Crislip v. Respectful Partners Inc

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DARRYL E. CRISLIP, 	)
)
Plaintiffs, 	)
)
vs. 	) 	Case No. CIV-26-314-R
)
RESPECTFUL PARTNERS INC., 	)
)
Defendant. 	)
ORDER
In 	this 	employment 	discrimination 	case, 	Plaintiff 	alleges 	that 	his 	employer
unlawfully discriminated against him based on his disability, in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101, et seq., and based on his age, in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621. Defendant filed a partial Motion
to Dismiss [Doc. No. 3] under Fed. R. Civ. P. 12(b)(6), arguing that Plaintiff’s age
discrimination claim must be dismissed for failure to exhaust administrative remedies.
Plaintiff responded in opposition [Doc. No. 6] and Defendant replied [Doc. No. 7].
The ADEA requires a party to exhaust her administrative remedies by filing a charge
of discrimination with the EEOC before initiating a lawsuit. See 29 U.S.C. § 626(d)(1).
The failure to exhaust administrative remedies is an affirmative defense, see Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1185-86 (10th Cir. 2018), which “may be raised in a motion
to dismiss when the grounds for the defense appear on the face of the complaint.” Cirocco
v. McMahon, 768 F. App'x 854, 858 (10th Cir. 2019). Dismissal based on an affirmative
defense is only proper “when the complaint itself admits all the elements of the affirmative
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defense by alleging the factual basis for those elements.” Fernandez v. Clean House, LLC,
883 F.3d 1296, 1299 (10th Cir. 2018). “A plaintiff need not anticipate in the complaint an
affirmative defense that may be raised by the defendant; it is the defendant’s burden to
plead an affirmative defense.” Id.
Plaintiff’s Complaint alleges that he filed a timely charge of discrimination with the
EEOC based on disability and age. Defendant disputes this allegation and contends that the
charge of discrimination Plaintiff submitted to the EEOC only references discrimination
based on disability, with no mention of age. In support, Defendant included a copy of
Plaintiff’s Form 5 EEOC Charge of Discrimination with its motion to dismiss.
Ordinarily, the sufficiency of a complaint must rest on its contents alone. Waller v.
City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). There is “a limited exception
to this rule” that permits a district court to “consider documents referred to in the complaint
if the documents are central to the plaintiff’s claim and the parties do not dispute the
documents’ authenticity.” Id. (internal quotient marks omitted). Defendant contends that
consideration of the charge form is proper because it is an indisputably authentic copy that
is referred to in the Complaint. Plaintiff disputes that the form is the full record of charging
documents submitted to the EEOC.
Generally, when a formal charge of discrimination exists, courts look to the formal
charge 	form, 	not 	an 	earlier 	filed 	document, 	to 	determine 	whether 	a 	plaintiff
administratively exhausted a discrimination claim. Jones v. Needham, 856 F.3d 1284, 1290
(10th Cir. 2017). “This is because the charge form, not a previous filing, is given to the
employer to notify it of the potential claims against it and ordinarily determines the scope
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of the EEOC’s investigation.” Id. See also Green v. JP Morgan Chase Bank Nat. Ass'n,
501 F. App'x 727, 731 (10th Cir. 2012) (“[I]t would defeat the statutory scheme to find
exhaustion where an employee includes a claim in the intake questionnaire, but then omits
it in a timely subsequent formal charge that forms the basis for the administrative
proceedings[.]”).
Although Defendant submitted a copy of the formal charge form, the Court finds
that consideration of the form is not appropriate at this stage given the dispute about the
completeness of the record. See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir.
1998) (“[C]ourts have broad discretion in determining whether or not to accept materials
beyond the pleadings.”). Plaintiff has alleged that he administratively exhausted both his
age and disability discrimination claims and the affirmative defense of failure to exhaust
administrative remedies does not appear plainly on the face of the complaint. Dismissal is
therefore not warranted.
Defendant’s Motion to Dismiss [Doc. No. 3] is DENIED. If appropriate, Defendant
may seek leave to file a preliminary motion for summary judgment, properly supported
with evidence and argument, without prejudice to filing a second motion for summary
judgment that addresses the merits of Plaintiff’s disability discrimination claim.
IT IS SO ORDERED this 30th day of April, 2026.
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