King v. Xpo Logistics, Inc.

NIKKI SALAZAR KING, Plaintiff, v. XPO LOGISTICS, INC.; CASEY MCKELL,in his capacity as employee/management for XPO and also as an individual;LARIANNE JENSEN, in her capacity as employee/management forXPO and also as an individual, Defendants.

Case No. 2:16-CV-434-DN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

January 18, 2017

MEMORANDUM DECISION AND ORDER ON DEFENDANTS' [17] MOTION TO DISMISS AND PLAINTIFF'S [19] MOTION TO AMEND COMPLAINT

District Judge David Nuffer

This case involves an employee's claims against her former employer and supervisors for sexual harassment, discrimination based on gender and religion, retaliation, wrongful termination, assault and battery, and unpaid wages.¹ Defendants XPO Logistics, Inc. ("XPO") and Larianne Jensen ("Jensen") seek dismissal of Plaintiff Nikki Salazar King's ("King") Title VII sexual harassment and discrimination claims against Jensen, as well as King's common law wrongful termination and accounting claims against XPO. They allege she fails to state a claim upon which relief may be granted.² King opposed the Motion to Dismiss and moved to amend her complaint in an attempt to rectify the pleading deficiencies argued by XPO and Jensen.³ Defendant Casey McKell, though served, takes no part in these motions.

Because Tenth Circuit precedent precludes individual liability for supervisors on Title VII claims; because King's common law claim for wrongful termination is preempted by the Utah Antidiscrimination Act ("UADA"); and because King has failed to allege a cognizable claim for accounting; XPO and Jensen's Motion to Dismiss⁴ is GRANTED. King's Motion to Amend Complaint⁵ is GRANTED IN PART with direction that King file an amended complaint that is consistent with the analysis and conclusions of this Memorandum Decision and Order.

Table of Contents

DISCUSSION ................................................................................................................................. 3

XPO and Jensen's Motion to Dismiss ...................................................................................... 3

Tenth Circuit precedent precludes individual liability for supervisors on Title VII claims 3

King's common law claim for wrongful termination is preempted by the UADA ............ 4

King has failed to allege a cognizable claim for accounting .............................................. 6

King's Motion to Amend Complaint ........................................................................................ 9

King's request for leave to amend her Complaint to remove her claims against Jensen individually is moot .................................................................................................... 11

Leave is granted for King to amend her Complaint to assert a common law wrongful termination claim against XPO relating to her efforts to require XPO to abide by Utah labor laws ........................................................................................................... 11

Leave is granted for King to amend her Complaint to assert a claim for breach of employment contract and breach of good faith and fair dealing against XPO ........... 14

King is granted leave to amend her Complaint regarding her claims against Casey McKell ........................................................................................................................ 17

ORDER ......................................................................................................................................... 19

DISCUSSION

XPO and Jensen's Motion to Dismiss

A defendant is entitled to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure when the complaint, standing alone, is legally insufficient to state a claim for which relief may be granted.⁶ When considering a motion to dismiss for failure to state a claim, the thrust of all well-pleaded facts in the complaint is presumed, but conclusory allegations need not be considered.⁷ A court is not bound to accept the complaint's legal conclusions and opinions, whether or not they are couched as facts.⁸

Tenth Circuit precedent precludes individual liability for supervisors on Title VII claims

XPO and Jensen seek dismissal of King's first cause of action for sexual harassment and fifth cause of action for sexual discrimination based on gender against Jensen.⁹ King's claims allege that Jensen violated Title VII by committing impermissible gender discrimination, engaging in sexual harassment and creating a hostile and abusive work environment, and retaliating against King for reporting her concerns and allegations to XPO managers and the United States Equal Opportunity Commission ("EEOC").¹⁰ XPO and Jensen argue that King's claims fail as a matter of law because Tenth Circuit precedent precludes individual liability for supervisors on Title VII claims.¹¹ King acknowledges this precedent and has agreed to dismissher claims against Jensen, but requests that the dismissal be without prejudice on the chance that a change in controlling law may occur during the pendency of the case.¹²

"Under long-standing [Tenth C]ircuit precedent, supervisors and other employees may not be held personally liable under Title VII."¹³ This is "the majority view that, taken as a whole, the language and structure of ... Title VII ... reflect[s] the legislative judgment that statutory liability is appropriately borne by employers, not individual supervisors."¹⁴ Title VII has "broad remedial purposes and should be interpreted liberally, but that cannot trump the narrow, focused conclusion [courts must] draw from the structure and logic of the statute[.]"¹⁵ Therefore, "personal capacity suits against individual supervisors are inappropriate under Title VII."¹⁶

Bound by Tenth Circuit precedent, King's Title VII claims against Jensen fail to state a claim as a matter of law. King's speculation that a change in controlling law may occur during the pendency of this case is not a sufficient legal basis to dismiss the claims without prejudice. Therefore, King's first cause of action for sexual harassment and fifth cause of action for sexual discrimination based on gender against Jensen¹⁷ is dismissed with prejudice .

King's common law claim for wrongful termination is preempted by the UADA

XPO and Jensen seek the dismissal of King's eighth cause of action for wrongful termination against XPO because the claim is preempted by the UADA.¹⁸ King's claim alleges that XPO impermissibly terminated her employment in retaliation for her reportingdiscrimination and harassment based on gender and religion to the EEOC and to designated officials of the State of Utah.¹⁹ King has agreed to dismiss and modify the claim to remove reference to preempted discriminatory acts.²⁰ However, King argues that XPO also engaged in wrongful termination by firing her in retaliation for her efforts to require XPO to abide by labor laws relating to her salary and employment documentation and accounting information. She maintains this claim is not preempted by the UADA.²¹

The UADA provides that its procedures:

are the exclusive remedy under state law for employment discrimination based upon: (a) race; (b) color; (c) sex; (d) retaliation; (e) pregnancy, childbirth, or pregnancy-related conditions; (f) age; (g) religion; (h) national origin; (i) disability; (j) sexual orientation; or (k) gender identity.²²

The Utah Supreme Court has held that "the plain language of [the UADA] reveals an explicit legislative intention to preempt all common law remedies for employment discrimination."²³ Thus, the UADA's "'exclusivity provision' unambiguously indicates that the UADA preempts 'common law causes of action' for employment discrimination based on the 'specific grounds' it lists."²⁴ The Utah Supreme Court further held that "[e]ven if the UADA lacked an explicit statement of preemptive intent, [the] holding that it preempts common law remedies for employment discrimination would not change because a clear preemptive intent can be implied from the statute's structure and purpose."²⁵

While King attempts to avoid preemption by arguing that XPO terminated her employment in retaliation for her efforts to require XPO to abide by labor laws relating to her salary and employment documentation and accounting information,²⁶ King's Complaint contains no factual allegations to support this type of retaliatory firing.²⁷ Rather, the Complaint alleges only harassment, discrimination, and retaliatory firing on the basis of gender and religion.²⁸ The alleged wrongful termination on these bases falls precisely in the scope of common law claims that are expressly preempted by the UADA.²⁹ Therefore, King's eighth cause of action for wrongful termination against XPO³⁰ fails to state a claim as a matter of law. However, based on King's argument and assertions that an unpleaded factual basis exists which could support a common law claim for wrongful termination that is not preempted by the UADA,³¹ the dismissal of her claim³² is without prejudice.

King has failed to allege a cognizable claim for accounting

XPO and Jensen also seek the dismissal of King's ninth cause of action for accounting against XPO because accounting is a remedy, not a separate cause of action.³³ King opposes the Motion to Dismiss arguing that an accounting is not always a form of relief that is dependent onan underlying claim.³⁴ Nevertheless, King concedes that her accounting claim may be restyled as a claim for breach of employment contract and breach of good faith and fair dealing against XPO with an accounting and declaratory relief as related remedies.³⁵

In Utah, "'[a]n action for an accounting may be legal or equitable[] depending upon the facts set out in the pleadings.'"³⁶ "An action 'to recover on an account where items and balances either have been determined or are readily determined is an action at law which sounds in contract[.]'"³⁷ But accounting is not an independent legal cause of action when it is...