UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth A. Bowen

v. Civil No. 15-cv-496-JD Opinion No.

eLanes New Hampshire Holdings, LLC d/b/a Wendy's Old Fashioned Hamburgers

O R D E R

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.1

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

1Bowen is represented by counsel. federal court.” Vera v. McHugh,

(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,

(1st Cir. 2005); Labrecque v. Mabus,

(D. Me. July 21, 2015); Marcimo v. Thermospas, Inc.,

, 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.,

(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.,

(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

2 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.

Background

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

3 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. When Bowen

complained to Spiess he reassigned her to work at the front cash

registers.

In October of 2013, Bowen went to the hospital because of

another mini-stroke. She brought a doctor’s note when she

returned to work and explained that the mini-stroke had

exacerbated her “disabling conditions.” A few days later, Bowen

became ill at work and was taken to the hospital by ambulance.

She was told that she was dehydrated and pregnant.

When she returned to work, Bowen told Spiess that she was

dehydrated because of her working conditions and that she was

pregnant. She asked to be given break time while working at the

cash registers and disagreed with Swenson about how much break

time she should have. Swenson screamed at Bowen in the parking

lot about the break issue and whether Bowen was planning to sue

Wendy’s. Soon after that incident, Bowen’s work hours were

reduced.

4 Bowen alleges that Swenson told other employees that Bowen

had previously worked as an exotic dancer. Male employees made

sexual remarks to her, and one employee snapped towels at her.

A crew leader wanted Bowen to take his telephone number. Bowen

did not report these actions to Spiess because Swenson had told

employees about Bowen’s past work as an exotic dancer when she

complained about Swenson’s behavior to Spiess.

On October 24, 2013, Swenson issued an “Employee Warning

Report” to Bowen because her cash register drawer was short by

$7.00. Bowen disagreed with the charge. Swenson nevertheless

approved the charge.

Bowen then worked a shift with an assistant manager named

Yo-Yo. Yo-Yo said he was going to send some employees home

early because business was slow. Bowen asked to leave early

because she was tired and worried she would have another mini-

stroke. Yo-Yo said she could leave and that she was fired.

When Bowen came to work on November 3, Spiess told her that

he had to fire her because Swenson and Yo-Yo said they would

quit otherwise, she was not a “good fit” for the job, he had

received complaints about her work ethic, she could not follow

directions, and she had received a warning about her cash drawer

being short. Bowen believes that Wendy’s gave her bad

references when she applied for other jobs.

5 Bowen filed a complaint with the EEOC on May 13, 2014,

alleging discrimination in violation of RSA 354-A. Her

statement alleged discrimination based on her disabilities and

that she was fired because of her disabilities. On November 14,

2014, the EEOC issued the right to sue letter with the finding

that it was “unable to conclude that the information obtained

establishes violations of the statutes.”

Bowen brought suit against Wendy’s in the District of

Massachusetts on February 12, 2015. Wendy’s moved to dismiss

the case, or in the alternative, to transfer the case to this

district under

(a). In support of the motion to

dismiss, Wendy’s argued that Bowen had failed to complete

service within the time allowed and should not be granted an

extension and that Bowen’s claims for sexual harassment and

unequal pay under Title VII were not exhausted. The court

granted the motion to transfer the case to this district and

denied the motion to dismiss as moot. The case was transferred

to this district on December 9, 2015.

Discussion

Wendy’s moves to dismiss Bowen’s claims under Title VII for

sexual harassment (Count Three) and for unequal pay (Count Five)

on the ground that neither claim was exhausted in the EEOC

proceeding. Bowen did not respond to the motion to dismiss. In

6 her objection to Wendy’s previous motion to dismiss, Bowen

argued that her Title VII sexual harassment and unequal pay

claims should be allowed because Wendy’s had notice of the

claims.2

In order to bring suit on a claim of employment

discrimination under Title VII, a plaintiff first must exhaust

the claim by filing a timely complaint with the appropriate

agency and by receiving a right to sue letter. Mach Mining v.

E.E.O.C.,

(2015); Rivera Diaz v. Humana

Ins. of P.R., Inc.,

(1st Cir. 2014).

“[T]he scope of the federal court complaint is constrained by

the allegations made in the administrative complaint: the

former must bear some close relation to the latter.” Velazquez-

Ortiz v. Vilsack,

(1st Cir. 2011) (internal

quotation marks omitted). To meet that requirement, “the

factual statement in the written charge should have alerted the

agency to the alternative basis of discrimination that the

plaintiff alleges for the first time in court.”

In this case, Bowen did not allege facts in her written

charge to the EEOC about sexual harassment or unequal pay.

Instead, Bowen’s factual statement focuses on discrimination

2Bowen also argued in her prior objection that her “claim under the Unequal [sic] Pay Act did not need to be asserted in her EEOC charge.” Wendy’s does not seek dismissal of Bowen’s claim of violation of the Equal Pay Act (Count Six).

7 based on her disabilities and makes no mention of sexual

harassment or unequal pay. Bowen essentially concedes as much

in her objection to Wendy’s first motion to dismiss.3

Bowen did not exhaust claims of sexual harassment or

unequal pay before the EEOC. Therefore, those claims are

dismissed.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 26) is granted. Count Three “Title VII

Violation: Sexual Harassment” and Count Five “Title VII

Violation: Unequal Pay” are dismissed.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

January 12, 2016

cc: Christopher Gerard Betke, Esq. Matthew J. Lynch, Esq. Howard B. Myers, Esq. Sibhan M. McCloskey, Esq.

3 Bowen’s argument in her prior objection that Wendy’s had notice of her claims would not save them. Whether or not Wendy’s was aware of the circumstances she now alleges to support her sexual harassment and unequal pay claims does not affect the exhaustion requirement.

8