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Brough v. O.C. Tanner Co.

United States District Court, D. Utah

July 25, 2017

ROXANNE BROUGH, Plaintiff,
v.
O.C. TANNER COMPANY, and JOHN DOES 1-5, Defendant.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS

          Ted Stewart United States District Judge.

         This matter is before the Court on Defendant O.C. Tanner Company's Motion to Dismiss. For the reasons discussed below, the Court will deny the Motion.

         I. BACKGROUND

         Plaintiff Roxanne Brough worked for Defendant O.C. Tanner Company (“O.C. Tanner” or “Employer”) from April 1977 until November 2014, at which time Plaintiff and several other employees over 40 years old were allegedly forced to leave.[1] Shortly after receiving notice of Defendant's intent to terminate her employment, Plaintiff retained Mr. Morgan to represent her, and asked him “to attempt to negotiate a more favorable post-termination settlement agreement.”[2]

         Early on in the negotiations, the parties “acknowledged the deadlines that may apply in timely filing complaints with the EEOC.”[3] “In response to specific proffers by Mr. Morgan throughout 2015 and early 2016 to forgo and delay filing any complaint with the EEOC pending the good faith efforts of the parties to settle . . . [two attorneys for Defendant] specifically represented that they each believed that a negotiated settlement was forthcoming and accepted Mr. Morgan's request not to prejudice his client should she delay her filing the matter with the EEOC, if that should become necessary in any event.”[4]

         Negotiations concluded without an agreement being reached at the end of May, 2016. Plaintiff received a right to sue letter on September 28, 2016, and filed a Charge of Discrimination with eh EEOC on August 25, 2016, more than 300 days after her termination. Defendants previously argued that Plaintiff's action was time-barred, and the Court agreed, finding that Plaintiff had failed to allege sufficient facts to justify equitably tolling of the statute of limitations.[5] The Court dismissed Plaintiff's ADEA claim without prejudice.[6] Plaintiff filed an Amended Complaint, and Defendant renewed its statute of limitations argument.

         II. STANDARD OF REVIEW

         To prevail on a 12(b)(6) Motion to Dismiss, a complaint “must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'”[7] A facially plausible claim requires “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[8] The court must accept all the factual allegations in the complaint as true, but need not consider merely conclusory statements that recite legal elements.[9] “The nature and specificity of the allegations required to state a plausible claim will vary based on context.”[10]

         “Generally, the sufficiency of a complaint must rest on its contents alone.”[11] There are limited exceptions to this restriction, [12] but the affidavit submitted by Plaintiff with her Memorandum in Opposition does not fall within any exception, and therefore was not considered by the Court in deciding this Motion.

         III. DISCUSSION

         The ADEA requires that a charge of discrimination be filed with the EEOC within 300 days of the alleged discriminatory practice.[13] It is undisputed that Plaintiff's claim was not filed within the 300 day limit. Plaintiff argues: (1) that the limitations period was tolled by express agreement, or in the alternative, (2) that the limitations period should be equitably tolled. Each theory will be discussed in turn.

         A. TOLLING BY EXPRESS AGREEMENT

         “Federal statutes of limitations can often be tolled by agreement.”[14] The Supreme Court has explained that parties are ordinarily “permitted to contract around a default statute of limitations” and can “agree not only to the length of a limitations period but also to its commencement.”[15] The Tenth Circuit has found that when a party promises not to assert a statute of limitations defense in order to continue settlement negotiations, “it is appropriate to hold [the party] to its promise.”[16]

         The Amended Complaint alleges that two attorneys for Defendant “accepted Mr. Morgan's request not to prejudice his client should she delay her filing the matter with the EEOC” in order to facilitate settlement negotiations.[17] While Defendant is correct that some terms of this tolling agreement are unclear, the facts alleged are sufficient at this stage to represent a promise to which Defendant should be held.

         Defendant argues that any oral promise to toll the limitations period is unenforceable. Defendant points out that every case relied on by Plaintiff involved a written agreement. However, Defendant cites no authority requiring an agreement to toll this particular limitations period to be in writing, and Defendant raises no statute of frauds argument. The Court finds that Plaintiff's allegations support a theory of tolling by express agreement that is sufficient to overcome Defendant's Motion to Dismiss.

         B. EQUITABLE TOLLING

         Even if the theory of tolling by express agreement fails, the new allegations in the Amended Complaint justify equitable tolling. ADEA time limits are tolled “only where the circumstances of the case rise to a level of active deception . . . where a plaintiff has been lulled into inaction by her past employer.”[18] Generally, pre-suit efforts to settle a claim are not grounds for equitable tolling.[19] However, courts have applied ...


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