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Shutlz v. Dixie State University

United States District Court, D. Utah

May 11, 2017

DIXIE STATE UNIVERSITY; STEPHEN NADAULD, in his official and individual capacities; and RICHARD WILLIAMS, in his official and individual capacities, Defendants.


          Ted Stewart United States 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.

         I. BACKGROUND

         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;”[1] Plaintiff was taken out of the rotation for being in charge of Dixie State when the president of the University was absent; Nadauld assigned Plaintiff undesirable projects in an attempt to “force” Plaintiff to quit;[2] and Plaintiff received numerous emails over the course of her employment with Dixie State “that evidenced serious in-faculty arguments over Mormons and non-Mormons, commonly known at Dixie State as ‘insiders' and ‘outsiders.'”[3]

         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.”[4]

         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.[5] Plaintiff filed a complaint against Williams with human resources that same day.

         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.”[6]Plaintiff was the only female vice president at Dixie State prior to her termination. Following her termination, Plaintiff learned that a Mormon male had taken over her responsibilities.

         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.[7] Plaintiff must provide “enough facts to state a claim to relief that is plausible on its face, ”[8] which requires “more than an unadorned, the-defendant-unlawfully harmed-me accusation.”[9] “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”[10]

         “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.”[11] As the Court in Iqbal stated,

only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.[12]


         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.[13]

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. . . . Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.[14]

         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.”[15]

         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.”[16]The Supreme Court has extended the Amendment's applicability beyond suits brought by citizens or governments of another state to include suits by citizens brought against their own state.[17] Therefore, to be granted Eleventh Amendment immunity, “a defendant must qualify as a state or an ‘arm' of a state.”[18]

         The Tenth Circuit has “consistently held that state colleges and universities are arms of the state”[19] and Plaintiff does not make an argument to the contrary. Dixie State is therefore an arm of state and will accordingly be granted immunity unless Plaintiff can show an exception applies.

         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.”[20] Plaintiff concedes that her second cause of action for breach of the implied covenant of good faith and fair dealing against the State does not fall under either exception and is therefore barred from suit in federal court. However, Plaintiff argues that her first cause of action for breach of contract meets the second exception because the State of Utah has voluntarily waived its immunity regarding contract claims in Utah's Government Immunity Act, specifically in § 63G-7-301 of the Utah Code.

         “Waiver of sovereign immunity must be knowing and voluntary.”[21] “When a statute or other document purportedly waives a state's Eleventh Amendment immunity, [the Court] ‘will give effect to the waiver only where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.'”[22]

         In Atascadero State Hospital v. Scanlon, [23] the Supreme Court explained that “[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.”[24] “Thus, in order for a state statute . . . to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intent to subject itself to suit in federal court.”[25] Federal courts therefore do not have jurisdiction over the State “[i]n the absence of an unequivocal waiver specifically applicable to federal-court jurisdiction.”[26]

         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 federal-court 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.”[27] The State of Utah has therefore not elected to waive its Eleventh Amendment immunity in regards to contract claims.[28]

         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.

         1. Allegations of Disparate Treatment Occurring Prior to the 300-day Limitations Period

         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.”[29] Title VII plaintiffs are required to “exhaust his or her administrative remedies” with the EEOC before proceeding to file suit in district court.[30] Plaintiff filed a complaint with the EEOC on or around December 15, 2014.

         “[E]ach discrete incident of [discriminatory] treatment constitutes its own ‘unlawful employment practice' for which administrative remedies must be exhausted.”[31] “[O]nly incidents that took place within the [300-day] filing period are actionable.”[32] Applying the applicable 300-day time limit, all alleged discriminatory actions occurring prior to February 18, 2014, are time barred as they relate to Plaintiff's claims of religious discrimination, gender discrimination, and retaliation under Title VII.

         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.”[33] In addressing this problem, the Supreme Court has held that “consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.”[34] Therefore, any allegations of discriminatory behavior related to Plaintiff's hostile work environment claims will be considered, so long as one of the related allegations occurred after February 18, 2014.

         2. Plaintiff's “Pattern of Disparate Treatment” Allegations

         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.”[35] Under her fourth cause of action, Plaintiff similarly states that Dixie State “engaged in a pattern or practice of purposefully and intentionally discriminating against its female employees, including Shultz, by ignoring complaints of discrimination and allowing female employees to be treated in a derogatory and demeaning manner.”[36] Defendants argue that these allegations are barred from consideration because Plaintiff lacks standing to assert a claim for pattern and practice discrimination. Plaintiff disagrees and argues that pattern and practice discrimination is an actionable claim and that it permits the inclusion of evidence that falls outside the relevant time limitation.

         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.[37] However the “pattern or practice” language does not create a separate cause of action, but instead creates an alternate means to prove a violation of Title VII.[38]The Tenth Circuit has held, “[t]he disparities between both of these methods of proof and the remedies available demonstrate that the pattern-or-practice method should be reserved for government actions or plaintiffs in class actions to establish the presence of a discriminatory policy, rather than to prove an individual claim.”[39] “[I]ndividual plaintiffs may not utilize the pattern or practice method of proof in Title VII suits.”[40] Therefore, though Plaintiff does have standing to bring a disparate treatment claim, she may not prove the alleged disparate treatment by use of the “pattern or practice” method. Accordingly, Plaintiff may not rely on the pattern or practice method to introduce otherwise expired allegations supporting her claims for gender and religious discrimination.[41]

         3. Failure to State a Claim

         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. i. Disparate Treatment 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.”[42] Plaintiff alleges that Dixie State violated Title VII by discriminating against her on the basis of both gender and religion.

         In McDonald Douglas Corporation v. Green, [43] the Supreme Court set forth the burden shifting framework of a Title VII discrimination case. Under this framework, the Plaintiff must first establish a prima facie case of discrimination by demonstrating that “(1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class.”[44]“The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.”[45] Therefore, “an employment discrimination complaint need not include such facts and instead must contain only ‘a short and plain statement of the claim showing the pleader is entitled to relief.'”[46] However, “general assertions of discrimination and retaliation, without any details whatsoever of events leading up to her termination are insufficient to survive a motion to dismiss.”[47] A plaintiff must “nudge her claims across the line from conceivable to plausible.”[48]

         By way of clarifying the application of the above stated standard, the Tenth Circuit has explained that,

while the 12(b)(6) standard does not require that a plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether she has set forth a plausible claim. Accordingly, to assess whether [Plaintiff's] complaint is “plausible” and thus survives the defendants' 12(b)(6) motion to dismiss, we start by discussing the elements a plaintiff must prove to establish a claim for discrimination.[49]

         Looking to the prima facie elements, Plaintiff's Complaint states facts sufficient to survive a motion for dismissal under Rule 12(b)(6).[50] Plaintiff alleges that she is a female and was of different faith than those directly supervising her[51] and has therefore stated she was a member of a protected class. Plaintiff also states that she suffered adverse employment action in that she was fired[52] and stopped receiving regular pay increases.[53] Additionally, Plaintiff's Complaint alleges she was paid less than other University vice presidents who were male and of the LDS faith, that she was assigned less desirable duties and was required to split some of her responsibilities with a Mormon male in an unprecedented fashion, and that Nadauld told her that being a woman and a non-Mormon was a professional liability.

         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.[54]

         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.[55] Taken collectively, these allegations provide sufficient detail to support Plaintiff's disparate treatment claims. The Court accordingly denies Defendants' request to dismiss Plaintiff's third and fourth causes of action.

         ii. Hostile ...

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