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Bowles v. Grant Trucking, LLC

United States District Court, D. Utah

February 22, 2018

BARRY BOWLES, Plaintiff,


          Dee Benson United States District Judge

         Before the court is Defendant Dave Grant Hay Inc.'s Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Dkt. No. 31.) The court held a hearing on the motion on January 9, 2018. (Dkt. No. 40.) At the hearing, Dave Grant Hay, Inc. was represented by Aaron Johnstun and Plaintiff was represented by April Hollingsworth. At the conclusion of the hearing, the court took the motion under advisement. Now being fully informed, the court issues this Memorandum Decision and Order.

         Factual Background

         This case involves allegations of disability discrimination under the Americans with Disabilities Act, as amended (“ADA”). Plaintiff was diagnosed with rheumatoid arthritis in approximately 1997. (First Amended Complaint at ¶ 9.) Plaintiff began working as a dump truck driver in approximately April 2006. (Compl. at ¶ 14.) Plaintiff has alleged that throughout his employment as a dump truck driver, his employer treated him with hostility and failed to accommodate his rheumatoid arthritis. (Compl. at ¶¶ 16-42.) Plaintiff resigned from his position on June 9, 2014. (Compl. at ¶ 42.)

         In his First Amended Complaint, Plaintiff referred to Defendants Grant Trucking, LLC, Dave Grant Hay, Inc. (“DGHI”), and Grant Transportation Services, Inc.[1] collectively as his employer. (Compl. at ¶¶ 2-3.) Plaintiff provided little support in the Complaint for this assertion, alleging only that Defendants “share the same principals, office location, and employees[.]” (Compl. at ¶ 2.)

         Defendant Grant Trucking, LLC is a Utah limited liability company. (Compl. at ¶ 2.) DGHI is a Utah corporation and is the sole member of Grant Trucking, LLC. (Id.) The two share the same principal place of business, and their registered agents share the same address. (Id.) All of this information is publicly available and can be found by searching the website operated by the Utah Division of Corporations and Commercial Code.

         Procedural History

         On or about November 12, 2014, Plaintiff sent correspondence to the United States Department of Justice (“DOJ”) indicating that he believed his former employer, Grant Trucking, was in violation of the Americans with Disabilities Act. (Compl. at ¶ 6, Exh. 1.) On or about December 18, 2014, the DOJ forwarded Plaintiff's correspondence to the United States Equal Employment Opportunity Commission (“EEOC”), copying Plaintiff, and informing the EEOC that “complainant alleges actions that may constitute discrimination on the basis of disability by the (sic) Grant Trucking.”[2] (Id.)

         Plaintiff obtained his current counsel, Ms. Hollingsworth, in January 2015, shortly after the DOJ informed the EEOC of Plaintiff's complaint. Plaintiff was represented by Ms. Hollingsworth throughout the EEOC proceedings.[3] On July 3, 2015, the EEOC requested that Plaintiff fill out a “new” Charge of Discrimination. (Compl. at ¶ 7.) In that Charge, Plaintiff named only one entity: “Grant Trucking, ” as his employer, and stated: “I was initially hired by the above noted Respondent on or about 7-17-2006 as a Truck Driver.” (Dkt. No. 31-1, Exh. B.) Plaintiff understood the name of his employer to be Grant Trucking because “that was the name on [his] pay stubs and the name printed on the side of the dump truck [he] drove.” (Dkt. No. 35-5.) Plaintiff did not refer to any other entity either in the employer section of the charge or the particulars of his complaint. (Id.)

         Grant Trucking, LLC filed a written response to Plaintiff's Charge of Discrimination on October 1, 2015. (Dkt. No. 35-6.) Grant Trucking, LLC's first legal argument in that response was that it was not a covered entity during Plaintiff's employment because it never had fifteen or more employees. (Id. at 5.) With fewer than fifteen employees, Grant Trucking, LLC would not be subject to the ADA. No other respondent made any filing or appearance during the EEOC investigation process.

         Plaintiff never attempted to amend his Charge to add any new respondents, nor did he indicate to Grant Trucking, LLC or the EEOC that he intended to do so. On June 14, 2016, the EEOC dismissed Plaintiff's Charge, stating that it was “unable to conclude that the information obtained establishes violations of the statutes, ” and provided Plaintiff with a Notice of Right to Sue. (Dkt. No. 29-2.)

         On September 2, 2016, Plaintiff filed this lawsuit, naming Grant Trucking, LLC and Grant Transportation Services, Inc. as Defendants. (Dkt. No. 2.) Defendants filed a Motion to Dismiss the Complaint on various grounds, including that Plaintiff's sole employer, Grant Trucking, LLC, did not meet the 15-employee threshold requirement to subject it to liability under the ADA. (Dkt. No. 5.) Plaintiff then filed a First Amended Complaint on August 17, 2017, adding DGHI as a third Defendant. (Dkt. No. 29.) The only claim asserted by Plaintiff is employment discrimination in violation of the ADA. (Id.) DGHI moves for dismissal pursuant to Rule 12(b)(1), arguing that Plaintiff failed to exhaust his administrative remedies with respect to it. (Dkt. No. 31.)


         Rule 12(b)(1) motions to dismiss generally take one of two forms: 1) “a facial attack on the complaint's allegations as to subject matter jurisdiction” or 2) a challenge to “the facts upon which subject matter jurisdiction depends.” Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). In the first instance, the court's analysis is limited to the allegations in the complaint; in the second instance, “a district court may not presume the truthfulness of the complaint's factual allegations” but instead has “wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. at 1003. In either instance, if the motion is not “intertwined with the merits of the case, ” the court is not required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion. Id. Here, the jurisdictional question is not intertwined with the merits of the case ...

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