Buffi v. Sinclair Oil et al

Filing 27

MEMORANDUM DECISION and ORDERgranting 9 Defendant Sinclair Oil's Motion to Dismiss for Lack of Jurisdiction; denying 11 Defendant Randy Neitzel's Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ted Stewart on 07/13/2012. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ORBIE THERESA BUFFI,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT
RANDY NEITZEL’S MOTION TO
DISMISS AND GRANTING
DEFENDANT SINCLAIR OIL’S
MOTION TO DISMISS

vs.

SINCLAIR OIL COMPANY, SNOW BASIN
RESORT COMPANY a.k.a. SNOWBASIN
A SUN VALLEY RESORT, and RANDY
NEITZEL,

Case No. 2:12-CV-92 TS

Defendants.

This matter is before the Court on Motions to Dismiss filed by Defendant Randy Neitzel
and Defendant Sinclair Oil Company. For the reasons set forth more fully below, the Court will
deny Neitzel’s Motion and grant Sinclair’s Motion.
I. BACKGROUND
The following facts are taken from Plaintiff’s Complaint and are accepted as true for
purposes of these Motions.

1

From 2004 to 2008, Plaintiff Orbie Buffi worked at Snowbasin Resort Company in the
human resources department. Plaintiff was supervised by Defendant Randy Neitzel.
During her employment, Plaintiff had several traumatic experiences. In 2006, Plaintiff
divorced her husband of twenty-six years. A few months later, Plaintiff’s mother was diagnosed
with terminal brain cancer. In 2007, Plaintiff’s father died. These events caused Plaintiff to
develop depression and anxiety, for which she was prescribed antidepressant, anxiety, and sleep
medications. Plaintiff thereafter had difficulty waking up in the morning, and began to arrive at
work ten to twenty minutes late each day. In a discussion with Neitzel about her tardiness,
Neitzel suggested that she start coming in at noon so that she had time to coordinate care for her
mother or “go to the gym.” Plaintiff accepted and began to come in around noon. Plaintiff’s
tardiness was always reflected on the manual time cards that she was required to keep. At one
point in 2007, Plaintiff was given a written warning based on her tardiness.
Snowbasin thereafter switched to an automated time card system. In 2008, Neitzel
scheduled a meeting with Plaintiff. During the meeting, Neitzel showed Plaintiff the written
warning she had received in 2007 and asked if she had taken steps to correct the problem.
Plaintiff was surprised that Neitzel was asking about a warning given long ago, and that Neitzel
did not seem to acknowledge the discussions he had with Plaintiff about her tardiness in the past.
Citing the amount of times Plaintiff had been late to work as evidenced by the automated time
card system, Neitzel informed Plaintiff that she was terminated. At the time she was fired,
Plaintiff was over forty years old.

2

Plaintiff contends that Neitzel knew about her tardiness long before the automated time
card system was put in place because Neitzel was required to sign her manual time cards.
Furthermore, Plaintiff emphasizes that Neitzel granted her permission to arrive late, which was
never revoked. Plaintiff notes that other Snowbasin employees had received numerous verbal
and written warnings for tardiness but had not been terminated. Plaintiff further notes that her
position was immediately filled by her assistant, who is half Plaintiff’s age and has less than half
of Plaintiff’s experience, and that no other applications were considered.
In addition to depression and anxiety, Plaintiff has been diagnosed with peripheral
neuropathy in her feet. Neitzel was aware of this diagnosis and worked with Snowbasin’s
general manager to ensure that Plaintiff could park close to her work site and minimize time on
her feet.
Plaintiff contends that Neitzel’s reversal of his position on her tardiness, as well as the
fact that she was replaced very quickly by a much younger candidate with only half her
experience, demonstrates that she was fired for reasons other than arriving to work late. Plaintiff
therefore alleges (1) age discrimination under the Age Discrimination in Employment Act
(“ADEA”); (2) disability discrimination under the Americans with Disabilities Act (“ADA”); and
(3) unlawful retaliation under the ADEA and ADA against all Defendants.
II. STANDARD OF REVIEW
Defendants contend under Rule 12(b)(1) that the Court lacks jurisdiction over Plaintiff’s
claims because Plaintiff failed to exhaust her administrative remedies. Whether a plaintiff has
exhausted her administrative remedies is a purely jurisdictional question and a motion to dismiss

3

on those grounds should not be converted into a motion for summary judgment.1 Thus, the
Court’s consideration of an EEOC charge to determine whether a defendant in a civil case was
named as a respondent therein will not convert the 12(b)(1) motion into a motion for summary
judgment. “‘Because the jurisdiction of federal courts is limited, there is a presumption against
[this Court’s] jurisdiction, and the party invoking federal jurisdiction bears the burden of
proof.’”2
Defendants further contend that, even if the Court has jurisdiction, Plaintiff has failed to
state a claim under Rule 12(b)(6) against Neitzel and Sinclair because neither were Plaintiff’s
“employer” under the ADA or ADEA.
In considering a motion to dismiss for failure to state a claim upon which relief can be
granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from
conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as
the nonmoving party.3 Plaintiff must provide “enough facts to state a claim to relief that is
plausible on its face,”4 which requires “more than an unadorned, the-defendant-unlawfully
1

Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1318 (10th Cir. 2005) (“[W]hile the
district court correctly determined that Shikles was required to cooperate with the EEOC in order
to exhaust his administrative remedies, and correctly determined that Shikles’ exhaustion of
administrative remedies was a jurisdictional prerequisite to his ADEA suit, the court erred in
granting summary judgment to Sprint. Rather, the district court should have dismissed Shikles’
case based on a lack of subject matter jurisdiction.”).
2

Merida Delgado v. Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (quoting Marcus v.
Kan. Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir.1999)).
3

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.

4

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007).

1997).

4

harmed-me accusation.”5 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”6 “The court’s function on
a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial,
but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for
which relief may be granted.”7 As the Court in Iqbal stated, “only a complaint that states a
plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a
plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not show[n]—that the pleader is entitled to relief.”8
III. DISCUSSION
The ADEA makes it unlawful for an employer to:
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age; [and]

5

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

6

Id. (quoting Twombly, 550 U.S. at 557) (alteration in original).

7

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

8

Iqbal, 129 S. Ct. at 1949-50 (alteration in original) (internal quotation marks and
citations omitted).
5

(2) to limit, segregate, or classify his employees in any way which would deprive
or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual’s age.9
The ADA mandates that
No covered entity shall discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.10
A “covered entity” includes an employer.11
A.

MR. NEITZEL
Defendant Neitzel contends that he is not a proper defendant in this suit because (1)

Plaintiff has not exhausted her administrative remedies and (2) he was not Plaintiff’s employer
under the ADA or ADEA. The Court will address each argument in turn.
1. EXHAUSTION OF REMEDIES
“[A] plaintiff’s exhaustion of his or her administrative remedies is a jurisdictional
prerequisite to suit under the ADEA.”12 The same is true for the ADA.13 “The first step to
exhaustion is the filing of a charge of discrimination with the EEOC.”14 Thus, courts generally
impose a “strict requirement that each defendant must have been specifically named as the

9

29 U.S.C. § 623(a).

10

42 U.S.C. § 12112(a).

11

Id. § 12111(2).

12

Shikles, 426 F.3d at 1317.

13

Jones v. U.P.S., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007).

14

Id.
6

respondent in the EEOC charge.”15 However, the Tenth Circuit recognizes a narrow exception
to this requirement in the Title VII context where (1) “the defendant was informally referred to in
the body of the charge” or (2) “there is sufficient identity of interest between the respondent and
the defendant to satisfy the intention of Title VII that the defendant have notice of the charge and
the EEOC have an opportunity to attempt conciliation.”16 To determine whether an exception
should be granted, a court looks to
(1) whether the role of the unnamed party could through reasonable effort by the
complainant be ascertained at the time of the filing of the EEOC complaint; (2)
whether, under the circumstances, the interests of a named are so similar as the
unnamed party’s that for the purpose of obtaining voluntary conciliation and
compliance it would be unnecessary to include the unnamed party in the EEOC
proceedings; (3) whether its absence from the EEOC proceedings resulted in
actual prejudice to the interests of the unnamed party; (4) whether the unnamed
party has in some way represented to the complainant that its relationship with the
complainant is to be through the named party.17
Defendant does not contest the application of this standard to ADA or ADEA claims.18
As to the first factor, Plaintiff clearly was able to ascertain the role of Mr. Neitzel in the
alleged discrimination at the time her EEOC Complaint was filed. This factor therefore goes in
favor of Neitzel.

15

Romero v. Union Pac. R.R., 615 F.2d 1303, 1311 (10th Cir. 1980).

16

Id.

17

Id. at 1312.

18

See Rodriguez v. Int’l Bhd. of Firemen & Oilers, 1997 WL 327086 (D. Kan. May 30,
1997) (applying Romero to ADEA claim and noting that defendants had not argued that a
different standard should apply).
7

As to the second factor, the Court finds that Mr. Neitzel’s interests are similar to
Snowbasin’s with respect to the question presented here. Because Neitzel is a Snowbasin
employee accused of discrimination in his official capacity, Snowbasin’s liability hinges on
Neitzel’s conduct, and the two parties rise or fall together. Accordingly, Neitzel’s interests are so
similar to Snowbasin’s that the failure to name Neitzel would not have affected the potential for
resolution of Plaintiff’s claims via voluntary conciliation. This factor therefore goes in favor of
Plaintiff.
As to the third factor, Neitzel has made no allegations suggesting that he was prejudiced
by Plaintiff’s failure to include him. The Court finds it unlikely that Neitzel was unaware of the
charge, since his actions were its centerpiece. In responding to the charge, Snowbasin would
have been required to consult with Neitzel to discover what occurred. The Court therefore
assumes that the failure to include Neitzel as a respondent did not result in an unfair lack of
notice to Neitzel, and finds that this factor goes in favor of Plaintiff.
Finally, Plaintiff has not alleged that Neitzel represented to Plaintiff that his relationship
with Plaintiff was to be through Snowbasin, and the fourth factor therefore goes in favor of
Neitzel.
The Court is thus left with an even split. However, the Court would note that “the
purposes of exhaustion are: “(1) to give notice of the alleged violation to the charged party; and
(2) to give the EEOC an opportunity to conciliate the claim.”19 Because the claims against
Snowbasin are based on the claims against Neitzel, so that the two are essentially inseparable,

19

Jones, 502 F.3d at 1185.
8

Neitzel must have been apprised of the details of the charge and a conciliation with Snowbasin
would have resolved the claims against Neitzel as Plaintiff’s employer. The Court therefore
finds that Plaintiff’s failure to name Neitzel as a respondent does not frustrate the purposes of
exhaustion. Accordingly, the Court will deny Neitzel’s motion to dismiss for lack of personal
jurisdiction.
Plaintiff has also argued that her intake questionnaire, which clearly sets out her
contentions against Mr. Neitzel, constitutes a charge of discrimination in its own right under
Semsroth v. City of Wichita.20 Because the Court finds that Plaintiff can pursue claims against
Neitzel under Romero, the Court will not consider this argument.
2. NEITZEL AS EMPLOYER
In his opening brief, Neitzel correctly stated that a plaintiff cannot sue persons in their
individual capacity under the ADA or ADEA.21 Plaintiff then clarified in her response that she
brings claims against Neitzel as an employer and not in his individual capacity. In response,
Neitzel argues he was not Plaintiff’s employer because the Complaint indicates that other
managers at Snowbasin were superior to Defendant in the corporate hierarchy and he therefore
did not have “‘ultimate authority’ over Plaintiff’s hiring, firing, and conditions of employment.”22

20

304 F. App’x 707 (10th Cir. 2008).

21

See Butler v. City of Prairie Vill., Kan., 172 F.3d 736, 744 (10th Cir. 1999) (finding that
“the ADA precludes personal capacity suits against individuals who do not otherwise qualify as
employers under the statutory definition” and noting that the same rule is applied to the ADEA in
the majority of federal circuit and district courts).
22

Docket No. 22, at 3.
9

With exceptions not applicable here, the Tenth Circuit applies cases interpreting the term
“employer” in Title VII to the ADA and ADEA.23 Under Title VII, a “supervisory employee
need not have ultimate authority to hire or fire to qualify as an employer, as long as he or she has
significant input into such personnel decisions.”24
The Complaint alleges that Neitzel participated in hiring and firing decisions. The
Complaint also alleges that Neitzel granted Plaintiff permission to come in later in the day,
indicating that he had some control over the conditions of Plaintiff’s employment. Accordingly,
the Court finds that Plaintiff has alleged sufficient facts to show that Neitzel was an employer.
Defendant’s reply memoranda also seems to suggest that allowing a suit to go forward
against Neitzel, which in the end only results in a suit against Snowbasin, is redundant where
Snowbasin has already answered the Complaint. This Court faced and dismissed an identical
argument in the Title VII context in Wight v. Downing,25 and will therefore reject Defendant’s
contention here.
In light of the foregoing, the Court will not dismiss the claims against Neitzel.
23

See Butler, 172 F.3d at 744 (“[W]e can discern no meaningful distinction between the
definitions of ‘employer’ in Title VII and the ADA.”); Wheeler v. Hurdman, 825 F.2d 257, 263
(10th Cir. 1987) (comparing ADEA to Title VII and stating that “cases construing definitions of
one of the Acts are to be viewed as persuasive authority when interpreting the others”).
24

Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989), vacated in part on other
grounds, 900 F.2d 27 (4th Cir. 1990) (citing Tafoya v. Adams, 612 F. Supp. 1097, 1105 (D. Colo.
1985), aff’d, 816 F.2d 555 (10th Cir. 1987) (finding that a supervisor was an employer even
though he only participated in rather than controlled decisions to hire and fire personnel)).
25

2008 WL 303918, at *2 (D. Utah Jan. 31, 2008) (“Here, Plaintiff has brought her
Complaint against both the supervisory employees and the employer directly. While Defendants
argue that this is redundant, Plaintiff may bring her Title VII claim against individuals in their
official capacity. Thus, Defendants’ Motion will be denied on this ground.”).
10

B.

SINCLAIR OIL
Like Neitzel, Sinclair argues (1) Plaintiff failed to exhaust her administrative remedies

against Sinclair because Sinclair was not named in the charge of discrimination and (2) it was not
Plaintiff’s employer because Sinclair Oil is merely Snowbasin’s parent corporation.
Plaintiff responds by conceding that Sinclair should be eliminated from the case caption
because Sinclair has not yet been served, but contending that Sinclair should not be dismissed
from the case because, in some circumstances, a parent company can be liable for the actions of
its subsidiary. The Court would first note that Plaintiff bears the burden of proving jurisdiction
once challenged. Because Plaintiff has not disputed that Sinclair was not named in the charge,
she has failed to meet her burden.
Furthermore, even if the Court found it had jurisdiction over the claims against Sinclair,
the Court would still be required to dismiss under Rule 12(b)(6) because Plaintiff alleges no facts
showing that Sinclair was Plaintiff’s employer under the ADA or ADEA. The Court would note
that if Plaintiff intended to argue that Sinclair should be liable as a parent company, the time to
do so was when responding to Sinclair’s motion to dismiss, and not at some future date. Having
failed to point the Court to any allegation against Sinclair that would support a finding that
Sinclair could be liable as a parent corporation, Plaintiff’s claim would require dismissal even if
the Court found it had jurisdiction.

11

IV. CONCLUSION
In light of the foregoing, it is therefore
ORDERED that Defendant Randy Neitzel’s Motion to Dismiss for Lack of Jurisdiction
(Docket No. 11) is DENIED. It is further
ORDERED that Defendant Sinclair Oil’s Motion to Dismiss for Lack of Jurisdiction
(Docket No. 9) is GRANTED. The hearing set in this matter for July 25, 2012, is STRICKEN.
DATED July 13, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

12