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Keller v. McDonald's Corp.

United States District Court, D. Utah, Northern Division

September 11, 2018

MARJORIE KELLER, an individual, Plaintiff,
v.
MCDONALD'S CORPORATION; TUCUMCARI TRANSFER, INC.; and BOB DERRING, an individual, Defendants.

          MEMORANDUM DECISION AND ORDER

          Clark Waddoups, United States District Judge.

         INTRODUCTION

         Ms. Keller asserts that during her employment at a McDonald's she immediately reported that a male employee fondled her breast while she was assigned to clean the men's restroom. Approximately six week later, Ms. Keller again was assigned to work in the bathroom when the same employee allegedly forced his way into the restroom, exposed himself to her, and used the urinal. Upon reporting his conduct to management a second time, Ms. Keller asserts she was retaliated against by reduced work hours, shift-changes without notification, ostracization, threats to drops her complaints, physical pushing and so forth. Ms. Keller also asserts that the employee who harassed her also harassed other female employees, with management's knowledge, and made threats against her in the parking lot.

         Defendant Tucumcari Transfer, Inc. (“Tucumcari”)[1] has filed a Motion to Dismiss (ECF No. 7) and Ms. Keller has filed a Motion to Remand (ECF No. 9). For the reasons stated below, the court grants in part Tucumcari's Motion to Dismiss and grants the Motion to Remand.

         ANALYSIS

         I. MCDONALD'S CORPORATION

         Before addressing Tucumcari's Motion to Dismiss and the Motion to Remand, the court addresses a Motion to Dismiss filed by McDonald's Corporation. After McDonald's filed its motion, Ms. Keller filed a Stipulated Dismissal of McDonald's Corporation Without Prejudice (ECF No. 15).[2] Because McDonald's has neither answered, nor filed a motion for summary judgment, the voluntary dismissal is self-executing under Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. McDonald's is therefore dismissed from the case without prejudice. Accordingly, the court denies as moot its Motion to Dismiss (ECF No. 8).

         II. TUCUMCARI'S MOTION TO DISMISS

         Tucumcari moves to dismiss with prejudice all claims asserted in the Complaint. Ms. Keller has asserted the following claims: (1) Intentional Infliction of Emotion Distress, (2) Unlawful Employment Practices in Violation of Title VII, (3) Vicarious Liability/Respondeat Superior, and (4) Vicarious Liability/Respondeat Superior in Violation of Utah Code Ann. § 76-5b-204(2) to (4).

         A. Title VII Claim

         Ms. Keller was issued a “right to sue” letter on September 28, 2017. The letter informed Ms. Keller that she had to file a complaint within 90 days after receipt of the letter. Right to Sue Letter (ECF No. 7-1); see also 42 U.S.C. § 2000e-5(f)(1). Ms. Keller, however, did not file her Complaint until May 21, 2018. Thus, Tucumcari moves to dismiss the Title VII claim as untimely. Ms. Keller has not filed an opposition or provided any contrary information to show her claim was filed timely. The court therefore dismisses Ms. Keller's Title VII claim with prejudice.

         B. State Law Claims

         i. Intentional Infliction of Emotional Distress

         Tucumcari asserts Ms. Keller's intentional infliction of emotional distress claim must be dismissed because it has been preempted by the Utah Antidiscrimination Act (“UADA”). Tucumcari cites to Gottling v. P.R., Inc., 61 P.3d 989 (Utah 2002) for that proposition. In Gottling, the Court distinguished other cases from the one before it on the ground that they “were not employment discrimination actions, but those for intentional and negligent infliction of emotional distress, assault and battery, ” and so forth. Id. at 996 (citations omitted) (emphasis added). The Court further noted “[i]n this case, the legislature has not taken away an existing right” when it passed the UADA, “but has simply indicated its intent to preempt the creation of a new one.” Id. at 997. It therefore remains unresolved after Gottling whether the intentional infliction of emotional distress claim is preempted by the UADA, especially ...


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