United States District Court, D. Arizona
ORDER
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
Before
the Court is Defendants Scottsdale OP CO LLC, Sante
Scottsdale LLC, Sante Operations LLC, and Rachel
Uffelman's motion to dismiss or, in the alternative, for
summary judgment on Count III of Plaintiff Lee Ann
Fellows' complaint. (Doc. 15.) For the following reasons,
Defendants' motion is denied.
I.
Background
Fellows
was hired by Scottsdale OP CO as a Charge Nurse in February
2017. Two months later, the Director of Nursing resigned.
Fellows applied for the position but then-Assistant Director
of Nursing Uffelman received the promotion instead. Fellows
then applied for the Assistant Director of Nursing position
that became vacant because of Uffelman's promotion, but
she never heard back regarding her application. In Count III
of her complaint, Fellows accuses Defendants of refusing to
promote her to the Director of Nursing or the Assistant
Director of Nursing positions because of her age in violation
of the Age Discrimination in Employment Act.
Defendants
have moved to dismiss or, alternatively, for summary judgment
on Count III for three reasons: (1) Fellows did not include
these failure to promote allegations in her charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”); even if the EEOC charge
included such allegations, the claims are barred because
Fellows did not file her charge of discrimination within 300
days of the alleged failure to promote; and (3) to the extent
Fellows alleges that she was not promoted to the Assistant
Director of Nursing position because of her age, those
allegations fail to state a plausible claim to relief because
the position was not filled for financial reasons and,
therefore, Fellows cannot show that Defendants promoted
someone younger than her to that position.
II.
Legal Standards
A
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is properly granted when, even after accepting the
factual allegations in the complaint as true and construing
them in the light most favorable to the nonmoving party, the
complaint fails to state a facially plausible claim to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); Cousins v. Lockyer, 568 F.3d 1063, 1067
(9th Cir. 2009). If a motion under Rule 12(b)(6) relies on
matters outside the pleadings, the Court must either exclude
those extrinsic matters or convert the motion to a motion for
summary judgment and provide all parties a reasonable
opportunity to present evidence pertinent to the motion.
Fed.R.Civ.P. 12(d). If the nonmovant shows by affidavit or
declaration, however, that it cannot present facts essential
to justify its opposition without further discovery, the
Court has discretion to deny or defer consideration of the
motion to allow for such discovery. Fed.R.Civ.P. 56(d).
III.
Discussion
Fellows
correctly notes that Defendants' motion cannot be treated
as a motion to dismiss because it relies on matters outside
the pleadings-specifically, an affidavit from Kerri
Cummiskey, Senior Vice President of Operations for Sante
Operations LLC, stating that Uffelman was promoted to the
Director of Nursing position effective August 1, 2017, and
the Assistant Director of Nursing position has not been
filled due to financial reasons.[1](Doc. 15-1.) On April 23,
2019, the Court issued an order directing Fellows to clarify
whether she disputes the August 1, 2017 promotion date and,
if so, what evidence she could present to support her
position. (Doc. 31.) In response, Fellows explained that she
currently is without sufficient information to admit or
dispute the promotion date because she has no firsthand
knowledge of the date Uffelman was promoted, and she has not
yet had the opportunity to conduct discovery into that issue.
(Doc. 32.)
Whether
construed as a motion to dismiss or as a motion for summary
judgment, the Court will deny Defendants' motion because
it is premature to make the determinations Defendant asks the
Court to make. Defendants filed their motion months before
the Court even issued a scheduling order in this case. The
parties therefore have not had an opportunity to engage in
meaningful discovery that might shed light on the potentially
dispositive issues raised by Defendants.
For
example, although Fellow's EEOC charge of discrimination
does not discuss discriminatory promotion decisions and, in
fact, identifies the earliest date of discrimination as March
1, 2018, Fellows offers EEOC intake notes that indicate she
complained to the EEOC investigator that she had applied for
the Director of Nursing position but Defendants instead hired
Uffelman, who had less experience. (Doc. 21-1.) Although
Defendants criticize Fellows for citing no authority that
these intake notes may be considered to determine the scope
of a claimant's EEOC charge of discrimination, the notes
at the very least suggest that discovery might reveal more
information about Fellows' complaints to the EEOC beyond
what is reflected in the actual charge form. Defendants also
argue that these notes cannot be considered on summary
judgment because they are not authenticated, but this only
highlights why it is too early to resolve this issue. Fellows
is entitled to an opportunity to conduct discovery and
present whatever evidence she might find that she properly
presented this issue to the EEOC before filing suit in this
Court.
The
Court also declines to accept as true Cummiskey's
statement that Uffelman's promotion was effective August
1, 2017. Fellows has not had the opportunity to conduct
discovery into this issue, and she explains that she has no
firsthand knowledge of the effective date of Uffelman's
promotion. Fellows is entitled to conduct discovery before
she is asked to admit or deny this fact.
Relatedly,
Defendants contend that Fellows cannot state an age
discrimination claim based on her application for the
Assistant Director of Nursing position because the position
has been left unfilled for financial reasons. Defendants
again rely on Cumminskey's affidavit for this
information. The Court declines to conclude as a matter of
law that Fellows cannot state an age discrimination claim
based on her application for an unfilled position. It is
possible, for example, that Defendants have not filled the
position because they are waiting for a younger qualified
applicant to apply. At this early, pre-discovery stage, the
Court declines to accept as true Cummiskey's statement
that the position remains vacant for financial reasons.
Fellows is entitled to conduct discovery into the veracity of
that stated reason.
Of
course, none of this is to say that Count III is timely, or
that Fellows properly raised these allegations in her EEOC
charge of discrimination, or that Defendants' reason for
not filling the Assistant Director of Nursing position is
pretextual. The Court merely finds that it is not appropriate
to resolve these potentially dispositive issues before
Fellows has had the opportunity to conduct discovery.
Accordingly, although the Court denies Defendants'
motion, nothing ...