United States District Court, D. Utah, Northern Division
ORDER AND MEMORANDUM DECISION
Campbell, U.S. District Court Judge.
Utah Attorney General and the State of Utah have moved to
dismiss the complaint of pro se Plaintiff Edith Barker, who
is a former employee of the State of Utah. Ms. Barker asserts
a claim under 42 U.S.C. § 1983 for violation of her
civil rights and a claim of employer retaliation in violation
of Title VII of the Civil Rights Act. Defendants seek
dismissal because § 1983 does not extend to states. They
also assert that Ms. Barker's Title VII claim is
Barker, in response to the Defendants' motion, conceded
that the State of Utah and the Utah Attorney General in his
official capacity are not subject to suit under § 1983.
Accordingly, she proposed to amend her complaint to remove
them as a parties. She attached a copy of that proposed
amended complaint to her opposition brief. In that proposed
amendment she lists a new set of individual defendants. But
she did not file a motion to amend, which is the proper
procedure for getting permission to file a new complaint.
the May 8, 2019 hearing, the parties agreed that the §
1983 claim against the State of Utah and the Utah Attorney
General in his official capacity should be dismissed. They
discussed the Title VII claim. And they notified the court
that Ms. Barker has filed two related cases in this
district. The Defendants have not moved for
consolidation but are considering doing so. Ms. Barker said
she would not object to consolidation. A motion to
consolidate should be filed before the judge assigned to the
lowest case number (in this case, 1:18cv60) who would receive
all of the consolidated cases if the motion is granted.
Although this court recommends consolidation, that decision
lies with the other judge.
meantime, the court must rule on the motion to dismiss.
reasons set forth in the Defendants' motion and given Ms.
Barker's concession, the court dismisses the § 1983
claim against the State of Utah and the Utah Attorney
VII Claim for Retaliation
person bringing a Title VII claim must demonstrate that she
has filed her claim with the EEOC or appropriate state agency
within the applicable time frame. Defendants contend that Ms.
Barker's Title VII claim is time-barred because she did
not file her claim within 300 days (the statutorily imposed
time limit) of the date she was notified she would be fired
as part of a reduction-in-force decision - i.e., April 22,
2015. That date, say the Defendants, is the date from which
the 300 days should be measured. Ms. Barker contends that the
date she stopped working as a result of her employer's
decision-i.e., May 20, 2015-is the date from which the 300
days should be measured. But the trigger date is the day she
first learned of the decision to fire her, not the day she
actually left the job. Ledbetter v. Goodyear Tire &
Rubber Co., Inc., 550 U.S. 618, 628 (2007) (time
limitation period begins when the “decision was made
and communicated” to the claimant); see also Hulsey
v. Kmart, Inc., 43 F.3d 555 (10th Cir. 1994) (“A
cause of action accrues under the [analogous statute ADEA] on
the date the employee is notified of an adverse employment
decision. Generally, an employee is notified of an adverse
employment action when a particular event or decision is
announced by an employer.”); Davidson v. AOL,
Inc., 337 F.3d 1179, 1187 (10th Cir. 2003) (citing
Hulsey in ADA case).
Ms. Barker was notified of her termination on April 22, 2015,
she was required to file her claim with the agency no later
than February 16, 2016. From the papers before the court, it
is not clear when Ms. Barker filed her claim. The parties
point to three different dates to measure whether Ms. Barker
filed a timely claim with the agency.
first date is her official EEOC Charge of Discrimination,
attached to her complaint. It is dated June 10, 2016, clearly
outside the 300-day limitation period.
second is a February 19, 2016 email response from the EEOC
confirming “receipt of the documentation” she
submitted to the office. That date was noted for the first
time in Ms. Barker's opposition to the Motion to Dismiss,
to which she attached a proposed Amended Complaint. The email
is not the claim itself, and it does not identify the date
the information was received by the agency. But if it is the
claim, it misses the 300-day deadline by three days.
third date is presented in Ms. Barker's opposition to the
Motion to Dismiss, in which she says she filed her claim with
the agency “on or about February 12, 2016.” (ECF
No. 18.) That date is four days before expiration of the time
face of the complaint, Ms. Barker's Title VII claim is
time-barred. But she proposes an amendment that potentially
remedies the time-limitation problem (the “on or about
February 12” language). The problem is that she does
not attach of a copy of the EEOC claim and does not
affirmatively allege a specific date that falls before
February 16, 2016. In other words, with only four days of
wiggle room, her ambiguous “on or about” language
is not ...