United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT
Derrick K. Watson United States District Judge.
seeks dismissal of Maybin's hostile work environment
cause of action for failure to exhaust administrative
remedies. Although the hostile work environment claim was not
included in Maybin's Charge of Discrimination filed with
the Equal Employment Opportunity Commission, he did include
facts supporting that claim in the Pre-Complaint
Questionnaire submitted to the agency, but which was not
provided to Hilton. Because the Charge itself is deficient in
recording Maybin's theory of liability, due at least in
part to the actions of the agency completing the Charge form,
Maybin may present the Questionnaire as evidence that the
claim was properly exhausted, pursuant to B.K.B. v. Maui
Police Dep't, 276 F.3d 1091, 1102 (9th Cir. 2002),
as amended (Feb. 20, 2002). Accordingly, the Court finds that
Maybin has exhausted his hostile work environment claim and
DENIES Hilton's Motion to Dismiss Count II.
Court and the parties are familiar with the facts, which were
previously set forth in the Court's order denying
Hilton's motion for summary judgment on Maybin's
Count I ADEA age discrimination claim. See Dkt. No.
36 (3/6/18 Order). The Court briefly recounts matters
relevant to Hilton's present exhaustion arguments.
was hired by Hilton as a sales agent in September 2015 when
he was 55 years old. Compl. ¶ 7. According to Maybin,
shortly after he was hired, he witnessed Hilton's Senior
Director of Sales, Joshua Kannel, display overt animus
towards older sales agents by making negative comments about
their abilities at sales meetings. Compl. ¶ 9. On March
1, 2016, Maybin was assigned a new manager, Tony Wilson, who
also “treated [Maybin] in a threatening and hostile
manner, ” Compl. ¶ 11, singling him out and making
improper “remarks to [Maybin] about his age.”
Compl. ¶ 13. Maybin asserts that he “made
numerous requests to Human Resources and upper management to
be changed to a different team, but [Hilton] refused.”
Compl. ¶ 14. Maybin contends that he was wrongfully
terminated in August 2016 due to age discrimination. Compl.
filed his Charge of Discrimination with the EEOC on January
4, 2017 (Decl. of Julia Montenegro Ex. 1, Dkt. No. 32-1),
which then issued a Notice of Right to Sue on June 30, 2017.
The EEOC Charge indicates that Maybin suffered discrimination
due to his age and was terminated in violation of the ADEA.
On September 27, 2017, Maybin filed his Complaint alleging
three counts under the ADEA: (1) age discrimination; (2)
hostile work environment; and (3) retaliation. Compl.
¶¶ 18-28, Dkt. No. 1. On November 21, 2017, the
parties stipulated to the dismissal with prejudice of
Maybin's Count III retaliation claim. Dkt. No. 17. The
Court previously denied Hilton's motion for summary
judgment on Maybin's Count I ADEA age discrimination
claim. Dkt. No. 36.
currently seeks to dismiss Maybin's Count II hostile work
environment claim for failure to exhaust. It is undisputed
that Maybin's EEOC Charge does not reference or describe
a hostile work environment claim. Nonetheless, in opposition,
Maybin produced a Pre-Complaint Questionnaire submitted to
the Hawaii Civil Rights Commission (“HCRC”),
dated August 2, 2016, that he sent to Kris Kaopuiki, the EEOC
investigator who Maybin avers “handled [his] Charge of
Discrimination.” Decl. of Carl Maybin ¶¶ 1-2,
Dkt. No. 38-1. Maybin's Questionnaire, submitted while he
was proceeding pro se, explicitly mentions a “hostile
environment, ” in which he “personally feared for
[his] job, lost 12 pounds, [had] severe heartburn and went to
the doctor for neck [and] back aches.” Maybin Decl.,
Ex. 1 at 4 (Pre-Complaint Questionnaire), Dkt. No. 38-1. He
also describes “a new manager who began treating me in
a very hostile and toxic manner.” Id.
Presented with the Questionnaire for the first time in
opposition to its Motion, Hilton contends that Maybin may not
avail himself of the exception established by the Ninth
Circuit in B.K.B. v. Maui Police Dep't, 276 F.3d
1091, 1102 (9th Cir. 2002), allowing a plaintiff to present
his or her pre-complaint questionnaire as evidence that a
claim for relief was properly exhausted.
order to establish subject matter jurisdiction over his Title
VII claim, Plaintiff was required to exhaust his
administrative remedies. B.K.B., 276 F.3d at 1099. A
court's subject matter jurisdiction may be challenged
under Federal Rule of Civil Procedure 12(b)(1). The parties
may also raise the issue of subject matter jurisdiction at
any time under Rule 12(h)(3), Augustine v. United
States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983), and a
federal court must generally “satisfy itself of its
jurisdiction over the subject matter before it considers the
merits of a case, ” Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999) (citing Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-95
Rule 12(b)(1) motion to dismiss, “the district court is
ordinarily free to hear evidence regarding jurisdiction and
to rule on that issue prior to trial, resolving factual
disputes where necessary.” Augustine, 704 F.2d
at 1077 (citing Thornhill Publ'g Co. v. Gen. Tel.
Corp., 594 F.2d 730, 733 (9th Cir. 1979)); see also
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.
1988). Where the court considers evidence outside the
pleadings for this purpose, “[n]o presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Augustine, 704 F.2d at
1077 (citing Thornhill, 594 F.2d at 733).
Nevertheless, “where the jurisdictional issue and
substantive issues are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues
going to the merits, the jurisdictional ...