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Rusk v. Fidelity Brokerage Services LLC

United States District Court, D. Utah

October 10, 2018

ZACHARY RUSK, Plaintiff,
v.
FIDELITY BROKERAGE SERVICES, LLC, Defendant.

          ORDER DENYING IN PART AND GRANTING IN PART MOTION TO DISMISS

          JILL N. PARRISH UNITED STATES DISTRICT JUDGE

         Judge Jill N. Parrish Before the court is defendant Fidelity Brokerage Services' motion to dismiss the first, second, and third claims and to limit the scope of the fourth and fifth claims of the Third Amended Complaint. [Docket 166.] Fidelity argues that plaintiff Zachary Rusk's claims should be dismissed or limited because he did not exhaust his administrative remedies before filing this lawsuit. The court DENIES IN PART AND GRANTS IN PART Fidelity's motion.

         BACKGROUND

         Rusk sued Fidelity, alleging that it discriminated against him on the basis of his religion and disability. Rusk also alleges that Fidelity unlawfully retaliated against him by terminating his employment. Before filing this lawsuit, Rusk filed two charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC). Rusk filed the first charge of discrimination (the First Charging Order) against Fidelity with the EEOC on April 7, 2015. Rusk indicated that the discrimination was based on “religion” and “disability” by checking the corresponding boxes on the First Charging Order and provided the following statement:

In or around April 2013, I was hired as a Financial Representative. I am a qualified individual with disabilities. From the time of my hire, my performance has been satisfactory. From the time that I put my employer on notice of disabilities, although I have received accommodation, they have been slow in granting them. In addition, although I am well qualified, I have not been selected for certain positions, including but not limited to; Health Savings Account Representative and Self Directed Brokerage role. The deciding officials are both Mormon. I have reason to believe that Mormon applicants are preferred and selected over non-Mormon applicants. I believe that I have been discriminated against based on my disabilities and religion (non-Mormon), in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, as amended.

         Fidelity terminated Rusk's employment on April 23, 2015. Rusk filed a second charge of discrimination against Fidelity (the Second Charging Order) with the EEOC on June 2, 2015. Rusk indicated that this charge of discrimination was based on “religion” and “retaliation” by checking the corresponding boxes, and stated as follows:

Since my transfer to the above location, I requested but was never granted the reasonable accommodation of Sunday mornings off for my sincerely held religious beliefs whereas my Mormon co-workers were granted time off for their sincerely held religious beliefs. On or about April 2, 2015, I was issued a written warning. On or about April 23, 2015, I was discharged from my position of Financial Representative-Full Trader. I was advised I would not be given Sunday mornings off due to business necessity. On or about April 23, 2015, I was advised I was discharged for violating policy. I believe I have been retaliated against for having filed a previous EEOC charge (540-2015-01128) in violation of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, both as amended. I also believe I have been discriminated against due to my religion, Lutheran, in violation of Title VII of the Civil Rights Act of 1964, as amended.

         On November 23, 2015, the EEOC sent Rusk two Dismissal and Notice of Rights letters which notified him that the EEOC was closing its files on Rusk's charges of discrimination. The letters stated that based on its investigation, the EEOC was unable to conclude that information obtained established violations of statute. The letters also informed Rusk of his right to sue.

         ANALYSIS

         Fidelity brought this motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that the court lacked subject matter jurisdiction because Rusk failed to exhaust his administrative remedies. The Tenth Circuit, however, recently overruled long-standing precedent and held that the exhaustion of administrative remedies is no longer a jurisdictional requirement. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (“[A] plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”). The court, therefore, treats Fidelity's motion as being a motion to dismiss for a failure “to state a claim upon which relief can be granted” under Rule 12(b)(6). The question before the court under Rule 12(b)(6) is whether the two EEOC charges establish that Fidelity is entitled to an affirmative defense that Rusk failed to exhaust his administrative remedies.

         There are two steps to determine whether Rusk exhausted his administrative remedies. “‘[T]he first step . . . is the filing of a charge of discrimination with the EEOC,' and the second step ‘is to determine the scope of the allegations raised in the EEOC charge.'” Andrews v. GEO Grp., Inc., 288 Fed.Appx. 514, 517 (10th Cir. 2008) (second alteration in original) (citation omitted). Fidelity does not contest that Rusk fulfilled the first requirement by filing charges of discrimination with the EEOC.

         The second step requires the court to determine the scope of the allegations raised in Rusk's EEOC charge 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.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (alteration in original) (citation omitted). The EEOC “charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Id. However, the Tenth Circuit “liberally construe[s] charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim.” Id.; see also Gad v. Kansas State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015) (“our conclusion follows the principle disfavoring interpretations that might lead to inadvertent forfeiture of Title VII rights by the non-lawyers initiating Title VII processes”); B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1103 (9th Cir. 2002) (“[C]omplainants filing discrimination charges are acting as laypersons and should not be held to the higher standard of legal pleading by which we would review a civil complaint.”).

         In this case, Fidelity argues that Rusk's first, second, and third claims should be dismissed in their entirety because the allegations of two EEOC charges did not notify the EEOC that it needed to investigate these causes of action. Fidelity also argues that Rusk's fourth and fifth claims should be limited for the same reason.

         I. DISMISSAL OFTHE FIRST, ...


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