Burkett v. Convergys Corp.
| Decision Date | 23 July 2015 |
| Docket Number | Case No. 2:14-cv-376-EJF |
| Court | U.S. District Court — District of Utah |
| Parties | ELAINE W. BURKETT, Plaintiff, v. CONVERGYS CORPORATION, an Ohio Corporation, Defendant. |
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR JUDGMENT ON THE PLEADINGS [ECF No. 12]
Defendant Convergys Corporation ("Convergys") moved the Court for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), asking the Court to dismiss Elaine W. Burkett's claims with prejudice.1 (Mot. for J. on the Pleadings and Mem. in Support of the Same ("Def.'s Mot.") 1-2, ECF No. 12.) Plaintiff Ms. Burkett alleges Convergys violated the Americans with Disabilities Act ("ADA") and breached an employment contract between the parties by failing to accommodate Ms. Burkett's sensitivity to scents, fragrances, and chemicals. (Compl., ECF No. 2.) The Court held oral argument on December 18, 2014. (ECF No. 22.) The Court requested additional briefing that the parties submitted in addition to notices of supplemental authority. (ECF Nos. 23-26.) Having carefully considered the submissions of the parties and the oral argument on this motion, the Court DISMISSES Ms. Burkett's state law claims WITHOUT PREJUDICE as time barred, but DENIES the Motion with respect to Ms. Burkett's ADA claim given she filed the notice of claim within six months of the alleged events.
On a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), this Court must "'accept all facts pleaded by the non-moving party as true and grant all reasonable inferences from the pleadings' in that party's favor." Sanders v. Mtn. Am. Fed. Credit Union, 689 F.3d 1138,1141 (10th Cir. 2012) (citing Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). Courts will only grant judgment on the pleadings "when 'the moving party has clearly established that no material issue of fact remains to be resolved and the party is entitled to judgment as a matter of law.'" Id.
Taking Ms. Burkett's allegation as true, the Court sets forth the facts that form the basis for this opinion. "[Ms.] Burkett entered into a valid and binding contract with Convergys governing the terms and conditions of their employment relationship." (Compl. ¶ 55, ECF No. 2.) Ms. Burkett concedes she signed a "Convergys Employment Application" ("Application") (Answer Ex. A, ECF No. 7-1)2 on September 20, 2011. (Pl.'s Mem. in Opp'n to Def.'s Mot. ("Opp'n") 2, ECF No. 15.) The Application includes a ten-paragraph list of terms in a section titled "AS AN APPLICANT YOU AGREE TO AND UNDERSTAND THE FOLLOWING:". (Answer Ex. A 4, ECF No. 7-1.) One provision states:
8. I agree that any claim or lawsuit relating to my employment with Convergys (or any of its subsidiaries or related entities) must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations period that is longer than six (6) months.
(Id.) The final paragraph states, "I HAVE READ CAREFULLY, HAD THE OPPORTUNITY TO ASK QUESTIONS ABOUT, UNDERSTAND, AND VOLUNTARILY AGREE TO THE
ABOVE CONDITIONS OF ANY EMPLOYMENT THAT MAY BE OFFERED TO ME BY CONVERGYS OR ANY RELATED ENTITY." (Id.)
On October 5, 2011, Ms. Burkett began work as a Convergys Customer Service Representative. (Compl. ¶ 13, ECF NO. 2.) At that time, Ms. Burkett "experience[ed] reactions to various scents, fragrances and/or chemicals" ranging from an inability to concentrate all the way to complete mental and physical incapacity. (Id.) While Convergys employed Ms. Burkett, her coworkers exposed her to scents, fragrances, and chemicals that caused "severe physical and mental reactions." (Id. ¶ 14.) During this time Convergys "had a no scent/fragrance policy" for call center employees but failed to enforce it. (Id. ¶ 15-16.)
Ms. Burkett first reacted to scents at Convergys during her initial training. (Id. ¶ 17.) She reported these reactions to her human resources representative. (Id.) On more than twelve occasions after her training and before her constructive termination on January 24, 2012, Ms. Burkett experienced "significant reactions" to scents in the workplace. (Id. ¶¶ 18, 29.) These reactions included dizziness, confusion, inability to concentrate, muscle lassitude, slowed speech, increased heart rate, and decreased oxygen levels, among other symptoms. (Id. ¶ 27.) Despite the repeated reports of the problem to the human resources representative, Convergys "fail[ed] to take any steps to enforce its own policy." (Id. ¶¶ 17, 20.) Ms. Burkett even delivered a physician's letter to Convergys explaining that she suffers from bronchial asthma and fragrance sensitivity that "could result in acute respiratory and neurological symptoms" if exposed. (Id. ¶ 24.)
Pursuant to physician instructions, Ms. Burkett gathered physiological data while working. (Id. ¶ 19.) During a January 12, 2012 episode, Ms. Burkett's team lead came near herseveral times wearing perfume, causing Ms. Burkett to collapse and shake uncontrollably while her pulse reached 114, and her O2 level registered at 99. (Id. ¶ 19.)
On May 10, 2012, Ms. Burkett filed a timely charge of discrimination with the Utah Labor Commission, Antidiscrimination and Labor Division ("UALD") and with the Equal Employment Opportunity Commission ("EEOC") for "disability, failure to accommodate, failure to engage in the interactive process and retaliation." (Id. ¶ 7; Opp'n Ex. A,3 ECF No. 15-1.) On February 17, 2014, the EEOC issued Ms. Burkett a Right to Sue Notice. (Compl. ¶ 8, ECF No. 2.)
Ms. Burkett filed this action on May 16, 2014 alleging four causes of action: violation of the ADA, breach of contract, unjust enrichment—breach of contract implied-in-fact, and breach of the implied covenant of good faith and fair dealing. (Id. 6-10.)
Convergys argues the Application's limitations clause bars Ms. Burkett's claims. (Def.'s Mot. 2, ECF No. 12.) Because the Application constitutes an enforceable contract "waiv[ing] any statute of limitations period that is longer than six (6) months," (Answer Ex. A ¶ 8, ECF No. 7-1), the Court GRANTS Convergys's Motion and dismisses Ms. Burkett's state contract law claims without prejudice.
However, because the phrase "any claim or lawsuit relating to my employment" is ambiguous, and because Ms. Burkett complied with a reasonable interpretation of that clause byfiling her ADA claim with the UALD and EEOC, the Court DENIES Convergys's Motion to with respect to Ms. Burkett's ADA claim.
Before determining the enforceability of Application's six-month limitation period, the Court must consider whether the Application's provisions form part of an enforceable contract between Convergys and Ms. Burkett. While the Complaint acknowledges the existence of a binding, enforceable employment contract, (Compl. ¶ 55, ECF No. 2), Ms. Burkett contends the Application is not that contract. (Opp'n at 14, ECF No. 15.) "Whether a contract exists between parties is ordinarily a question of law" for the Court to decide. Cea v. Hoffman, 2012 UT App 101, ¶ 9, 276 P.3d 1178, 1186 (citation omitted). In Utah, "formation of a contract requires an offer, an acceptance, and consideration." Cea, 2012 UT App 101, ¶ 24 (citation omitted). "The relationship of employer and employee is a product of mutual assent expressed by an employer's offer of employment and an employee's acceptance." Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 333 (Utah 1992) (citing 53 Am. Jur. 2d Master & Servant § 15 (1970)).
Ms. Burkett claims Convergys failed to give her any consideration in return for the Application, making it unenforceable. (Opp'n at 14, ECF No. 15.) "[T]he employer's promise of employment consistent with certain provisions for an indefinite term constitutes the employer's consideration for the contract and the terms of the contract itself." Tomlinson v. NCR Corp., 2014 UT 55, ¶ 13, 345 P.3d 523 (citation omitted). The employment relationship forms a contract because "the employee's performance of his job consistent with the promised provisions constitutes the employee's acceptance of the contract terms, as well as his consideration." Tomlinson, 2014 UT 55, ¶ 13 (citation omitted).
The Application states in all capitals and bold type face, "I HAVE READ CAREFULLY, HAD THE OPPORTUNITY TO ASK QUESTIONS ABOUT, UNDERSTAND, AND VOLUNTARILY AGREE TO THE ABOVE CONDITIONS OF ANY EMPLOYMENT THAT MAY BE OFFERED TO ME BY CONVERGYS OR ANY RELATED ENTITY." (Answer Ex. A 4, ECF No. 7-1.) Thus the Application made clear any offer of employment included the term requiring Ms. Burkett to file any claim or lawsuit within six months of any complained of employment action. (Id.) Ms. Burkett admits Convergys offered her a job, and she performed it. (Compl. ¶¶ 13-15; ECF No. 2.) The employment Convergys offered constitutes the consideration for Ms. Burkett's agreement to the terms of employment. See Tomlinson, 2014 UT 55, ¶ 13. Ms. Burkett's performance of her job constitutes acceptance of the terms of employment. Id. Nothing Ms. Burkett alleges in her Complaint or argues in her brief suggests the limitations provision changed. Thus, based on the pleadings, consideration did exist for the terms in the Application, and it forms a binding contract between Convergys and Ms. Burkett that includes the limitations provision.
Ms. Burkett next contends the Application is unconscionable. (Opp'n 15-16; ECF No. 15.) "A party claiming unconscionability bears a heavy burden." Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998) (citation omitted). Parties unquestionably have the right to contract freely, establish terms, surrender rights, and allocate risks between themselves; they even have the right to enter into "unreasonable contracts or contracts leading to a hardship on one party." Id. A contract becomes unconscionable when one party...
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