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Zemaitiene v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints

United States District Court, D. Utah, Central Division

March 27, 2018

KRISTINA ZEMAITIENE, Plaintiff,
v.
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah Corporation, d/b/a DESERET INDUSTRIES; and MELANIE PERRY, an individual, Defendants.

          MEMORANDUM DECISION AND ORDER ON DEFENDANTS' OBJECTION TO REPORT AND RECOMMENDATION

          ROBERT J. SHELBY UNITED STATES DISTRICT JUDGE

         Plaintiff Kristina Zemaitiene sued her former employer for claimed violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990. Zemaitiene also sued her former supervisor for intentional infliction of emotional distress. Defendants Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints, d/b/a Deseret Industries, and Melanie Perry moved to dismiss some of Zemaitiene's claims.[1]

         The case was referred to Magistrate Judge Evelyn J. Furse pursuant to 28 U.S.C. § 636(b)(1)(B).[2] After considering Defendants' Motion to Dismiss, Judge Furse issued a Report and Recommendation, [3] recommending the court: (1) dismiss Zemaitiene's failure to accommodate disability claim, with leave to plead additional facts concerning exhaustion of administrative remedies; (2) dismiss Zemaitiene's harassment claim; and (3) deny Defendants' Motion to Dismiss as to Zemaitiene's intentional infliction of emotional distress claim.[4]Defendants timely objected to the third recommendation.[5] Zemaitiene did not object to any part of the Report and Recommendation.

         The court reviews the portion of the Report and Recommendation to which Defendants object under a de novo standard.[6] The court applies a “clearly erroneous” standard to portions with no objection and will adopt Judge Furse's recommendation unless, after reviewing all the evidence, it is left “with the definite and firm conviction that a mistake has been committed.”[7]

         DISCUSSION

          I. Failure to Accommodate Claim

         Zemaitiene alleges Deseret Industries violated the ADA by denying her reasonable accommodation for her disability. Deseret Industries argues Zemaitiene failed to exhaust administrative remedies for this claim. Judge Furse agreed, recommending the claim be dismissed, but with leave to amend the Complaint.

         To bring suit under either the ADA or Title VII, a plaintiff must first exhaust her administrative remedies.[8] To meet the exhaustion requirement, a claimant must file an administrative charge with the EEOC and receive a right to sue letter.[9] While “precise pleading” is not required to establish exhaustion, [10] the claims asserted in a subsequent lawsuit must fall within the scope of the earlier allegations made in the EEOC charge.[11] A claimant's failure to mark a box in the administrative charge corresponding to the alleged type of discrimination asserted in a later lawsuit creates a presumption that she did not intend to file a charge relating to that claim.[12] The presumption is rebutted where a “reasonable reader” would understand the text of the charge to allege the type of claim in question, or where the claimant supplements her charge to identify, at minimum, “the type of discrimination complained of, the alleged harasser, and an approximate time period.”[13]

         Here, Zemaitiene filed four charges of discrimination with the EEOC. However, she did not mark the box labeled “disability” in any of the four charges, creating a presumption that she did not commence the administrative process for a disability discrimination claim. Neither can the text of the charges be fairly construed to include a failure to accommodate claim.[14]Zemaitiene maintains that she supplemented her charges to identify a disability discrimination claim, citing as support her Response to Deseret Industries' Position Statement (Response Statement) submitted during the EEOC investigation. In the Response Statement, Zemaitiene wrote that she alleged disability discrimination on her initial questionnaire with the Utah Anti-Discrimination and Labor Division (UALD), and that she “filled out an additional disability questionnaire . . . to substantiate [the] claim.”[15] As neither the Response Statement nor the questionnaires are referred to in the Complaint, they cannot be considered on the Motion to Dismiss. However, if those documents were incorporated into her Complaint, Zemaitiene might be able to show exhaustion of this claim.[16]

         Based on the record before the court, Judge Furse recommended dismissal of Zemaitiene's failure to accommodate claim with leave to amend the Complaint. Because this analysis is not clearly erroneous, the court adopts the recommendation.

         II. Harassment Claim

         Zemaitiene alleges that ongoing harassment by her supervisor, Melanie Perry, created a hostile work environment. Judge Furse recommended the court dismiss this claim for failure to exhaust administrative remedies, or alternatively for failure to state a claim for which relief can be granted.

         To constitute exhaustion of a hostile work environment claim, an administrative charge must “allege facts indicating a workplace ‘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.'”[17]

         None of Zemaitiene's four administrative charges contain allegations of harassment by Perry sufficiently severe to create an abusive or hostile work environment. In fact, Perry is mentioned only once in the charge descriptions, as the job coach who allegedly transferred Zemaitiene in retaliation for her complaints of harassment by coworkers.[18] Zemaitiene argues that the Response Statement supplemented her charges so as to exhaust this claim. However, as noted above, the Response Statement cannot be considered on the Motion to Dismiss because it is not referenced in the Complaint. Further, the Response Statement does not describe any harassing conduct by Perry beyond the allegedly retaliatory job transfer.

         Judge Furse concluded Zemaitiene's harassment claim should be dismissed for failure to exhaust administrative remedies.[19] Because it is not clearly erroneous, the court adopts this recommendation.

         III. Intentional Infliction of Emotional Distress Claim

         Zemaitiene also asserts a claim against Perry for intentional infliction of emotional distress. Judge Furse recommended the court deny Defendants' Motion to Dismiss this claim, finding Zemaitiene pled a plausible claim. Because Defendants timely objected to this recommendation, it is reviewed de novo.

         To bring an intentional infliction of emotional distress claim, a plaintiff must prove:

(i) the defendant's conduct complained of was outrageous and intolerable in that it offended generally accepted standards of decency and morality; (ii) the defendant intended to cause, or acted in reckless disregard of the likelihood of causing, emotional distress; (iii) the plaintiff suffered severe emotional distress; and (iv) the defendant's conduct proximately caused the emotional distress.[20]

         “If the trial court determines that a defendant's conduct was not outrageous as a matter of law, then the plaintiff's claim fails, and a court may properly grant the defendant summary judgment .. . .”[21] To support a plausible intentional infliction of emotional distress claim, the alleged conduct must “evoke[] outrage or revulsion; it must be more than unreasonable, unkind, or unfair.”[22] “[M]ere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” are not enough;[23] the conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized society.”[24] Although conduct showing “an ongoing pattern of intimidation and harassment” can be outrageous as ...


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