Mwimbwa v. Quest Diagnostics

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
THERESA MWIMBWA,
Plaintiff,
-vs-
QUEST DIAGNOSTICS,
Defendant.
Case No. 1:25-CV-00908
JUDGE PAMELA A. BARKER
MEMORANDUM OPINION & ORDER
This 	matter 	is 	before 	the 	Court 	upon 	Defendant 	Quest 	Diagnostics 	Incorporated’s
(“Defendant” 	or 	“Quest”)1 	Partial 	Motion 	to 	Dismiss 	Plaintiff’s 	Amended 	Complaint 	and
Memorandum in Support filed on July 14, 2025 (together, “Defendant’s Motion”). 	(Doc. Nos. 11
and 11-1.) On July 22, 2025, Plaintiff Theresa Mwimbwa (“Plaintiff” or “Mwimbwa”) filed a Brief
in Opposition to Defendant’s Motion (“Plaintiff’s Opposition”). (Doc. No. 15.) On August 4, 2025,
Quest filed a Reply in Support of Defendant’s Motion (“Defendant’s Reply”), and on August 5, 2025,
Mwimbwa filed a Motion for Leave to File Surreply Brief to Defendant’s Reply (“Plaintiff’s
Motion”). (Doc. Nos. 17, 18.) For the reasons set forth below, Defendant’s Motion is DENIED and
Plaintiff’s Motion is DENIED.
I. 	Background
A. 	The “First Lawsuit”
1 In Defendant’s Answers to Plaintiff’s Complaint and Amended Complaint, as well as Defendant’s Motion for Partial
Dismissal of Plaintiff’s Complaint and Motion for Partial Dismissal of Plaintiff’s Amended Complaint, Defendant Quest
Diagnostics Incorporated noted that Plaintiff had “incorrectly captioned” it as Quest Diagnostics. (Doc. No. 5, PageID #
28; Doc. No. 6, PageID # 28; Doc. No. 11, PageiD # 77; and Doc. No. 12, PageID # 91.)
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On March 4, 2025, Mwimbwa filed a complaint against Quest that included claims for
Retaliation, Intentional Infliction of Emotional Distress and Violations of the American with
Disabilities Act (“ADA”). 	(Mwimbwa v. Quest Diagnostics, No. 1:25-cv-428-PAB (N.D. Ohio
March 4, 2025) (“Mwimbwa I”), Doc. No. 1.) 	The complaint filed in Mwimbwa I did not include
any allegations that Plaintiff had exhausted her administrative remedies. (Id.) On March 18, 2025,
Plaintiff filed a Notice of Dismissal pursuant to Fed. R. Civ. P. 41(a) dismissing the complaint against
Quest without prejudice. (Id., Doc. No. 3.) On that same date, this Court then dismissed the claims
against Quest, without prejudice, and dismissed Mwimbwa I. (Id., Non-Doc. Order, No. 4.)
B. 	The “Second Lawsuit”
Plaintiff then initiated the instant Second Lawsuit against Quest on May 6, 2025, and indicated
on the Civil Cover Sheet filed therewith that the instant lawsuit was a refiled case. (Doc. No. 1-2,
PageID # 12.) In Plaintiff’s Complaint filed on May 6, 2025 (“Plaintiff’s Complaint”), Mwimbwa
set forth the following relevant allegations. 	She is “of the minority race as a white woman employed
at the Quest Diagnostic[s] office.” (Doc. No. 1 at ¶ 8.) Mwimbwa “suffered a traumatic brain injury
in a car accident in April 2024” and upon her “return[] to work after recovering from [it], she
experienced no difficulty continuing her same job and duties that she was hired to do.” (Id. at ¶¶ 9–
10.) 	Upon her return to work, Mwimbwa “was friendly and helpful to a newly hired transgender
employee” on her shift, but “other employees showed hostility towards the transgender employee”
and “started to act hostile towards [Mwimbwa] when they saw her friendly behavior towards the
transgender employee.” (Id. at ¶¶ 11–13.) Mwimbwa “began to file complaints to Human Resources
regarding these situations.” (Id. at ¶ 14.)
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Mwimbwa “was then switched from the job she was hired to do to a completely different
position which left her in charge of using new complex machinery” and because she was “not . . .
trained for the new position, [she] did not know how to perform her job effectively.” (Id. at ¶¶ 15–
16.) 	“The difficulties of Plaintiff’s new position caused her to struggle with her health from her
traumatic brain injury.” (Id. at ¶ 17.) According to Mwimbwa, “managers and employees harassed”
her because she did not know “how to use the complex machines at her new position.” (Id. at ¶ 18.)
As a result, she “asked to be switched back to her original position, but her request was denied despite
the fact that she submitted paperwork from her doctor,” but her request was denied. (Id. at ¶¶ 19–
20.) Mwimbwa alleges that she: “was not reasonably accommodated . . . for her disability”; she was
“continually passed up for possible promotions by younger male employees”; she was “harassed by
other employees and was singled out due to her race and friendship with the transgender employee”;
and she “had to seek medical care due to the continued harassment.” (Id. at ¶¶ 21–24.)
According to Mwimbwa, she filed a charge of discrimination against Quest with the U.S.
Equal Employment Opportunity Commission (“EEOC”) on April 3, 20252; she received a Notice of
Right to Sue letter from the EEOC on April 29, 2025 (attached to Plaintiff’s Complaint as EXHIBIT
I); and therefore, she has exhausted all administrative remedies available to her. (Id. at ¶¶ 25–27.)
The Dismissal and Notice of Rights issued by the EEOC on April 29, 2025 is attached to Plaintiff’s
Complaint at Doc. No. 1-3, PageID #s 14-18. Plaintiff’s Complaint included the same three claims
for relief set forth in her First Lawsuit filed against Quest: Count I: Retaliation; Count II: Intentional
2 Although in both Plaintiff’s Complaint and Plaintiff’s Amended Complaint Mwimbwa alleges that she, through her
counsel, filed her Charge of Discrimination with the EEOC on April 3, 2025, the document she attached as Exhibit I to
Plaintiff’s Amended Complaint indicates that the Charge of Discrimination was filed on April 17, 2025. (Doc. No. 10,
PageID # 76.)
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Infliction of Emotional Distress; and Count III: Violation of Americans with Disabilities Act. (Id.,
PageID #s 3-6.)
On June 14, 2025, Quest filed Defendant’s Motion seeking dismissal of Counts I and III of
Plaintiff’s Complaint, arguing generally that Plaintiff had failed to exhaust her administrative
remedies because she had failed to file a valid charge of discrimination. Quest asserted that because
the April 17, 2025 Charge of Discrimination submitted to the EEOC had not been signed and verified
by Mwimbwa it failed to meet the requirements of Title VII or the ADA. 	(Doc. Nos. 6 and 6-1.)
Attached as Exhibit A to Defendant’s Motion is the Charge of Discrimination filed on April 17, 2025
that includes only the /s/ signature of Mwimbwa’s Attorney Bruce Taubman. (Doc. No. 6-2, PageID
#s 44-45.) It does not include any signature by Mwimbwa as the Complainant. (Id.) And Quest also
asserted that by receiving the April 29, 2025 right-to-sue notice April 29, 2025 and filing Plaintiff’s
Complaint afterward, Mwimbwa could not amend her charge. (Doc. No. 6-1, PageID # 41-42.)
Then, on July 1, 2025, Plaintiff filed the operative Amended Complaint (“Plaintiff’s Amended
Complaint”). 	(Doc. No. 10.) 	It is identical to Plaintiff’s Complaint with the exception of the
following. 	First, in the introductory paragraph of Plaintiff’s Amended Complaint, Mwimbwa
represents that she is “add[ing] an updated copy of Plaintiff’s Charge of Discrimination form that
includes Plaintiff’s signature (EXHIBIT I) which has been sent to the U.S. Equal Employment
Opportunity Commission to be added to Plaintiff’s file.” 	(Doc. No. 10, PageID # 68.) 	Second,
EXHIBIT I attached to Plaintiff’s Amended Complaint is different than EXHIBIT 1 attached to
Plaintiff’s Complaint in that it consists of only one page, and it appears to include Attorney Bruce D.
Taubman’s signatures as a notary before whom: 1.) Mwimbwa declared under penalty of perjury that
the Charge of Discrimination was true and correct; and 2.) as the Complainant, Mwimbwa swore or
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affirmed that she had read the charge and that it is true to the best of her knowledge, information and
belief. (Id., PageID # 76.) It is clear from comparing EXHIBIT I attached to Plaintiff’s Amended
Complaint with EXHIBIT 1 attached to Plaintiff’s Complaint, both of which bear the typewritten
04/14/2025 date and /s/ Bruce Taubman signature, that Mwimbwa and Attorney Taubman merely
added to the Charge submitted on 4/17/25 and attached as EXHIBIT 1 to Plaintiff’s Complaint, 2025,
their signatures on what appears to be the handwritten date of June 27, 2025; and then sent it to the
EEOC to be added to Plaintiff’s file.
In Defendant’s Motion, and pursuant to Fed. R. Civ. P. 12(b)(6), Quest moves this Court to
dismiss Counts I and III of Complaint’s Complaint for failure to state a claim upon which relief can
be granted. Specifically, Quest argues that Counts I and III should be dismissed because Mwimbwa
failed to sign and verify her charge and the signature of her attorney on the charge is not sufficient to
meet the verification requirements to support her charge of discrimination. 	According to Quest,
“Plaintiff’s failure to verify the charge of discrimination before filing this lawsuit prevents her from
doing so now.” (Doc. No. 11-1, PageID # 84.)
In Plaintiff’s Opposition, Mwimbwa responds that dismissal on “such hyper-technical
grounds is inconsistent with Title VII’’s remedial purpose, that disputes be resolved on the merits,
not technicalities.” (Doc. No. 15, PageID # 104.) In support of her assertion that the “Court should
review the scope of the EEOC liberally” Mwimbwa cites to Trujillo v. Rockledge Furniture LLC, 926
F.3d 395, 399 (7th Cir. 2019) (quoting Husch v. Szabo Food Serv. Co., 851 F.2d 999, 1002 (7th Cir.
1988)). According to Mwimbwa, because she received her right to sue letter from the EEOC before
filing her complaint, she has exhausted her administrative remedies. Mwimbwa acknowledges that
she “unfortunately made an error in the signing of the Charge of Discrimination form but still received
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her Right-to-Sue letter[;]” she “resubmitted the Charge of Discrimination letter with her signature
when she noticed the error[;]” and “Defendant was not prejudiced by the lack of the signing of
Plaintiff’s Charge of Discrimination form as no new information was added when Plaintiff corrected
the signing error.” (Id., PageID # 105.)
In Defendant’s Reply, Quest submits that Plaintiff’s Opposition “provides no legal support to
Plaintiff’s effort to avoid dismissal of the subject claims.” 	(Doc. No. 17, PageID # 112.) 	Quest
asserts that Mwimbwa’s reliance on Trujillo is misplaced because therein the court declined to
dismiss the lawsuit because while the plaintiff had committed a “minor error” by failing to identify
the full legal name of her employer, she had included the correct address and telephone number of
the employer. 	(Id., PageID # 113, quoting Trujillo, 926 F.3d at 400.) 	According to Quest, “[t]he
failure to include one word from the employer’s name is simply not comparable to Plaintiff’s failure
to sign her charge under oath, as required by applicable law.” (Id.)
In 	response 	to 	Defendant’s 	Reply, 	Mwimbwa 	filed 	Plaintiff’s 	Motion, 	arguing 	that
Defendant’s Reply “raised new arguments concerning the subject matter jurisdiction of the Court
over issues of due process and equal protection.” (Doc. No. 18, PageID # 116.) Mwimbwa asserts
that “not all facts were properly presented to the Court” and that “Plaintiff would like to express that
the Amended Complaint should incorporate the signed and notarized charging document refiled with
the EEOC.” (Id.) Quest did not file any response or opposition to Plaintiff’s Motion.
II. 	Standard of Review
In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain (1)
‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic recitation of a cause
of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’”
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Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–556 (2007)). For purposes of both Rule 12(b)(6) and
Rule 12(c), “all well-pleaded material allegations of the pleadings of the opposing party must be taken
as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to
judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal
citation and quotation marks omitted). The measure of a Rule 12(b)(6) challenge — whether the
Complaint raises a right to relief above the speculative level — “does not ‘require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.’”
Bassett v. National Collegiate Athletic Ass'n., 528 F.3d 426, 430 (6th Cir.2008) (quoting in part
Twombly, 550 U.S. at 555–556). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Deciding whether a complaint
states a claim for relief that is plausible is a “context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id. at 679.
III. 	Analysis
Before a plaintiff may file an action in federal court under the ADA or Title VII, she must
first exhaust her administrative remedies. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 309
(6th Cir. 2000) (discussing exhaustion under the ADA); Younis v. Pinnacle Airlines, Inc., 610 F.3d
359, 361-63 (6th Cir. 2010) (discussing exhaustion under Title VII). As part of the administrative
exhaustion requirements, an aggrieved employee must file a charge with the EEOC. 	Id. 	The
exhaustion requirements under each statute are the same. 	42 U.S.C. § 12117(a) (adopting the
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procedures of 42 U.S.C. § 2000e-5 (setting forth the procedures for enforcing Title VII) for ADA
claims).
According to the Sixth Circuit, “an employee may not file a suit under the ADA [or Title VII]
if he or she does not possess a right-to-sue letter from the EEOC because he or she has not exhausted
his or her remedies.” 	Parry, 236 F.3d at 309 (citing 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. §
12117(A)); see also Portis v. Ohio, 141 F.3d 632, 634–635 (6th Cir. 1998). 	However, because “the
right-to-sue letter is a condition precedent” to filing suit, rather than a jurisdictional requirement, “the
requirement of obtaining a right-to-sue letter may be waived by the parties or the court.” Parry, 236
F.3d at 309 (citing Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032 (6th Cir. 1998). In Parry,
the aggrieved party plaintiff had not apprised the district court of his right-to-sue letter until after the
court had granted the defendant’s motion for summary judgment. 	236 F.3d at 310. 	But, because
there was no jurisdictional defect and no evidence that Defendants had suffered any prejudice from
the plaintiff’s failure to initially satisfy this condition precedent, “a defect he later cured[;]” the Sixth
Circuit thought it would be “unduly harsh, under th[o]se circumstances, to deny Plaintiff his day in
court as to his ADA claim” and concluded that the district court had “improperly dismissed Plaintiff’s
claim on that basis.” Id. .
The only exhibit attached to Plaintiff’s Amended Complaint is what Mwimbwa alleges is “an
updated copy of Plaintiff’s Charge of Discrimination form that includes Plaintiff’s signature
(EXHIBIT I)” which according to Plaintiff “has been sent to the U.S. Equal Employment Opportunity
Commission to be added to Plaintiff’s file. (Doc. No. 10, PageID #s 68, 76.) Although Mwimbwa
attached to Plaintiff’s Complaint the right-to-sue letter she alleges was issued to her by the EEOC on
April 29, 2025, she did not attach that right-so-sue letter to her Amended Complaint. Therefore, the
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right-to-sue letter is not part of the operative complaint that is the subject of Defendant’s Motion.
Quest has not attached to Defendant’s Motion, any copy of the right-to-sue letter, but only a copy of
Mwimbwa’s Charge of Discrimination to attempt to demonstrate that Mwimbwa did not verify the
Charge of Discrimination before filing the lawsuit and therefore, according to Quest, Counts I and III
of her Amended Complaint must be dismissed. Indeed, in Defendant’s Motion, Quest quotes from
the April 29, 2025 right-to-sue letter as including the representation that “[t]he EEOC is terminating
its processing of this charge[]” to demonstrate that it was never given the opportunity to respond to
the merits of the charge and, in turn, raise the defense that Plaintiff failed to file a valid charge of
discrimination until Plaintiff filed suit. 	The Court construes this as an argument that Quest was
prejudiced. 	However, the right-to-sue letter that Quest relies upon was not attached to Plaintiff’s
Amended Complaint and therefore, the Court cannot rely on any representations included therein to
evaluate any potential prejudice argument. 	Upon this record, the Court can only conclude that
enforcing the condition precedent of exhaustion of administrative remedies absent any demonstration
of prejudice to Quest, would be “unduly harsh.” The issue of prejudice can always be raised by Quest
in any dispositive motion it files.
Moreover, and importantly, the “[f]ailure to exhaust administrative remedies . . . is an
affirmative defense . . . and the defendant bears the burden of pleading and proving this
failure.” Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008) (citing cases); see also Luedtke v.
Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (citing Wright v. Universal Mar. Serv. Corp., 525 U.S.
70, 75 (1998)); Lockhart v. Holiday Inn Express Southwind, 531 F. App’x 544, 547 (6th Cir.
2013). “Courts generally cannot grant motions to dismiss on the basis of an affirmative defense
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unless the plaintiff has anticipated the defense and explicitly addressed it in the pleadings.” Barney
v. PNC Bank (In re Estate of Barney), 714 F.3d 920, 926 (6th Cir. 2012).
In this Circuit, defendants may “raise an affirmative defense in a pre-answer motion to dismiss
‘where the defense clearly appears on the face of the [complaint].’” Middleton v. United Church of
Christ Bd., 483 F. Supp. 3d 489, 496 (N.D. Ohio 2020) (quoting Pierce v. Oakland Cty., 652 F.2d
671, 672 (6th Cir. 1981)). Stated differently, this Court cannot grant Quest’s Motion unless
Mwimbwa’s “own allegations contain facts which satisfy the elements of [the] defense” of
administrative exhaustion. Princeton Excess & Surplus Lines Ins. Co. v. Caraballo, 693 F. Supp. 3d
783, 791 (N.D. Ohio 2023)(citing Hensley Mfg, 589 F.3d at 613).
Plaintiff’s Amended Complaint contains allegations that she received a right-to-sue letter
from the EEOC on April 29, 2025 and “has exhausted all administrative remedies available to her
which has led her to file this lawsuit.” (Doc. No. 10 at ¶ 27.) Since Mwimbwa’s Amended Complaint
does not establish the elements of Quest’s affirmative defense, the Court cannot dismiss Counts I and
III of Plaintiff’s Amended Complaint on this ground. See Sedoris v. Diversicare Healthcare Servs.,
No. 3:20-cv-174-DJH, 2021 U.S. Dist. LEXIS 30262 at *12 (W.D. Ky. Feb. 18, 2021) (denying a
motion to dismiss an age discrimination claim for failure to exhaust administrative remedies on the
same grounds).
Accordingly, and for the reasons set forth above, Defendant’s Motion is DENIED. 	And,
therefore, Plaintiff’s Motion is DENIED AS MOOT.
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: November 18, 2025 	U. S. DISTRICT JUDGE
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