Sargent v. Utah State Office of Rehabilitation et al
Filing
22
MEMORANDUM DECISION AND ORDER finding as moot 7 Motion to Dismiss for Lack of Jurisdiction granting 17 Motion to Dismiss for Failure to State a Claim. Counts III, IV and V of the Amended Complaint are DISMISSED. It is ORDERED that Plaintiff file a sur-reply within fourteen (14) days from the date of this order addressing Defendants arguments regarding Ms. Fink. Signed by Magistrate Judge Brooke C. Wells on 9/17/2018. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
JODY SARGENT,
Plaintiff,
v.
UTAH STATE OFFICE OF
REHABILITATION, et al.,
MEMORANDUM DECISION AND ORDER
MOOTING DEFENDANTS’ MOTION TO
DISMISS FOR LACK OF JURISDICTION
AND GRANTING DEFENDANTS’
PARTIAL MOTION TO DISMISS
Case No. 1:18-cv-44 BCW
Defendants.
Magistrate Judge Brooke Wells
The parties consented to the jurisdiction of the undersigned in accordance with 28 U.S.C.
636(c). 1 Pending before the court are two motions filed by Defendants. A Motion to Dismiss
for Lack of Jurisdiction 2 and a Partial Motion to Dismiss. 3 As set forth below the court will
moot Defendants first motion and grant the second partial motion to dismiss. The court further
orders a response by Plaintiff to arguments made by Defendants in their reply memorandum.
BACKGROUND
Plaintiff, Jody Sargent, was employed by the Utah State Office of Rehabilitation (USOR)
as a “Career Exploration Counselor” 4 and a “Vocational Rehabilitation Counselor.” 5 In 2015
after transferring to the Ogden USOR office, Ms. Sargent was placed on a Performance
Improvement Plan (PIP). Shortly after receiving the PIP, Plaintiff informed the ADA
Coordinator, Stacy Cummings, that she suffers from Post-Traumatic Stress Disorder (PTSD).
1
ECF No. 12.
2
ECF No. 7.
3
ECF No. 17.
4
Amended Compl. ¶ 31.
5
Id. ¶ 32.
Plaintiff requested a different supervisor than her current one at that time, Laura Fink, due to an
“abrasive management style that made it difficult for Ms. Sargent to complete her work.” 6 The
request was denied. The working relationship between Ms. Sargent and her supervisor continued
to decline until eventually in April 2016, “Ms. Fink moved to another office and USOR assigned
Ms. Sargent a new supervisor, Sherry Richardson.” 7 The working relationship between Ms.
Richardson and Ms. Sargent did not take long until it also deteriorated. Eventually near the end
of July 2016, “Ms. Sargent was fired.”
Ms. Sargent brings claims for: retaliation; retaliatory discharge; intentional inflection of
emotional distress; negligent employment, training and supervision; intentional interference with
economic relations; discrimination based on disability in violations of the rehabilitation act.
With that background the court turns to Defendants motions to dismiss.
Defendants’ Motion to dismiss Plaintiff’s Complaint8
I.
Defendants USRO, State of Utah and Laura Fink first moved to dismiss Plaintiff’s
original Complaint under Federal Rules 12(b)(1) and 12(b)(6). Defendants made two primary
arguments. First, this court lacks subject matter jurisdiction and second, the Complaint failed to
state a claim for relief.
In response to that motion Plaintiff argued Defendants’ motion should be denied in part
and granted in part because “Defendant’s sovereign immunity argument has been mooted by
Plaintiff’s First Amended Complaint.” 9 “Plaintiff concedes that a Plaintiff does not have
jurisdiction to bring state law claims against Laura Fink because a notice of claims was not filed
6
Id. ¶ 48.
7
Id. ¶ 89.
8
The motion is filed on the docket as Defendant’s Motion to Dismiss for Lack of Jurisdiction, ECF no. 7.
9
Op. p. 1, ECF No. 16.
2
in conformance with the Utah Governmental Immunity Act of 1967.” 10 Ms. Sargent further
“concedes that Utah’s sovereign immunity precludes claims under the Americans with
Disabilities Act of 1990 (ADA) and the Age Discrimination in Employment Act of 1967
(ADEA).” 11 Thus, Plaintiff filed her First Amended Complaint on June 12, 2018, removing all
claims under the ADA and ADEA. In the Amended Complaint Plaintiff invokes jurisdiction
under the Rehabilitation Act of 1973. 12 Finally, Plaintiff agrees that any state law claims made
against Laura Fink are precluded because Plaintiff failed to timely file a notice of claim.
Considering the filing of Plaintiff’s Amended Complaint, the court will deem
Defendants’ Motion to Dismiss Complaint MOOT.
II.
Defendants’ Partial Motion to Dismiss Plaintiff’s First Amended Complaint
After Plaintiff filed her First Amended Complaint, Defendants filed a partial motion to
dismiss.13 Defendants seek to “dismiss with prejudice Counts III, IV and V of Plaintiff’s First
Amended Complaint.” 14 In response, Plaintiff agrees that “Counts III, IV and V of Plaintiff’s
First Amended Complaint should be dismissed.” 15 Plaintiff acknowledges that the “state law
claims against Defendants are precluded because Ms. Sargent did not timely file a notice of
claim.” 16
Accordingly, Counts III, IV, and V of Plaintiff’s First Amended Complaint, for
intentional infliction of emotional distress, negligent employment, training and supervision, and
intentional interference with economic relations are DISMISSED.
10
Id.
11
Id. p. 3.
12
See id.; see also 42 U.S.C. § 2000d-7(a)(1).
13
ECF No.
14
Partial Motion to Dismiss p. 4, ECF No. 17.
15
Op. p. 1, ECF No. 19.
16
Id. p. 4.
3
In its reply brief, Defendants argue that because “individual defendants in their individual
capacities are not properly subject to suit under the Rehabilitation Act, Ms. Fink, in her
individual capacity, should be dismissed as a party to this lawsuit.” 17 Defendants cite to Montez
v. Romer, 18 a decision from the District of Colorado, as support for their argument. In Montez,
the court held that “individual defendants in their individual capacities are not properly subject to
suit under the Rehabilitation Act or the Disability Act.” 19
The court typically does not consider issues and arguments raised for the first time in a
reply brief, because an opposing party does not have an opportunity to respond to them. 20 It
would be patently unfair to consider such arguments and not afford Plaintiff an opportunity to
respond. Accordingly, Plaintiff is hereby given an opportunity to file a sur-reply within fourteen
(14) days from the date of this order. Plaintiff is to respond to Defendants arguments concerning
the dismissal of Ms. Fink.
ORDER
For the above set forth reasons, IT IS HEREBY ORDERED that Defendants’ Motion to
Dismiss for Lack of Jurisdiction is deemed MOOT.
IT IS FURTHER ORDERED that Defendants’ Partial Motion to Dismiss is GRANTED
and Counts III, IV and V of the Amended Complaint are DISMISSED.
Finally, it is ORDERED that Plaintiff file a sur-reply within fourteen (14) days from the
date of this order addressing Defendants’ arguments regarding Ms. Fink.
IT IS SO ORDERED.
17
Reply p. 2, ECF No. 20.
18
32 F.Supp.2d 1235 (D. Colo. 1999).
19
Id. at 1241.
20
See ElHelbawy v. Pritzker, 663 F. App'x 658, 662, 2016 WL 5947456 (10th Cir. 2016); Minshall v. McGraw Hill
Broadcasting Co., 323 F.3d 1273, 1288 (10th Cir. 2003); Nkemakolam v. St. John's Military Sch., 876 F. Supp. 2d
1240, 1245 (D. Kan. 2012).
4
DATED this 17 September 2018.
Brooke C. Wells
United States Magistrate Judge
5
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