TED STEWART, District Judge.
This matter is before the Court on Defendants' Partial Motion to Dismiss and Supporting Memorandum. For the reasons set forth below, the Court will grant the motion in part and deny it in part.
The facts alleged in Plaintiff's Complaint are as follows: Plaintiff Christina Shutlz ("Plaintiff") has worked in higher education leadership positions for twenty-six years. She began working as Vice President of Institutional Advancement for Defendant Dixie State University ("Dixie State") in or around November 2005. Plaintiff was the first female vice president at Dixie State. Her duties included fundraising, alumni relations, public relations, marketing, publications, and cultural arts. Under then-President of the University, Lee Caldwell, Plaintiff received regular salary increases and merit-based pay increases. In 2008, Lee Caldwell left Dixie State and Defendant Stephen Nadauld ("Nadauld") took over the role of President of the University. Nadauld is male and a member of the Church of Jesus Christ of Latter Day Saints ("LDS" or "Mormon").
Beginning with Nadauld's tenure, Plaintiff alleges she was subjected to a series of discriminatory conduct on the basis of her gender and religion, including the following: Plaintiff stopped receiving regular salary increases and was paid less than her male vice president colleagues; Nadauld indicated to Plaintiff that being a female and non-Mormon was a professional liability; Plaintiff "heard that Mormon males in leadership positions resented her because she was a woman in a senior management position and was paid a high salary, and thus she set a `bad example' for Mormon women;"
Plaintiff alleges that she regularly made complaints to Nadauld regarding this conduct, which Nadauld did not address. Nadauld retired in August of 2014. Prior to his retirement he gave a "religious-based lecture, aimed at [Plaintiff]," which Plaintiff took to be a threat that Plaintiff should stop making complaints and reports of discrimination and to "toe the line."
Defendant Richard Williams ("Williams") took over Nadauld's position as President of Dixie State University in August 2014. Williams is also male and of the LDS faith. On or about August 14, 2014, Plaintiff informed Williams of her treatment under Nadauld and requested a pay raise. At this point, Plaintiff had become the lowest paid vice president at the University. Some time later, Williams told Plaintiff he had discussed the situation with Nadauld and another employee and determined there was no discrimination at Dixie State.
Plaintiff states that Williams would praise Plaintiff at meetings and other public functions, but secretly instructed the director of human resources to find a reason to terminate Plaintiff.
In the fall of 2014, Plaintiff left on a business trip to the Middle East to meet with University donors. Williams, allegedly aware that Plaintiff was suffering from an illness that made travel difficult, required Plaintiff to return to Utah from Egypt. Plaintiff states she was the third female to be treated differently by Williams regarding business travel. On November 26, 2014, shortly after returning to Utah, Plaintiff was taken to the emergency room by ambulance and diagnosed as having a "potentially life threatening" condition.
On November 29, 2014, Williams suspended Plaintiff without explanation. The next day, Plaintiff filed a formal grievance against Nadauld for the discriminatory environment he fostered during his time as President of the University. Human resources found the grievance to have no merit.
On December 2, 2014, Plaintiff's medical provider requested leave under the Family Medical Leave Act ("FMLA") on behalf of Plaintiff. Shortly thereafter, Williams demanded that Plaintiff attend a meeting regarding the request, which Plaintiff was unable to attend because she was on medical orders to stay home and rest. Plaintiff states that Williams was aware of the medical orders.
On or about December 11, 2014, Plaintiff received a letter stating that she had been terminated from her employment for failing to make a scheduled appointment. The reason for her termination was allegedly changed two months later. Plaintiff claims that during her time at Dixie State she never received "a performance review, discipline, or criticism of any kind."
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on or about December 15, 2014, and received a Notice of Right to Sue on May 16, 2016. Plaintiff filed her Complaint with the Court on July 22, 2016.
In considering a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), all well-pleaded factual allegations, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to Plaintiff as the nonmoving party.
"The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."
Plaintiff's Complaint alleges eight causes of action: (1) Breach of Contract against Dixie State; (2) Breach of the Duty of Good Faith and Fair Dealing against Dixie State; (3) Discrimination on the Basis of Religion and Hostile Work Environment in Violation of Title VII against Dixie State; (4) Discrimination on the Basis of Sex and Hostile Work Environment in Violation of Title VII against Dixie State; (5) Retaliation on the Basis of a Protected Activity in Violation of Title VII against Dixie State; (6) Violations of the Equal Protection Clause of the Fourteenth Amendment under 42 U.S.C. § 1983 against Dixie State, Nadauld in his official and individual capacities, and Williams in his official and individual capacities; (7) Interference, Denial, and Retaliation in Violation of the Family Medical Leave Act against Dixie State; and (8) Violations of the Equal Pay Act against Dixie State.
Defendants move for dismissal of each of these claims, either in whole or in part. The Court will address each of Plaintiff's causes of action and the arguments for their dismissal.
Plaintiff's first two causes of action allege that Dixie State breached its contract with Plaintiff and that Dixie State breached the duty of good faith and fair dealing. Defendants argue that both of these claims should be dismissed because Dixie State is entitled to sovereign immunity in accordance with the Eleventh Amendment.
"[A]n assertion of Eleventh Amendment immunity concerns the subject matter jurisdiction of the district court" and therefore requires an analysis under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Here, Dixie State's Eleventh Amendment immunity challenge constitutes a facial attack on the allegations of subject matter jurisdiction contained in the complaint. "In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true."
The Eleventh Amendment provides that "[t]he Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
The Tenth Circuit has "consistently held that state colleges and universities are arms of the state"
As applied against the State, "[t]he sole exceptions [to Eleventh Amendment immunity] are (1) when Congress has abrogated the states' immunity, as in legislation enacted to enforce the Fourteenth Amendment; and (2) when a state waives its immunity."
"Waiver of sovereign immunity must be knowing and voluntary."
In Atascadero State Hospital v. Scanlon,
Section 63G-7-301 of the Utah Code states "[i]mmunity from suit of each governmental entity is waived as to any contractual obligation." The Statute makes no mention of federal courts and therefore has not provided an "unequivocal waiver specifically applicable to federalcourt jurisdiction." Further, § 63G-7-501 states, "district courts have exclusive, original jurisdiction over any action brought under [the Governmental Immunity Act]." The Tenth Circuit has found that this language is a "positive expression of policy against suits against Utah in United States courts."
The Court therefore finds that it does not have jurisdiction over Plaintiff's first and second causes of action alleging breach of contract and breach of the implied covenant of good faith and fair dealing, and accordingly dismisses these claims without prejudice.
Plaintiff has alleged three causes of action under Title VII: Religious discrimination and hostile work environment, gender discrimination and hostile work environment, and retaliation. Defendant moves for dismissal of each of these claims, either in whole or in part, on one or more of the following grounds: (1) any allegations of disparate treatment supporting causes of action under Title VII occurring prior to February 18, 2014, are time-barred; (2) Plaintiff lacks standing to make claims related to a "pattern of disparate treatment;" and (3) Plaintiff has failed to allege facts sufficient to support her claims for disparate treatment, hostile work environment, and retaliation.
Defendants argue that any factual allegations supporting Plaintiff's Title VII claims occurring prior to February 18, 2014, are time-barred.
"In states in which a state agency has authority to investigate employment discrimination (`deferral states'), Title VII requires claimants to file a charge of discrimination within 300 days of the alleged unlawful employment practice. Utah is a deferral state."
"[E]ach discrete incident of [discriminatory] treatment constitutes its own `unlawful employment practice' for which administrative remedies must be exhausted."
However, "[a]s applied to hostile environment claims . . . the 300-day requirement has proven problematic because a hostile work environment claim is composed of a series of separate acts that collectively constitute one unlawful employment practice."
Under Plaintiff's third cause of action she states that Defendant Dixie State "engaged in a pattern or practice of purposefully and intentionally discriminating against its non-Mormon employees, including Shultz, by ignoring complaints of discrimination and allowing non-Mormon employees to be treated in a derogatory and demeaning manner."
42 U.S.C. § 2000e6(a) provides a method by which the Attorney General may bring an action against a person or group "engaged in a pattern or practice of resistance to the full enjoyment of any rights secured by [Title VII]." The Supreme Court later extended this statute to apply to class action suits.
Defendants argue that Plaintiff has not alleged facts sufficient to support Plaintiff's claims for religious discrimination, gender discrimination, hostile work environment, and retaliation insofar as that claim involves actions taken by Nadauld. Defendants accordingly move for their dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Title VII makes it unlawful for an employer to "discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
In McDonald Douglas Corporation v. Green,
By way of clarifying the application of the above stated standard, the Tenth Circuit has explained that,
Looking to the prima facie elements, Plaintiff's Complaint states facts sufficient to survive a motion for dismissal under Rule 12(b)(6).
Notably, Plaintiff's Complaint lacks some of the specific details of these alleged actions, such as the dates on which they happened. However, courts do not require all the specific details at the pleading stage, only "certain details" that nudge the allegations from possible to plausible.
Plaintiff's Complaint states that she was a member of a protected class, alleges that she suffered adverse employment action, specifies some ways in which she was treated differently than those outside her protected class, and alleges that her superior made discriminatory comments to her regarding her membership in a protected class.
A plaintiff states a claim of discrimination based on a hostile work environment if they can show that "the workplace [was] 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."
The Tenth Circuit has explained that "Title VII does not establish a general civility code for the workplace. Accordingly, the run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces is not the stuff of a Title VII hostile work environment claim."
Here, Plaintiff has not alleged sufficient facts to support her hostile work environment claim. Supporting Plaintiff's claim for a hostile work environment on the basis of gender discrimination, Plaintiff has alleged that, at an undisclosed date, "Nadauld indicated to Shultz that being a woman and a non-Mormon was a liability for her official job duties;"
Supporting her claims for hostile work environment on the basis of religious discrimination, Plaintiff has alleged that over the course of her employment at Dixie State she received "numerous emails . . . that evidenced serious in-faculty arguments over Mormons and non-Mormons, commonly known at Dixie State as `insiders' and `outsiders'"
Considering these allegations as true, Plaintiff has not alleged sufficient facts supporting a claim for hostile work environment. First, the allegations that Mormon males in leadership positions resented her and that non-Mormons were commonly known as "outsiders" are too speculative to support a cause of action. While courts "do not mandate the pleading of any specific facts in particular, there are certain details the Plaintiff should know and could properly plead to satisfy the plausibility requirement."
Plaintiff's allegation that human resources was ordered not to investigate allegations of sex discrimination also does not support a claim for hostile work environment. Ignoring claims of discrimination could contribute to a hostile work environment if employees made frequent complaints, which human resources ignored. Plaintiff has not alleged that human resources ignored frequent reports of sex discrimination.
The remaining facts alleging that Nadauld indicated to Plaintiff that being a woman and a non-Mormon was a liability, that Plaintiff was called home from a business trip, and that Nadauld made a religious reference in allegedly discouraging Plaintiff from complaining of discriminatory activity, are not sufficient to show Plaintiff's work environment was "permeated with discriminatory intimidation." Taken collectively, these accusations amount only to "a few isolated" instances of alleged discriminatory conduct, which cannot support a claim for hostile work environment.
Plaintiff has not provided facts that could lead this Court to find it plausible that Defendants fostered a hostile work environment on the basis of either gender or religious discrimination. The Court will therefore dismiss Plaintiff's claims for hostile work environment without prejudice.
Defendants argue that Plaintiff's fifth cause of action for retaliation should be dismissed in part. Specifically, Defendants argue that Plaintiff has not stated a claim for retaliation in regard to actions taken by Nadauld.
To state a prima facie case for retaliation under Title VII, a plaintiff must show "(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action."
Plaintiff's Complaint contains sufficient facts by which the Court could infer that Plaintiff's numerous complaints to Nadauld amounted to protected activity.
Plaintiff's sixth cause of action alleges violations of the Equal Protection Clause by Dixie State, Nadauld in his official and individual capacities, and Williams in his official and individual capacities. Defendants argue that this claim should be dismissed against the University because the University is entitled to Eleventh Amendment immunity on this issue and the University is not a "person" as required by § 1983. Plaintiff agrees. Defendants also argue that this claim should be dismissed against Williams in his official capacity because state officials sued in their official capacity are not subject to § 1983 claims. Plaintiff agrees. The Court will therefore dismiss the claims in Plaintiff's sixth cause of action against Dixie State and Williams in his official capacity without prejudice. Defendants do not move to dismiss this claim against Nadauld in his official capacity. However, because the Parties agree that state officials cannot be sued in their official capacities under § 1983, the Court will also dismiss Plaintiff's sixth cause of action against Nadauld in his official capacity.
Finally, Defendants argue that the Court should dismiss Plaintiff's sixth cause of action against Williams in his individual capacity because Plaintiff has not stated a claim for violation of the Equal Protection Clause. Plaintiff does not agree.
Plaintiff's sixth cause of action alleges that Williams violated the Equal Protection Clause of the Fourteenth Amendment by "discriminat[ing] against [Plaintiff] (and other female employees) through [his] practice of favoring male employees over female employees, discounting [Plaintiff's] concerns regarding sex discrimination, and valuing male employees by giving them higher salaries, benefits, and opportunities over [Plaintiff] and other female employees."
The Equal Protection Clause requires that no state "deny to any person within its jurisdiction equal protection of the laws."
"Different types of equal protection claims call for different forms of review. . . . But in each instance, `to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them.'"
Plaintiff's Complaint alleges several adverse actions Williams took against Plaintiff, including: that Williams called her back early from a business trip overseas when he knew she was ill and that she was the "third female to be treated differently by Williams regarding official business trips for Dixie state;"
The allegation that Williams treated Plaintiff and three other women "differently" in regards to business trips is too conclusive and vague to merit consideration. The Court can therefore only consider that Plaintiff was called back from a business trip and is a woman. This alone does not state a cause of action under the Equal Protection Clause. Plaintiff does not allege that her male colleagues who were sent on business trips were not called back early or otherwise better treated by Williams.
Similarly, the allegation that Williams looked for reasons to terminate Plaintiff, suspended Plaintiff, and ultimately terminated Plaintiff cannot support a claim of unequal treatment without additional facts showing that similarly situated males who took similar action to Plaintiff were not subject to the same adverse treatment. Plaintiff's Complaint alleges that Dixie State's stated reason for her termination was that she failed to attend a required meeting. Plaintiff alleges that the true reason Williams sought to fire and ultimately did fire Plaintiff was because of her complaints to Williams about the discrimination that existed at Dixie State under Nadauld.
That Plaintiff was the last female vice president also fails to support an inference that Williams violated the Equal Protection Clause without more specific facts. The Court has no information regarding the number of female vice presidents that were employed at the beginning of Williams' tenure, the qualifications of these female vice presidents, or the reasons for their leaving the University during Williams' tenure. Similarly, that Plaintiff was replaced by a male does not provide the Court with sufficient detail to infer her termination was motivated by gender discrimination where Plaintiff has not alleged there was a similarly situated female who was as or more qualified for the job.
Plaintiff's Complaint does not contain the requisite allegations that Williams treated males with greater favor than Plaintiff or other females, or that Williams made derogatory or discriminatory comments to Plaintiff that suggest a discriminatory motive. As such, Plaintiff has not alleged sufficient facts by which the Court could infer that any adverse action taken by Williams violated the Equal Protection Clause. The Court will therefore dismiss Plaintiff's sixth cause of action against Williams in his individual capacity without prejudice.
Plaintiff's seventh cause of action alleges that Dixie State violated the Family Medical Leave Act (FMLA). Defendants argue that the State has immunity from this claim under the Eleventh Amendment.
Finally, Plaintiff alleges that Dixie State violated the Equal Pay Act
To establish a prima facie case under the Equal Pay Act, Plaintiff must allege facts showing: (1) that Plaintiff was "performing work which was substantially equal to that of the male employees considering the skills, duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the work was performed were basically the same; and (3) the male employees were paid more under such circumstances."
The allegations in the Complaint state the following: that from the time Plaintiff was hired to the time she was fired, Plaintiff went from "one of the highest paid" vice presidents at Dixie State to "one of the lowest paid" vice presidents;
These supporting facts are insufficient to survive a motion to dismiss. Plaintiff has provided the Court with no information as to how her work was similar to that of her vice president colleagues, only that it was "substantially similar" or "substantially equal." The fact that Plaintiff shared the title of "vice president" with her male colleagues does not create an assumption that the work performed was substantially similar. University vice presidents do not necessarily undertake the same tasks as they oversee different departments and maintain responsibility for different university functions.
Plaintiff argues that this cause of action is not suitable for a motion to dismiss and such a determination should be made only after discovery has taken place. She further contends that the mere allegation that the work was "substantially similar" or "substantially equal" is sufficient to state a claim under the Equal Pay Act under Rule 12(b)(6). In accordance with the case law stated above, this is an incorrect statement of the law. Because Plaintiff has not sufficiently alleged facts supporting her claim under the Equal Pay Act, the Court will dismiss Plaintiff's eighth cause of action without prejudice.
It is therefore
ORDERED that Defendants' Partial Motion to Dismiss (Docket No. 8) is GRANTED in part and DENIED in part. Plaintiff's first, second, sixth, seventh and eighth causes of action shall be dismissed in their entirety without prejudice. Plaintiff's fifth cause of action shall be dismissed insofar as the claim relies on actions taken by Defendant Nadauld. The remaining causes of action shall not be dismissed.
