United States District Court, D. Utah, Northern Division
MEMORANDUM DECISION AND ORDER
Waddoups, United States District Judge.
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.
Tucumcari Transfer, Inc.
(“Tucumcari”) 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
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.
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).
TUCUMCARI'S MOTION TO DISMISS
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).
Title VII Claim
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.
State Law Claims
Intentional Infliction of Emotional Distress
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