Rowley v. Brigham Young University et al
Filing
25
ORDER AND MEMORANDUM DECISION granting in part and denying in part 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge Tena Campbell on 3/12/19 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
KRISTIE ROWLEY,
Plaintiff,
ORDER
AND
MEMORANDUM DECISION
vs.
Case No. 2:18-cv-00358-TC
BRIGHAM YOUNG UNIVERSITY,
RENATA FORSTE, and CARDELL
JACOBSON,
Defendants.
Plaintiff Kristie Rowley brought this action against her former employer, Brigham Young
University (BYU), and two former supervisors, for events stemming from her efforts to take
parental leave. Dr. Rowley alleges that her then-supervisor, Dr. Renata Forste, prevented her
from taking leave in violation of BYU policy. After an internal investigation faulted Dr. Forste
for doing so, Dr. Forste retaliated against Dr. Rowley, and in the process sabotaged Dr. Rowley’s
efforts to gain tenure status. Dr. Rowley alleges pregnancy discrimination in violation of Title
VII of the Civil Rights Act of 1964, retaliation in violation of the Family and Medical Leave Act
(FMLA), and pendent state law breach of contract claims.
BYU, Dr. Forste, and Dr. Cardell Jacobson (collectively, “Defendants”) have moved to
dismiss certain claims they argue fall outside the applicable statutes of limitations. Dr. Forste
and Dr. Jacobson also move to dismiss the FMLA claims against them individually, on the
grounds that they do not fall within the Act’s definition of “employers.” For the reasons set forth
below, the court grants in part and denies in part the Defendants’ Motion to Dismiss.
FACTS1
BYU hired Dr. Rowley as an assistant professor in the Department of Sociology, and she
began teaching during the winter semester of the 2006-2007 school year. In the fall of 2007,
BYU assigned her to a Continuing Faculty Status (CFS) position, BYU’s equivalent of a tenure
track.
BYU requires that a faculty member complete six years of service in a CFS position to be
eligible for tenure. During those six years, the faculty member must pass two formal reviews:
the first occurs during the third year and the second occurs during the sixth year. The reviews
include an assessment of the faculty member’s performance and potential in three categories:
citizenship, teaching, and scholarship.
The six-year CFS period can be extended if the faculty member gives birth to or adopts a
child and takes parental leave. BYU’s policy reads, in relevant part:
When a full-time faculty member who has Continuing Faculty
Stat[u]s (CFS), or is on-track for CFS, becomes the parent of a child,
either by childbirth or by adoption of a child as defined by the
Family Medical Leave Act (FMLA), that faculty member usually
will qualify for a parental leave of one semester for the purpose of
serving as the child’s primary caregiver . . . . Parental leave is
intended to be consistent with the rights afforded under the FMLA.
If any faculty member is FMLA eligible, then any qualifying FMLA
1
For the purposes of evaluating the Defendants’ Motion, the court accepts Dr. Rowley’s wellpleaded factual allegations as true, and views the facts in the light most favorable to her. GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
2
leave time shall be administered concurrently with parental and
personal leaves . . . . The presumption is that a parental leave will
result in a one-year extension of the CFS clock.
(Compl. ¶ 18, ECF No. 2.)
To take parental leave, a faculty member must submit a “Request for Parental Leave”
form for approval from his or her department chair, the Dean, and the Associate Academic Vice
President. A faculty member can elect the semester to take parental leave—either “the semester
in which the child is born” or “a subsequent semester that begins no later than six months after
the birth . . . .” (Id. ¶ 20.) Moreover, BYU’s policy provides that “[d]uring parental leave the
faculty member shall be relieved of her or his normal duties,” and need not teach, conduct
research, or participate in committee work. (Id. ¶ 19.)
Dr. Rowley’s allegations of wrongdoing begin in June 2010. Dr. Rowley had just passed
her third-year CFS review with exceptionally high marks in teaching and citizenship (though
with some concerns in research). She had also become pregnant with her first child.
In July or August of 2010, Dr. Rowley had a conversation with Dr. Forste, her
department chair, about a plan for maternity leave. Dr. Forste did not tell Dr. Rowley about
BYU’s parental leave policy, her rights under the FMLA, or the presumptive one-year extension
of her CFS period. Instead, Dr. Forste told Dr. Rowley to work directly with her to schedule
leave. She told Dr. Rowley that she would “make certain that Dr. Rowley’s status as a new
parent was properly accommodated,” and that BYU might deny an official request for leave. (Id.
¶ 26.) She also told Dr. Rowley that her CFS period would not be extended for a year.
Dr. Rowley coordinated her maternity leave with Dr. Forste directly. By doing so, she
missed many of the benefits of BYU’s leave policy. Dr. Rowley did not receive a one-year
3
extension of her CFS. Dr. Forste did not allow Dr. Rowley to choose which semester to take
leave; instead, she arranged for Dr. Rowley to begin leave on February 25, 2011, two months
before her child was born. And while BYU policy was to relieve Dr. Rowley of all her duties
during leave, Dr. Forste only relieved Dr. Rowley of her teaching duties.
In January 2011, BYU began a “unit review” of the Department of Sociology. A unit
review is a periodic review process in which BYU faculty from other departments and outside
reviewers “examine department policies and conduct interviews of departmental faculty and staff
to identify weaknesses and propose changes in departmental operations.” (Compl. ¶ 35.) As part
of the unit review, Professor Mary Anne Woodger interviewed Dr. Rowley. Noticing that Dr.
Rowley was pregnant, Professor Woodger asked what Dr. Rowley thought of BYU’s parental
leave policy. Dr. Rowley responded that she appreciated the time from teaching, but was
concerned about meeting her research and publication demands because her CFS “clock” was
still running. Professor Woodger asked why she had not requested a one-year CFS extension
pursuant to BYU policy. Dr. Rowley told her that she had worked with Dr. Forste to coordinate
leave, and that Dr. Forste had represented “nothing could stop the CFS clock.” (Id. ¶ 39.)
The resulting unit review report seemed to address how Dr. Forste had mishandled Dr.
Rowley’s parental leave request:
We . . . . recommend that the University’s policy of a one-semester
leave, with a stopped tenure clock, for a woman who gives birth, be
made standard practice within the Department [of Sociology] . . . .
As soon as possible, the faculty should cooperate in creating and
adopting a governance document that will enable the department to
be more transparent and consistent about its governance. More
should be written down and documented about policies and
procedures . . . . [such as] how to grant academic and maternity
leaves.
4
(Id. ¶ 42.)
Following the report, Dr. Rowley asked Dr. Forste for a one-year extension on her CFS
clock and a semester of leave in which she would be relieved of all her duties, not just teaching.
Dr. Forste, upset and angry for having been “called out” in the report, denied her request.
Dr. Forste’s demeanor towards Dr. Rowley changed. She became more critical of Dr.
Rowley and began taking certain negative actions against her, a number of which are detailed in
the complaint.
In the fall of 2011, Dr. Rowley tried to schedule two meetings with Dr. Forste, one of
which was to receive her annual review. Dr. Forste refused to meet, and told Dr. Rowley that the
meetings were unnecessary.
In May of 2011, Rice University offered Dr. Rowley a two-year visiting research
position. Dr. Rowley applied for two years of paid research leave, but BYU only granted her one
year of unpaid leave with a commensurate one-year CFS extension. Dr. Rowley approached Dr.
Forste with concern that one year would be too short a time to effectively perform research. Dr.
Forste assured Dr. Rowley that she would help facilitate a second year. Dr. Rowley took the
visiting position, but Dr. Forste denied her request for a second year—even when Dr. Rowley
secured funding from Rice to buy out her BYU contract, an arrangement that would have been
financially lucrative for BYU. Because Dr. Rowley could not secure another year at Rice, her
research suffered and she was unable to prepare articles for publication, a key metric for
approval of tenure.
Dr. Rowley returned to BYU for the fall semester of 2012. Upon returning, Dr. Forste
continued to undermine Dr. Rowley. She discouraged Dr. Rowley’s participation in faculty
5
meetings, openly and hostilely disagreed with Dr. Rowley’s suggestions, gave Dr. Rowley less
favorable teaching schedules and assignments, and, in contravention of BYU policy, denied Dr.
Rowley a new mentor when her mentor retired. Additionally, Dr. Forste sent a critical email to
Dr. Rowley stating that her research was insufficient, using an unwritten standard for the rate of
publication that did not apply to other faculty. And she criticized Dr. Rowley to other senior
faculty, including Dr. Jacobson.
Dr. Forste stepped down from her role of department chair in April of 2012. In January
of 2013, Dr. Jacobson became department chair and, in that role, continued to retaliate against
Dr. Rowley. Dr. Rowley’s allegations against Dr. Jacobson center on her application for tenure
status.
Dr. Rowley submitted her application for tenure status in 2014. On September 12, 2014,
the Department of Sociology’s tenure committee voted two to one in favor of granting her
tenure, citing her excellent teaching record, collegiality, and positive reviews of her scholarship.
Her application was then reviewed by a second committee of CFS faculty members, which
included Dr. Jacobson and Dr. Forste. That committee voted three to six against granting her
tenure. Dr. Forste voted against her, and told Dr. Jacobson of her vote, which she had cast
anonymously.
On October 2, 2014, following the two committee votes, Dr. Jacobson wrote a letter to
Dr. Ben Ogles, the Dean of the College of Family, Home, and Social Sciences, recommending
that Dr. Rowley not advance to tenure status. Dr. Jacobson based his recommendation on her
scholarship. He determined that her publications were not sufficiently “sociological” in nature.
He also determined that her rate of scholarship—the average number of articles Dr. Rowley
6
published each year—was too low. While the Department of Sociology’s written criteria
required that a successful CFS candidate publish six to twelve articles over the course of their
CFS period (Dr. Rowley had published eleven articles), Dr. Jacobson used his own unwritten
standard that a tenure candidate publish between 1.4 and 2.1 articles per year. He calculated Dr.
Rowley’s publication rate as 1.25 articles per year, but he used time—periods of parental leave
and a one-and-a-half year period before Dr. Rowley started her CFS-track position—that should
have been excluded from her CFS clock.
On December 8, 2014, Dr. Ogles wrote a letter to BYU’s Associate Academic Vice
President and Academic Vice President denying Dr. Rowley’s CFS advancement, on the same
grounds as Dr. Jacobson. On April 21, 2015, Dr. Rowley received a letter from the Academic
Vice President recommending against her application for tenure status. The letter highlighted
Dr. Jacobson’s conclusions—“that Dr. Rowley had issues with her ‘publication productivity’ and
that she had a ‘lack of sociological focus.’” (Compl. ¶ 100.) BYU then removed Dr. Rowley
from her CFS-track position and placed her in a temporary position.
On July 22, 2015, Dr. Rowley appealed the Academic Vice President’s recommendation
to an independent panel. The panel affirmed the recommendation on February 8, 2017. BYU
terminated her employment in August of 2017.
Dr. Rowley filed the Complaint in this case on May 1, 2018. She alleges three causes of
action solely against BYU: (1) breach of contract; (2) breach of a covenant of good faith and fair
dealing; and (3) pregnancy discrimination in violation of Title VII of the Civil Rights Act. She
also alleges a fourth cause of action for retaliation in violation of the Family and Medical Leave
Act (FMLA), 29 U.S.C. §§ 2601 et seq., against BYU, Dr. Forste, and Dr. Jacobson.
7
BYU, Dr. Forste, and Dr. Jacobson now move to dismiss some, but not all, of Dr.
Rowley’s FMLA and contract claims as untimely under Federal Rule of Civil Procedure
12(b)(6). Dr. Forste and Dr. Jacobson also move to dismiss the remaining FMLA claims against
them individually, on the grounds that any claims against their actions are time barred and,
alternatively, that they do not fall within the FMLA’s definition of “employers.”
STANDARD OF REVIEW
In ruling on a Rule 12(b)(6) motion, the court must determine whether the complaint
contains “sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). In doing so, “the court must liberally construe the pleadings and make all
reasonable inferences in favor of the non-moving party.” Brokers' Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1105 (10th Cir. 2017). Nonetheless, the court may resolve
statute of limitations defenses “when the dates given in the complaint make clear that the right
sued upon has been extinguished.” Sierra Club v. Oklahoma Gas & Elec. Co., 816 F.3d 666, 671
(10th Cir. 2016) (internal quotation omitted).
DISCUSSION
I.
Contract-Based Claims
Claims for breach of a written contract are subject to a six-year statute of limitations.2
Utah Code § 78B-2-309(2). Likewise, claims for breach of an implied covenant of good faith
and fair dealing based on a written contract are subject to the same limitation. See CIG
2
For the purpose of its Motion to Dismiss, BYU has assumed that the six year statute of
limitations for written contracts applies, rather than the four year statute of limitations for breach
of unwritten contracts.
8
Exploration, Inc. v. State, 24 P.3d 966, 971 (Utah 2001). These claims accrue and the statute of
limitation begins to run at the time the breach occurs. Butcher v. Gilroy, 744 P.2d 311, 313
(Utah Ct. App. 1987).
Dr. Rowley lists a number of alleged breaches of her faculty contract with BYU, which
range in date from 2011 to her termination in August of 2017:
a) Failing to stop Plaintiff’s CFS clock during her leave for birth of
her child;
b) Failing to relieve her from all of her duties during that time;
c) Failing to allow her to choose when to take the leave;
d) Failing to stop her clock during her personal leave at Rice;
e) Failing to provide her a mentor;
f) Denying her CFS status although her publications met the written
CFS policy of the department;
g) Counting the time Dr. Rowley should have been on parental leave
during her CFS review;
h) Counting time when she was not on the CFS clock, when she was
in a different position and when she was on personal leave against
her during her CFS review;
i) Removing her from her position and placing her on temporary
contracts during the consideration of her CFS appeal;
j) Denying Dr. Rowley a tenured professor position; and
k) Terminating her employment.
(Compl. ¶ 109.)
9
Dr. Rowley filed her Complaint on May 1, 2018. May 1, 2012, is the last date on which
any of her contract-based claims must have accrued to be timely. BYU argues that four of her
claims, sub-paragraphs (a), (b), (c), and (e), occurred before the statutory cut-off.
Dr. Rowley does not argue otherwise. She concedes that she cannot collect damages for
those alleged breaches, but included them “to show a pattern of breaches and illustrate how they
lead directly to, indeed caused, the later breaches of contract—the denial of tenure and
termination of her employment.” (Pl.’s Opp. to Mot. to Dismiss (“Opp.”) at 16, ECF No. 14.)
The court agrees with the parties. While sub-paragraphs (a), (b), (c), and (e) may lend context to
timely contract claims, they fall outside the six-year limitation period and must be dismissed as
stand-alone causes of action.
II.
FMLA Claims Against All Defendants
The FMLA contains two limitations provisions—a general two-year limitation and a
three-year limitation for willful violations of the Act. 29 U.S.C. § 2617(c)(1)–(2). Both
limitation periods begin to run on “the date of the last event constituting the alleged violation for
which the action is brought.” Id.
Dr. Rowley pleads her FMLA retaliation claim much as she pleads her contract claims,
asserting causes of action based on a series of allegedly retaliatory acts:
Defendants unlawfully retaliated against Dr. Rowley both
for exercising or attempting to exercise her FMLA rights and
for participating in the internal investigation by, including
but not limited to, committing the following acts:
a) Refusing to grant her a one-year extension on her CFS
clock and a full semester in which she would be relieved of
all duties, not just teaching, as provided for in the policy;
10
b) Creating a contentious work environment;
c) Criticizing Dr. Rowley behind her back with senior
faculty, one of whom became department chair;
d) Failing to cooperate with Dr. Rowley in coordinating a
second year at Rice;
e) Failing to hold meetings with Dr. Rowley while on leave;
f) Failing to provide Dr. Rowley a mentor;
g) Apportioning Dr. Rowley less favorable class schedules;
h) Counting the time Dr. Rowley should have been on
FMLA leave during her CFS review;
i) Counting time when she was not on the CFS clock, when
she was in a different position and when she was on personal
leave, against her during her CFS review;
j) Imposing disparate standards for tenure that only applied
to Dr. Rowley;
k) Removing her from her position and placing her on
temporary contracts during the consideration of her CFS
appeal in violation of policy;
l) Denying Dr. Rowley a tenured professor position; and
m) Terminating her employment.
(Compl. ¶ 123.)
The Defendants moves to dismiss sub-paragraphs (a) through (k) as untimely under the
FMLA’s three-year limitations provision.3 Each of these events occurred before May 1, 2015.
3
For the purposes of its Motion only, the Defendants have assumed that the three-year limitation
applies.
11
Unlike her contract claims, Dr. Rowley does not concede that the events at issue are
untimely. Rather, she argues that “the actions set forth in the Complaint are not isolated events,
but rather part of a comprehensive pattern, culminating in the final event—the denial of tenure
and termination of Dr. Rowley’s employment.” (Opp. at 7–8.) These, she argues, were the “last
event” of retaliation for the purposes of the FMLA’s statute of limitations.
Dr. Rowley implies a “continuing violation” theory that does have a place in employment
law. The Supreme Court validated the continuing violation doctrine for hostile work
environment claims brought under Title VII. See Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 118 (2002). Title VII requires that claims be brought either 180 or 300 days “after the
alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). Since “[a] hostile
work environment claim is composed of a series of separate acts that collectively constitute one
‘unlawful employment practice,’” the Court held that if “an act contributing to the claim occurs
within the filing period, the entire time period of the hostile environment may be considered by a
court for the purposes of determining liability.” Morgan, 536 U.S. at 117.
The Tenth Circuit has not decided whether the continuing violation doctrine applies to
FMLA claims. See Packard v. Cont'l Airlines, Inc., 24 F. App'x 960, 962 (10th Cir. 2001). But
other circuits have rejected its application. In Barrett v. Illinois Department of Corrections, 803
F.3d 893 (7th Cir. 2015), the plaintiff, a corrections officer, was fired from her job in 2010
because she had taken twelve unexcused absences, one over the maximum number allowed by
company policy. She filed suit in 2012, alleging that three of her unauthorized absences—one in
2003, one in 2004, and one in 2005—were protected under the FMLA and should have been
authorized. The Seventh Circuit held that her FMLA claim of interference was time barred, even
12
though the resulting adverse employment action (her termination) occurred within two years of
her suit. Her employer’s refusal to authorize the absences were “‘discrete acts’—independently
actionable violations of the FMLA—and each one triggered its own limitations clock.” Id. at
899.
Dr. Rowley argues that Barrett involves claims of interference with FMLA rights, not
retaliation, and is not binding authority. She cites instead to McCully v. American Airlines, Inc.,
695 F. Supp. 2d 1225 (N.D. Okla. 2010), in which the plaintiff, who used FMLA leave for
cancer treatment, alleged that her employer retaliated against her in part by failing to return her
to an equivalent position upon her return, and then by ultimately firing her. The defendant, her
employer, argued that its failure to return claim fell outside the FMLA’s limitation period.
The court, distinguishing interference claims from retaliation claims, decided it “more
appropriate to treat the failure to return claim as part of an alleged ongoing pattern of
retaliation.” Id. at 1251. “Because the last act constituting the alleged retaliation (McCully's
termination) occurred within the two-year limitations period,” the court determined the earlier
and otherwise-untimely retaliation claim based on the position change to be actionable. Id.
This court finds Barrett the better-reasoned case. While Barrett did not involve claims of
retaliation, Dr. Rowley has pled a series of discrete retaliatory acts that, for statute of limitations
purposes, can be analyzed in the same manner as discrete acts of interference. Those events
which culminated before May 1, 2015 are time-barred.
Title VII decisions are instructive when analyzing FMLA claims, see Packard, 24 F.
App'x at 962, and support the approach in Barrett. The Tenth Circuit distinguishes hostile work
environment claims, which do support a continuing violation theory, from “discrete acts of
13
discrimination or retaliation, [for which] the application of Title VII’s limitations period is
straightforward.” Hansen v. SkyWest Airlines, 844 F.3d 914, 923 (10th Cir. 2016) (emphasis
added). And the Supreme Court has emphasized that Title VII claims accrue at the time the
violative acts occurred, “not upon the time at which the consequences of the acts became most
painful.” Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (internal quotation omitted).
Accordingly, sub-paragraphs (a) though (k)4, which occurred outside the FMLA’s three-year
limitation period, are dismissed as actionable claims.5
III.
FMLA Claims Against Dr. Forste and Dr. Jacobson Individually
Dr. Forste and Dr. Jacobson ask the court to dismiss the FMLA claims against them
individually on two grounds. First, they argue that any claims against them as individuals are
time barred. Alternatively, both argue that they do not qualify as “employers” under the FMLA.
The Tenth Circuit has not decided whether individuals may be held liable under the
FMLA. But the plain language of the statute indicates as much, defining an “employer” to
include “any person who acts, directly or indirectly, in the interest of the employer to any of the
employees of such employer.” 29 U.S.C. § 2611(4)(A)(ii)(I). Likewise, FMLA regulations
provide that “individuals such as corporate officers ‘acting in the interest of an employer’ are
individually liable for any violations of the requirements of FMLA. 29 C.F.R. § 825.104(d).
4
Though Dr. Rowley claims that the Defendants violated the FMLA in part by “[c]reating a
contentious work environment,” (Compl. ¶ 123(b)), she has not alleged any specific retaliatory
events occurring after May 1, 2015 to support that claim in particular.
5
While these allegedly retaliatory acts are not actionable, Dr. Rowley might be able to present
them to establish her prima facie case of retaliation based on the remaining, actionable events.
See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006).
14
District courts within the Tenth Circuit, including the District of Utah, have found that
individuals may be held liable under the FMLA. See, e.g., Solis v. Ronin Risk USA, LLC, No.
2:08-CV-701 TS, 2010 WL 1253978, at *2 (D. Utah Mar. 24, 2010); Cordova v. New Mexico,
283 F. Supp. 3d 1028, 1037 (D.N.M. 2017). Based on the language of the statute, this court
likewise finds that the FMLA can impose liability on individual defendants.
But courts use different tests to determine whether an individual is an employer. In this
district, for instance, Judge Stewart used the “control” test, which asks “‘whether the defendant
had the ability to control, in whole or in part, whether the plaintiff could take a leave of absence
and return to the position.’” Pedersen v. W. Petroleum, Inc., No. 2:07-CV-997 TS, 2008 WL
977370, at *3 (D. Utah Apr. 9, 2008) (quoting Oby v. Baton Rouge Marriott, 329 F. Supp. 2d
772, 788 (M.D. La. 2004)). Judge Browning, in the District of New Mexico, borrowed the
“economic realities” test used to determine whether an individual is an “employer” under the
Fair Labor Standards Act. See Saavedra v. Lowe's Home Centers, Inc., 748 F. Supp. 2d 1273,
1284–87 (D.N.M. 2010). The four-factor test considers “(i) whether the alleged employer has
the power to hire and fire employees; (ii) whether the alleged employer supervises and controls
employee work schedules or conditions of employment; (iii) whether the alleged employer
determines the rate and method of payment; and (iv) whether the alleged employer maintains
employment records. Id. at 1292 (citing Baker v. Flint Eng'g & Const. Co., 137 F.3d 1436, 1440
(10th Cir. 1998))
At the motion to dismiss stage, a plaintiff “is not required to specifically allege all facts
relevant to the individual defendants' authority, especially when the factual record has not yet
been developed through discovery.” Cordova, 283 F. Supp. 3d at 1040. Instead—and regardless
15
of the test used—a plaintiff need only plead that the individual defendants “‘had substantial
control over the aspects of employment alleged to have been violated.’” Id. (quoting Smith v.
Westchester Cnty., 769 F. Supp. 2d 448, 476 (S.D.N.Y. 2011)); see also Pedersen, 2008 WL
977370, at *3 (denying a motion to dismiss claims against an individual defendant when the
plaintiff “has sufficiently alleged” that the individual defendant “had the ability to control
whether Plaintiff could take a leave of absence or return to his position”); Saavedra, 748 F. Supp.
2d at 1295 (denying a motion to dismiss where the plaintiffs “alleged specific facts” regarding
the individual defendant’s control over an employee’s leave and the ability to fire the employee,
and further noting that plaintiffs need not plead every element of the economic-reality test).
Dr. Rowley has alleged that Dr. Forste held a supervisory role as department chair and, in
that position, exercised control over the timing and duration of Dr. Rowley’s parental leave and
committed retaliatory acts. But Dr. Forste left her supervisory position “[i]n or around April
2012,” eight years before Dr. Rowley filed this case. (Compl. ¶ 66.) As discussed above, the
retaliatory acts that occurred when Dr. Forste supervised Dr. Rowley are time-barred. Because
Dr. Forste held no supervisory role during the later events, the remaining FMLA claims against
her individually are dismissed.
Dr. Jacobson, however, became department chair (and so assumed a supervisory role
over Dr. Rowley) in January of 2013. He apparently held that position when Dr. Rowley was
denied tenure. And Dr. Rowley has alleged sufficient facts showing that Dr. Jacobson exercised
control over her advancement through the tenure-approval process. For these reasons, the
remaining FMLA claims against him individually are not dismissed.
16
ORDER
For the foregoing reasons, the Defendants’ Motion to Dismiss (ECF No. 3) is GRANTED
IN PART and DENIED IN PART as follows:
1. Dr. Rowley’s claims for breach of contract and breach of covenant of good faith and fair
dealing based on sub-paragraphs 109(a), (b), (c), and (e) of the Complaint are
DISMISSED WITH PREJUDICE;
2. Dr. Rowley’s FMLA retaliation claims against BYU, Dr. Forste, and Dr. Jacobson based
on sub-paragraphs 123(a) through (k) of the Complaint are DISMISSED WITH
PREJUDICE; and
3. Dr. Rowley’s remaining FMLA retaliation claims against Dr. Forste are DISMISSED
WITH PREJUDICE.
SO ORDERED this 12th day of March, 2019.
BY THE COURT:
TENA CAMPBELL
U.S. District Court Judge
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