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Brough v. O.C. Tanner Co.

United States District Court, D. Utah

January 11, 2019

O.C. TANNER COMPANY, and JOHN DOES 1-5, Defendants.


          Ted Stewart United"States District Judge

         This matter is before the Court on Defendant O.C. Tanner Company's Motion for Summary Judgment. For the reasons set forth below, the Court will grant the Motion.

         I. BACKGROUND

         The relevant undisputed facts are as follows. Defendant O.C. Tanner Company (“Defendant” or “O.C. Tanner”) employed Plaintiff Roxanne Brough (“Plaintiff”) for approximately thirty-seven years beginning in April 1977. Around mid-September 2014, Plaintiff's manager, Mr. Tyson Heaton, informed Plaintiff that her position at O.C. Tanner would soon be terminated. Plaintiff's employment with O.C. Tanner ended in November 2014.

         Believing that she was unlawfully fired because of her age, Plaintiff retained Mr. B. Kent Morgan (“Mr. Morgan”) to act as her attorney. Mr. Morgan initiated a series of meetings and conversations with various representatives of O.C. Tanner in an attempt to settle the dispute. Having failed to reach an agreement, Plaintiff filed a complaint with the EEOC on August 25, 2016. Plaintiff received a Right to Sue letter from the EEOC on September 28, 2016, and filed her Complaint against Defendants O.C. Tanner and Does 1-5 in this Court on November 3, 2016.

         On October 8, 2018, Defendant filed the Motion for Summary Judgment now before the Court. Defendant argues Plaintiff's claims must be dismissed because she failed to timely comply with the filing requirement prescribed by 29 U.S.C. § 626(d)(1)(B). Plaintiff argues that the parties had reached an agreement to toll the statute in a series of meetings that took place between Mr. Morgan and representatives of O.C. Tanner.

         The first of these meetings took place in early January 2015 with Ms. Charlotte Miller (“Ms. Miller”), who was Defendant's senior vice president of People and Great Work. During this first meeting, Ms. Miller proposed a separation agreement, which Plaintiff did not accept. Mr. Morgan stated that he would not file a charge with the appropriate administrative agency in order to allow for further negotiations, to which Ms. Miller responded, “thank you.”

         The second meeting took place in February at Ms. Miller's office. Mr. Morgan, Ms. Miller, and general counsel for O.C. Tanner, Mr. Brian Katz (“Mr. Katz”) were all present. At this meeting, Mr. Morgan repeated “the fact that [he] was not going to seek administrative remedies with UALD or the EEOC pending [their] good-faith negotiations.”[1] Ms. Miller responded, “That's good of you, ” and Mr. Katz responded, “Well, you - - you do what you have to do. I understand and appreciate that.”[2]

         On March 26, 2015, Mr. Morgan sent an email to Ms. Miller outlining the costs Plaintiff allegedly incurred as a result of her termination from O.C. Tanner, which totaled $434, 670. Ms. Miller called Mr. Morgan sometime after receiving the list and asked Mr. Morgan to make an offer of settlement. Mr. Morgan stated that they would accept $50, 000 in settlement. Ms. Miller told Mr. Morgan that she would get back to him with an answer.

         In April 2015, Ms. Miller called Mr. Morgan to inform him that O.C. Tanner would not pay Plaintiff $50, 000 to settle the matter and indicated that “this [was] going to conclude negotiation efforts.”[3] Mr. Morgan called Ms. Miller back later that same month and asked if O.C. Tanner would consider a $40, 000 settlement. Ms. Miller again said she would convey the offer to the decision makers. She also informed Mr. Morgan that she would soon be leaving her employment with O.C. Tanner and that Mr. Katz would take over the negotiations.

         In October 2015, Mr. Katz and Mr. Morgan spoke regarding the case. Mr. Katz offered $30, 000 to settle the matter with Plaintiff and stated he would put the offer in writing. Mr. Morgan agreed to discuss the offer with Plaintiff and again informed Mr. Katz that he was not filing any administrative complaints pending the negotiations. Mr. Katz confirmed that he was aware and had discussed it with Ms. Miller. Mr. Morgan then conveyed that he was willing to file with an administrative agency because the 300-day deadline was approaching. Mr. Katz responded, “No, let me do this letter.”[4]

         Mr. Morgan received the written offer on December 31, 2015, which set the deadline for acceptance to January 18, 2016. Plaintiff did not accept the offer and negotiations ceased.

         Mr. Morgan testified that during these conversations, the various representatives of O.C. Tanner never expressly agreed to toll the 300-day statute of limitations. Instead, Mr. Morgan stated that the agreement was implied by the above-described conversations.


         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[5] The materiality requirement dictates that “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”[6]

         “At the summary judgment stage, a complainant cannot rest on mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.”[7] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[8] “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”[9]


         A Plaintiff bringing a charge of discrimination under the Age Discrimination in Employment Act (“ADEA”) must file the charge with the EEOC within 300 days of the alleged discriminatory act.[10] It is not disputed that Plaintiff failed to meet this deadline. “When a plaintiff fails to meet that deadline, [s]he may bring suit only if the requirement is waived or tolled.”[11]

         Here, Plaintiff argues that the deadline was tolled by agreement. As the party asserting that the deadline should be tolled, Plaintiff bears “the burden of establishing a factual basis for tolling the statute.”[12] Plaintiff also argues ...

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