Keller v. McDonalds et al

Filing 17

MEMORANDUM DECISION AND ORDER-granting in part Tucumcari's 7 Motion to Dismiss ; denying as moot McDonald Corporation's 8 Motion to Dismiss ; granting 9 Motion to Remand; Motions terminated: 7 MOTION to Dismis s and Memorandum in Support filed by McDonalds, 8 MOTION to Dismiss filed by McDonalds, 9 Second MOTION to Remand to Farmington Utah 2nd District Court and Memorandum in Support Ronald Ball filed by Marjorie Keller. See Order for details. Signed by Judge Clark Waddoups on 9/11/18. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, NORTHERN DIVISION

MARJORIE KELLER, an individual,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 1:18-cv-0069
MCDONALD’S CORPORATION;
TUCUMCARI TRANSFER, INC.; and BOB
DERRING, an individual,

Judge Clark Waddoups

Defendants.

INTRODUCTION
Ms. Keller asserts that during her employment at a McDonald’s she immediately reported
that a male employee fondled her breast while she was assigned to clean the men’s restroom.
Approximately six week later, Ms. Keller again was assigned to work in the bathroom when the
same employee allegedly forced his way into the restroom, exposed himself to her, and used the
urinal. Upon reporting his conduct to management a second time, Ms. Keller asserts she was
retaliated against by reduced work hours, shift-changes without notification, ostracization,
threats to drops her complaints, physical pushing and so forth. Ms. Keller also asserts that the
employee who harassed her also harassed other female employees, with management’s
knowledge, and made threats against her in the parking lot.
Defendant Tucumcari Transfer, Inc. (“Tucumcari”) 1 has filed a Motion to Dismiss (ECF
No. 7) and Ms. Keller has filed a Motion to Remand (ECF No. 9). For the reasons stated below,
the court grants in part Tucumcari’s Motion to Dismiss and grants the Motion to Remand.
1

The caption of the Complaint list “Tucumarci” as a defendant. Based on the corporation’s

ANALYSIS
I.

MCDONALD’S CORPORATION
Before addressing Tucumcari’s Motion to Dismiss and the Motion to Remand, the court

addresses a Motion to Dismiss filed by McDonald’s Corporation. After McDonald’s filed its
motion, Ms. Keller filed a Stipulated Dismissal of McDonald’s Corporation Without Prejudice
(ECF No 15). 2 Because McDonald’s has neither answered, nor filed a motion for summary
judgment, the voluntary dismissal is self-executing under Rule 41(a)(1)(A)(i) of the Federal
Rules of Civil Procedure. McDonald’s is therefore dismissed from the case without prejudice.
Accordingly, the court denies as moot its Motion to Dismiss (ECF No. 8).
II.

TUCUMCARI’S MOTION TO DISMISS
Tucumcari moves to dismiss with prejudice all claims asserted in the Complaint. Ms.

Keller has asserted the following claims: (1) Intentional Infliction of Emotion Distress, (2)
Unlawful Employment Practices in Violation of Title VII, (3) Vicarious Liability/Respondeat
Superior, and (4) Vicarious Liability/Respondeat Superior in Violation of Utah Code Ann. § 765b-204(2) to (4).
A.

Title VII Claim

Ms. Keller was issued a “right to sue” letter on September 28, 2017. The letter informed
Ms. Keller that she had to file a complaint within 90 days after receipt of the letter. Right to Sue
Letter (ECF No. 7-1); see also 42 U.S.C. § 2000e-5(f)(1). Ms. Keller, however, did not file her
Complaint until May 21, 2018. Thus, Tucumcari moves to dismiss the Title VII claim as
untimely. Ms. Keller has not filed an opposition or provided any contrary information to show
registration and the defendant’s filings, the proper spelling appears to be “Tucumcari.” The
court therefore refers to this defendant as Tucumcari.
About one week later, McDonald’s filed another Stipulation of Dismissal Without Prejudice
(ECF No. 16).
2

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her claim was filed timely. The court therefore dismisses Ms. Keller’s Title VII claim with
prejudice.
B.

State Law Claims
i.

Intentional Infliction of Emotional Distress

Tucumcari asserts Ms. Keller’s intentional infliction of emotional distress claim must be
dismissed because it has been preempted by the Utah Antidiscrimination Act (“UADA”).
Tucumcari cites to Gottling v. P.R., Inc., 61 P.3d 989 (Utah 2002) for that proposition. In
Gottling, the Court distinguished other cases from the one before it on the ground that they “were
not employment discrimination actions, but those for intentional and negligent infliction of
emotional distress, assault and battery,” and so forth. Id. at 996 (citations omitted) (emphasis
added). The Court further noted “[i]n this case, the legislature has not taken away an existing
right” when it passed the UADA, “but has simply indicated its intent to preempt the creation of a
new one.” Id. at 997. It therefore remains unresolved after Gottling whether the intentional
infliction of emotional distress claim is preempted by the UADA, especially in light of the Utah
Supreme Court’s prior case of Retherford v. AT&T Commc’n of Mountain States, Inc., 844 P.2d
949, 967, 970-72 (Utah 1992) (stating UADA does not preempt “intentional infliction of
emotional distress” claims).
ii.

Vicarious and Respondeat Superior Liability

Tucumcari also asserts Ms. Keller’s other state law claims must be dismissed because it
cannot be liable under vicarious or respondeat superior liability, and the final claim is not viable
because it relies on a criminal statute. 3

As stated below, the court is granting the motion to remand the State law claims. It therefore
does not address the merits of the “Fifth Cause of Action.”
3

3

Ms. Keller asserts that after she was inappropriately touched management continued to
place her in situations where she faced additional harm. Inappropriate touching, subjugation to
inappropriate exposure, threats, and jouncing and pushing may give rise to claims besides sexual
harassment. Harmful or offensive contact or the threat of such contact also has been addressed
under the torts of assault and battery. See Wagner v. State, 2005 UT 54, ¶ 19, 122 P.3d 599
(stating the tort of battery arises when deliberate contact is made that is harmful or offensive);
Larsen v. Davis County Sch. Dist., 2017 UT App 221, ¶ 30 n.5, 409 P.3d 114 (stating assault
differs from battery because it also applies to the imminent apprehension of harmful or offensive
contact). And, these torts are not per se “outside the scope of employment as a matter of law.”
Clark v. Pangan, 2000 UT 37, ¶¶ 8, 17, 19, 998 P.2d 268 (concluding battery may fall within the
scope of employment for purposes of holding an employer liable under vicarious liability
doctrine). 4
Moreover, in 2016, the Utah Supreme Court stated the law pertaining to vicarious and
respondeat superior liability has evolved over the years, and the lines now may not be clear when
such liability applies. M.J. v. Wisan, 2016 UT 13, ¶¶ 55-60, 371 P.3d 21. This is particularly so
in the context of sexual misconduct because policy principles recognize employers should be
incentivized to “reduce the incidence of tortious conduct” in the workplace, particularly when an
employee’s tortious conduct is foreseeable. Id. ¶¶ 51, 60. Finally, “[e]ven when the doctrine of
respondeat superior is inapplicable, an employer may be liable for its negligence in the hiring or
The Court did state in Clark that it had not had the opportunity to address whether “an
employee’s sexual misconduct falls outside the scope of employment as a matter of law.” Clark,
2000 UT 37, ¶ 13 n. 3 (citation omitted). The case, however, was decided sixteen years before
M.J. v. Wisan, 2016 UT 13, ¶¶ 60-61, 371 P.3d 21, where the Court rejected the notion that
sexual misconduct always falls outside the scope of employment. Even if the Utah Supreme
Court had concluded that sexual misconduct always falls outside the scope of employment, Ms.
Keller’s allegations include more than just sexual misconduct. She also asserts she experienced
other threats and jouncing and pushing.
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supervision of an employee.” Birkner v. Salt Lake County, 771 P.2d 1053, 1059 (Utah 1989)
(citations omitted); see also Retherford, 844 P.2d at 967, 972-74 (Utah 1992) (stating UADA
does not preempt “negligent employment” claims such as negligent hiring and supervision).
The court recognizes that the Utah Workers’ Compensation Act and other State laws may
bear on the viability of such claims, but at the Motion to Dismiss stage, Ms. Keller has raised
troubling facts regarding her employment that are accepted as true, and the court must “draw all
reasonable inferences from those facts in a light most favorable to the plaintiff.” Peck v. State,
2008 UT 39, ¶ 2, 191 P.3d 4 (citation omitted). Applying this standard here, the court concludes
it is not obvious that Ms. Keller has failed to state an “intentional infliction of emotional
distress” claim or a vicarious or respondeat superior claim.

The court further concludes,

however, that due to the complex interplay of State laws, a State court is in the best position to
determine how each of the State law claims should proceed. This court therefore declines to rule
on the portion of the Motion to Dismiss that pertains to the State law claims and remands the
case for the reasons stated below.
III.

MOTION TO REMAND
On May 2l, 2018, Plaintiff Marjorie Keller filed suit against the defendants in the Second

District Court, Davis County. Tucumcari filed a Notice of Removal on June 11, 2018 based on
federal question jurisdiction arising from Ms. Keller’s Title VII claim for sexual harassment and
retaliation.
Thereafter, Tucumcari filed its Motion to Dismiss and Ms. Keller filed her Motion to
Remand on the basis that diversity jurisdiction is lacking. Tucumcari opposed the Motion to
Remand on the ground that diversity jurisdiction is not required because the court has federal

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question jurisdiction. Having dismissed the Title VII claim, however, the court no longer has
federal question jurisdiction.
Additionally, State law claims now predominate and raise complex issues of State law.
This case also is in the early stages of litigation. For these reasons, and pursuant to 28 U.S.C. §
1367(c)(3), the court declines to exercise supplemental jurisdiction and grants Ms. Keller’s
Motion to Remand.
CONCLUSIONS
For the reasons stated above, the court DENIES AS MOOT the Motion to Dismiss filed
by McDonald’s Corporation (ECF No. 8) because McDonald’s has been voluntarily dismissed
without prejudice as a party.
The court GRANTS IN PART Tucumcari’s Motion to Dismiss (ECF No. 7). The court
grants the motion to dismiss the Second Cause of Action for Unlawful Employment Practices
under Title VII because the action is untimely. The court declines to address the remainder of
the motion because it involves state law claims that will be addressed upon remand.
The court GRANTS the Motion to Remand (ECF No. 9) and directs the Clerk of Court
to remand this case to the Second Judicial District Court in and for Davis County, State of Utah.
SO ORDERED this 11th day of September, 2018.
BY THE COURT:

________________________________
Clark Waddoups
United States District Judge

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