558, 564-65 (1st Cir. 2005); Labrecque v. Mabus, 2015 WL
4458987 (D. Me. July 21, 2015); Marcimo v. Thermospas, Inc.,
2010 WL 5187760, at *4, n.6 (D. Mass. Dec. 14, 2010). A
complaint will be dismissed under Rule 12(b)(6) if the factual
allegations, taken in the light most favorable to the plaintiff,
fail to show that the plaintiff may recover under a plausible
claim. Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st Cir.
2015). Although a motion to dismiss under Rule 12(b)(6) is
ordinarily decided on the complaint without considering other
documents, the court may consider documents submitted with or
incorporated into the complaint, official public records, and
documents that are central to the plaintiff’s claim. Id.;
Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267
F.3d 30, 33 (1st Cir. 2001).
With her complaint, Bowen submitted her right to sue letter
from the Equal Employment Opportunity Commission (“EEOC”), an
employee warning report from Wendy’s, and a copy of Wendy’s
“Register Operator Policies and Procedures.” In support of the
2 motion to dismiss, Wendy’s appended Bowen’s charge of
discrimination to the EEOC, Bowen’s right to sue letter, and a
demand letter from Bowen’s attorney to Wendy’s attorney with the
motion to dismiss. Wendy’s previously submitted the same
documents in support of its first motion to dismiss, filed
before the case was transferred to this district, and Bowen did
not object to consideration of the documents then or now.
Further, the submitted documents are central to Bowen’s claim
and will be considered for purposes of deciding the motion.
Background
In August of 2013, Bowen was interviewed for a job at a
Wendy’s restaurant in West Lebanon. The general manager,
Gilbert Spiess, conducted the interview. Bowen explained that
she had suffered a major stroke about four years before the
interview, had had several subsequent episodes, and was
susceptible to having more strokes. She said that because of
her medical history she had cognitive deficits, extreme fatigue,
anxiety, and a loss of executive function that affected her
ability to interact with people. Spiess hired Bowen to work as
a “Crew Member/Front Register Operator” for twenty-five hours
per week.
Bowen was offered the job at $8.00 per hour. Before she
got her first paycheck, however, Spiess told Bowen that she
3 would get $7.75 per hour. Bowen believed that male employees at
Wendy’s doing similar work had starting pay at $8.00 per hour.
Bowen’s first assignment was to train with Tammy Swenson,
an assistant manager, by working at the drive-through window.
Swenson yelled at Bowen and at other employees for no reason.
The yelling made Bowen’s “disabling conditions” worse. Swenson
also blamed Bowen for Swenson’s own mistakes. When Bowen
complained to Spiess he reassigned her to work at the front cash
registers.
In October of 2013, Bowen went to the hospital because of
another mini-stroke. She brought a doctor’s note when she
returned to work and explained that the mini-stroke had
exacerbated her “disabling conditions.” A few days later, Bowen
became ill at work and was taken to the hospital by ambulance.
She was told that she was dehydrated and pregnant.
When she returned to work, Bowen told Spiess that she was
dehydrated because of her working conditions and that she was
pregnant. She asked to be given break time while working at the
cash registers and disagreed with Swenson about how much break
time she should have. Swenson screamed at Bowen in the parking
lot about the break issue and whether Bowen was planning to sue
Wendy’s. Soon after that incident, Bowen’s work hours were
reduced.
4 Bowen alleges that Swenson told other employees that Bowen
had previously worked as an exotic dancer. Male employees made
sexual remarks to her, and one employee snapped towels at her.
A crew leader wanted Bowen to take his telephone number. Bowen
did not report these actions to Spiess because Swenson had told
employees about Bowen’s past work as an exotic dancer when she
complained about Swenson’s behavior to Spiess.
On October 24, 2013, Swenson issued an “Employee Warning
Report” to Bowen because her cash register drawer was short by
$7.00. Bowen disagreed with the charge. Swenson nevertheless
approved the charge.
Bowen then worked a shift with an assistant manager named
Yo-Yo. Yo-Yo said he was going to send some employees home
early because business was slow. Bowen asked to leave early
because she was tired and worried she would have another mini-
stroke. Yo-Yo said she could leave and that she was fired.
When Bowen came to work on November 3, Spiess told her that
he had to fire her because Swenson and Yo-Yo said they would
quit otherwise, she was not a “good fit” for the job, he had
received complaints about her work ethic, she could not follow
directions, and she had received a warning about her cash drawer
being short. Bowen believes that Wendy’s gave her bad
references when she applied for other jobs.
5 Bowen filed a complaint with the EEOC on May 13, 2014,
alleging discrimination in violation of RSA 354-A. Her
statement alleged discrimination based on her disabilities and
that she was fired because of her disabilities. On November 14,
2014, the EEOC issued the right to sue letter with the finding
that it was “unable to conclude that the information obtained
establishes violations of the statutes.”
Bowen brought suit against Wendy’s in the District of
Massachusetts on February 12, 2015. Wendy’s moved to dismiss
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth A. Bowen
v. Civil No. 15-cv-496-JD Opinion No. 2016 DNH 011 eLanes New Hampshire Holdings, LLC d/b/a Wendy's Old Fashioned Hamburgers
O R D E R
Elizabeth A. Bowen brings state and federal claims that
arose from her employment at a Wendy’s restaurant in West
Lebanon, New Hampshire. Wendy’s moves to dismiss Bowen’s claims
of sexual harassment and unequal pay that are brought under
Title VII of the Civil Rights Act of 1964 on the ground that
Bowen failed to exhaust those claims. Bowen did not file a
response to the motion to dismiss.1
Standard of Review
Wendy’s cites Federal Rule of Civil Procedure 12(b)(1) as
the basis for the motion to dismiss. Rule 12(b)(1) pertains to
motions to dismiss for lack of subject matter jurisdiction.
“Although typically a failure to exhaust administrative remedies
will bar suit in federal court, the exhaustion requirement is
not a jurisdictional prerequisite to filing a Title VII claim in
1Bowen is represented by counsel. federal court.” Vera v. McHugh, 622 F.3d 17, 29-30 (1st Cir.
2010) (internal quotation marks omitted). Therefore, Rule
12(b)(1) is inapposite to the exhaustion issue.
The motion to dismiss is reviewed under Rule 12(b)(6),
which addresses whether the complaint states a claim on which
relief may be granted. See, e.g., Jorge v. Rumsfeld, 404 F.3d
556, 558, 564-65 (1st Cir. 2005); Labrecque v. Mabus, 2015 WL
4458987 (D. Me. July 21, 2015); Marcimo v. Thermospas, Inc.,
2010 WL 5187760, at *4, n.6 (D. Mass. Dec. 14, 2010). A
complaint will be dismissed under Rule 12(b)(6) if the factual
allegations, taken in the light most favorable to the plaintiff,
fail to show that the plaintiff may recover under a plausible
claim. Lister v. Bank of Am., N.A., 790 F.3d 20, 23 (1st Cir.
2015). Although a motion to dismiss under Rule 12(b)(6) is
ordinarily decided on the complaint without considering other
documents, the court may consider documents submitted with or
incorporated into the complaint, official public records, and
documents that are central to the plaintiff’s claim. Id.;
Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267
F.3d 30, 33 (1st Cir. 2001).
With her complaint, Bowen submitted her right to sue letter
from the Equal Employment Opportunity Commission (“EEOC”), an
employee warning report from Wendy’s, and a copy of Wendy’s
“Register Operator Policies and Procedures.” In support of the
2 motion to dismiss, Wendy’s appended Bowen’s charge of
discrimination to the EEOC, Bowen’s right to sue letter, and a
demand letter from Bowen’s attorney to Wendy’s attorney with the
motion to dismiss. Wendy’s previously submitted the same
documents in support of its first motion to dismiss, filed
before the case was transferred to this district, and Bowen did
not object to consideration of the documents then or now.
Further, the submitted documents are central to Bowen’s claim
and will be considered for purposes of deciding the motion.
Background
In August of 2013, Bowen was interviewed for a job at a
Wendy’s restaurant in West Lebanon. The general manager,
Gilbert Spiess, conducted the interview. Bowen explained that
she had suffered a major stroke about four years before the
interview, had had several subsequent episodes, and was
susceptible to having more strokes. She said that because of
her medical history she had cognitive deficits, extreme fatigue,
anxiety, and a loss of executive function that affected her
ability to interact with people. Spiess hired Bowen to work as
a “Crew Member/Front Register Operator” for twenty-five hours
per week.
Bowen was offered the job at $8.00 per hour. Before she
got her first paycheck, however, Spiess told Bowen that she
3 would get $7.75 per hour. Bowen believed that male employees at
Wendy’s doing similar work had starting pay at $8.00 per hour.
Bowen’s first assignment was to train with Tammy Swenson,
an assistant manager, by working at the drive-through window.
Swenson yelled at Bowen and at other employees for no reason.
The yelling made Bowen’s “disabling conditions” worse. Swenson
also blamed Bowen for Swenson’s own mistakes. When Bowen
complained to Spiess he reassigned her to work at the front cash
registers.
In October of 2013, Bowen went to the hospital because of
another mini-stroke. She brought a doctor’s note when she
returned to work and explained that the mini-stroke had
exacerbated her “disabling conditions.” A few days later, Bowen
became ill at work and was taken to the hospital by ambulance.
She was told that she was dehydrated and pregnant.
When she returned to work, Bowen told Spiess that she was
dehydrated because of her working conditions and that she was
pregnant. She asked to be given break time while working at the
cash registers and disagreed with Swenson about how much break
time she should have. Swenson screamed at Bowen in the parking
lot about the break issue and whether Bowen was planning to sue
Wendy’s. Soon after that incident, Bowen’s work hours were
reduced.
4 Bowen alleges that Swenson told other employees that Bowen
had previously worked as an exotic dancer. Male employees made
sexual remarks to her, and one employee snapped towels at her.
A crew leader wanted Bowen to take his telephone number. Bowen
did not report these actions to Spiess because Swenson had told
employees about Bowen’s past work as an exotic dancer when she
complained about Swenson’s behavior to Spiess.
On October 24, 2013, Swenson issued an “Employee Warning
Report” to Bowen because her cash register drawer was short by
$7.00. Bowen disagreed with the charge. Swenson nevertheless
approved the charge.
Bowen then worked a shift with an assistant manager named
Yo-Yo. Yo-Yo said he was going to send some employees home
early because business was slow. Bowen asked to leave early
because she was tired and worried she would have another mini-
stroke. Yo-Yo said she could leave and that she was fired.
When Bowen came to work on November 3, Spiess told her that
he had to fire her because Swenson and Yo-Yo said they would
quit otherwise, she was not a “good fit” for the job, he had
received complaints about her work ethic, she could not follow
directions, and she had received a warning about her cash drawer
being short. Bowen believes that Wendy’s gave her bad
references when she applied for other jobs.
5 Bowen filed a complaint with the EEOC on May 13, 2014,
alleging discrimination in violation of RSA 354-A. Her
statement alleged discrimination based on her disabilities and
that she was fired because of her disabilities. On November 14,
2014, the EEOC issued the right to sue letter with the finding
that it was “unable to conclude that the information obtained
establishes violations of the statutes.”
Bowen brought suit against Wendy’s in the District of
Massachusetts on February 12, 2015. Wendy’s moved to dismiss
the case, or in the alternative, to transfer the case to this
district under 28 U.S.C. § 1404(a). In support of the motion to
dismiss, Wendy’s argued that Bowen had failed to complete
service within the time allowed and should not be granted an
extension and that Bowen’s claims for sexual harassment and
unequal pay under Title VII were not exhausted. The court
granted the motion to transfer the case to this district and
denied the motion to dismiss as moot. The case was transferred
to this district on December 9, 2015.
Discussion
Wendy’s moves to dismiss Bowen’s claims under Title VII for
sexual harassment (Count Three) and for unequal pay (Count Five)
on the ground that neither claim was exhausted in the EEOC
proceeding. Bowen did not respond to the motion to dismiss. In
6 her objection to Wendy’s previous motion to dismiss, Bowen
argued that her Title VII sexual harassment and unequal pay
claims should be allowed because Wendy’s had notice of the
claims.2
In order to bring suit on a claim of employment
discrimination under Title VII, a plaintiff first must exhaust
the claim by filing a timely complaint with the appropriate
agency and by receiving a right to sue letter. Mach Mining v.
E.E.O.C., 135 S. Ct. 1645, 1651 (2015); Rivera Diaz v. Humana
Ins. of P.R., Inc., 748 F.3d 387, 389-90 (1st Cir. 2014).
“[T]he scope of the federal court complaint is constrained by
the allegations made in the administrative complaint: the
former must bear some close relation to the latter.” Velazquez-
Ortiz v. Vilsack, 657 F.3d 64, 71 (1st Cir. 2011) (internal
quotation marks omitted). To meet that requirement, “the
factual statement in the written charge should have alerted the
agency to the alternative basis of discrimination that the
plaintiff alleges for the first time in court.” Id.
In this case, Bowen did not allege facts in her written
charge to the EEOC about sexual harassment or unequal pay.
Instead, Bowen’s factual statement focuses on discrimination
2Bowen also argued in her prior objection that her “claim under the Unequal [sic] Pay Act did not need to be asserted in her EEOC charge.” Wendy’s does not seek dismissal of Bowen’s claim of violation of the Equal Pay Act (Count Six).
7 based on her disabilities and makes no mention of sexual
harassment or unequal pay. Bowen essentially concedes as much
in her objection to Wendy’s first motion to dismiss.3
Bowen did not exhaust claims of sexual harassment or
unequal pay before the EEOC. Therefore, those claims are
dismissed.
Conclusion
For the foregoing reasons, the defendant’s motion to
dismiss (document no. 26) is granted. Count Three “Title VII
Violation: Sexual Harassment” and Count Five “Title VII
Violation: Unequal Pay” are dismissed.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
January 12, 2016
cc: Christopher Gerard Betke, Esq. Matthew J. Lynch, Esq. Howard B. Myers, Esq. Sibhan M. McCloskey, Esq.
3 Bowen’s argument in her prior objection that Wendy’s had notice of her claims would not save them. Whether or not Wendy’s was aware of the circumstances she now alleges to support her sexual harassment and unequal pay claims does not affect the exhaustion requirement.