United States District Court, D. Utah
JOY R. JENSEN, Plaintiff,
UNIVERSITY OF UTAH, a Utah Corporation, Department of Family and Preventive Medicine, Defendant.
MEMORANDUM DECISION AND ORDER
Benson United States District Judge
the court is Defendant's Motion for Partial Dismissal.
(Dkt. No. 6.) In its Motion, Defendant seeks dismissal of
Plaintiff's First Cause of Action for failure to exhaust
administrative remedies, dismissal of the portion of
Plaintiff's Second Cause of Action based on age
discrimination because it is barred by the Eleventh
Amendment, and dismissal of Plaintiff's Third and Fourth
Causes of Action because they are preempted by the Utah
Antidiscrimination Act of 1965 (“UADA”).
(Id.) The Motion has been briefed by both parties,
and the court has considered the facts and arguments set
forth in those filings. Pursuant to civil rule 7-1(f) of the
United States District Court for the District of Utah Rules
of Practice, the Court elects to determine the motion on the
basis of the written memoranda and finds that oral argument
would not be helpful or necessary. DUCivR 7-1(f).
March 19, 2009 to February 28, 2015, Plaintiff was employed
as an Executive Secretary in Defendant's Department of
Family and Preventive Medicine, Division of Utah Physician
Assistant Studies. (First Amended Complaint
(“Compl.”), Dkt. No. 5 at ¶ 15.) On January
26, 2015, Defendant gave Plaintiff a “Memorandum
Notification of Termination” of her employment with
Defendant, to be effective February 28, 2015. (Id.
at ¶ 19.) The Notification provided that “[t]his
action is necessary due to a determination that there is not
enough work to justify your position[.]” (Id.)
28, 2015, Plaintiff filed a discrimination charge with the
Utah AntiDiscrimination & Labor Division (the
“Division”), alleging that she had been
discriminated and retaliated against on the basis of age and
religion in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), the Age Discrimination in
Employment Act (“ADEA”), and the UADA.
(Id. at ¶ 12.) The Division-through the
work-share agreement referenced in U.C.A. §
34A-5-107(1)(d)-transferred the Charge to the Equal
Employment Opportunity Commission (the “EEOC”).
(Id.) Plaintiff received a Right to Sue letter from
the EEOC on September 16, 2016. (Id.) Plaintiff
initiated suit on March 20, 2017. (Dkt. No. 2.)
Memorandum in Opposition to the Motion for Partial Dismissal,
Plaintiff states that she does not oppose Defendant's
arguments for dismissal of her First, Third, and Fourth
Causes of Action-her gender discrimination and contractual
claims. (Dkt. No. 12, p.1, fn.1.) Accordingly,
Plaintiff's First, Third, and Fourth Causes of Action are
respect to Defendant's contention that Plaintiff's
age discrimination claims are barred by the Eleventh
Amendment, Plaintiff argues that “[t]he Division's
transfer of Jensen's claim to the EEOC should operate as
a waiver of immunity and allow Jensen to proceed on her ADEA
claim.” (Dkt. No. 12, p. 4.) Plaintiff argues that,
absent an inferred waiver of sovereign immunity upon the
Division's transfer of a charge to the EEOC, the statute
allowing transfer would violate the Open Courts Clause of the
Utah Constitution with respect to age discrimination claims
made by state employees, because it would deprive them of
their ability to vindicate the rights set forth in the UADA.
UADA prohibits employers from terminating, retaliating, or
otherwise discriminating against their employees on the basis
of race, color, sex, pregnancy, age, religion, national
origin, disability, sexual orientation, or gender identity.
U.C.A. §34A-5-106 (2017). The State of Utah and its
political subdivisions are expressly included within the
UADA's definition of “employer.” U.C.A.
§ 34A-5-102(1)(i)(i)(A). To institute an action under
the UADA, a plaintiff must “file a request for agency
action within 180 days after the alleged discriminatory or
prohibited employment practice occurs.” U.C.A. §
34A-5-107(1)(c). The UADA authorizes the Division to
“transfer a request for agency action filed with the
division.. .to the [EEOC] in accordance with
a work-share agreement....” U.C.A.
§ 34A-5-107(1)(d). The ADEA prohibits employment
discrimination on the basis of age, but does not abrogate
State sovereign immunity. Kimel v. Florida Board of
Regents, 528 U.S. 62, 91 (2000).
the court need not address Plaintiffs Open Courts
constitutional contention, because Plaintiff failed to file
her charge of Discrimination with the Division within 180
days of her adverse employment action. An age discrimination
claim accrues, and the 180-day limitation clock begins to
run, “when the disputed employment practice-the
demotion, transfer, firing, refusal to hire, or the like-is
first announced to the plaintiff.” Almond v.
Unified Sch. Dist. No. 501, 665 F.3d 1174, 1177 (10th
Cir. 2011). Plaintiff received the “Memorandum
Notification of Termination” of her employment with
Defendant on January 26, 2015. (Compl. at ¶ 19.)
Plaintiff filed her Charge of Discrimination 183 days later,
on July 28, 2015. (Id. at ¶ 12.) Thus, although
Plaintiff filed her Charge of Discrimination well within the
300-day statute of limitations for ADEA claims, Plaintiff
failed to file her Charge within the 180-day limitations set
forth in the UADA. Furthermore, Plaintiffs timely age
discrimination claims under the ADEA are barred by the
Eleventh Amendment. Kimel v. Florida Board of
Regents, 528 U.S. 62, 91 (2000). Accordingly,
Defendant's Motion to Dismiss the portion of Plaintiff s
Second Cause of Action alleging age discrimination in
violation of the UADA and the ADEA is hereby GRANTED.
foregoing reasons, Plaintiffs First, Third, and Fourth Causes
of Action, as well as the portion of Plaintiff s Second Cause