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Berry v. Cherwell Software LLC

United States District Court, D. Colorado

August 22, 2018

TRACY BERRY, an Individual, Plaintiff,
CHERWELL SOFTWARE, LLC, a Delaware Limited Liability Company, Defendant.



         Presently 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.

         I. BACKGROUND

         Plaintiff 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)[2], 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 follows.

         II. LAW [3]

         Before 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).

         As 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).

         Thus, a 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) (citation omitted).

         With 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.

         III. ANALYSIS

         Plaintiff's 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 ...

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