United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S PARTIAL MOTION TO DISMISS
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
before the Court is Defendant Cherwell Software, LLC's
Partial Motion to Dismiss various claims alleged in Plaintiff
Tracy Berry's Amended Complaint
(“Complaint”). (Doc. # 22.) Having carefully
considered the briefing, record, and applicable law, the
Court grants in part and denies in part Defendant's
motion for the following reasons.
was employed by Defendant until August 11, 2016, when her
employment was terminated. After her termination, Plaintiff
brought the instant action under Title VII, the Americans
with Disabilities Act (“ADA”), the Rehabilitation
Act of 1973, the Family and Medical Leave Act
(“FMLA”), the Equal Pay Act, the Age
Discrimination in Employment Act (“ADEA”), and
various Colorado laws, including the Colorado
Anti-Discrimination Act (“CADA”). In the instant
motion, Defendant moves to dismiss portions of
Plaintiff's Title VII, ADA, ADEA, and CADA claims under
Federal Rule of Civil Procedure 12(b)(1), for failure to
exhaust administrative remedies. Defendant specifically
argues Plaintiff did not include certain allegations in her
Charge of Discrimination before the Equal Employment
Opportunity Commission (“EEOC Charge” or
“Charge”) that she presently brings in federal
court. The Court agrees in part and disagrees in part as
bringing claims of discrimination or retaliation under Title
VII, the ADA, ADEA, and CADA in federal court, a plaintiff
must first exhaust her administrative remedies before the
EEOC. Jones v. UPS, Inc., 502 F.3d 1176, 1183 (10th
Cir. 2007) (ADA); Shikles v. Sprint/United Mgmt.
Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (Title VII and
ADEA); Lucero v. Terumo BCT, Inc., No.
14-cv-03061-LTB-NYW, 2015 WL 3619343, at *3 (D. Colo. June
10, 2015) (ADA and CADA); accord City of Colo. Springs v.
Conners, 993 P.2d 1167, 1170 n.5 (Colo. 2000) (CADA).
pertinent here, to exhaust administrative remedies, an
individual claimant must timely file a charge of
discrimination with the EEOC setting forth the facts and
nature of the charge. See Simms v. Oklahoma ex rel.
Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1326 (10th Cir.1999); 42 U.S.C. §
2000e-5; see also Jones, 502 F.3d at 1186 (The
“charge must contain facts concerning the
discriminatory and retaliatory actions underlying each
claim[.]”). When reviewing an EEOC charge for
exhaustion purposes, the Court liberally construes it.
Jones, 502 F.3d at 1186. Nonetheless, each incident
of discrimination and each retaliatory adverse employment
decision constitutes a separate actionable unlawful
employment practice that must be raised before the EEOC
before resorting to the courts. Nat'l Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
plaintiff's claim in federal court is then limited
“to the discrete employment actions alleged in the EEOC
charge” and “by the scope of the administrative
investigation that can reasonably be expected to follow
th[at] charge.” Jones, 502 F.3d at 1186. This
requirement serves the purpose of first “giv[ing] the
agency the information it needs to investigate and resolve
the dispute between the employee and the employer”
without resorting to costly and time-consuming litigation.
Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993)
these legal principles in mind, the Court turns to examine
whether exhaustion has been satisfied here, i.e. whether
Plaintiff's EEOC Charge identifies, or could have
reasonably led to the investigation of, the claims being
alleged in this case.
EEOC Charge states as follows:
I was hired by Cherwell Software on December 16, 2013 as a
Senior Manager of Product Services. I have been harassed
about working from home due to my disabilities since May 2016
and ongoing by a male age 40s Vice-President of Product, and,
a male age 40s Vice-President of Development.
I had approved FMLA to work from home whenever I wanted. A
male CEO age 40s and a male age 40s Vice-President of
Development made constant statements from January 2016 and
ongoing that millennials are the future of the company and I
had to scream and shout to receive a promotion or a raise due
to my age and not being a millennial. A male age 40s
Vice-President of Development made comments in March 2016
that he was a Jew from Israel and the Jews know everything
and that Catholics and Christians spend too much time in
church and not working, as well as, indicated that our male
age 40s CEO is stupid and thinks he is ok because he runs a
Christian organization for a hobby even though he makes money
from talking about cheating on his wife. I was paid less than
a male age 40s manager of business applications, who reported
to me, when he was hired in February 2016. The male manager
of business applications made $125, 000.00 per year, while I
made $100, 000.00 per year as the Director of Product
Services. I was retaliated against after reporting
discrimination to the male age 40s CEO on February 17, 2016,
and ultimately terminated on August 11, 2016 for no reason
other than I had a negative attitude.
(Doc. # 22-1 at 4). Plaintiff's Charge ends with a
conclusory sentence stating that she has been discriminated
against “because of [her] gender, female, religion,
Catholic . . . age, 47 . . . disability . . . gender (wages)
. . . and in ...