Hoyt v. Arizona Board of Regents

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Amanda Hoyt,
Plaintiff,
v.
Arizona Board of Regents,
Defendant.
No. CV-25-01807-PHX-DWL
ORDER
Amanda Hoyt (“Plaintiff”) alleges that her former employer, the Arizona Board of
Regents (“Defendant”), violated the Americans with Disabilities Act (“ADA”) in two
distinct respects. Now pending before the Court is Defendant’s motion to dismiss one of
Plaintiff’s ADA claims based on a lack of administrative exhaustion. (Doc. 11.) For the
reasons that follow, the motion is denied.
BACKGROUND
I. Factual Allegations
The following factual allegations, presumed true, are derived from Plaintiff’s
operative pleading, the First Amended Complaint (“FAC”). (Doc. 8.)
At all relevant times, Plaintiff “suffered from the diagnosed disability of Crohn’s
disease” and was an employee of Defendant. (Id. ¶¶ 4, 5(a).) Defendant is the “governing
body of Arizona’s public university system.” (Id. ¶ 6(a).)
In September 2015, “Defendant hired [Plaintiff] as a chemical safety specialist for
its Arizona State University Schools of Engineering.” (Id. ¶ 11.) In November 2021,
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Defendant promoted Plaintiff to “Laboratory Safety Inspector.” (Id.) Plaintiff “informed
Defendant that she has a disability when she was hired in September of 2015 and after each
subsequent promotion.” (Id.)
In December 2022, “Defendant informally accommodated [Plaintiff] permitting her
to work from home and come into the office on an as needed basis.” (Id. ¶ 12.) In
December 2023, Plaintiff’s supervisor, Rita Bottesch (“Bottesch”), “requested that
[Plaintiff] formalize her informal work from home accommodation.” (Id. ¶ 13.)
On January 8, 2024, Plaintiff “formally requested the accommodation of work from
home as needed and requested 2-hours’ advanced notice when she was needed in the office.
[Plaintiff] indicated she would follow up with medical documentation to support her
requested accommodation.” (Id. ¶ 14.)
On January 10, 2024, Bottesch ordered Plaintiff “to take FMLA leave if not
physically present in the office and allowed [Plaintiff] to work from home one day per
week on Tuesdays.” (Id. ¶ 15.)
On January 11, 2024, Plaintiff began taking FMLA leave. (Id. ¶ 16.)
On January 16, 2024, Plaintiff’s “gastroenterologist provided medical
documentation to support her requested accommodation,” and Plaintiff “also requested
alternative accommodation of an office space with a private bidet, toilet and sink with the
bathroom being five seconds’ distance from her office.” (Id.) That same day, Plaintiff also
“requested her performance evaluation,” but “Bottesch never responded to [Plaintiff]’s
request for evaluation because [Plaintiff] requested accommodation.” (Id. ¶ 22.) Plaintiff
alleges that Bottesch “was retaliating” against her. (Id.)
On January 23, 2024, “Defendant denied [Plaintiff]’s accommodation deeming both
alternatives to pose an undue hardship.” (Id. ¶ 17.) Plaintiff alleges that this was not true
because “Defendant had another disabled employee who was permitted to work from home
four-days per week,” and “Defendant also had underutilized bathroom space.” (Id.)
Defendant instead offered one work-from-home day per week and offered to “purchase a
travel bidet to use at the bathroom available to everyone as needed while [Plaintiff] was in
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office and/or on-site visits.” (Id.) Plaintiff alleges “[t]his alternative accommodation was
unreasonable.” (Id. ¶ 18.)
After Plaintiff formally requested accommodation, “Bottesch cancelled [Plaintiff]’s
one-on-one meetings,” and Plaintiff “was only able to meet with Bottesch on February 22,
2024.” (Id. ¶ 20.) “Bottesch began to falsely claim that she had concerns with [Plaintiff]’s
performance which really was caused because Bottesch would not meet with [Plaintiff]
one-on-one.” (Id. ¶ 21.)
On February 22, 2024, Plaintiff “submitted a second ADA request, the toilet
accommodation or to work intermittently from home as needed.” (Id. ¶ 23.) That same
day, “in retaliation, Bottesch instituted a new requirement” that required Plaintiff to
document the work she performed each day, including the amount of time it took her to
perform tasks. (Id. ¶ 24.) “No others were required to document time as [Plaintiff].” (Id.)
After February 22, 2024, “Bottesch continued to cancel [Plaintiff]’s one on one
meetings and falsely claim [Plaintiff]’s performance was suffering.” (Id.) Bottesch also
“demonstrated a disability bias towards the other disabled employee who worked from
home calling him ‘lazy’ and stated that ‘he should have to come into work like the rest of
us.’” (Id.)
On February 27, 2024, Defendant denied Plaintiff’s second ADA request, “claiming
once again that it posed an undue hardship.” (Id. ¶ 23.) Plaintiff again alleges that the
undue-hardship claim was untrue because another employee worked from home four days
per week and because Defendant had underutilized bathroom space. (Id.)
On April 28, 2024, Plaintiff “discovered that the ingress and egress to her office had
been blocked, a clear indication that Defendant did not intend for [Plaintiff] to return to
work.” (Id. ¶ 25.)
On May 21, 2024, Plaintiff made a third ADA request, again asking for the same
bathroom accommodation or permission to work from home. (Id. ¶ 26.) Plaintiff also
“requested short term disability which Defendant ignored.” (Id.) Defendant “summarily
denied [Plaintiff]’s third request for accommodation without engaging in an interactive
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process or granting short term disability.” (Id.)
In June 2024, “Defendant informed Plaintiff her FMLA was exhausted and gave
Plaintiff three options: (1) return to work full time in office; (2) if unable to return,
participate in a 30-day job search; or (3) voluntarily resign.” (Id. ¶ 27, cleaned up.)
Plaintiff declined the three options. (Id. ¶ 28.)
On July 25, 2024, Defendant terminated Plaintiff for absenteeism. (Id.)
II. Procedural History
On May 15, 2024, Plaintiff filed a charge of discrimination with the EEOC,
checking boxes indicating that she was alleging “disability” discrimination that was
“continuing action.” (Doc. 8 ¶ 31; Doc. 11-1 at 2-4.)
On February 26, 2025, Plaintiff received a right-to-sue letter. (Doc. 8 ¶ 31.)
On May 24, 2025, within 90 days of receiving the right-to-sue letter, Plaintiff
initiated this action. (Doc. 1.)
On June 12, 2025, Plaintiff filed the FAC. (Doc. 8.) The FAC asserts two causes
of action. Count One is a claim for “Disability Discrimination in violation of 42 U.S.C.
[§] 12112.” (Id. at 7.) Count Two is a claim for “Failure to Accommodate in violation of
42 U.S.C. [§] 12112.” (Id.)
On July 10, 2025, Defendant filed the pending motion to dismiss Count One. (Doc.
11.) That motion is now fully briefed and neither side requested oral argument. (Docs. 12,
13.)
DISCUSSION
I. Legal Standard
Under Rule 12(b)(6), “to survive a motion to dismiss, a party must allege sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” In re
Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (cleaned up). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll well-pleaded allegations of
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material fact in the complaint are accepted as true and are construed in the light most
favorable to the non-moving party.” Id. at 1444-45 (citation omitted). However, the court
need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678-
80. Moreover, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 678. The court also may dismiss due
to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th
Cir. 2015) (citation omitted).
II. Consideration Of Documents Outside The Pleadings
Defendant attached two documents to its motion. The first is Plaintiff’s EEOC
charge of discrimination. (Doc. 11-1.) The second is Plaintiff’s rebuttal letter to
Defendant’s EEOC position statement. (Doc. 11-2.)
“Generally, the scope of review on a motion to dismiss for failure to state a claim is
limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.
2006). “A court may, however, consider certain materials—documents attached to the
complaint, documents incorporated by reference in the complaint, or matters of judicial
notice—without converting the motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). For materials incorporated by
reference, “[a] court may consider evidence on which the complaint ‘necessarily relies’ if:
(1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim;
and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.”
Marder, 450 F.3d at 448. A court may also “take judicial notice of ‘matters of public
record’ without converting a motion to dismiss into a motion for summary judgment.” Lee
v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by
Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).
The EEOC charge of discrimination (Doc. 11-1) may be considered because it is
incorporated by reference. The FAC refers to the document (Doc. 8 ¶ 31 [“[Plaintiff]
timely filed a charge of discrimination with the EEOC under charge number 549-2024-
02963 concerning discrimination under then ADA as described above.”]); the charge is
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central to Plaintiff’s claims, given the administrative exhaustion requirement; and no party
questions the authenticity of the document attached to the motion.
Plaintiff’s rebuttal letter (Doc. 11-2) may be considered because it is a judicially
noticeable matter of public record. “Courts regularly take judicial notice of certain EEOC
documents.” Doria v. Yelp Inc., 2024 WL 1740015, *3 (D. Ariz. 2024). See also Bracken
v. Welborn, 2021 WL 237693, *10 (M.D. La. 2021) (“Defendant acknowledges that, ‘to
the extent the documents attached by Ms. Bracken are contained in the EEOC Charge file
(i.e., Defendant’s Statement of Position to the EEOC and Bracken’s rebuttal), they are
public records, are authentic and unopposed, subject to judicial notice and, thus, can be
considered by the court’ in this Rule 12(c) without converting it to a motion for summary
judgment.”).
Defendant also included, as an attachment to its reply brief, “an unsigned and
unverified amended charge” purportedly drafted by Plaintiff. (Doc. 13 at 2; Doc. 13-1 at
2-3.) The reply brief asserts that this document was included in Plaintiff’s EEOC file,
which Defendant “received . . . pursuant to [a] FOIA request” at some point after the motion
to dismiss was filed. (Doc. 13 at 2.)
On the one hand, courts often—but not always—find that documents contained
within a claimant’s EEOC file are subject to judicial notice because they qualify as public
records whose authenticity can’t be questioned. See, e.g., Woods v. Delta Air Lines, Inc.,
2025 WL 966922, *6 (N.D. Tex. 2025) (“The record reflects that Delta obtained a copy of
Woods’s EEOC Investigative File, via a Freedom of Information Act (‘FOIA’) request to
EEOC’s Dallas District Office. . . . [T]he charge number, 410-2023-03162, is correctly
cited, and the 147 pages of documents provided all relate to ‘Ms. Margaret M. Woods.’ . . .
In her response, Woods does not question the authenticity of the EEOC records attached to
the motion, nor does she raise any objections to their accuracy. Therefore, even though
not referred to in Woods’s complaint, the undersigned finds that the Court, in its discretion,
may take judicial notice of Woods’s EEOC records in deciding Delta’s Rule 12(b)(6)
motion.”) (citations omitted). But see Brown v. Institute For Family Centered Servs., Inc.,
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394 F. Supp. 2d 724, 728 n.2 (M.D.N.C. 2005) (“In deciding a Rule 12(b)(6) motion, the
court may consider the complaint and documents attached to the complaint, referred to in
the complaint, and relied upon by Plaintiff in bringing the action. The court may also
consider matters subject to judicial notice. . . . Plaintiff’s affidavit and the EEOC file,
however, do not fit into one of the aforementioned categories.”). On the other hand, the
record is insufficiently developed to establish that the document attached to Defendant’s
reply is, in fact, contained within Plaintiff’s EEOC file. The reply brief was not
accompanied by a declaration avowing that the document is an authentic copy of a
document that the EEOC produced in response to a FOIA request. Instead, the only
assertion to that effect is set forth in the reply brief. Although the Court has no reason to
question the veracity of that assertion, “arguments and statements of counsel are not
evidence.” Barcamerica Int’l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 593 n.4
(9th Cir. 2002) (cleaned up). Additionally, because the document was filed for the first
time as an attachment to a reply brief, Plaintiff has not been heard on whether she disputes
its authenticity. Compare Woods, 2025 WL 966922 at *6 (“In her response, Woods does
not question the authenticity of the EEOC records attached to the motion, nor does she
raise any objections to their accuracy.”). Under these circumstances, the Court cannot take
judicial notice of the document.1
Last, Plaintiff provided an affidavit as an exhibit to her response brief. (Doc. 12-1.)
In the affidavit, Plaintiff argues that all of the factual assertions within her affidavit “are
subject to judicial notice because [she] submitted them to the EEOC.” (Id.) The affidavit
is intended to establish additional facts regarding the scope of the EEOC’s investigation
into Plaintiff’s charge. (Doc. 12 at 3.) Defendant opposes Plaintiff’s attempt to rely on
this affidavit, arguing that “[t]he affidavit was not attached to the complaint, it was not
incorporated by reference, and it is not appropriate to take judicial notice of a declaration
by the Plaintiff.” (Doc. 13 at 5.)
Defendant has the better of this issue. “Courts regularly decline to consider
1 The Court also clarifies that the outcome here would have been the same even if it
had considered the unsigned amended charge as part of the exhaustion analysis.
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declarations and exhibits submitted in support of or opposition to a motion to dismiss . . .
if they constitute evidence not referenced in the complaint or are not a proper subject of
judicial notice.” Bryant v. Anthem Cos., Inc., 2024 WL 5275505, *3 (C.D. Cal. 2024)
(cleaned up). The affidavit is not incorporated by reference into the FAC and is not subject
to judicial notice, as it is not a matter of public record. Thus, Plaintiff’s request for judicial
notice of the affidavit is denied.
III. Exhaustion Of Administrative Remedies
A. The Parties’ Arguments
Defendant argues that Plaintiff failed to exhaust her administrative remedies as to
Count One of the FAC, her claim of discriminatory treatment under the ADA, because her
charge of discrimination only asserted a failure-to-accommodate claim. (Doc. 11 at 1-2.)
Defendant argues that “failure to accommodate claims are not like and related to other
discriminatory treatment claims under the ADA” and cites cases from the Fifth, Sixth,
Seventh, and Tenth Circuit to support that argument. (Id. at 3-4.) Defendant also argues
that “a solitary, vague reference to an arguably separate allegation in a supplemental
document, such as a rebuttal, does not exhaust administrative remedies if it is not like and
related or reasonably expected to grow out of the investigation into the original
allegations.” (Id. at 3.) Defendant argues that “Plaintiff did not present the EEOC with an
opportunity to investigate anything other than her allegations of failure to accommodate”
and that “[t]he charge does not even contain a hint of other allegations.” (Id. at 4.)
Defendant concludes that “Plaintiff has not exhausted any claim in this case other than the
failure to accommodate claim.” (Id. at 5.)
In response, Plaintiff argues that although her charge of discrimination did not
expressly reference any acts of intentional discrimination, this is because those acts had
not yet occurred at the time she filed her charge and an investigation into those acts would
thus be “reasonably expected to grow out of the charge.” (Doc. 12 at 2-3.) Plaintiff also
emphasizes that she “indicated on her charge that Defendant’s discrimination was a
continuing violation”; that the EEOC “interviewed Plaintiff . . . after her termination”; and
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that “Defendant admitted that Plaintiff referenced her termination in her EEOC rebuttal.”
(Id. at 3.) Plaintiff further argues that a copy of the EEOC’s file will demonstrate that she
“submitted recordings and other evidence of the new allegations as part of the
investigation,” although “[t]he parties need not wait to view the contents of the EEOC file
given the holding of [Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990)] which establishes
that Plaintiff’s allegations were administratively exhausted because the allegations
occurred after Plaintiff filed her charge.” (Id.) Next, and seemingly in the alternative,
Plaintiff argues she “may rely upon allegations in the FAC not included in the EEOC
charge because they establish intentional discrimination.” (Id.) Specifically, Plaintiff
argues that “[a]rguendo that the allegations not included [in] Plaintiff’s EEOC charge are
untimely, Plaintiff may rely upon untimely allegations of discrimination to prove
intentional discrimination.” (Id. at 3-4.)
In reply, Defendant raises four arguments. (Doc. 13 at 2.) First, Defendant argues
that Plaintiff’s EEOC file (which Defendant recently obtained via a FOIA request) fails to
support Plaintiff’s exhaustion arguments because it only contains an “unverified and
unsigned amended charge,” which is insufficient, and because it “did not include any
recordings.” (Id.) Second, Defendant again argues that the allegations in Count One “are
not like and related or expected to grow out of a reasonable investigation into the
allegations contain[ed] in Plaintiff’s EEOC charge” and disputes Plaintiff’s assertion “that
any allegations that occurred after the filing of the charge is necessarily like and related to
the allegations in the charge itself.” (Id. at 4.) Third, Defendant argues that “Plaintiff’s
argument about using unexhausted allegations to support exhausted allegations is not in
dispute or relevant.” (Id.) Fourth, as noted, Defendant argues that the Court should
disregard the affidavit attached to Plaintiff’s response. (Id. at 5.)
B. Analysis
There is a strong argument that Defendant’s exhaustion argument is premature.
Title I of the ADA, which governs employment-related disability discrimination claims
(such as the claim asserted in Count One of the FAC), incorporates the charge-filing
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requirements in Title VII of the Civil Rights Act of 1964. Zimmerman v. Oregon Dep’t of
Just., 170 F.3d 1169, 1177-78 (9th Cir. 1999) (“Title I . . . incorporates Title VII’s charge
requirement.). Before 2019, the Ninth Circuit characterized Title VII’s administrative
exhaustion requirement as “jurisdictional” in nature. See e.g., B.K.B. v. Maui Police Dep’t,
276 F.3d 1091, 1099 (9th Cir. 2002) (“In order to establish subject matter jurisdiction over
her Title VII claim, Plaintiff was required to exhaust her administrative remedies.”). As a
result, before 2019, a defendant in the Ninth Circuit could seek dismissal of a Title VII
claim based on a lack of exhaustion under Rule 12(b)(1), and both sides could submit
materials outside the pleadings to establish exhaustion (or a lack thereof). See, e.g., Bill v.
Berkely United Sch. Dist., 2004 WL 2075447, *2 n.6 (N.D. Cal. 2004) (“The Court may
properly examine this extra-pleading material because . . . Plaintiff asserts discrimination
and retaliation claims under Title VII . . . and the District has challenged the Court’s subject
matter jurisdiction over this claim . . . . For motions to dismiss under Rule 12(b)(1), unlike
a motion under Rule 12(b)(6), the moving party may submit affidavits or any other
evidence properly before the court.”) (cleaned up). However, in 2019, the Supreme Court
overruled the Ninth Circuit’s treatment of “Title VII’s charge-filing requirement [as]
jurisdictional” and concluded that “Title VII’s charge-filing requirement is a processing
rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory
authority of courts.” Fort Bend Cnty., Tex. v. Davis, 587 U.S. 541, 547, 551 (2019).
Accordingly, whether a plaintiff in a Title VII action—and, in turn, a plaintiff in a Title I
ADA action—has “timely exhausted her administrative remedies is an affirmative defense,
so the defendant bears the burden of pleading and proving it.” Kraus v. Presidio Trust
Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) (cleaned
up).
“If a lack of administrative exhaustion is an affirmative defense that a” Title I ADA
defendant “bears the burden of pleading and proving, it is difficult to see how that defense
is properly raised via a Rule 12(b)(6) motion to dismiss.” Fox v. MHM Health
Professionals LLC, 2024 WL 4364133, *15 (D. Ariz. 2024). In other contexts in which a
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failure to exhaust administrative remedies is considered an affirmative defense, the Ninth
Circuit has held that “such a defense should generally be raised on summary judgment. A
defendant may raise the defense under Rule 12(b)(6) [only] in the rare event that a failure
to exhaust is clear on the face of the complaint.” McIntyre v. Eugene Sch. Dist. 4J, 976
F.3d 902, 909 n.6 (9th Cir. 2020) (cleaned up) (applying this rule in an action under the
Individuals with Disabilities Education Act). See also Albino v. Baca, 747 F.3d 1162,
1168-70 (9th Cir. 2014) (en banc) (concluding that “an unenumerated motion under Rule
12(b) is not the appropriate procedural device for pretrial determination of whether
administrative remedies have been exhausted under the [Prisoner Litigation Reform Act]”
and that although “[i]n a few cases, a prisoner’s failure to exhaust may be clear from the
face of the complaint,” “a motion for summary judgment, as opposed to an unenumerated
Rule 12(b) motion,” is usually the appropriate way “to decide exhaustion”); Vasquez v.
Kiewit Infrastructure W., Co., 2020 WL 2842671, *6 (D. Haw. 2020) (concluding, where
the plaintiff asserted an ADA disability discrimination claim against her employer, that
“administrative exhaustion requires a detailed examination of fact . . . and such an inquiry
is not suitable for review in a 12(b)(6) motion”). Here, it is not “clear from the face of the
complaint” that Plaintiff failed to exhaust her administrative remedies. To the contrary,
the FAC alleges that “[Plaintiff] timely filed a charge of discrimination with the EEOC . . .
concerning discrimination under the[] ADA as described above.” (Doc. 8 ¶ 31.)
Nevertheless, even assuming a more searching factual inquiry into the question of
exhaustion is warranted at this early stage of the case, Defendant is not entitled to dismissal.
As noted, a plaintiff wishing to bring an employment-related ADA claim must first file a
timely charge with the EEOC. Josephs v. Pac. Bell, 443 F.3d 1050, 1053 (9th Cir. 2005).
The scope of the resulting court action “depends upon the scope of both the EEOC charge
and the EEOC investigation.” Sosa, 920 F.2d at 1456. See also Vasquez, 2020 WL
2842671 at *5 (“The Ninth Circuit Court of Appeals has adopted an expansive policy that
allows for a finding of exhaustion as to all allegations of discrimination that either fell
within the scope of the EEOC’s actual investigation or an EEOC investigation which can
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reasonably be expected to grow out of the charge of discrimination . . . . The inquiry is
broad in scope and requires a determination of: (1) whether the agency actually did
investigate the type of claim that is deficient on the face of the charge of discrimination; or
(2) whether the agency should have investigated the type of claim that is deficient in the
charge of discrimination.”) (cleaned up).
Although Plaintiff’s charge of discrimination filed with the EEOC on May 15, 2024
does not contain any factual allegations regarding the alleged acts of discrimination
detailed in Count One of the FAC (Doc. 11-1 at 2-4), this omission does not necessarily
preclude a finding of exhaustion. As noted, “[t]he exhaustion analysis . . . doesn’t stop
with the EEOC charge form. The Court also must assess whether the current charges fall
within the scope of the EEOC’s actual investigation or an investigation which can
reasonably be expected to grow out of the charge.” Petty v. Circle K Stores Inc., 2020 WL
1236343, *11 (D. Ariz. 2020) (cleaned up).
In Plaintiff’s rebuttal letter to Defendant’s EEOC position statement (Doc. 11-2),
Plaintiff stated that “ASU has now dismissed [Plaintiff] for unapproved absenteeism. This
is pretext. The real reason ASU fired [Plaintiff] was because it refused to grant her a
reasonable accommodation.” (Id. at 7.) In another portion of her rebuttal letter, Plaintiff
stated that “Respondent’s claim that there had been a decline in Complainant’s job
performance is pretext. If there had been a decline in [Plaintiff]’s performance, why did
she get an end-of-the-year performance increase on her salary?” (Id. at 6.) These
references raise at least an inference that the EEOC’s investigation ultimately expanded
beyond the allegations of accommodation addressed in Plaintiff’s charge to encompass the
allegations of discrimination set forth in the rebuttal letter. See, e.g., Waithe v. Cardinal
Cushing Centers, Inc., 800 F. Supp. 3d 217, 225 (D. Mass. 2025) (“The Court will also
consider as exhausted Waithe’s claim of retaliation under Title VII because, although not
alleged in the initial charge, it was included in Waithe’s rebuttal to Cardinal’s position
statement”); Huda v. Lockheed Martin, 2008 WL 191300, *3 (E.D. La. 2008) (“Regarding
the non-promotion claim, in his rebuttal letter, Plaintiff states that he had ‘several
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documented meetings’ with Lockheed executives regarding discrimination in the
workplace ‘related to promotion, [and] job assignment.’ . . . Based on these
representations, this Court finds that a reasonable EEOC investigation would have reached
this claim.”).
These details also distinguish this case from the out-of-circuit authorities on which
Defendant relies. Putting aside that none of those cases resolved the issue of exhaustion
via the Rule 12(b)(6) motion, the plaintiffs in those cases did not argue (let alone come
forward with evidence) that they had raised additional allegations of actionable
mistreatment in a rebuttal letter submitted to the EEOC following the submission of the
initial charge. Instead, the exhaustion analysis in each case addressed whether a failure-
to-accommodate claim should be deemed administratively exhausted based solely on the
submission of a charge of discrimination that alleged disparate treatment. Hamar v.
Ashland, Inc., 211 F. App’x 309, 310 (5th Cir. 2006) (“[Plaintiff] argues that from this
charge, which asserts only a disparate treatment claim, an investigation into Ashland’s
failure to accommodate his disability could reasonably have been expected to grow. But
the scope of Hamar’s administrative charge is too narrow to have exhausted a claim for
failure to accommodate.”); Jones v. Sumser Ret. Vill., 209 F.3d 851, 853-54 (6th Cir. 2000)
(“The written charge specifically alleged only a termination claim. . . . Jones’s claim of
failure to accommodate could not reasonably be expected to grow out of her initial charge
of discrimination.); Green v. Nat’l Steel Corp., Midwest Div., 197 F.3d 894, 898 (7th Cir.
1999) (“Green neglected to make a ‘failure to accommodate’ argument in her EEOC
charge, and we fail to understand how she could expect that her claim that she suffered
from inadequate working conditions would develop from the investigation of the reasons
for her discharge.”); MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 n.13 (10th
Cir. 2005) (“[B]ecause MacKenzie failed to allege a failure to accommodate claim in her
original EEOC charge, she failed to exhaust her administrative remedies as to this claim
and it is dismissed.”).
The Court does not foreclose the possibility that the EEOC may have in fact declined
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to expand the scope of its investigation to include the discrimination-termination issue
raised in Plaintiff’s rebuttal letter. Nevertheless, at this early stage of the case, and with a
record that is less than fully developed as to what occurred during the administrative
proceedings, dismissal is unwarranted.2
Accordingly,
IT IS ORDERED that Defendant’s motion to dismiss (Doc. 11) is denied.
Dated this 21st day of January, 2026.
2 Plaintiff identifies two additional reasons why she should be deemed to have
exhausted her discrimination claim despite failing to mention it in her EEOC charge. (Doc.
12 at 2 [arguing that “allegations . . . occurring after Plaintiff filed her EEOC are reasonably
related to her EEOC charge”]; id. at 3 [arguing that “Plaintiff may rely upon allegations in
the FAC not included in the EEOC charge because they establish intentional
discrimination”].) The conclusions above obviate the need to resolve these alternative
arguments.
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