Opinion
Case No. 2:02CV322 DAK
February 27, 2003
ORDER
This matter is before the court on the University of Utah's and Defendant Buckmiller's Motions to Dismiss. A hearing on the motions was held on February 10, 2003. At the hearing, Plaintiff was represented by D. Bruce Oliver. Defendant University of Utah (the "University") was represented by Reed M. Stringham III, and Defendant Buckmiller was represented by Morris O. Haggerty. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motion under advisement, the court has further considered the law and facts relating to the motion. Now being fully advised, the court renders the following Order.
The University has moved for dismissal, pursuant to Rule 12(b)(6), of all of Plaintiff's claims.
DISCUSSION
I. THE UNIVERSITY'S MOTION TO DISMISS
A. Plaintiff's Title VII Claims
Plaintiff's First Cause of Action alleges three counts under Title VII of the Civil Rights Act. First, Plaintiff alleges that the University discriminated against him based on his gender. The court finds that there is no allegation of disparate treatment or disparate impact, and Plaintiff has failed to establish a prima facie case of any type of gender discrimination. Further, because Plaintiff's EEOC Charge was filed more than 300 days after his termination, his claim is time-barred. Thus, this claim is dismissed.
Next, Plaintiff alleges a claim of retaliatory discharge. Because Plaintiff did not file his EEOC Charge within 300 days of his termination, this claim is time-barred. Plaintiff did not refute this in his opposition memorandum, but at the hearing his counsel argued that the time limitation should be equitably tolled because Plaintiff did not realize until well after his termination that he was allegedly terminated in retaliation for his then-girlfriend's protected conduct. Even if this court equitably tolled the time in which Plaintiff claims he did not know he might have claims, his retaliation claim is still time-barred. According to Plaintiff's own facts, he filed his EEOC Charge on or about November 5, 2001. It is clear from the documents attached to Plaintiff's opposition memorandum and Plaintiff's statement of the facts that he was aware of what he believed to be unlawful retaliation by the time he filed a grievance with the OEO/AA on or about October 26, 2000. See Addendum E, attached to Pl's Mem. in Opp'n, Addendum G and Chronology of Events, OEO/AA Official Report. Thus, the court finds that Plaintiff's claim of retaliatory discharge is time-barred.
Because Defendants have not argued otherwise, this court has assumed, without deciding, that Plaintiff falls within the protection afforded by Title VII due to his association with someone who engaged in protected activity. See, e.g., Miller v. Bed, Bath Beyond, 185 F. Supp.2d 1253, 1273 (N.D.Ala. 2002) (noting that "courts appear split on the . . . issue of whether a person who has suffered the adverse employment action allegedly based upon a family member's protected activity may bring a Title VII retaliation action."); Gonzalez v. New York State Dep't of Correctional Servs. Fishkill Correctional Facility, 122 F. Supp.2d 335, 347 (N.D.N.Y. 2000). In the instant case, Plaintiff has not alleged that he personally engaged in any protected activity, but rather that his then-girlfriend engaged in protected activity. See Complaint ¶¶ 16, 19.
Third, Plaintiff claims that he was retaliated against for filing a grievance concerning his termination and that the University retaliated against him by interfering with Plaintiff's future employment. Specifically, he claims that the University contacted POST about his termination and then subsequently initiated an investigation concerning Plaintiff's peace officer certification. POST eventually suspended Plaintiff.
Again, because Defendant has not argued otherwise, the court has assumed, without deciding, that filing a grievance based on a termination that was allegedly in retaliation for a third-party's protected conduct, falls within the protection of Title VII.
Defendant argues that it was statutorily required to report Plaintiff's termination to POST and that POST may investigate any report it receives concerning a terminated police officer. Defendant further argues that Plaintiff pleaded guilty to the conduct for which POST suspended him and thus there was no adverse impact on Plaintiff that was related to the University's conduct.
The court declines to dismiss this claim for retaliation regarding future employment. While the University was statutorily required to report Plaintiff's termination to POST, Plaintiff has alleged that the University went beyond its statutory obligation and that the timing of the University's actions was suspicious. Indeed, even the University's investigator from the Office of Equal Opportunity found that "there was cause to determine that Wilson subjected [Plaintiff] to retaliation when he initiated an investigation into Been's certification two months after Been was terminated. It is also clear that Wilson and his staff made every effort to undermine this investigation." See Addendum G to Plaintiff's Mem. in Opp'n. While it is not entirely clear that Plaintiff suffered any adverse employment impact that he would not have suffered but for the University's alleged conduct, the court cannot conclude, as a matter of law, that Plaintiff has failed to state a claim for retaliation regarding future employment. The University, if appropriate, may file a motion for summary judgment on this issue, after discovery.
B. Plaintiff's § 1985(2) Claim
Plaintiff's claim under § 1985(2) is dismissed for a variety of independent reasons. First, the University is not a "person" subject to suit under § 1985(2). In addition, the claim is barred by the 11th Amendment. Plaintiff has also failed to allege that he is a member of a class protected by § 1985(2), and there is no allegation that the University's alleged misconduct occurred in connection with a state court proceeding, as required by § 1985(2). Thus, this claim is dismissed.
II. BUCKMILLER'S MOTION TO DISMISS
A. Plaintiff's Title VII Claims
Plaintiff's Title VII claims against Buckmiller are dismissed because Buckmiller is not an "employer" subject to suit under Title VII. Haynes v. Williams, 88 F.3d 898, 900 (10th Cir. 1996). The first two counts of Plaintiff's Title VII claim are also dismissed because they are time-barred, as explained above.
B. Plaintiff's Claim under § 1985(2)
Plaintiff's § 1985(2) against Buckmiller is dismissed because Plaintiff has failed to allege that he is a member of a class protected under § 1985(2) and because Plaintiff has failed to allege that Buckmiller's conduct occurred in connection with a state court proceeding, as required by § 1985(2).
III. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant University of Utah's Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiff's claims for gender discrimination and retaliatory discharge under Title VII, and his claim for violations of 42 U.S.C. § 1985(2), are DISMISSED with prejudice. Plaintiff's claim against the University for Title VII retaliation pertaining to future employment remains. Defendant Buckmiller's Motion to Dismiss is GRANTED, and the claims asserted against him are DISMISSED. In addition, although Defendant Wilson has not yet filed a motion to dismiss, Plaintiff has failed to state a claim against Wilson, and Plaintiff's claims against Wilson are DISMISSED. Plaintiff's request for sanctions is DENIED.