Olsen v. Roosevelt City Corporation

Filing 61

ORDER AND MEMORANDUM DECISION granting in part and denying in part 47 Defendant's Motion to Dismiss. Signed by Judge Tena Campbell on 11/9/23 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH,
CENTRAL DIVISION
JOEL OLSEN, an individual,

ORDER AND MEMORANDUM
DECISION GRANTING MOTION
TO DISMISS IN PART

Plaintiff,
v.

Case No. 2:17-cv-00903-TC-DAO

ROOSEVELT CITY CORPORATION,
Defendant.

District Judge Tena Campbell
Magistrate Judge Daphne A. Oberg

Defendant Roosevelt City Corporation (Roosevelt City) has moved to dismiss three of the
seven claims Plaintiff Joel Olsen asserted against it. (ECF No. 47.) These are Mr. Olsen’s
claims for retaliation, intentional infliction of emotional distress, and negligent infliction of
emotional distress. For the following reasons, the court grants in part and denies in part the
motion to dismiss.
BACKGROUND
Mr. Olsen sued Roosevelt City, his former employer, after he was fired in July 2016.
(Compl., ECF No. 2 at ¶¶ 7, 36.) 1 Mr. Olsen served as Superintendent of the Roosevelt
Municipal Golf Course for over six years. (Id. ¶ 7.) During his employment, Mr. Olsen suffered
from health problems that disrupted his daily life. (Id. ¶¶ 8–10.) Roosevelt City was aware of
Mr. Olsen’s health conditions and regarded him as disabled. (Id. ¶¶ 12–13.)
In February 2016, Mr. Olsen informed Roosevelt City of his worsening health conditions
and requested a leave of absence so that he could obtain a proper medical diagnosis and

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All factual allegations are from Mr. Olsen’s complaint. The court accepts them as true for the
purpose of deciding this motion to dismiss. Albers v. Bd. of Cnty. Comm’rs of Jefferson Cnty.,
Colo., 771 F.3d 697, 700 (10th Cir. 2014).
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treatment plan. (Id. ¶ 14.) Mr. Olsen first used accrued leave to take time off, but when his
leave expired around May 2016, he took a 12-week leave of absence under the Family and
Medical Leave Act (FMLA). (Id. ¶¶ 15–17.) During this time, doctors diagnosed Mr. Olsen
with an autoimmune disease called “Chronic Inflammatory Demyelinating Polyneuropathy.”
(Id. ¶ 19.)
To treat this disease, Mr. Olsen received regular blood transfusions. (Id. ¶¶ 21–22.) The
transfusions proved successful, and Mr. Olsen’s doctors certified him to return to work
beginning July 15, 2016. (Id. ¶ 23.) Mr. Olsen met with his Roosevelt City supervisors on June
30, 2016, to inform them of this development. (Id. ¶ 24.)
Select Health—Mr. Olsen’s health insurance provider through Roosevelt City—
preauthorized coverage for the infusions through March 2017. (Id. ¶ 26.) But around July 1,
2016, Roosevelt City switched its health insurance provider from Select Health to United Health
Care. (Id. ¶ 27.) Though Roosevelt City had promised employees that changing health
insurance providers would not disrupt their medical care, changing providers left Mr. Olsen
without health insurance coverage for about three weeks. (Id. ¶ 29.) As a result, Mr. Olsen was
unable to receive blood transfusions, and his health quickly declined. (Id. ¶ 31.) Mr. Olsen was
unable to return to work as planned. (Id. ¶ 32.)
Roosevelt City rejected Mr. Olsen’s request for additional temporary leave and refused to
engage in discussions with him regarding potential accommodations for his disability before
firing him, effective July 31, 2016. (Id. ¶¶ 33–36.) After his termination, in addition to bringing
this lawsuit, Mr. Olsen timely filed a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC). (Id. ¶ 41.) In the charge, Mr. Olsen checked the box that
indicated he was discriminated against because of his disability. (Charge of Discrimination, ECF

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No. 47-1.) He did not check the box for retaliation. (Id.) Before the EEOC could complete its
investigation of Mr. Olsen’s charge, Mr. Olsen brought this lawsuit to preserve his claims before
the statute of limitations expired. (Mot. to Stay, ECF No. 3.) Pending the EEOC’s
determination, this case was stayed in August 2017. (Order Granting Mot. to Stay, ECF No. 4.)
The court lifted the stay in November 2022, after the EEOC issued Mr. Olsen a right to sue
notice. (Dkt. Text Order, ECF No. 40; Status Rep., ECF No. 39 at 1.)
LEGAL STANDARD
“To survive a [Federal] Rule 12(b)(6) motion to dismiss, a plaintiff’s complaint must
allege sufficient facts ‘to state a claim to relief that is plausible on its face.’” Strauss v. Angie’s
List, Inc., 951 F.3d 1263, 1266 (10th Cir. 2020) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). When a “plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged[,]” a claim is facially
plausible. Id. at 1267 (citation omitted). The court must “accept all well-pled factual allegations
as true and view these allegations in the light most favorable to the nonmoving party.” Id.
(citation omitted). But this rule is inapplicable to legal conclusions and to “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements[.]” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ANALYSIS
I.

Mr. Olsen’s Retaliation Claim
The Americans with Disabilities Act (ADA) requires a plaintiff to exhaust his

administrative remedies before filing suit. Jones v. UPS, Inc., 502 F.3d 1176, 1183 (10th Cir.
2007). “The first step to exhaustion is the filing of a charge of discrimination with the EEOC.”
Id. The court “liberally construe[s] charges filed with the EEOC in determining whether

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administrative remedies have been exhausted as to a particular claim.” Id. at 1186; see also
Smith v. Cheyenne Retirement Investors LP, 904 F.3d 1159, 1166 (10th Cir. 2018) (“Because
EEOC [c]harges are traditionally filed by non-attorneys, we have repeatedly emphasized that the
[c]harges should be “liberally construe[d]” at all levels of their review.”).
Failure to exhaust is an affirmative defense that “may be raised in a motion to dismiss
when the grounds for the defense appear on the face of the complaint.” Cirocco v. McMahon,
768 F. App’x 854, 858 (10th Cir. 2019). 2 The 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.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007)
(citation omitted).
While failing to check a box in an EEOC charge is not dispositive, it creates a
presumption that a claimant will not be asserting claims associated with unchecked boxes.
Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998). But that presumption
can be “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 ….” Zemaitiene v.
Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, No. 2:16-cv-1271,
2018 WL 1581252, at *1 (D. Utah Mar. 28, 2018) (citation omitted). “The ultimate question is
whether the conduct alleged [in the lawsuit] would fall within the scope of an EEOC
investigation which would reasonably grow out of the charges actually made [in the EEOC
charge].” Smith, 904 F.3d at 1164 (citation omitted). Limiting a plaintiff’s federal court action

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Roosevelt City has conceded that “Mr. Olsen’s failure to exhaust his administrative remedies
with respect to his retaliation claim does not impact this [c]ourt’s jurisdiction over that claim.”
(Reply, ECF No. 51 at 2.) Roosevelt City brings its challenge to Mr. Olsen’s retaliation claim
under Federal Rule 12(b)(6) instead. (Id. at 3.)
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by the scope of the administrative investigation, Jones, 502 F.3d at 1185, “(1) … give[s]
employer[s] notice of alleged violation[s] and (2) … give[s the] EEOC [the] opportunity to
conciliate the claim.” Smith, 904 F.3d at 1166 (citation omitted).
The dispositive question for the court is therefore whether Mr. Olsen’s retaliation claim
would fall within the scope of the EEOC investigation that would reasonably grow out of Mr.
Olsen’s EEOC disability discrimination charge. This court has held that a claimant’s retaliation
claim was reasonably related to her claim of age discrimination, where, like here, she left the
retaliation box blank and made no mention of retaliation in the narrative portion of her EEOC
charge. Segura v. Granite Const. Co., 493 F. Supp. 2d 1187, 1190 (D. Utah 2007). The facts
underlying the claimant’s charge “include[ed] derogatory comments about the plaintiff’s age
made to her in the workplace, her supervisor yelling and screaming at her, reports made by
plaintiff to management about the alleged conduct with no result, no response by management to
her complaints, and her termination.” Id. at 1191. Because the discrimination and retaliation
claims “ar[o]se from the same base of alleged facts[,]” “[f]acts surrounding plaintiff’s retaliation
claim would be discovered in any investigation of her age discrimination claim.” Id.
In deciding whether a claim has been exhausted, the Tenth Circuit looks at whether the
factual narrative asserted in the EEOC charge supports the claim. In Jones, though Mr. Jones
checked the box for retaliation in his EEOC intake questionnaire, the court found that Mr. Jones
exhausted his retaliation claim because his factual narrative supported the claim. 502 F.3d at
1187. There, the narrative of facts stated: “On 2-3-04 Dr. … Poppa release[d] me to return to
full duty, On 2-9-04 Dr. Legler release[d] me to return to full duty. After UPS contacted Dr.
Legler, Dr. Legler changed restriction on 2/9/04.” Id. These facts alleged “that UPS interfered
with a medical evaluation in order to ensure Mr. Jones was not released to return to full-duty

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work.” Id. The court did not find that this narrative supported Mr. Jones’s failure to
accommodate claim, nor did he check the applicable box anywhere. Id. at 1187.
In Mr. Olsen’s EEOC charge, he wrote: “I have a disability. I have reason to believe that
because of this, I have been subjected to discrimination. On June 30, 2016 I had a doctor’s note
‘return to work on light duty, part time hours.’ I asked for accommodations with my work
schedule and was denied.” (ECF No. 47-1.) He then explained what happened after Roosevelt
City switched insurance providers: “Without proper care my health regressed … I asked for a
reasonable accommodation and was denied. I was terminated July 31, 2016. I believe the
determining factor in my termination was my disability.” (Id.)
While Mr. Olsen did not check the box for retaliation in his charge, the factual narrative
he asserted in the charge supports his retaliation claim. As in Jones, Mr. Olsen makes no explicit
mention of retaliation in his narrative. (Id.) Mr. Olsen need not state a prima facie retaliation
case to have exhausted this claim, but he adequately “lay[s] a factual foundation for [such] a …
claim[.]” Mitchell v. City & Cnty. of Denver, 112 F. App’x 662, 668 (10th Cir. 2004). In his
factual narrative, Mr. Olsen shows he engaged in protected activities—asking for reasonable
accommodations—just before Roosevelt City fired him. Foster v. Mountain Coal Co., LLC, 830
F.3d 1178, 1188 (10th Cir. 2016) (“[A] request for accommodation can constitute protected
activity supporting a[n ADA] retaliation claim.” (citation omitted)). This suggests that his
termination was the result of requesting reasonable accommodations. Cf. Shepherd v. Precision
Drilling Co., LP, No. CV 12-0351, 2013 WL 11865970, at *5 (D.N.M. April 9, 2013) (“Shepherd
failed to mention retaliation, and he never claimed or suggested that his termination was the
result of his complaints to his supervisors[.]”). Ultimately, Mr. Olsen’s discrimination and
retaliation claims arise from the same set of alleged facts. Segura, 493 F. Supp. 2d at 1191. Mr.

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Olsen requested accommodations because of his disability, and Roosevelt City fired him within a
matter of weeks. Given the facts alleged in his charge, the EEOC and Roosevelt City would
have been on notice that Mr. Olsen was going to bring a retaliation claim.
Accordingly, Mr. Olsen’s retaliation claim would reasonably be discovered in any
administrative investigation into his disability discrimination claim. Roosevelt City’s motion to
dismiss Mr. Olsen’s retaliation claim is therefore denied.
II.

Mr. Olsen’s Claims for Intentional and Negligent Infliction of Emotional Distress
Roosevelt City has additionally moved to dismiss Mr. Olsen’s claims for intentional and

negligent infliction of emotional distress. First, Roosevelt City argues that it is immune from
these claims. Second, Roosevelt City maintains that the Utah Anti-Discrimination Act (UADA)
preempts these two claims.
Utah Code Ann. § 63G-7-201(4) bars Mr. Olsen’s claim for negligent infliction of
emotional distress. This statutory provision provides that “[a] governmental entity, its officers,
and its employees are immune from suit … for any injury proximately caused by a negligent act
or omission of an employee committed within the scope of employment, if the injury arises out
of or in connection with, or results from … infliction of mental anguish[.]” Utah Code Ann. §
63G-7-201(4).
Mr. Olsen’s claim for intentional infliction of emotional distress is also barred. Utah
Code Ann. § 63G-7-101(3) reads in pertinent part that “[a] governmental entity and an employee
of a governmental entity retain immunity from suit unless that immunity has been expressly
waived in this chapter.” And “Utah has not expressly waived immunity for claims of intentional
infliction of emotional distress.” Wilkerson v. Duchesne Cnty. Sch. Dist., No. 2:20-cv-00099,
2020 WL 13032908, at *3 (D. Utah July 7, 2020).

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Because Roosevelt City’s immunity bars Mr. Olsen’s state law tort claims, the court need
not address whether the UADA preempts the claims. Mr. Olsen’s claims for intentional and
negligent infliction of emotional distress are dismissed.
ORDER
Accordingly, the court GRANTS in part and DENIES in part Roosevelt City’s motion to
dismiss. (ECF No. 47.) The court GRANTS the motion as it pertains to Mr. Olsen’s claims for
intentional infliction of emotional distress and negligent infliction of emotional distress. But the
court DENIES the motion to dismiss Mr. Olsen’s retaliation claim.
DATED this 9th day of November, 2023.
BY THE COURT:
_______________________________
TENA CAMPBELL
United States District Judge

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