United States District Court, D. Utah, Central Division
B. Pead Magistrate Judge
December 27, 2017, Plaintiff DonnaLee Larsen (“Ms.
Larsen”) filed a Complaint against Defendant Granger
Medical Clinic (“Granger Medical”) alleging a
violation of the Age Discrimination in Employment Act of 1967
(“ADEA”), as amended (Compl., ECF No. 2.) The
parties consented to the jurisdiction of the Magistrate Judge
pursuant to 28 U.S.C. 636(c) on April 11, 2018. (ECF No. 10.)
Medical moves the court to dismiss Ms. Larsen's Complaint
for failure to state a claim upon which this court can grant
relief. (Mot. to Dismiss (“Motion”), ECF No. 5).
The matter has been fully briefed. The court has carefully
reviewed the moving papers submitted by the parties. Pursuant
to civil rule 7-1(f) of the Rules of Practice for the United
States District Court for the District of Utah, the court
concludes that oral argument is not necessary and will
determine the Motion based upon the briefs. Based upon
careful review of the briefing the court
DENIES the Motion.
the factual allegations in the Complaint as true, Kan.
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th
Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), the following facts are the backdrop
for this decision.
to October 1, 2014, Ms. Larsen had served as a medical
assistant for 36 years, with the majority of those years
spent working for Dr. Colin Kelly. (Compl. at ¶8, ECF.
No. 2.) Ms. Larsen worked hard over her 36-year career to
earn a reputation as a competent, caring, efficient and
dependable employee. (Id. at ¶9.) Her typical
job duties as a medical assistant consisted of weighing and
measuring patients, drawing blood, preparing and
administering shots, and office duties. (Id. at
¶10.) On October 1, 2014, Granger Medical acquired Dr.
Kelly's practice and retained Ms. Larsen as a medical
assistant to work with Dr. Gallagher. (Id. at
¶8.) Ms. Larsen continued to perform her same duties
after her transition to working with Dr. Gallagher.
(Id. at ¶¶10-11.)
Ms. Larsen had been working for Granger Medical for
approximately eight-and-a-half months, Ms. Aspen McPhie, a
medical assistant, came to observe her and other employees
perform their jobs. (Id. at ¶14.) Ms. McPhie
followed Ms. Larsen on June 16, 2015. (Id. at
¶15.) The next day, Ms. McPhie provided a paper titled
“things to remember” (“List”) to Ms.
Larsen. On the List were Ms. Larsen's job duties that,
according to Ms. McPhie, needed to be perform in a different
manner in light of Ms. McPhie's observations from the
previous day. (Id. at ¶16.) Ms. McPhie
witnessed Ms. Larsen allegedly failing to wear gloves, not
closing exam room doors, and licking blood spots off her
thumb. (Id. at ¶16.) Ms. Larsen denies she
engaged in such conduct. (Id. at ¶18.)
17, 2015, Trang Dao, a manager at Granger Medical, had Ms.
Larsen read the List and initial each point to establish that
(1) she understood what needed to change and (2) she was
amenable to performing her job consistent with Granger
Medical's requirements. (Id. at ¶17.)
Again, Ms. Larsen alleges the issues on the List, such as
licking blood spots from her thumb, are simply false.
(Id. at ¶18.) Nevertheless, Ms. Larsen
immediately began to perform her job duties in conformity
with what was identified on the List. (Id.)
Ms. Larsen arrived at work on June 18, 2015, she learned that
her employment was being terminated immediately.
(Id. at ¶¶19-20.) The office manager said
her termination was a “done deal”. (Id.
at ¶21.) Prior to her termination, however, Dr.
Gallagher was contacted to discuss the decision to let Ms.
Larsen go. (Id. at ¶60.)
Ms. Larsen's termination, Granger Medical replaced her
with a succession of younger employees. (Id. at
¶¶25-26.) Ms. Larsen also learned that Dr.
Gallagher told patients that she (Ms. Larsen) was “worn
out”, “older than she looks”, and that
“once people get to a certain age, it is really hard to
work in this kind of environment.” (Id. at
¶¶27-28.) On September 17, 2015, Ms. Larsen filed a
Charge of Discrimination with the Utah Antidiscrimination and
Labor Division of the U.S. Equal Employment Opportunity
Commission. (Id. at ¶4.) This action commenced
on December 26, 2017.
survive a 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.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft at 678.
“[A] plaintiff must offer specific factual allegations
to support each claim.” Kan. Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
“[M]ere labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
suffice; a plaintiff must offer specific factual allegations
to support each claim.” Id. (internal
punctuation omitted). However, when the allegations state a
plausible claim for relief, such claim survives a motion to
dismiss. See Ashcroft, 556 U.S. at 860.
Medical seeks dismissal of Ms. Larsen's ADEA claims for
(1) failure to allege facts that show she was treated less
favorably than others not in a the protected class, and (2)
failure to allege a nexus ...