Nazinitsky v. Integris Baptist Medical Center Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ALLISON NAZINITSKY, )

)

Plaintiff, )

)

v. ) Case No. CIV-19-43-R

)

INTEGRIS BAPTIST MEDICAL )

CENTER, INC., d/b/a NAZIH ZUHDI )

TRANSPLANT INSTITUTE, )

)

Defendant. )

ORDER

Before this Court is Defendant INTEGRIS Baptist Medical Center, Inc.’s Motion to

Dismiss (Doc. 6). The matter is fully briefed and at issue. See Docs. 6, 9–10. For the reasons

stated herein, the Court DENIES Defendant’s motion.

I. Background

The Court takes as true all well-pleaded factual allegations in the complaint and

views them in the light most favorable to Plaintiff. See Burnett v. Mortg. Elec. Registration

Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013). Plaintiff Allison Nazinitsky brings claims

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,

and the Equal Pay Act (“EPA”), 29 U.S.C. § 206(d)(1). See Doc. 1, at 3–5. Plaintiff is a

board-certified physician of internal medicine and infectious disease, and she was hired by

Defendant in this capacity in 2015. Id. at 2.1 While employed with Defendant, Plaintiff was

1 According to the complaint, Defendant hired Plaintiff on “February 31, 2015.” Doc. 1, at 2. As Defendant

rightly points out, February has at most 29 days (and, more frequently, 28 days). Doc. 6, at 2 n.1. In her

paid less than her male counterparts for substantially similar work; specifically, a male

transplant nephrologist and a male medical director each received salaries falling within

the ninety-ninth percentile of compensation for their positions, while Plaintiff’s salary fell

within the twenty-fifth percentile for her position. Id. at 2–3. Moreover, she was not

provided adequate support staff, including no secretarial, nursing, or medical assistance,

during her employment with Defendant. Id. at 3. Plaintiff complained about this

mistreatment, but Defendant did not address her concerns. Id. After an accusation of

inappropriate conduct was lodged against Plaintiff—which she asserts was false and

retaliatory—she was constructively discharged on May 17, 2017. Id. at 2–3.

Based on these allegations, Plaintiff brings charges of discriminatory and retaliatory

discharge, unequal pay, and a hostile work environment—all in violation of Title VII—

and unequal pay in violation of the EPA. Id. at 3–5. Defendant moves to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6). See Doc. 6.

II. Legal Standards for a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss

A legally-sufficient complaint must include “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a).2 In operation, the rule

requires that a complaint contain “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face’” to survive a motion to dismiss. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

Charge filed with the Equal Employment Opportunity Commission (“EEOC”), Plaintiff asserts that

Defendant hired her on July 31, 2015, which Defendant asserts was the date of hire. Id.; see also Doc. 6-1,

at 2.

2 A legally-sufficient complaint must also include “a short and plain statement of the grounds for the court’s

jurisdiction” and “a demand for the relief sought.” Id.

(2007)). This standard “is ‘a middle ground between heightened fact pleading . . . and

allowing complaints that are no more than labels and conclusions or a formulaic recitation

of the elements of a cause of action.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191

(10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)).

That is, the plaintiff’s complaint “need only give the defendant fair notice of what the claim

is and the grounds upon which it rests.” Id. at 1192 (internal quotation marks and citations

omitted). While assessing plausibility is “a context-specific task . . . requir[ing] . . . court[s]

to draw on [their] judicial experience and common sense,” Iqbal, 556 U.S. at 679,

complaints “‘plead[ing] factual content that allows the court to . . . reasonabl[y] infer[] that

the defendant is liable for the misconduct alleged’” are facially plausible. See S.E.C. v.

Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

III. Discussion

Defendant makes three arguments in favor of dismissal: Plaintiff (1) fails to plead

sufficient factual content to indicate whether her Title VII claims are timely, (2) failed to

exhaust her hostile work environment claim, and (3) fails to plausibly state an EPA claim.

See Doc. 6. These arguments are unavailing.

(1) Defendant’s Exhaustion-Related Arguments

Defendant’s first two arguments center on whether Plaintiff timely and properly

exhausted her Title VII claims. Doc. 6, at 1–7. Failure to exhaust is an affirmative defense.

Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018). Consequently, Defendant

may raise it on a motion for dismiss if the “grounds for the defense appear on the face of

the complaint.” Cirocco v. McMahon, No. 18-1096, --- F. App’x ---, 2019 WL 1594778,

*3 (10th Cir. April 15, 2019); cf. Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671

(10th Cir. 2016) (“A statute of limitations defense may be appropriately resolved on a Rule

12(b) motion when the dates given in the complaint make clear that the right sued upon has

been extinguished.” (internal quotation marks, citation, and brackets omitted)).

“An employee wishing to challenge an employment practice under Title VII must

first ‘file’ a ‘charge’ of discrimination with the EEOC.” Montes v. Vail Clinic, Inc., 497

F.3d 1160, 1163 (10th Cir. 2007) (quoting 42 U.S.C. § 2000e-5(e)(1)). “A plaintiff

normally may not bring a Title VII action based upon claims that were not part of a timely-

filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Foster v.

Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004) (internal quotation marks,

citation, and brackets omitted). The EEOC charge must be filed within a specific time

period—for Plaintiff, 300 days—after the alleged unlawful employment practice occurred.

42 U.S.C. § 2000e-5(e)(1); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

109 (2002).

When the charge-filing clock begins to run depends on the type of unlawful

employment practice being alleged. For “discrete retaliatory or discriminatory act[s],” such

as “termination, failure to promote, denial of transfer, or refusal to hire,” a plaintiff must

file a charge covering these acts within 300 days of the date upon which they happened.

Morgan, 536 U.S. at 110, 114; see also Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir.

2003) (“[E]ach discrete [discriminatory or retaliatory] incident . . . constitutes its own

unlawful employment practice for which administrative remedies must be exhausted.”

(internal quotation marks and citation omitted)). Title VII hostile work environment and

disparate pay claims operate differently. For hostile work environment claims, “[i]t does

not matter . . . that some of the component acts of the hostile work environment fall outside

the statutory time period” so long as “an act contributing to the claim occurs within the

filing period.” Morgan, 536 U.S. at 117. Similarly, the time period for filing an EEOC

charge alleging disparate pay resets with “each paycheck affected by a discriminatory

decision.” Groesch v. City of Springfield, 635 F.3d 1020, 1024 (7th Cir. 2011); see also 24

U.S.C. § 2000e-5(e)(3) (“[A]n unlawful employment practice occurs, with respect to

discrimination in compensation . . . when an individual is affected by application of a

discriminatory compensation decision or other practice, including each time wages,

benefits, or other compensation is paid . . . .”); Salemi v. Colo. Pub. Emps.’ Ret. Ass’n, 747

F. App’x 675, 689 n.7 (10th Cir. 2018) (noting that “Congress, by way of the Lilly

Ledbetter Fair Pay Act . . . apparently subject[ed] claims based on disparate pay to the

continuing violation theory for purposes of exhaustion . . . ”).

Defendant first argues that Plaintiff’s complaint lacks “specific time-references or

dates for the acts alleged or for the asserted bases of gender discrimination and retaliation.”

Doc. 6, at 1–2. Because Plaintiff “asserts [only] a very broad and general time frame” in

her complaint, says Defendant, her Title VII claims are improperly pled and subject to

dismissal. Id. 2, 6. The Court is not convinced by this argument. To begin, the parties seem

to agree on the 300-day period applicable here: as Plaintiff filed her EEOC charge on

March 6, 2018, she could pursue claims relating to acts occurring as early as May 10, 2017,

300 days prior to the charge filing date. See Doc. 6, at 5–6; Doc. 9, at 4; see also Doc. 10,

at 1. Moreover, Defendant’s assertion that “Plaintiff does not provide a date reference for

. . . alleged acts of discrimination or retaliation” is inaccurate. Plaintiff states that her

employment with Defendant ended on May 17, 2017, the day she was constructively

discharged. See Doc. 1, at 2–4. Plaintiff also asserts that her May 17, 2017, discharge was,

in addition to being discriminatory, retaliatory. See id. at 4–5. By Defendant’s own

admission, claims arising from this discharge would be timely exhausted because they fell

within the 300-day period running from May 10, 2017, to March 6, 2018. Likewise, as

Plaintiff avers that she suffered wage discrimination and a hostile work environment over

the course of her employment period, which would include May 10 through May 17, 2017,

Plaintiff’s Title VII disparate pay and hostile work environment claims would be timely

exhausted because acts contributing to the claims occurred during the filing period. Thus,

Plaintiff appears to have asserted only timely-exhausted Title VII claims.

More importantly for the purposes of this motion, though, Defendant has not

established that any of Plaintiff’s claims are clearly untimely—that is, it has not established

that the grounds for its timeliness affirmative defense are clear from the face of the

complaint. “Plaintiffs have no obligation to plead against affirmative defenses.” Asebedo

v. Kan. State Univ., 559 F. App’x 668, 671 (10th Cir. 2014). A timeliness affirmative

defense “can only serve as a basis for dismissal . . . if ‘the allegations in the complaint

suffice to establish that ground.’” Bauer v. City & Cty. of Denver, 642 F. App’x 920, 924

(10th Cir. 2016) (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)); see also Richards v.

Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012) (“What a complaint must plead is enough to

show that the claim for relief is plausible. Complaints need not anticipate defenses and

attempt to defeat them.”). Defendant’s pursuit of a timeliness affirmative defense at the

motion-to-dismiss stage, when the face of the complaint does not clearly establish the

grounds for the defense, is, therefore, premature and unavailing. Thus, the Court will not

dismiss Plaintiff’s Title VII claims for failure to timely exhaust.

Defendant also argues that Plaintiff did not exhaust her hostile work environment

claim because she did not include it in her March EEOC charge. See Doc. 6, at 6–7. As the

Tenth Circuit recently stated,

[t]he exhaustion rule derives from two principal purposes: 1) to give notice

of the alleged violation to the charged party; and 2) to give the EEOC an

opportunity to conciliate the claim, which effectuates Title VII’s goal of

securing voluntary compliance. To advance these purposes, after a plaintiff

receives a notice of her right to sue from the EEOC, that plaintiff’s claim in

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. While we liberally construe the plaintiff’s allegations in the

EEOC charge, the charge must contain facts concerning the discriminatory

and retaliatory actions underlying each claim. The ultimate question is

whether the conduct alleged in the lawsuit would fall within the scope of an

EEOC investigation which would reasonably grow out of the charges

actually made in the EEOC charge.

Smith v. Cheyenne Ret. Inv’rs L.P., 904 F.3d 1159, 1164–65 (10th Cir. 2018) (internal

quotation marks, citations, brackets, and emphasis omitted). Defendant argues that Plaintiff

made “no mention of alleged gender harassment towards her or a hostile work environment

in [her] EEOC Charge.” Doc. 6, at 7 (emphasis omitted); see also Doc. 10, at 2.

Plaintiff included the following allegation in her EEOC charge:

Abusive and hostile treatment of female physicians at the NZTI is common

place. From 2014 through present, there have been 8 female physicians

employed by IBMC at the NZTI. Of those 8, three left before the first term

of her contract expired. A fourth recently left mid-contract term. These

physicians each have complained of hostility and lack of support from NZTI

administrative staff and management. I believe that each left voluntarily or

were forced to leave because, in part, she could no longer tolerate the lack of

support compared to male physician counterparts.

Doc. 6-1, at 3. Plaintiff also included more general allegations of hostile and dismissive

treatment—treatment that her male colleagues did not suffer. See id. at 2–3. Liberally

construing the EEOC charge and reading Plaintiff’s allegations together, it seems clear that

Plaintiff’s sex-based hostile work environment claim falls within the scope of a reasonable

EEOC investigation growing out of her charge. Thus, the Court will not dismiss Plaintiff’s

hostile work environment claim for failure to exhaust.

(2) Defendant’s EPA Argument

Defendant also argues that Plaintiff’s EPA claim fails to meet Rule 8(a)(2)’s

pleading standard, as refined by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Doc.

6, 7–9; see Khalik, 671 F.3d at 1191 (noting that “Rule 8(a)(2) still lives” after Twombly

and Iqbal’s “refined standard”). Under the EPA, “[n]o employer . . . shall discriminate . . .

between employees on the basis of sex by paying wages to employees . . . at a rate less than

the rate at which he pays wages to employees of the opposite sex . . . for equal work on

jobs the performance of which requires equal skill, effort, and responsibility, and which

are performed under similar working conditions . . . .” 29 U.S.C. § 206(d)(1). “While the

12(b)(6) standard does not require that Plaintiff establish a prima facie case in her

complaint, the elements of each alleged cause of action help to determine whether Plaintiff

has set forth a plausible claim.” Khalik, 671 F.3d at 1192. Accordingly, Plaintiff can

establish a prima facie case of pay discrimination under the EPA by demonstrating that

“(1) she was performing work which was substantially equal to that of the male employees

considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the

conditions where the work was performed were basically the same; (3) the male employees

were paid more under such circumstances.” Riser v. QEP Energy, 776 F.3d 1191, 1196

(10th Cir. 2015) (internal quotation marks and citation omitted).

In her complaint Plaintiff avers that she “was paid less than male employees even

though she performed substantially equal work.” Doc. 1, at 2; see also id. at 3 (“Male

employees of Integris were paid more than Plaintiff for performing equal work, work of

substantially equal skill, effort and responsibility, under similar working conditions.”). She

also cites two male comparators, a non-surgical transplant nephrologist and a “medical

director, same as Plaintiff,’ who received more pay than did Plaintiff. /d. at 3. Contrary to

Defendant’s argument, the Court finds that Plaintiff has included sufficient factual content

in her complaint—taken as true—to state a plausible EPA claim and, therefore, will not

dismiss it.

IV. Conclusion

Defendant has failed to show that Plaintiff did not timely and properly exhaust her

Title VU claims or that her EPA claim, as pled, is so deficient that it does not give

Defendant fair notice. Thus, for the reasons stated above, the Court DENIES Defendant’s

motion to dismiss.

IT IS SO ORDERED this 13th day of May, 2019.

UNITED STATES DISTRICT JUDGE