Brough v. O.C. Tanner Company
MEMORANDUM DECISION AND ORDER granting in part Defendant's 6 Motion to Dismiss for Failure to State a Claim. Plaintiff's § 1983 claim is dismissed. Plaintiff may file an Amended Complaint concerning her ADEA claim within 14 days of this Order. Signed by Judge Ted Stewart on 3/23/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO DISMISS
AND ALLOWING AMENDMENT
O.C. TANNER COMPANY and JOHN
Case No. 2:16-CV-1134 TS
District Judge Ted Stewart
This matter is before the Court on Defendant O.C. Tanner Company’s Motion to Dismiss.
For the reasons discussed below, the Court will grant the Motion as to Plaintiff’s claim under 42
U.S.C. § 1983 and will allow Plaintiff to amend her ADEA claim.
Plaintiff Roxanne Brough worked for Defendant O.C. Tanner Company (“O.C. Tanner”)
from April 1977 until her termination in November 2014. 1 At the time, she was working as a
team member in the production control department. Prior to her termination, Plaintiff had been
performing her job satisfactorily and received a raise. After new management came on board,
changes began. Plaintiff was re-assigned from the manufacturing and purchasing department to
the production control department. Her duties became constricted but her request for transfer
was denied. Plaintiff and several other employees over age 40 were allegedly forced to leave
due to constant pressure from management into early retirement or were terminated. Plaintiff
The facts are taken from Plaintiff’s Complaint and construed in the light most favorable
alleges that technological advances replaced one of her duties, but the other tasks were given to
younger employees. After her termination, Plaintiff and Defendant engaged in settlement
negotiations, which were discontinued around May 31, 2016, for failure to reach an amicable
agreement. 2 Subsequently, Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on August 16, 2016. 3 The EEOC issued a right to sue letter
on September 28, 2016. 4
On November 3, 2016, Plaintiff filed a Complaint against O.C. Tanner and John Does 1-5
for violations of the Age Discrimination in Employment Act (“ADEA”) and her civil rights
under 42 U.S.C. §1983. Defendant O.C. Tanner has filed a Motion to Dismiss
II. MOTION TO DISMISS STANDARD
To prevail on a 12(b)(6) Motion to Dismiss, a complaint “must contain sufficient factual
matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” 5 A facially
plausible claim requires “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 6 The court must accept all the factual
allegations in the complaint as true, but need not consider merely conclusory statements that
recite legal elements. 7 The court should “disregard all conclusory statements of law and
consider whether the remaining specific factual allegations, if assumed to be true, plausibly
In her Memorandum in Opposition, Plaintiff alleges that Defendant persisted in
continuously negotiating until approximately March 2016. Inconsistencies in the dates are noted.
Docket No. 6 Ex. A.
Docket No. 12 Ex. A.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
suggest the defendant is liable.” 8 “The nature and specificity of the allegations required to state
a plausible claim will vary based on context.” 9
SECTION 1983 CLAIM
Plaintiff’s Complaint asserted claims for violation of the ADEA and 42 U.S.C. §1983. 10
Defendant contends that Plaintiff’s §1983 claim should be dismissed because Defendant is
neither a state actor nor a party acting “under color of law,” and therefore cannot be found liable
under §1983. 11 Subsequently, Plaintiff stated willingness to stipulate that “there is no state
action” as long as “Defendant agrees that reliance upon Utah Code Ann. §34-34-2 is not a
defense to discriminating against employees based upon their age.” 12 Defendant agrees that “no
state statute either permits or justifies violation of federal law.” 13 Thus, Plaintiff is deemed to
have conceded her 42 U.S.C. §1983 claim and it will be dismissed.
Defendant argues that Plaintiff’s ADEA claim is barred because she did not timely file a
charge of discrimination. In a deferral state, such as Utah, the ADEA requires filing a charge of
discrimination with the EEOC within 300 days after the alleged discriminatory practice. 14 It is
undisputed that Plaintiff’s claim was not filed within the required statutory period. Plaintiff was
Kansas Penn Gaming LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
Id. at 1215.
Docket No. 2.
Docket No. 6.
Docket No. 12, at 4.
Docket No. 15, at 6.
Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir. 2011).
terminated in November 2014 and filed a complaint at EEOC on August 16, 2016, which clearly
exceeds 300 days following her termination. However, Plaintiff claims that Defendant “persisted
in negotiating with Plaintiff” and “Defendant’s actions extended the time limit for filing
Plaintiff’s EEOC claim.” 15 Further, Plaintiff argues that she appropriately exhausted
administrative remedies as evidenced by EEOC’s right to sue letter. 16
The statutory filing period is not absolute and ADEA’s 300-day limitation period is
subject to equitable tolling. 17 “Filing a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and equitable tolling.” 18 “Courts may evaluate
whether it would be proper to apply such doctrine, although they are to be applied sparingly.” 19
Plaintiff has the burden of establishing sufficient facts to the court to apply equitable
Equitable tolling of the ADEA is appropriate “only where the circumstances of the case
rise to the level of active deception where a plaintiff has been lulled into inaction by her past
employer, state or federal agencies, or the courts.” 21 When such deception is alleged, “the
limitations period will not be tolled unless an employee’s failure to timely file results from either
Docket No. 12, at 1–2.
Docket No. 12 Ex A.
Haynes v. Level 3 Commc’ns, LLC, 456 F.3d 1215, 1226 n.13 (10th Cir. 2006).
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Callan v. Pepsi-Cola Bottling Co. of Topeka, 823 F. Supp. 879, 883 (D. Kan. 1992).
Husley v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (alterations and internal
quotation marks omitted).
a deliberate design by the employer or actions that the employer should unmistakably have
understood would cause the employee to delay filing his charge.” 22
Here, Plaintiff argues that the time limit should be extended because “Defendant’s deceit
lulled Plaintiff into inaction” despite her due diligence and resulted in a delay of her EEOC
filing. 23 Plaintiff argues that “Each of Defendant’s last three counsel affirmatively proffered a
settlement offer of various sums in an effort to persuade Plaintiff to refrain from filing her
In the context of settlement negotiations, courts have found equitable estoppel in cases
where the employee relied on the employer’s false assurance to settle the claim by reinstatement
and delayed filing with the EEOC. 25 Also, the doctrine has been invoked when an employer
affirmatively promised to settle the case, preventing the plaintiff from filing her charge. 26
However, the employee’s “hope for rehire, transfer, promotion or a continuing employment
relationship” does not toll the statue absent some misleading conduct by the employer. 27 Also, it
is insufficient to warrant equitable tolling when the employee unreasonably relied upon the
employer’s offer to consider settlement or alleged requests that the employee refrain from filing
Id. (alternations and internal quotation marks omitted).
Docket No. 12, at 4.
Id. at 2.
See Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.1981); see
also Franci v. Avco Corp., Avco Lycoming Div., 538 F.Supp. 250, 254 (D. Conn. 1982)
(applying equitable tolling when an employee did not jeopardize his chances of recall by filing a
complaint against his former employer based on the employer’s actions).
See United States v. Reliance Ins. Co., 436 F.2d 1366, 1372 (10th Cir. 1971) (equitable
estoppel applied in Miller Act case when defendant affirmatively assured plaintiff of settlement).
Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965–66 (4th Cir. 1982).
a complaint. 28 Moreover, an employer’s alleged assurance to retain good employees in a new
organization was found insufficient to toll the period for filing an ADEA complaint absent
evidence that the employer intended to delay the employee from filing an EEOC complaint. 29
Even where the defendants induced the plaintiff to refrain from filing suit to permit time to make
a settlement offer, equitable tolling has been denied where there is no evidence that defendants’
actions were designed to lull the plaintiff into inaction. 30 In sum, to warrant equitable tolling,
Plaintiff must allege sufficient facts to establish that Plaintiff’s untimely filing was caused by
Defendant’s affirmative conduct intended to cause such delay in the context of settlement
Here, Plaintiff claims that she “justifiably believed that an amicable agreement regarding
her reemployment with the company would be reached with all three of Defendant’s counsel.” 31
Plaintiff argues that “[t]he Defendant appears to have had no intention of ever rehiring her, or
reaching any other agreements but were instead waiting for the statute of limitations applicable
to the EEOC to run.” 32 Plaintiff does not provide sufficient facts to determine whether her
allegedly “justifiable belief” is based on Defendant’s affirmative conduct during settlement
negotiations. Plaintiff has not identified specific statements and/or actions on the part of
Defendant that would substantiate her claim. In the absence of such factual allegations,
Plaintiff’s claim that she was “actively deceived, misled and lulled into inaction despite her due
Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 895 (1st Cir. 1992).
Kaster v. Safeco Ins. Co. of Am., 212 F. Supp. 2d 1264, 1270 (D. Kan. 2002), aff’d, 82
F. App’x 28 (10th Cir. 2003).
Smith v. Johnson Cty, Bd. Of Cty. Comm’rs, 56 F. App’x 879, 883–84 (10th Cir. 2003).
Docket No. 12, at 3.
diligence by the continuing negotiations with O.C. Tanner” are merely conclusory statements
devoid of substantiation. 33
Defendant argues that “Plaintiff does not allege any action by O.C. Tanner that could
justifiably be construed as a ‘glimmer of hope’ that her previous employment would be
renewed.” 34 The Court agrees. Plaintiff alleges circumstances where she “justifiably believed
that an amicable agreement regarding her reemployment would be reached” via settlement
negotiations with Defendant who “appears to have had no intention of ever rehiring her . . .
instead waiting for the statute of limitations applicable to the EEOC to run.” 35 However,
Plaintiff’s factual allegations to date are insufficient to establish that Defendant’s affirmative
conduct was intended to delay her EEOC filing.
Defendant argues that Plaintiff’s ADEA claim should be dismissed with prejudice
because any amendment would be futile. However, because a plaintiff generally need not plead
facts to overcome an affirmative defense, such as a statute of limitations defense, Plaintiff has
not had the opportunity to allege facts to support her argument. Fairness dictates that she should
be provided that chance. Therefore, the Court will allow Plaintiff to amend her Complaint.
It is therefore
ORDERED that Defendant’s Motion to Dismiss (Docket No. 6) is GRANTED IN PART
as set forth above. Plaintiff’s § 1983 claim is dismissed. Plaintiff may file an Amended
Complaint concerning her ADEA claim within fourteen (14) days of this ORDER.
Docket No. 15, at 5.
Docket No. 12.
DATED this 23rd day of March, 2017.
BY THE COURT:
United States District Judge
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