Booher v. Rowland Hall St. Mark's School

Filing 30

MEMORANDUM DECISION AND ORDER granting 20 Partial Motion to Dismiss. Signed by Magistrate Judge Daphne A. Oberg on 9/24/24. (alf)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANT’S PARTIAL
MOTION TO DISMISS
(DOC. NO. 20)

DONNA BOOHER,
Plaintiff,
v.

Case No. 2:23-cv-00703

ROWLAND HALL-ST. MARK’S SCHOOL,

Magistrate Judge Daphne A. Oberg

Defendant.

Plaintiff Donna Booher filed this case against her former employer, Rowland HallSt. Mark’s School, asserting Rowland Hall violated the Americans with Disabilities Act 1
(“ADA”) by failing to provide Ms. Booher with reasonable accommodations, wrongfully
terminating her, and unlawfully retaliating against her. 2 Rowland Hall filed a partial
motion to dismiss for failure to state a claim, arguing most of Ms. Booher’s claims are
time-barred because Ms. Booher failed to file an Equal Employment Opportunity
Commission charge within 300 days of most of the alleged discriminatory acts. 3 After

1

42 U.S.C. §§ 12101 et seq.

2

(See Compl. ¶¶ 84–100, Doc. No. 2; Am. Compl. ¶¶ 92–111, Doc. No. 16.)

3

(See Partial Mot. to Dismiss, Doc. No. 9.)
1

Ms. Booher filed an amended complaint, 4 Rowland Hall withdrew its motion to dismiss. 5
Rowland Hall has now filed a renewed partial motion to dismiss, arguing Ms. Booher’s
amended complaint does not resolve the timeliness issues Rowland Hall raised in its
initial motion. 6 As explained below, because most of Ms. Booher’s claims are untimely,
Rowland Hall’s partial motion to dismiss is granted. 7
MOTION TO DISMISS STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for
“failure to state a claim upon which relief can be granted.” 8 To avoid dismissal under
Rule 12(b)(6), a complaint must allege “enough facts to state a claim to relief that is
plausible on its face.” 9 The court accepts all well-pleaded factual allegations as true
and draws all reasonable inferences in the plaintiff’s favor. 10 But failure to satisfy a

4

(See Am. Compl., Doc. No. 16.)

(Stipulated Mot. to Withdraw the Partial Mot. to Dismiss, Doc. No. 17; see also Docket
Text Order, Doc. No. 19 (“Defendant’s partial motion to dismiss is moot based on the
filing of the Amended Complaint.”).)
5

6

(Renewed Partial Mot. to Dismiss (“Mot.”), Doc. No. 20.)

The parties consented to proceed before a magistrate judge in accordance with
28 U.S.C. § 636(c), Rule 73 of the Federal Rules of Civil Procedure, and Rule 72-4(a) of
the Local Rules of Civil Practice. (See Doc. No. 15.)
7

8

Fed. R. Civ. P. 12(b)(6).

Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
9

10

Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
2

statute of limitations can render a claim implausible under Rule 12(b)(6) when the dates
in the complaint make clear the claim is extinguished. 11
BACKGROUND
Ms. Booher’s allegations are as follows. 12 While working at Rowland Hall as an
Academic Support Counselor in June 2014, Ms. Booher sustained a traumatic brain
injury after being knocked into a wall by a running student. 13 In September 2014, Ms.
Booher began a period of short-term disability leave to recover from her injury. 14 During
this leave, one of her medical providers wrote to Rowland Hall recommending Ms.
Booher return to work with some accommodations, including a reduction of hours and
the ability to work from home. 15 The provider also “stated that ultimately Ms. Booher
would likely be able to return to full-time work with minimal reasonable

See Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022) (“[A] statute of
limitations defense may be appropriately resolved on a Rule 12(b) motion when the
dates given in the complaint make clear that the right sued upon has been
extinguished.” (citation and internal quotation marks omitted)); see also, e.g., Pliuskaitis
v. USA Swimming, Inc., 243 F. Supp. 3d 1217, 1228–29 (D. Utah 2017) (granting the
defendant’s Rule 12(b)(6) motion because the plaintiff’s complaint was filed outside the
statute of limitations period).
11

Although Rowland Hall disputes many of Ms. Booher’s factual allegations, (see Mot. 4
n.13, Doc. No. 20), at the motion to dismiss stage, the court treats Ms. Booher’s
allegations as true and draws all reasonable inferences in her favor. See Wilson, 715
F.3d at 852.
12

13

(Am. Compl. ¶ 16, Doc. No. 16.)

14

(Id. ¶ 17.)

15

(Id. ¶¶ 18–19.)
3

accommodations.”16 When Ms. Booher returned to work, “a majority” of her
accommodation requests were granted, but some were denied, such as her request to
work from home. 17
Over the next five years, Ms. Booher requested additional accommodations,
including the ability to work from home, 18 reassignment to another position or
classroom, 19 assignment of some of Ms. Booher’s administrative duties to other staff
members, 20 and technological aids. 21 Rowland Hall denied most of these requests. 22
At a meeting, Rowland Hall officials informed Ms. Booher the school was “only
supporting her until she was back to ‘full steam.’” 23 Ms. Booher claims this statement
reflected Rowland Hall’s policy that it would only accommodate her if she would
eventually be “one hundred percent healed.” 24
On December 13, 2019, Ms. Booher met with Rowland Hall’s human resources
manager and its middle school principal, who explained Rowland Hall “would no longer

16

(Id. ¶ 19.)

17

(Id. ¶ 20.)

18

(Id. ¶ 53.)

19

(Id. ¶¶ 32–34, 45, 48, 53.)

20

(Id. ¶ 53.)

21

(Id. ¶¶ 28, 53.)

22

(See id. ¶¶ 28, 34–38, 45, 49–50.)

23

(Id. ¶ 42.)

24

(Id. ¶ 43.)
4

accommodate Ms. Booher.”25 The principal also “articulated the school’s
expectation . . . that Ms. Booher would need to be fully healed without the need for
reasonable accommodation to continue in her position.” 26 A few days later, on
December 17, 2019, the same human resources manager and principal told Ms. Booher
Rowland Hall was “terminating her employment because she would never be fully
healed.” 27 On December 19, 2019, the human resources manager emailed Ms. Booher,
advising her she “would be terminated from Rowland Hall ‘at some point in January.’” 28
Ms. Booher states she “understood from these conversations that she was being
terminated from her position because she required ongoing accommodations.”29
At a “later” unspecified time, Rowland Hall determined Ms. Booher’s last day
would be January 17, 2020, and Ms. Booher worked “largely unaccommodated” until
then. 30 Throughout the remainder of her time at Rowland Hall, Ms. Booher renewed her
accommodation requests several times, but Rowland Hall denied them “and maintained
its one hundred percent healed policy.”31

25

(Id. ¶ 58.)

26

(Id. ¶ 60.)

27

(Id. ¶ 62.)

28

(Id. ¶ 67.)

29

(Id. ¶ 70.)

30

(Id. ¶ 67.)

31

(Id. ¶ 73.)
5

Sometime between the December 17, 2019 meeting and Ms. Booher’s last day
of work, she met with Rowland Hall’s human resources manager “to discuss a
communication strategy regarding Ms. Booher’s termination,” because Rowland Hall
preferred to announce her departure as a mutual decision rather than a firing. 32 They
also “discussed the possibility of Ms. Booher assuming a substitute teacher role,” or
“maintaining an informal relationship with Rowland Hall as a private tutor.” 33
On Ms. Booher’s last day—January 17, 2020—she again met with Rowland
Hall’s human resources manager and middle school principal. 34 During this meeting,
Ms. Booher requested the accommodation of “job restructuring,” which Rowland Hall
denied. 35 Ms. Booher states she “believed there was an opportunity to remain
employed,” and she “discussed her desires to remain part of the Rowland Hall
community by tutoring students.”36 At the meeting, Rowland Hall presented Ms. Booher
with a separation agreement. 37 Because Ms. Booher later declined to sign the
agreement, Rowland Hall banned her from entering the school campus. 38

32

(Id. ¶ 71.)

33

(Id. ¶ 72.)

34

(Id. ¶ 75.)

35

(Id. ¶¶ 76–77.)

36

(Id. ¶¶ 75, 82.)

37

(Id. ¶ 78.)

38

(Id. ¶¶ 87, 90–91.)
6

On November 12, 2020, exactly 300 days after her final day of work, Ms. Booher
brought a discrimination charge against Rowland Hall with the EEOC. 39 Ms. Booher
now brings three claims for relief under the ADA. First, she claims Rowland Hall
wrongfully denied her accommodation requests. 40 Second, Ms. Booher claims Rowland
Hall relied on its “one hundred percent healed policy” to wrongfully terminate her
because of her disability. 41 Third, Ms. Booher claims Rowland Hall retaliated against
her by terminating her and banning her from campus—based on her protected activities
of making accommodation requests and informing Rowland Hall she may file a claim. 42
ANALYSIS
Rowland Hall seeks to dismiss two sets of Ms. Booher’s claims, each on
timeliness grounds. First, Rowland Hall argues Ms. Booher’s failure-to-accommodate
claim should be limited to the denial of Ms. Booher’s request for job restructuring on
January 17, 2020, because the remainder of the accommodation denials occurred more
than 300 days before Ms. Booher brought her EEOC charge. 43 Second, Rowland Hall
(See Ex. A to Mot., Charge of Discrimination, Doc. No. 20-1.) Neither party disputes
the date Ms. Booher filed her EEOC charge, and it is appropriate for the court to take
judicial notice of the date. See, e.g., Watkins v. Genesh, Inc., No. 22-2273, 2024 U.S.
Dist. LEXIS 23188, at *3 n.3 (D. Kan. Feb. 9, 2024) (unpublished) (noting a court may
take judicial notice of undisputed EEOC charges where they are central to and
referenced in the plaintiff’s complaint, and “[f]urther, the Court may take judicial notice of
the EEOC documents because they are administrative documents”).
39

40

(Am. Compl. ¶¶ 92–102, Doc. No. 16.)

41

(Id. ¶¶ 103–08.)

42

(Id. ¶¶ 109–11.)

43

(Mot. 12–17, Doc. No. 20.)
7

contends the claims relating to Ms. Booher’s termination are untimely, because Ms.
Booher failed to bring an EEOC charge within 300 days of the notice of her
termination. 44 As explained below, because both sets of claims are untimely, Rowland
Hall’s partial motion to dismiss is granted.
I.

Ms. Booher’s failure-to-accommodate claim is untimely, except as to
her January 2020 accommodation request.

Rowland Hall argues Ms. Booher’s failure-to-accommodate claim must be limited
to the denial of her job restructuring request on January 17, 2020, because Ms. Booher
did not file timely EEOC charges challenging Rowland Hall’s denials of her previous
accommodation requests. 45 Noting Ms. Booher filed her EEOC charge on November
12, 2020, Rowland Hall contends Ms. Booher can only challenge actions occurring in
the 300 days preceding that date. 46 And aside from her request for job restructuring on
January 17, 2020, all the challenged accommodation denials occurred more than 300
days before November 12, 2020. Neither party disputes this. 47 Accordingly, Rowland

44

(Id. at 17–19.)

45

(Id. at 12–13.)

(Id.); see also Matthews v. Kennecott Utah Copper Corp., 54 F. Supp. 2d 1067, 1073
(D. Utah 1999) (citing 42 U.S.C. § 2000e-5(e)(1)) (explaining that in states—like Utah—
where a state agency has authority to investigate employment discrimination, “Title VII
requires claimants to file a charge of discrimination with the EEOC within 300 days of
the alleged unlawful employment practice”).
46

47

(See generally Am. Compl., Doc. No. 16; Mot. 2, Doc. No. 20.)
8

Hall contends Ms. Booher’s failure-to-accommodate claim must be limited to the denial
of her request for job structuring. 48
In response, Ms. Booher asserts she can challenge denials occurring outside the
300-day charging period, because they were based on Rowland Hall’s “one hundred
percent healed” policy, whereby the school refused to employ her unless she would
eventually be “fully healed.” 49 Ms. Booher contends this policy constitutes a “continuing
violation,” allowing her to challenge denials occurring outside the charging period. 50
She also argues Rowland Hall cannot raise a statute of limitations defense in a motion
to dismiss. 51
In reply, Rowland Hall contends the continuing violation theory is inapplicable,
because each denial of an accommodation request constitutes a discrete act, and
discrete acts “are not actionable if time barred, even when they are related to acts
alleged in timely filed charges.”52 Thus, according to Rowland Hall, Ms. Booher cannot
challenge accommodation denials occurring outside the charging period, even if the
“one hundred percent healed policy” connects them to a timely challenged act. 53

48

(Mot. 17, Doc. No. 20.)

49

(Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss (“Opp’n”) 4–11, Doc. No. 25.)

50

(Id.)

51

(Id. at 2–3, 11–15.)

(Mot. 12–17, Doc. No. 20 (quoting AMTRAK v. Morgan, 536 U.S. 101, 114–15
(2002)); see also Reply in Supp. of Partial Mot. to Dismiss (“Reply”) 3–7, Doc. No. 29.)

52

53

(Reply 3–7, Doc. No. 29.)
9

Rowland Hall also contends it is appropriate to raise the statute of limitations at the
motion-to-dismiss stage, where it is clear from the complaint Ms. Booher’s claims are
time-barred. 54
As an initial matter, Ms. Booher’s argument that Rowland Hall cannot raise the
statute of limitations in a motion to dismiss fails. “A statute of limitations defense may
be appropriately resolved on a Rule 12(b) motion when the dates given in the complaint
make clear that the right sued upon has been extinguished.” 55 As explained below,
even accepting the dates Ms. Booher provides for Rowland Hall’s denials of her
accommodation requests, Ms. Booher’s claims are untimely as a matter of law.
Accordingly, dismissal based on the statute of limitations is proper. 56
Ms. Booher’s next argument—that Rowland Hall’s denials of her accommodation
requests constituted a continuing violation—also fails. Even assuming Rowland Hall
had a “one hundred percent healed” policy, Ms. Booher cannot challenge denials
occurring outside the charging period. Under the continuing violation theory, “a plaintiff
may recover for discriminatory acts that occurred prior to the statutory limitations period
if they are part of a continuing policy or practice that includes the act or acts within the

54

(Id. at 9.)

Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016) (internal
quotation marks omitted).
55

56

See id.
10

statutory period.” 57 But “a continuing violation theory of discrimination is not permitted
for claims against discrete acts of discrimination, such as termination, failure to
promote, denial of transfer, or a refusal to hire” 58—even if “related to acts alleged in
timely filed charges.”59 Where discrete acts are at issue, “the limitations period will
begin to run for each individual act from the date on which the underlying act occurs”
because “[e]ach discrete [act] is a separate actionable unlawful employment practice.”60
Importantly, the denial of an accommodation request is also a discrete act. 61
Where the “denial of [a] request for an accommodation constitutes a discrete act
of alleged discrimination,” 62 Rowland Hall’s denials of Ms. Booher’s accommodation
requests cannot support a continuing violation theory as a matter of law. 63 This is true
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1183 (10th Cir. 2003) (internal quotation
marks omitted) (quoting Mascheroni v. Bd. of Regents of the Univ. of Cal., 28 F.3d 1554,
1561 (10th Cir. 1994)).
57

58

Id. at 1184 (citing Morgan, 536 U.S. at 114).

59

Id. (quoting Morgan, 536 U.S. at 113).

60

Id. at 1185.

See Proctor v. United Parcel Serv., 502 F.3d 1200, 1210 (10th Cir. 2007) (citing
Morgan, 536 U.S. at 113) (holding the “denial of [a] request for an accommodation
constitutes a discrete act of alleged discrimination,” and is therefore “not actionable
unless [the plaintiff] files suit based on this act”); see also, e.g., Celani v. IHC Health
Servs., Inc., No. 4:22-cv-00066, 2023 U.S. Dist. LEXIS 177424, at *8 (D. Utah Oct. 2,
2023) (unpublished) (quoting Proctor and Davidson in holding “[t]he denial of a ‘request
for an accommodation constitutes a discrete act of alleged discrimination,’” and thus “is
not actionable if time-barred, ‘even when [the discrete act is] related to acts alleged in
timely filed charges’”).
61

62

Proctor, 502 F.3d at 1210.

63

See Davidson, 337 F.3d at 1184–85 (citing Morgan, 536 U.S. at 114).
11

“even if the discrete act was part of a company-wide or systemic policy.” 64 Because the
continuing violation theory does not apply to discrete acts of discrimination, such as Ms.
Booher’s failure-to-accommodate challenges, even if Rowland Hall acted pursuant to a
“one hundred percent healed” policy, most of Ms. Booher’s challenges are time-barred.
Ms. Booher’s failure-to-accommodate claim is limited to acts occurring within the
charging period.
Ms. Booher attempts to support her “continuing violation” argument with two
cases. But neither applies. First, Ms. Booher relies on Croy v. Cobe Laboratories,
Inc., 65 a case in which the Tenth Circuit permitted a plaintiff to challenge her employer’s
continuous failure to promote her. 66 The plaintiff claimed her employer placed a “glass
ceiling” on the advancement of female employees at the company. 67 The Tenth Circuit
held the glass ceiling claim fell under a continuing violation theory because the plaintiff
alleged “a continuous failure to promote her, which did not involve discrete acts that
could or should have triggered any obligation of [the plaintiff] to complain to the
EEOC.” 68 But Ms. Booher’s claim does not rely on a continuous failure to act in the
absence of discrete, triggering acts. 69 Rather, her claim relies on discrete denials of
64

Id. at 1186–87.

65

345 F.3d 1199 (10th Cir. 2003).

66

Id. at 1202–03.

67

Id. at 1203.

68

Id. (emphasis in original) (internal quotation marks omitted).

69

See id.
12

specific requests for accommodation, each of which Ms. Booher could (or should) have
brought to the EEOC. 70 Where Ms. Booher challenges discrete, actionable events as
opposed to a continuous failure to act, Croy is unhelpful.
Next, Ms. Booher relies on Stowers v. WinCo Foods LLC. 71 In Stowers, the
District of California permitted a plaintiff to amend her complaint to add a continuing
violation claim based on an employer policy. 72 Like Ms. Booher, the plaintiff sought to
challenge her employer’s denial of a request for accommodation, which occurred
outside the limitations period. 73 Specifically, the Stowers plaintiff sought to raise a
continuing violation claim by connecting the denial to other, timely challenged conduct
and arguing the employer acted pursuant to a one-hundred-percent-healed policy. 74
Permitting the plaintiff to add the claim, the court found it could not conclude the
“Plaintiff would be unable to prove a [disability discrimination] claim under a continuing
violation theory.” 75

(See, e.g., Am. Compl. ¶ 20 (alleging Rowland Hall denied her request for the
accommodation of working from home), ¶ 28 (alleging Rowland Hall denied her request
for the accommodation of reassignment to a new position), ¶ 34 (alleging Rowland Hall
denied her request to move to a different classroom), Doc. No. 16.)
70

No. 13-cv-02631, 2014 U.S. Dist. LEXIS 54351 (N.D. Cal. Apr. 17, 2014)
(unpublished).
71

72

Id. at *13.

73

Id. at *6–7.

74

Id. at *7.

75

Id. at *8.
13

But the Tenth Circuit has rejected the “continuing violation” standard the Stowers
court relied on. Under the Stowers approach, to establish a continuing violation, “a
plaintiff must show that the employer's unlawful actions are (1) sufficiently similar in
kind; (2) have occurred with reasonable frequency; (3) and have not acquired a degree
of permanence.”76 Before AMTRAK v. Morgan, 77 courts in the Tenth Circuit used
essentially the same three-factor inquiry, assessing “(i) subject matter—whether the
violations constitute the same type of discrimination; (ii) frequency; and (iii)
permanence.”78 But in Davidson, the Tenth Circuit concluded the Supreme Court
invalidated that test in Morgan: “Morgan implicitly overturns prior Tenth Circuit law in
that plaintiffs are now expressly precluded from establishing a continuing violation
exception for alleged discrete acts of discrimination occurring prior to the limitations
period, even if sufficiently related to those acts occurring within the limitations period.”79
Stowers is inapplicable where the court applied a test the Tenth Circuit has rejected.
Under Tenth Circuit precedent, plaintiffs cannot challenge discrete acts (including

76

Id. at *7 (citing Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 823, 29 P.3d 175 (2001)).

77

536 U.S. 101 (2002).

78

See Davidson, 337 F.3d at 1184 (quoting Mascheroni, 28 F.3d at 1561).

Id. at 1185; see also Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003) (“Morgan
abrogates the continuing violation doctrine as previously applied . . . . [and o]ur
decisions have unambiguously recognized Morgan as rejecting application of the
‘continuing violation’ theory.”).
79

14

denials of accommodation requests) occurring outside the limitations period, under a
continuing violation theory. 80
Ms. Booher also contends Davidson does not stand “for the principle that
discrete acts, even when connected by a discriminatory policy, remain discrete,”
because the discrimination in Davidson flowed from individualized determinations, not a
policy. 81 She argues Rowland Hall’s denials of her accommodation requests were
dictated by its “one hundred percent healed” policy, meaning it made no individualized
determinations, contrary to Davidson. 82 But Ms. Booher reads too much into Davidson
and the cases it relied on. The Davidson plaintiff specifically alleged his employer acted
“pursuant to [a] discriminatory [] policy,” and the Tenth Circuit expressly rejected the
plaintiff’s attempt to link discrete acts by connecting them to the policy. 83 Just as the
Davidson plaintiff’s claim stemmed from individual acts resulting from implementation of

See Davidson, 337 F.3d at 1184 (“[A] continuing violation theory of discrimination is
not permitted for claims against discrete acts of discrimination . . . .”); Proctor, 502 F.3d
at 1210 (“[The] denial of [a] request for an accommodation constitutes a discrete act of
alleged discrimination . . . .”).
80

81

(Opp’n 10–11, Doc. No. 25.)

82

(See id.)

See Davidson, 337 F.3d at 1186 (“[The plaintiff’s] assertion that these discrete acts
flow from a company-wide or systemic discriminatory practice will not succeed in
establishing [the employer’s] liability for acts occurring outside the limitations
period because the Morgan Court determined that each incident of discrimination
constitutes a separate actionable unlawful employment practice.”); see also id. at 1185–
86 (“[The plaintiff] is limited to filing a claim for the refusals to hire that occurred within
the appropriate time period. This remains true even if the discrete act was part of a
company-wide or systemic policy.” (internal citations and quotation marks omitted)).
83

15

a policy, 84 Ms. Booher’s claims stem from denials of discrete accommodation requests
resulting from implementation of a policy. The inquiry hinges on whether the acts
constituted separate, actionable practices—even if the practices were driven by policy. 85
The acts Ms. Booher challenges as “failures to accommodate” are distinct and
individually actionable. And under Davidson, challenges to discrete acts occurring
outside the charging period are time-barred, even if they flowed from a discriminatory
policy.
Relatedly, Ms. Booher argues “the Tenth Circuit has not conclusively made [] a
finding” that “a failure to accommodate is a discrete act.” 86 But in Proctor, the Tenth
Circuit explicitly noted the plaintiff’s “denial of [a] request for an accommodation
constitutes a discrete act of alleged discrimination,” and is, therefore, “not actionable
unless [the plaintiff] files suit based on this act.” 87 And other courts have followed suit. 88
Finally, Ms. Booher contends that whether Rowland Hall had a “one hundred
percent healed” policy is a question of fact, which cannot be decided at the motion to

84

Id. at 1186.

85

See id. at 1185–86.

86

(Opp’n 10, Doc. No. 25.)

87

Proctor, 502 F.3d at 1210.

See, e.g., Celani, 2023 U.S. Dist. LEXIS 177424, at *8–11 (quoting Proctor and
Davidson in holding “[t]he denial of a ‘request for an accommodation constitutes a
discrete act of alleged discrimination,’” and thus “is not actionable if time-barred, ‘even
when [the discrete act is] related to acts alleged in timely filed charges’”).
88

16

dismiss stage. 89 But whether Rowland Hall had such a policy is immaterial at this point
because, as explained above, Ms. Booher cannot challenge accommodation request
denials occurring outside the charging period, regardless of whether the denials
stemmed from a systemic policy.
In sum, challenges to denials of Ms. Booher’s accommodation requests that
occurred outside the charging period are time-barred, even if the denials were made
pursuant to a “one hundred percent healed” policy. Accordingly, Ms. Booher’s failure-toaccommodate claim 90 is dismissed to the extent it challenges accommodation denials
occurring outside the charging period.
II.

Ms. Booher’s termination claims are untimely.

The second set of claims Rowland Hall seeks to dismiss are Ms. Booher’s
disability discrimination and retaliation claims based on her termination. 91 Rowland Hall
argues any claims based on Ms. Booher’s termination are time-barred, because Ms.
Booher did not file her EEOC charge within the 300-day charging period for these
claims. 92 Rowland Hall contends the 300-day period began on December 17, 2019,
when Rowland Hall first informed Ms. Booher she was being terminated. 93 Ms. Booher,

89

(Opp’n 3, Doc. No. 25.)

90

(Am. Compl. ¶¶ 92–102, Doc. No. 16.)

91

(Mot. 17–19, Doc. No. 20.)

(Id.) Rowland Hall does not seek dismissal of Ms. Booher’s retaliation claim relating
to the school’s alleged banning of Ms. Booher from the school’s campus. (See id. at 1.)
92

93

(Id. at 17–19.)
17

on the other hand, contends the 300-day period began on January 17, 2020, her last
day of work. 94 In Ms. Booher’s view, up until her final day of employment, she
“reasonably believed that her employment with Rowland Hall could continue in a
different capacity.”95 Ms. Booher asserts that after the December 17, 2019 meeting, she
discussed with the middle school principal the possibility of becoming a substitute
teacher at Rowland Hall. 96 Ms. Booher also notes Rowland Hall failed to provide her
with a formal thirty-day termination notice, as required by her contract. 97 In other words,
Ms. Booher argues she “was not informed that the totality of her employment with
Rowland Hall would end until January 17th[,] 2020.” 98
A review of the applicable legal authority shows Rowland Hall is correct; the 300day period began on December 17, 2019, when Rowland Hall first notified Ms. Booher
she was being terminated. Title VII requires a claimant to file a discrimination charge
with the EEOC within 300 days of when the discrimination occurred. 99 This period
“begins on the date the employee is notified of an adverse employment decision, even if

94

(Opp’n 11–12, Doc. No. 25.)

95

(Id.)

96

(Id. at 12 (citing Am. Compl. ¶¶ 72, 75, Doc. No. 16).)

(Id. (citing Am. Compl. ¶ 64, Doc. No. 16).) As explained below, where Rowland Hall
unequivocally notified Ms. Booher that it was “terminating her employment,” the school’s
alleged failure to provide her a “formal” notice is immaterial.

97

98

(Id. at 11.)

See Matthews v. Kennecott Utah Copper Corp., 54 F. Supp. 2d 1067, 1073 (D. Utah
1999) (citing 42 U.S.C. § 2000e-5(e)(1)).

99

18

the employee is later terminated.” 100 In other words, the 300-day clock starts “when the
disputed employment practice—the demotion, transfer, firing, refusal to hire, or the
like—is first announced to the plaintiff.” 101 Where the disputed employment practice is
Ms. Booher’s termination, the 300-day period began the day Rowland Hall “first
announced” the termination to Ms. Booher.
Even under Ms. Booher’s characterization of the facts, that date is December 17,
2019. Ms. Booher states Rowland Hall informed her on December 17, 2019 that “they
were terminating her employment.”102 Even more, Ms. Booher acknowledges she
“understood from these conversations [in December 2019] that she was being
terminated.” 103 Ms. Booher was thus “first notified” of her termination on December 17,
2019. Although Ms. Booher claims she “reasonably believed that her employment with
Rowland Hall could continue in a different capacity,”104 she has not shown how that
belief changes the calculus. Ms. Booher formed this belief based on discussions with
Rowland Hall after the school informed Ms. Booher of her termination from her position
as an academic counselor. 105 But Ms. Booher does not assert Rowland Hall ever

Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10th Cir. 1988) (quoting Del. State
Coll. v. Ricks, 449 U.S. 250, 256–59 (1980)).
100

101

Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th Cir. 2011).

102

(Am. Compl. ¶ 62, Doc. No. 16.)

103

(Id. ¶ 70.)

104

(Opp’n 12, Doc. No. 25.)

105

(See id.)
19

retracted its decision to terminate her from that position. And “the clock starts running
when the plaintiff first knew or should have known of [her] injury.”106 Because “the
proper focus is on the time that the employee has notice of the discriminatory acts, not
the time at which the consequences of the act became most painful,” 107 Rowland Hall’s
review of whether to offer Ms. Booher a different position after announcing her
termination does not toll the clock. 108 And Ms. Booher makes no other argument that
the limitations period should be tolled. 109 Accordingly, the clock started on December
17, 2019, when Rowland Hall first notified Ms. Booher it was “terminating her
employment.”110
Ms. Booher argues this case is analogous to Proctor, 111 a case in which the
Tenth Circuit found a plaintiff timely brought his EEOC charge. 112 After the Proctor
Almond, 665 F.3d at 1176 (emphasis added) (citing United States v. Kubrick, 444
U.S. 111, 122 (1979); Rotella v. Wood, 528 U.S. 549, 555–56 (2000)).
106

Id. at 1177 (emphasis in original) (internal quotation marks omitted) (quoting Ricks,
449 U.S. at 258).
107

See id. at 1179 (“The limitations period still accrues with the employer’s
announcement and ‘the pendency of a grievance, or some other method of collateral
review of an employment decision, does not toll the running of the limitations
periods . . . . [and neither does] [t]he existence of careful procedures to assure
fairness.’” (alternations in original) (quoting Ricks, 449 U.S. at 261)).

108

See generally Brough v. O.C. Tanner Co., No. 2:16-cv-1134, 2017 U.S. Dist. LEXIS
116469, at *4–5 (D. Utah July 25, 2017) (unpublished) (discussing tolling by express
agreement and equitable tolling).
109

110

(Am. Compl. ¶ 62, Doc. No. 16.)

111

502 F.3d 1200.

112

Id. at 1207.
20

plaintiff sustained a work-related injury, he underwent a medical examination where the
doctor’s recommendation was binding on the parties, pursuant to a union contract. 113
Although the doctor recommended the plaintiff not continue in his current position, the
plaintiff pursued worker’s compensation claims and asked to return to work. 114 He also
requested an ADA accommodation, which the employer considered and denied. 115 In
the meantime, the employer told the plaintiff to call the workforce manager if he had
questions regarding his employment status. 116 Only after the worker’s compensation
claims were finally closed did the employer notify the plaintiff his employment would be
terminated. 117 The employer characterized the termination as “a delayed, but inevitable
consequence” of the evaluator’s recommendation and the employer’s denial of the
accommodation requests. 118
The plaintiff filed an EEOC discrimination charge challenging his termination
within 300 days of receiving the termination letter—but more than 300 days after
receiving the evaluator’s recommendation and the employer’s accommodation denial. 119
113

Id. at 1203–04.

114

Id.

115

Id. at 1204.

116

Id.

Id. at 1204–05. According to the employer, “the termination letter resulted from [the
employer’s] policy and practice of terminating an employee who has not returned to
work once the employee’s workers’ compensation claims are resolved.” Id. at 1205.
117

118

Id. at 1206.

119

See id. at 1205.
21

After the plaintiff filed suit, the employer moved to dismiss the claim, arguing he failed to
bring his EEOC charge within the 300-day charging period. 120 The employer claimed
the plaintiff had notice of his termination when he received the evaluator’s binding
recommendation and the employer’s accommodation denial. 121 The Tenth Circuit found
the plaintiff’s EEOC charge timely, holding that even if the evaluator’s recommendation
and accommodation denial inevitably resulted in the plaintiff’s termination, the employer
failed to notify the plaintiff of this inevitability. 122
Ms. Booher attempts to analogize her situation with Proctor by arguing Rowland
Hall did not make clear she would have no ongoing relationship with the school until her
last day of work in January 2020. 123 She contends the December 2019 meeting only
“made [her] aware that Rowland Hall would no longer accommodate her in her
Academic Counselor position.”124 But there is no question Rowland Hall informed Ms.
Booher at the December 2019 meeting that “they were terminating her employment.” 125
Later discussions about requests for reassignment do not change, toll, or invalidate this
notice date. This differs from Proctor, where the employer did not notify the plaintiff he
would be terminated up front. The 300-day period began for Ms. Booher on December
120

Id.

121

Id. at 1206.

122

Id. at 1207.

123

(Opp’n 13, Doc. No. 25.)

124

(Id.)

125

(Am. Compl. ¶¶ 62, 70, Doc. No. 16.)
22

17, 2019—the date she was first advised of her termination—and it expired on October
12, 2020. 126 Accordingly, Ms. Booher’s EEOC charge, filed on November 12, 2020, is
untimely to the extent it challenges her termination.
In a related vein, Ms. Booher claims the statute of limitations period is only
triggered after a cause of action becomes “complete and present.” 127 Ms. Booher
argues her termination-related claims only accrued on January 17, 2020, when she
became aware Rowland Hall would not accommodate or reassign her, “and thus
planned to completely sever her employment relationship.” 128 But a request for
reassignment, made after receiving a notice of termination, does not change the starting
point of the limitations period. While a request for reassignment may qualify as an
accommodation request (although some courts conclude accommodation requests
must be made before the termination decision), 129 Ms. Booher has offered no legal

126

See Almond, 665 F.3d at 1177.

127

(Opp’n 13–15, Doc. No. 25.)

128

(Id. at 14.)

See McCarroll v. Somerby of Mobile, LLC, 595 F. App’x 897, 899 (11th Cir. 2014)
(unpublished) (finding the district court properly granted summary judgment to the
defendant on a failure-to-accommodate claim where the plaintiff requested an
accommodation after his supervisors had decided to fire him); Posey v. Hyundai Motor
Mfg. Ala., No. 2:15-cv-787, 2017 U.S. Dist. LEXIS 10375, at *17 (M.D. Ala. Jan. 24,
2017) (unpublished) (“[A] request to be re-employed after termination is not a request
for reasonable accommodation.”); United States EEOC v. St. Joseph’s Hosp., Inc., No.
8:13-cv-2723, 2015 U.S. Dist. LEXIS 19272, at *23 (M.D. Fla. Feb. 18, 2015) (finding a
post-termination request to be reassigned unreasonable as a matter of law); Brown v.
Pension Bds., 488 F. Supp. 2d 395, 407 (S.D.N.Y. 2007) (finding a post-termination
accommodation request ineffective); cf. Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1318
129

23

support for the idea that such requests delay the accrual of a termination claim. As
explained above, in the “employment discrimination context, . . . a claim accrues when
the disputed employment practice—the demotion, transfer, firing, refusal to hire, or the
like—is first announced to the plaintiff.” 130 Ms. Booher’s termination claim accrued on
December 17, 2019, when Rowland Hall first announced the decision to terminate her.
Because Ms. Booher failed to file an EEOC charge within 300 days of that date, the
discrimination and retaliation claims relating to her termination are dismissed. 131
CONCLUSION
Because the claims Rowland Hall seeks to dismiss are untimely, Rowland Hall’s
partial motion to dismiss 132 is granted and the following claims are dismissed.
•

Ms. Booher’s failure-to-accommodate claim 133 is dismissed to the extent it
challenges accommodation denials occurring outside the charging

(10th Cir. 2017) (finding that “a denied request for retroactive leniency cannot support
an accommodation claim”).
130

Almond, 665 F.3d at 1177 (citing Ricks, 449 U.S. at 250).

Specifically, the following claims related to Ms. Booher’s termination are dismissed:
all of Ms. Booher’s second cause of action for wrongful termination, (see Am. Compl. ¶¶
103–108, Doc. No. 16), and all of Ms. Booher’s third cause of action for unlawful
retaliation except as this claim relates to Rowland Hall banning Ms. Booher from
campus, (see id. ¶¶ 109–11.)
131

132

(Mot., Doc. No. 20.)

133

(Am. Compl. ¶¶ 92–102, Doc. No. 16.)
24

period. 134
•

Ms. Booher’s wrongful termination claim 135 is dismissed.

•

Ms. Booher’s unlawful retaliation claim is dismissed to the extent it
challenges Ms. Booher’s termination. 136

DATED this 24th day of September, 2024.
BY THE COURT:

Daphne A. Oberg
United States Magistrate Judge

As explained above, Ms. Booher’s failure-to-accommodate claim survives only to the
extent it challenges Rowland Hall’s denial of her January 17, 2020 request for the
accommodation of job restructuring.
134

135

(Id. ¶¶ 103–08.)

(Id. ¶¶ 109–11.) Because Rowland Hall does not seek dismissal of Ms. Booher’s
retaliation claim relating to the school banning Ms. Booher from coming to campus, this
portion of her retaliation claim is not dismissed.
136

25