# O'Bryan v. US Bank National Association

> District Court, M.D. Tennessee · August 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10436611

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** August 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436611

## How later opinions describe it (automated extraction)

- holding that complaints about “ethnocism” were too vague to constitute protected activity

## Opinion text

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.
17

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436611. Public record. Not legal advice.