O'Bryan v. US Bank National Association

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JENNIE O’BRYAN, )

)

Plaintiff, )

)

v. ) Case No. 3:20-cv-00153

) Judge Aleta A. Trauger

US BANK NATIONAL ASSOCATION, )

)

Defendant. )

MEMORANDUM

Plaintiff Jennie O’Bryan brings suit against her former employer, US Bank National

Association (“US Bank”), asserting claims of discrimination and retaliation on the basis of age and

sex, in violation of the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C.

§ 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §

2000e et seq. Now before the court is US Bank’s Partial Motion to Dismiss and Motion to Strike

(Doc. No. 13), seeking dismissal of the plaintiff’s claims under Title VII for failure to exhaust and

dismissal of her retaliation claim under the ADEA for failure to state a claim for which relief may

be granted and seeking to strike the claims for compensatory and punitive damages, as these forms

of relief are not available under the ADEA.

For the reasons set forth herein the motion will be granted in part but, for the larger part,

denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff’s Complaint (Doc. No. 1), was filed on February 21, 2020. Very generally,

O’Bryan alleges that she began working for US Bank as a bank teller in 1984 upon graduation

from high school. Over the next thirty-plus years, she was consistently promoted, with her salary,

benefits, and incentives increasing commensurately with her increased responsibilities, and she

always excelled at each role she occupied. In thirty-four years, she was never subject to a

disciplinary action.

In 2014, she was promoted to the position of Regional Manager/Vice President (“RM/VP”)

in US Bank’s Wealth Management Group, where she was responsible for managing metropolitan

markets across five states, including Ohio, Kentucky, Tennessee, Kansas, and Missouri. The

plaintiff, together with two other RM/VPs, Mike Martin and Gina Taylor, supervised fourteen

three-person teams consisting of Wealth Management Bankers, Advisors, and Associates. The

plaintiff supervised the bankers, while Martin and Taylor, respectively, supervised the advisors

and associates, but all three teams and supervisors were meant to work collaboratively.

As RM/VP for banking, O’Bryan worked directly with Martin, co-managing their teams.

During this time, Martin was “overtly hostile and aggressive toward Plaintiff, trying to work

around the direction they were both given and excluding her from meetings with the team.” (Doc.

No. 1 ¶ 31.) Martin gave directions to the plaintiff’s team members without her knowledge and

made disparaging comments to her. O’Bryan alleges that Martin “did not treat male employees the

same way.” (Id. ¶ 34.)

O’Bryan filed a complaint with Human Resources that Martin was “treating her differently

due to the fact that she was a woman.” (Id. ¶ 35.) When the plaintiff followed up with Martin’s

boss, Martin’s boss scheduled weekly telephone calls with the two of them for a few weeks, but

Human Resources never responded to the plaintiff’s complaint or conducted an investigation.

In April 2017, US Bank announced that it had created the position of Associate Division

Manager (“ADM”) for the Midwest and had already filled that position with Faith Tupman, a

younger person with much less experience in the relevant areas than the plaintiff. The plaintiff was

not advised that this position was being created or given the opportunity to interview for it. At the

same time, Martin was promoted to ADM as well and was thus Tupman’s partner and a level above

the plaintiff. Martin, too, is younger than O’Bryan.

Among other duties, Tupman became the plaintiff’s supervisor. Tupman immediately

transferred a large part of the plaintiff’s team to herself, significantly impacting the plaintiff’s

earning capacity and income. No other RM/VP’s territory was reduced or reassigned.

During her supervision of the plaintiff, Tupman frequently made comments regarding

O’Bryan’s age, referring to her as an “old regional manager,” insinuating or stating outright that

younger employees were more competent, and telling O’Bryan that she should “get with the

younger employees and learn new things.” (Doc. No. 1 ¶¶ 50, 51.) On one occasion she instructed

a younger employee to see if he could “teach the old dog new tricks.” (Id. ¶ 52.)

Tupman repeatedly postponed the plaintiff’s 2017 end-of-year evaluation and 2018 mid-

year evaluation. When O’Bryan requested that she perform them, Tupman initially told her it was

“too much trouble” and, when she finally did do a belated 2018 mid-year review, the information

contained in it was inaccurate, “setting Plaintiff up for negative performance markers at years-end,

which would further affect Plaintiff’s income.” (Id. ¶ 55.) O’Bryan brought the inaccurate numbers

to Tupman’s attention, at which “Tupman angrily and forcefully ripped the papers from Plaintiff’s

hand, stating that she would have her administrative assistant correct” the review, but she never

did. (Id. ¶ 56.)

The next paragraph of the Complaint states: “Plaintiff complained that she was being

treated differently than the younger employees.” (Id. ¶ 57.) After that, Tupman “continued to praise

younger employees and questioned Plaintiff’s ability to perform her job, while at the same time

standing Plaintiff up for meetings and ignoring her requests and business needs.” (Id. ¶ 58.)

Tupman accused O’Bryan of being unethical and told her she would institute an

investigation. Tupman subsequently admitted that there would be no such investigation. In mid-

October 2018, O’Bryan was accused by a younger employee, one of Martin’s supervisees, of

“making a profane statement” to that individual. (Id. ¶ 60.) Human Resources pressured O’Bryan

into admitting she had made the alleged statement even though the accusation was false. Tupman

told O’Bryan that she would investigate the situation, but O’Bryan was never contacted about any

investigation. Instead, she was wrongfully terminated on November 8, 2018.

The plaintiff alleges that Tupman and Martin, who worked collaboratively on all issues

affecting their respective teams, were both involved in the termination decision. The plaintiff

alleges that the reasons given for her termination were pretextual. Following her termination,

Tupman gave to younger employees the territory she had taken away from the plaintiff.

The plaintiff specifically alleges that she was discriminated against with regard to

compensation and the terms of her employment because of her age and gender and that she was

wrongfully discharged because of her age and gender, in violation of the ADEA and Title VII. She

also asserts that she engaged in protected activity for “opposing Defendant’s discriminatory

conduct” under both the ADEA and Title VII, that such protected activity was known to the

defendant, and that she was retaliated against because of engaging in protected activity when her

employment was terminated. She seeks various forms of relief, including back pay, reinstatement

or front pay, and compensatory and punitive damages. (Doc. No. 1, at 11.)

Attached to the Complaint as an exhibit is an EEOC Notice of Right to Sue dated January

7, 2020. (Doc. No. 1-2.) The EEOC referenced EEOC Charge no. 494-2019-00626 and an ADEA

claim only.

US Bank attached to its Memorandum of Law in support of its partial dismissal motion

(Doc. No. 14) a copy of the plaintiff’s EEOC Charge No. 494-2019-00626, dated December 17,

2018, on which the plaintiff checked the boxes for discrimination based on age and retaliation and

alleged facts supporting discrimination based on age and retaliation for engaging in activity

protected by the ADEA (Doc. No. 14-1). Based on this charge, US Bank argues that the plaintiff’s

Title VII discrimination and retaliation claims must be dismissed for failure to exhaust, as the

plaintiff’s December 17, 2018 EEOC charge alleges claims under the ADEA only, and the box for

Title VII violations is not checked. In addition, referencing the Notice of Right to Sue attached to

the Complaint, US Bank argues that the Title VII claim is subject to dismissal because the plaintiff

did not obtain notice of a right to sue from the EEOC regarding any Title VII claims. Otherwise,

the defendant also argues that any claims under Title VII or the ADEA based on events that took

place prior to February 20, 2018—or 300 days prior to December 17, 2018—are time-barred and

that the ADEA retaliation claim is subject to dismissal under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, because the plaintiff does not adequately allege that she engaged in protected

activity or that the defendant had notice that she had engaged in protected activity. Finally, the

defendant moves to strike the claims for compensatory and punitive damages under Rule 12(f),

since these forms of relief are not available under the ADEA.

In her Memorandum in Opposition (Doc. No. 21),1 the plaintiff states that she filed a timely

Amended Charge of Discrimination on May 16, 2019 (“Amended Charge”) that asserts claims of

1 The plaintiff actually filed, as two separate documents, a single-page (not counting the

signature and certificate of service) Response of Plaintiff Jennie O’Bryan in Opposition to

Defendant US Bank National Association’s Partial Motion to Dismiss and Motion to Strike (Doc.

No. 20) and Memorandum of Law in Opposition to Defendant US Bank National Association’s

Partial Motion to Dismiss and Motion to Strike (Doc. No. 21). Although the court’s Local Rules

require that every motion requiring resolution of an issue of law “be accompanied by a separately

filed memorandum of law,” L.R. 7.01(a)(2), this requirement does not pertain to responses. See

discrimination and retaliation under both Title VII and the ADEA. Upon the filing of the

defendant’s motion, plaintiff’s counsel inquired of the EEOC regarding the handling of the

Amended Charge and learned that, due to an agency mistake, the Amended Charge had never been

served upon the defendant. The agency also confirmed that it issued an incorrect Notice of Right

to Sue on January 7, 2020. Following communication with plaintiff’s counsel, the EEOC served

the Amended Charge on the defendant, revoked the January 7, 2020 Notice of Right to Sue, and

issued a new one effective May 28, 2020 that references both ADEA and Title VII claims. (See

Doc. Nos. 21-2, 21-3.) Based on the Amended Charge and the superseding Notice of Right to Sue,

the plaintiff asserts that her Title VII claims were properly exhausted and that the reissued Notice

of Right to Sue cured any defect caused by the agency’s failure to issue the proper Notice the first

time around. She also asserts that her claims for compensatory and punitive damages should not

be stricken, since these forms of damages are available under Title VII.

Regarding the defendant’s assertion that her claims under Title VII and the ADEA are time-

barred, O’Bryan clarifies that her discrimination claims are based upon her wrongful termination

after thirty-four years of employment. She also asserts that the Complaint adequately pleads

retaliation in violation of the ADEA.

In its Reply (Doc. No. 22), the defendant, somewhat confusingly, reframes its failure to

exhaust and timeliness arguments as they relate to the Title VII claims. It argues that, to the extent

the plaintiff’s Title VII claims are based on conduct that took place more than 300 days before the

filing of the Amended Charge, or before July 20, 2018, such claims are untimely and have not

been exhausted. In addition, still framing the issue as one of exhaustion, US Bank argues that the

L.R. 7.01(a)(3) (“[A]ny party opposing a motion must serve and file a memorandum of law in

response . . . .”).

Amended Charge does not allege facts in support of a Title VII sex discrimination claim related to

O’Bryan’s termination or, indeed, any facts that suggest sex discrimination that took place within

the 300-day limitation period, dating from the filing of the Amended Charge. Otherwise, the Reply

reiterates the defendant’s arguments that the Complaint fails to state a claim for retaliation in

violation of the ADEA and that the request for compensatory and punitive damages should be

stricken.

The court granted the plaintiff leave to file a Surreply (Doc. No. 26) to address the new

arguments raised in the Reply.

II. STANDARD OF REVIEW

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court

will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal

Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the

claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether

“the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can

ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint’s allegations, however, “must be enough to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial

plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal

conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the

plaintiff must plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at

679; Twombly, 550 U.S. at 556. According to the Supreme Court, “plausibility” occupies that wide

space between “possibility” and “probability.” Iqbal, 556 U.S. at 678. If a reasonable court can

draw the necessary inference from the factual material stated in the complaint, the plausibility

standard has been satisfied.

III. DISCUSSION

A. Statute of Limitations—ADEA and Title VII Claims

In its original Memorandum, the defendant asserts that the plaintiff’s claims under both the

ADEA and Title VII are subject to dismissal for failure to exhaust to the extent that the claims are

premised upon discriminatory or retaliatory conduct that took place more than 300 days before the

filing of the EEOC Charge, or prior to February 20, 2018. In its Reply, the defendant similarly

argues that, to the extent the plaintiff’s Title VII claims are based on events that took place more

than 300 days before the filing of the Amended Charge, such claims are time barred. Although the

argument, in both the original Memorandum and the Reply, is framed in terms of a failure to

exhaust (see Doc. No. 14, at 9 (“Allegations Prior To February 20, 2018 Are Unexhausted.”), Doc.

No. 22, at 1 (“Plaintiff’s Title VII Claims were not exhausted.”)), the defendant’s actual argument

is that the claims are, at least in part, “time-barred.” (Doc. No. 14, at 9; see also Doc. No. 22, at 2

(“Thus, Title VII claims based on conduct occurring before July 20, 2018 are untimely as a matter

of law.”).)

In response, the plaintiff does not dispute that, to exhaust claims under Title VII and the

ADEA, the EEOC charge must be filed within 300 days of the discrimination about which she

complains.2 Instead, she asserts that the defendant’s argument “misconstrue[s] the Complaint,”

which alleges that the defendant discriminated and retaliated against her by terminating her

employment in November 2018. (Doc. No. 21, at 2; see id. at 5 (citing Doc. No. 1 ¶¶ 69–70).)

Because the EEOC Charge and Amended Charge were filed, respectively, five weeks and 189 days

after her termination, the claims based on her termination are timely. (Id.) The plaintiff also argues

that she is not barred from presenting evidence of events that took place more than 300 days prior

to the filing of the EEOC charge as providing support for her claims that events that took place

within the limitations period were discriminatory. (Id. at 5.)

The defendant is correct that “discrete discriminatory acts are not actionable if time barred,

even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act

starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within

the 180- or 300-day time period after the discrete discriminatory act occurred.” Morgan, 536 U.S.

at 113. The plaintiff, however, is also correct that a party is not barred “from using the prior acts

as background evidence in support of a timely claim.’” Id.

Insofar as the Complaint may be considered ambiguous on this point, the court will grant

in part the defendant’s motion to dismiss any claims based on events that took place more than

three hundred days prior to the filing of the EEOC Charge or, as relevant, the Amended Charge.

2 “In a State that has an entity with the authority to grant or seek relief with respect to the

alleged unlawful practice, an employee who initially files a grievance with that agency must file

the charge with the EEOC within 300 days of the employment practice; in all other States, the

charge must be filed within 180 days. A claim is time barred if it is not filed within these time

limits.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (citing 42 U.S.C. §

2000e-5(e)(1)). Tennessee is a “deferral” state in which the 300-day limitations period applies. See

Howlett v. Holiday Inns, Inc., 49 F.3d 189, 197 (6th Cir. 1995).

B. Failure to Exhaust Title VII Claims

It is well established that the defense of failure to exhaust administrative remedies may

appropriately be resolved by motion to dismiss under Rule 12(b)(6). Youseff v. Ford Motor Co.,

225 F.3d 660 (Table), 2000 WL 799314 at *3 n.3 (6th Cir. 2000); Coleman v. Ohio State Univ.

Med. Ctr., No. 2:11-CV-0049, 2011 WL 3273531, at *4 (S.D. Ohio Aug. 1, 2011)).

In addition, while the court may not generally consider matters outside the pleadings in

ruling on a Rule 12(b)(6) without converting the motion into one for summary judgment, Fed. R.

Civ. P. 12(d), EEOC charges and right to sue notices are considered to be public records that the

court may consider without converting the motion into one for summary judgment, even if they

were not filed with the complaint itself. Accord Williams v. Steak ’N Shake, No. 5:11CV833, 2011

WL 3627165, at *3 (N.D. Ohio Aug. 17, 2011); Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d

696, 703 (W.D. Tenn. 2005) (EEOC charge was part of the public record for purposes of a motion

to dismiss on statute of limitations grounds).

Regarding the argument raised initially in the defendant’s Motion to Dismiss, it seems clear

that the plaintiff did, in fact, file an Amended Charge that the agency inadvertently failed to serve

upon the defendant. After having been apprised of that error, the agency served the Amended

Charge on the defendant and revoked and reissued the Notice of Right to Sue, thus obviating the

first ground, and curing the second, upon which the defendant’s motion was originally premised.

See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 310 (6th Cir. 2000) (holding that the

district court erred in dismissing the plaintiff’s ADA claim, where the plaintiff had received his

right to sue letter prior to the district court’s order dismissing the claim for failure to exhaust).

The defendant effectively concedes this point in its Reply but then slightly refocuses its

argument in order to continue to argue that the plaintiff failed to exhaust her Title VII claims. US

Bank characterizes the Title VII claim asserted in the Amended EEOC Charge as based on actions

by Mike Martin that took place before or during April 2017. (Doc. No. 22, at 2 (citing Doc. No.

21-2 ¶¶ 2–3.) Further, responding to O’Bryan’s contention that her claims are premised upon her

termination, which took place within the limitations period, the defendant asserts that the Amended

Charge does not actually “allege any facts in support of a Title VII sex discrimination claim related

to her termination (or any other conduct),” because all of the facts set forth in the Amended Charge

regarding discrimination in connection with the termination “relate to her claim of age

discrimination.” (Doc. No. 22, at 3.) US Bank argues that, as a result, the Title VII discrimination

claim must be dismissed for failure to exhaust.

It is well settled that exhaustion is a prerequisite to filing suit under Title VII and that a

claimant exhausts her remedies by filing a charge with the EEOC. Scott v. Eastman Chem. Co.,

275 F. App’x 466, 470 (6th Cir. 2008) (citing Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367,

379 (6th Cir. 2002)). The purpose of the exhaustion requirement “is to trigger an investigation,

which gives notice to the alleged wrongdoer of its potential liability and enables the EEOC to

initiate conciliation procedures in an attempt to avoid litigation.” Id. at 471 (quoting Dixon v.

Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004)). To that end, “the judicial complaint must be limited

to the scope of the EEOC investigation reasonably expected to grow out of the charge of

discrimination.” Dixon, 392 F.3d at 217 (quoting Weigel, 302 F.3d at 379).

To effectively exhaust, the EEOC charge, besides being timely, must be “sufficiently

precise to identify the parties, and to describe generally the action or practices complained of.”

Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir. 2018), reh’g denied (July 6, 2018) (quoting

29 C.F.R. § 1601.12(b)). “As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit

that were not included in [her] EEOC charge.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361

(6th Cir. 2010) (citing 42 U.S.C. § 2000e-5(f)(1)). This rule is not strictly construed however;

“whe[n] facts related with respect to the charged claim would prompt the EEOC to investigate a

different, uncharged claim, the plaintiff is not precluded from bringing suit on that claim.” Id. at

362 (citation omitted). The court’s inquiry into whether an EEOC charge is sufficiently specific is

objective and focuses on the EEOC investigation one would reasonably expect to occur—not the

EEOC investigation that actually occurred. Thus, “a plaintiff may fully exhaust her administrative

remedies on a claim even if the claim was not actually investigated by the EEOC, or specifically

stated in the charge. . . .” Scott, 275 F. App’x at 471. The Sixth Circuit has never expressly required,

however, that an EEOC charge state all of the elements of a prima facie case of discrimination or

retaliation. See Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006), (“[T]he

requirement . . . is not meant to be overly rigid, nor should it ‘result in the restriction of subsequent

complaints based on . . . the failure of the charges to contain the exact wording which might be

required in a judicial pleading.’” (quoting EEOC v. McCall Printing Co., 633 F.2d 1232, 1235 (6th

Cir. 1980)).

The Amended Charge in question here has checkmarks in the boxes for sex discrimination,

age discrimination, and retaliation, indicating that the plaintiff intended to assert those claims. The

narrative in support of the claims alleges that the plaintiff is (or was at the time) a fifty-three year-

old woman who had been employed by US Bank since 1984. It contains specific examples of sex-

based comments and allegedly harassing behavior by a colleague, Mike Martin, and the plaintiff’s

making a complaint about that conduct to Human Resources in the fall of 2016. (See Doc. No. 21-

2, at 1.) She also alleges that, in April 2017, Martin and a younger woman were promoted to new

positions one step above the position then occupied by both the plaintiff and Martin, about which

the plaintiff did not receive notice or an opportunity to interview. Despite her relevant lack of

experience in the relevant field, the newly hired woman became the plaintiff’s direct supervisor,

and the new supervisor worked in a partnership with Martin.

The remainder of the narrative focuses primarily on the plaintiff’s problems with her new

direct supervisor—facts supporting the plaintiff’s age discrimination claim. However, the narrative

also includes allegations that the false accusations that ultimately led to O’Bryan’s termination

came from an employee under Martin’s supervision and that, after O’Bryan’s termination, she was

replaced by a younger, male employee. (Id. at 1–2.) The allegations in the Complaint do not

substantially differ from or amplify those in the Amended EEOC Charge. The only significant

addition to the Complaint relating to O’Bryan’s termination is the allegation that Mike Martin and

Tupman were “both . . . involved in the decision to terminate Plaintiff.” (Doc. No. 1 ¶ 65.)

To be clear: the defendant here does not seek dismissal of the Title VII discrimination claim

based on a failure to state a prima facie case in the Complaint. Rather, perhaps because the

defendant is committed to coloring within the lines of the picture it drew in its original

Memorandum in support of the Motion to Dismiss, the defendant frames the argument entirely

under the heading of a failure to exhaust. And, while it is clear that the allegations regarding sex

discrimination occurring within the limitations period are thin, it is also apparent that the

allegations are “sufficiently precise to identify the parties, and to describe generally the action or

practices complained of,” Peeples, 891 F.3d at 630, and that they are basically co-extensive with

the claims in the plaintiff’s Complaint. That is, the claims in the lawsuit were included in the EEOC

charge, meaning that the Amended Charge served its purpose of “giv[ing] notice to the alleged

wrongdoer of its potential liability and enabl[ing] the EEOC to initiate conciliation procedures in

an attempt to avoid litigation.” Scott, 275 F. App’x at 471.

In sum, viewing the Amended Charge objectively, the court finds that the plaintiff fully

exhausted her Title VII claims. The motion to dismiss them on this basis, therefore, will be denied.

Moreover, because it is undisputed that a violation of Title VII permits the recovery of

compensatory and punitive damages, at least under certain circumstances, see 42 U.S.C. §

1981a(b), the court will deny without further discussion the defendant’s Motion to Strike.3

C. ADEA Retaliation Claim – Failure to Allege Protected Activity and Notice of

Protected Activity

The ADEA prohibits employer retaliation against an employee “because such individual

. . . has opposed any practice made unlawful by this section, or because such individual . . . has

made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

litigation under this [Act].” 29 U.S.C. § 623(d). A plaintiff may establish a violation of the ADEA

by either direct or circumstantial evidence. Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.

2009). ADEA retaliation claims based on circumstantial evidence are analyzed under the familiar

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Blizzard

v. Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012). To establish a prima facie case of

retaliation, a plaintiff must show that “(1) she engaged in a protected activity, (2) the defending

3 The court discourages the refiling of a similar motion to strike in the event that the

plaintiff’s Title VII claims are dismissed at a later stage of the litigation. “The function of the

motion [to strike] is to ‘avoid the expenditure of time and money that must arise from litigating

spurious issues by dispensing with’ them early in the case.” Operating Eng’rs Local 324 Health

Care Plan v. G&W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (quoting Kennedy v. City of

Cleveland, 797 F.2d 297, 305 (6th Cir. 1986)). Such motions, however, “are viewed with disfavor

and are not frequently granted.” Id. at 1050 (citing Brown & Williamson Tobacco Corp. v. United

States, 201 F.2d 819, 822 (6th Cir. 1953)). The request for such damages in this case was not

spurious in light of the fact that it was accompanied by claims under Title VII, which authorizes

the recovery of such damages. Moreover, by the terms of the statute, monetary remedies under the

ADEA are limited to back pay and liquidated damages. 20 U.S.C. § 626(b). Consequently, it is

clear that the plaintiff’s damages will be limited accordingly if she ultimately does not prevail on

her Title VII claims.

party was aware that the [plaintiff] had engaged in that activity, (3) the defending party took an

adverse employment action against the employee, and (4) there is a causal connection between the

protected activity and [the] adverse action.”

US Bank argues that the ADEA retaliation claim is subject to dismissal because the

Complaint does not allege facts sufficient to establish either that the plaintiff engaged in activity

protected by the ADEA or that US Bank was aware that she had engaged in such activity. (See

Doc. No. 14, at 10–11.) Specifically, the defendant claims that the plaintiff’s assertion that she

“complained that she was being treated differently than the younger employees” (Doc. No. 1 ¶ 57)

amounts to a vague and conclusory recitation of an element of the cause of action that is

insufficient to state a colorable claim. (See Doc. No. 14, at 10–11.) It also argues that the plaintiff

has not pleaded specific facts to “make it plausible that the alleged decision makers . . . had

knowledge of the protected activity.” (Id. at 11.)

To prevail on an ADEA retaliation claim, a plaintiff must prove that she took an “overt

stand against suspected illegal discriminatory action to establish that she engaged in a protected

activity.” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012) (internal quotation

marks and citations omitted). The plaintiff employee “‘may not invoke the protections of the Act

by making a vague charge of discrimination.’” Id. (quoting Fox v. Eagle Distrib. Co., 510 F.3d

587, 591 (6th Cir. 2007)); see also Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304,

1313 (6th Cir. 1989) (holding that complaints about “ethnocism” were too vague to constitute

protected activity).

The Complaint in this case enumerates several actions that Tupman allegedly took that the

plaintiff believes reflected age discrimination. These allegations culminate with the plaintiff’s

allegations that Tupman gave the plaintiff a negative mid-year 2018 performance review but that

the review contained incorrect information. When the plaintiff brought the errors to Tupman’s

attention, “Tupman angrily and forcefully ripped the papers from Plaintiff’s hand, stating she

would have her administrative assistant correct it. That never occurred.” (Doc. No. 1 ¶ 56.) In the

next eight paragraphs, the plaintiff alleges as follows:

57. Plaintiff complained that she was being treated differently than the

younger employees.

58. Tupman continued to praise the younger employees and questioned

Plaintiff’s ability to perform her job, while at the same time standing Plaintiff up

for meetings and ignoring her requests and business needs.

59. Tupman unjustifiably accused Plaintiff of being unethical and advised

she was having Plaintiff investigated. She was subsequently forced to acknowledge

that there would be no investigation.

60. In mid-October 2018 Plaintiff was wrongfully accused of making a

profane statement to a younger employee.

61. The person who made the false allegation was an individual on the

investment side, who was under Martin’s supervision.

62. Human Resources pressured Plaintiff to admit that she had made the

alleged statement, but it was not true.

63. Tupman said she would investigate the situation but Plaintiff was never

contacted regarding an investigation by Tupman or Human Resources.

64. Plaintiff was wrongfully terminated on November 8, 2018.

(Id. ¶¶ 57–64.) Read in context and broadly construed in the light most favorable to the plaintiff,

Paragraph 57, following on the heels of Paragraph 56, indicates that the plaintiff complained to

Tupman that Tupman was treating her differently from younger employees. The subsequent

paragraphs indicate that Tupman, after the plaintiff complained to her about discriminatory

treatment, took retaliatory action against her by working with others to orchestrate her termination.

Although the Complaint is not a model of clarity and certainly would have benefited from

additional details regarding the plaintiff’s complaint about discriminatory conduct, the court finds

that it is not so conclusory that it fails to state a claim for which relief may be granted.

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IV. CONCLUSION

For the reasons forth herein, the Motion to Dismiss will be granted insofar as the defendant

seeks dismissal of any claims that are based on actions that took place outside the limitations

period, which the plaintiff does not contest. Otherwise, the motion will be denied.

An appropriate Order is filed herewith.

ALETA A. TRAUGER

United States District Judge