Zemaitiene v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints et al
Filing
30
MEMORANDUM DECISION AND ORDER on Defendants' Objection to Report and Recommendation: The court ADOPTS IN PART and OVERRULES IN PART 24 Judge Furse's Report and Recommendation. The court DISMISSES Zemaitiene's failur e to accommodate disability claim. Within fourteen days of this Order, Zemaitiene may file an amended complaint pleading additional facts to show exhaustion of administrative remedies for her failure to accommodate claim. The court also DISMISSES Zemaitiene's harassment and intentional infliction of emotional distress claims. Defendants' 15 Motion to Dismiss is GRANTED. Signed by Judge Robert J. Shelby on 3/27/18. (dla)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH, CENTRAL DIVISION
KRISTINA ZEMAITIENE,
Plaintiff,
v.
MEMORANDUM DECISION AND
ORDER ON DEFENDANTS’
OBJECTION TO REPORT AND
RECOMMENDATION
CORPORATION OF THE PRESIDING
BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS, a
Utah Corporation, d/b/a DESERET
INDUSTRIES; and MELANIE PERRY, an
individual,
Case No. 2:16-cv-1271-RJS
Judge Robert J. Shelby
Defendants.
Plaintiff Kristina Zemaitiene sued her former employer for claimed violations of Title VII
of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Zemaitiene also
sued her former supervisor for intentional infliction of emotional distress. Defendants
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, d/b/a
Deseret Industries, and Melanie Perry moved to dismiss some of Zemaitiene’s claims.1
The case was referred to Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C.
§ 636(b)(1)(B).2 After considering Defendants’ Motion to Dismiss, Judge Furse issued a Report
and Recommendation,3 recommending the court: (1) dismiss Zemaitiene’s failure to
accommodate disability claim, with leave to plead additional facts concerning exhaustion of
administrative remedies; (2) dismiss Zemaitiene’s harassment claim; and (3) deny Defendants’
1
Dkt. 15.
2
Dkt. 4.
3
Dkt. 24.
1
Motion to Dismiss as to Zemaitiene’s intentional infliction of emotional distress claim.4
Defendants timely objected to the third recommendation.5 Zemaitiene did not object to any part
of the Report and Recommendation.
The court reviews the portion of the Report and Recommendation to which Defendants
object under a de novo standard.6 The court applies a “clearly erroneous” standard to portions
with no objection and will adopt Judge Furse’s recommendation unless, after reviewing all the
evidence, it is left “with the definite and firm conviction that a mistake has been committed.”7
DISCUSSION
I.
Failure to Accommodate Claim
Zemaitiene alleges Deseret Industries violated the ADA by denying her reasonable
accommodation for her disability. Deseret Industries argues Zemaitiene failed to exhaust
administrative remedies for this claim. Judge Furse agreed, recommending the claim be
dismissed, but with leave to amend the Complaint.
To bring suit under either the ADA or Title VII, a plaintiff must first exhaust her
administrative remedies.8 To meet the exhaustion requirement, a claimant must file an
administrative charge with the EEOC and receive a right to sue letter.9 While “precise pleading”
4
Dkt. 24.
Dkt. 25. See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b) (allowing parties fourteen days to file an
objection to a report and recommendation from a magistrate judge).
5
6
FED. R. CIV. P. 72(b)(3).
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948)).
7
Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007); Jones v. Runyon, 91 F.3d 1398,
1401 (10th Cir. 1996).
8
9
Id.
2
is not required to establish exhaustion,10 the claims asserted in a subsequent lawsuit must fall
within the scope of the earlier allegations made in the EEOC charge.11 A claimant’s failure to
mark a box in the administrative charge corresponding to the alleged type of discrimination
asserted in a later lawsuit creates a presumption that she did not intend to file a charge relating to
that claim.12 The presumption is rebutted where a “reasonable reader” would understand the text
of the charge to allege the type of claim in question, or where the claimant supplements her
charge to identify, at minimum, “the type of discrimination complained of, the alleged harasser,
and an approximate time period.”13
Here, Zemaitiene filed four charges of discrimination with the EEOC. However, she did
not mark the box labeled “disability” in any of the four charges, creating a presumption that she
did not commence the administrative process for a disability discrimination claim. Neither can
the text of the charges be fairly construed to include a failure to accommodate claim.14
Zemaitiene maintains that she supplemented her charges to identify a disability discrimination
claim, citing as support her Response to Deseret Industries’ Position Statement (Response
Statement) submitted during the EEOC investigation. In the Response Statement, Zemaitiene
wrote that she alleged disability discrimination on her initial questionnaire with the Utah AntiDiscrimination and Labor Division (UALD), and that she “filled out an additional disability
questionnaire . . . to substantiate [the] claim.”15 As neither the Response Statement nor the
10
Mitchell v. City and County of Denver, 112 Fed. Appx. 662, 667 (10th Cir. 2004).
11
United Parcel Serv., 502 F.3d at 1186.
12
Gunnel v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998).
13
Id.
14
Dkt. 15-1, Dkt. 15-4, Dkt. 15-5, Dkt. 15-6.
15
Dkt. 18-4 at 3.
3
questionnaires are referred to in the Complaint, they cannot be considered on the Motion to
Dismiss. However, if those documents were incorporated into her Complaint, Zemaitiene might
be able to show exhaustion of this claim.16
Based on the record before the court, Judge Furse recommended dismissal of
Zemaitiene’s failure to accommodate claim with leave to amend the Complaint. Because this
analysis is not clearly erroneous, the court adopts the recommendation.
II.
Harassment Claim
Zemaitiene alleges that ongoing harassment by her supervisor, Melanie Perry, created a
hostile work environment. Judge Furse recommended the court dismiss this claim for failure to
exhaust administrative remedies, or alternatively for failure to state a claim for which relief can
be granted.
To constitute exhaustion of a hostile work environment claim, an administrative charge
must “allege facts indicating a workplace ‘permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.’”17
None of Zemaitiene’s four administrative charges contain allegations of harassment by
Perry sufficiently severe to create an abusive or hostile work environment. In fact, Perry is
mentioned only once in the charge descriptions, as the job coach who allegedly transferred
See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (“[N]otwithstanding the usual
rule that a court should consider no evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss,
the district court may consider documents referred to in the complaint if the documents are central to the
plaintiff’s claim and the parties do not dispute the documents’ authenticity.”) (quotation omitted).
16
Mitchell, 112 Fed. Appx. at 668 (quoting Davis v. United States Postal Serv., 142 F.3d 1334, 1341 (10th
Cir. 1998)).
17
4
Zemaitiene in retaliation for her complaints of harassment by coworkers.18 Zemaitiene argues
that the Response Statement supplemented her charges so as to exhaust this claim. However, as
noted above, the Response Statement cannot be considered on the Motion to Dismiss because it
is not referenced in the Complaint. Further, the Response Statement does not describe any
harassing conduct by Perry beyond the allegedly retaliatory job transfer.
Judge Furse concluded Zemaitiene’s harassment claim should be dismissed for failure to
exhaust administrative remedies.19 Because it is not clearly erroneous, the court adopts this
recommendation.
III.
Intentional Infliction of Emotional Distress Claim
Zemaitiene also asserts a claim against Perry for intentional infliction of emotional
distress. Judge Furse recommended the court deny Defendants’ Motion to Dismiss this claim,
finding Zemaitiene pled a plausible claim. Because Defendants timely objected to this
recommendation, it is reviewed de novo.
To bring an intentional infliction of emotional distress claim, a plaintiff must prove:
(i) the defendant’s conduct complained of was outrageous and
intolerable in that it offended generally accepted standards of
decency and morality; (ii) the defendant intended to cause, or acted
in reckless disregard of the likelihood of causing, emotional
distress; (iii) the plaintiff suffered severe emotional distress; and
(iv) the defendant’s conduct proximately caused the emotional
distress.20
18
Dkt. 15-1.
Because the court adopts the recommendation that the claim be dismissed for failure to exhaust
administrative remedies, it does not reach Judge Furse’s alternative grounds for dismissal on the basis of
failure to state a claim.
19
20
Prince v. Bear River Mut. Ins. Co., 56 P.3d 524, 535 (Utah 2002) (brackets and ellipses omitted).
5
“If the trial court determines that a defendant’s conduct was not outrageous as a matter of law,
then the plaintiff’s claim fails, and a court may properly grant the defendant summary judgment .
. . .”21 To support a plausible intentional infliction of emotional distress claim, the alleged
conduct must “evoke[] outrage or revulsion; it must be more than unreasonable, unkind, or
unfair.”22 “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities” are not enough;23 the conduct must be “so extreme as to exceed all bounds of that
usually tolerated in a civilized society.”24 Although conduct showing “an ongoing pattern of
intimidation and harassment” can be outrageous as a matter of law,25 “conduct is not outrageous
simply because it is tortious, injurious, malicious, or because it would give rise to punitive
damages, or because it is illegal.”26
Here, Zemaitiene maintains that Perry’s conduct as alleged in the Complaint is
sufficiently outrageous to support her intentional infliction of emotional distress claim.
Specifically, Zemaitiene argues:
In light of Ms. Perry’s knowledge of Zemaitiene’s disability
including her anxiety disorder, it is warranted to consider Ms.
Perry’s actions [–] arbitrarily mandating a day-off requiring longer
days, unnecessary limiting the times Zemaitiene could use the
restroom, accusing Zemaitiene of being from a country “full of
terrorists,[”] failing to address the complaint about the cleaning
spray incident properly, giving Zemaitiene fewer free samples than
other employees, reducing Zemaitiene’ s hours, scheduling training
when Zemaitiene could not attend, cancelling Zemaitiene’s
21
Id. at 536 (citations omitted).
22
Id.
Bennett v. Jones, Waldo, Holbrook & McDonough, 70 P.3d 17, 32 (Utah 2003) (quoting Restatement
(Second) of Torts § 46 cmt. d (1965)).
23
Johnston v. Davis Security, Inc., 217 F. Supp. 2d 1224, 1232 (D. Utah 2002) (quoting White v.
Blackburn, 787 P.2d 1315, 1317 (Utah Ct. App. 1990)).
24
25
Cabaness v. Thomas, 2010 UT 23, ¶ 38, 232 P.3d 486.
26
Prince, 56 P.3d at 536.
6
quarterly development discussion and hitting Zemaitiene on the
head with a piece of clothing [–] as heartless, flagrant and
outrageous.27
Zemaitiene also alleges Perry transferred her to a more physically demanding job despite her
disability.28
Even assuming the truth of these allegations, Perry’s alleged conduct is not outrageous as
a matter of law. Utah courts have rejected claims of intentional infliction of emotional distress in
employment settings where an employer made false and derogatory statements about an
employee before terminating her;29 where an employee was demoted, terminated, and required to
confess his drug addiction to his subordinates;30 and where an employer made false statements
about an employee to the police and then wrongfully terminated him.31 In each case, Utah courts
found the employer’s conduct did not rise to the level of outrageousness necessary to support an
intentional infliction of emotional distress claim.
By way of comparison, Zemaitiene’s allegations fall far short of alleging a plausible
intentional infliction of emotional distress claim. Some of Perry’s alleged conduct can only be
characterized as innocuous or at most annoying. Other allegations are not innocuous, but are
nevertheless insufficient. For example, Zemaitiene’s allegation that Perry hit her with a piece of
clothing is concerning, but the Complaint lacks any additional facts about this incident from
which the court could conclude that the event was outrageous. Similarly, the allegation that
27
Dkt. 27 at 5 (citations omitted).
28
Dkt. 3 at ¶ 36.
29
Zoumadakis v. Uintah Basin Med. Ctr., 2005 UT App 325, ¶ 8, 122 P.3d 891.
30
Robertson v. Utah Fuel Co., 889 P.2d 1382, 1388-89 (Utah Ct. App. 1995).
Tomlinson v. NCR Corp., 2013 UT App 26, ¶¶ 19-20, 296 P.3d 760, rev'd on other grounds by 2014 WL
6653968 (Utah 2013).
31
7
Perry told Zemaitiene her country was “full of terrorists” and that she was “one of them”32 is
disconcerting. Such comments, especially when made by one in a supervisory position, are
unacceptable and reprehensible. However, absent indications of an “ongoing pattern of
intimidation and harassment,” the comments alone do not evoke the kind of outrage or revulsion
legally required to support Zemaitiene’s claim.33 Taken as a whole, the Complaint fails to allege
Perry’s conduct was so outrageous that it “exceed[ed] all bounds of that usually tolerated in a
civilized society.”34
Zemaitiene fails to state a plausible claim for intentional infliction of emotional distress.
The court overrules Judge Furse’s recommendation concerning this claim.35
CONCLUSION
For the reasons stated, the court ADOPTS IN PART and OVERRULES IN PART Judge
Furse’s Report and Recommendation.36 The court DISMISSES Zemaitiene’s failure to
accommodate disability claim. Within fourteen days of this Order, Zemaitiene may file an
amended complaint pleading additional facts to show exhaustion of administrative remedies for
her failure to accommodate claim. The court also DISMISSES Zemaitiene’s harassment and
32
Dkt. 3 at ¶ 44.
Cf. Cabaness, 2010 UT 23, ¶¶ 39-45 (finding a material issue of fact regarding whether a supervisor’s
conduct was outrageous, where the supervisor insulted, demeaned, intimidated, and harassed an employee
over a period of many years).
33
34
Johnston, 217 F. Supp. 2d at 1232.
Judge Furse concluded that Zemaitiene pled a plausible intentional infliction of emotional distress
claim because she alleged gender discrimination and retaliation, and Defendants did not challenge these
claims in their Motion to Dismiss. The court declines to adopt this reasoning. Even if the plausibility of
Zemaitiene’s gender discrimination and retaliation claims were somehow established by virtue of
Defendants’ failure to challenge them in their Motion to Dismiss, the conduct underlying those claims
does not support Zemaitiene’s intentional infliction of emotional distress claim.
35
36
Dkt. 24.
8
intentional infliction of emotional distress claims. Defendants’ Motion to Dismiss is
GRANTED.37
SO ORDERED this 27th day of March, 2018.
BY THE COURT:
__________________________
ROBERT J. SHELBY
United States District Judge
37
Dkt. 15.
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