United States District Court, D. New Hampshire
Elizabeth A. Bowen
eLanes New Hampshire Holdings, LLC d/b/a Wendy's Old Fashioned Hamburgers Opinion No. 2016 DNH 011
Christopher Gerard Betke, Esq.
Matthew J. Lynch, Esq.
Howard B. Myers, Esq.
Sibhan M. McCloskey, Esq.
JOSEPH DICLERICO, JR. UNITED STATES DISTRICT JUDGE
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.
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 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 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.
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 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. ...