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Hedva Bank v. Allied Jewish Federation of Colorado

United States District Court, Tenth Circuit

December 17, 2013

HEDVA BANK, Plaintiff,
v.
ALLIED JEWISH FEDERATION OF COLORADO, a Colorado corporation, and DOUG SESERMAN, an individual, Defendants.

MEMORANDUM OPINION AND ORDER

Lewis T. Babcock, Judge.

This case is before me on Defendants Allied Jewish Federation of Colorado (“AJF”) and Doug Seserman’s (“Seserman”) Motion to Dismiss Plaintiff’s Claim Under the Colorado AntiDiscrimination Act (the “CADA”) Pursuant to Fed.R.Civ.P. 12(b)(6) [Doc # 6]. After consideration of the motion, all related pleadings, and the case file, I grant Defendants’ motion in part and deny it in part as set forth below.

I. Background

In this action, Plaintiff asserts a claim against AJF for age discrimination in violation of the Age Discrimination in Employment Act (the “ADEA”) and a claim against AJF and Seserman for age discrimination in violation of the CADA. Plaintiff’s Complaint alleges that she was a long-term employee of AJF and that Seserman is AJF’s president and chief executive officer and primarily or solely responsible for the decisions on which her claims are based. Complaint, ¶ 1.

By the Motion, Defendants seek the dismissal of Plaintiff’s CADA claims. Defendants argue that Plaintiff’s CADA claim against Seserman fails to state a claim upon which relief may be granted because (1) Seserman was not her employer within the meaning of the CADA; and (2) Plaintiff failed to exhaust her administrative remedies with respect to him. Defendants argue that Plaintiff’s CADA claim against AJF fails to state a claim upon which relief may be granted because it is duplicative of her ADEA claim.

III. Standard of Review

Under Rule 12(b)(6), “[d]ismissal is appropriate only if the complaint, viewed in the light most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its face.” United States ex rel. Conner v. Salina Regional Health Center, Inc., 543 F.3d 1211, 1217 (10th Cir. 2008) (quotations and citations omitted). A claim is plausible on its face “when the plaintiff pleads 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 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

“[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings.” Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). In ruling on a Rule 12(b)(6) motion to dismiss, however, courts may properly consider facts subject to judicial notice such as court files and matters of public record, as well as documents referred to in the complaint if the documents are central to the plaintiff’s claim and their authenticity is not disputed. Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004) (citations omitted); Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).

IV. Analysis

A. Plaintiff’s CADA Claim Against Seserman

Under the CADA, it is a discriminatory or unfair employment practice “[for an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of ... age ....” C.R.S. § 24-34-402(1)(a). Thus, to be liable under this section of the CADA, a person or entity must be an “employer.” For purposes of the CADA, “employer” is defined as “the Sate of Colorado or any political subdivision, commission, department, institution, or school district thereof, and every other person employing persons within the state ....” C.R.S. § 24-34-401(3). The CADA does not define the terms “employ” or “employing, ” and there is no case law interpreting these terms under this statute.

When analyzing undefined statutory language, it is “assum[ed] that the ordinary meaning of that language accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010) (citation omitted). Plaintiff argues that Seserman could fit within the dictionary definitions of “employ” as “to make use of (someone or something inactive)” or “to use or engage the services of.” The Merriam -Webster dictionary also defines “employ” as “to provide with a job that pays wages or salary.” I conclude that this definition more accurately reflects the ordinary meaning of “employ” in the employment context and that there are no factual allegations in Plaintiff’s Complaint to support a plausible claim that Seserman individually provided a job to Plaintiff. Instead, Plaintiff’s Complaint alleges that Plaintiff was employed at AJF and performed job responsibilities for the benefit of AJF. Complaint, ¶¶ 10 - 12. Plaintiff’s allegations that Seserman was one of Plaintiff’s superiors and the primary or sole decision-maker in this case, id. at ¶ 1, are insufficient to establish that Seserman was Plaintiff’s employer within the meaning of the CADA as a matter of law.

My conclusion that Seserman is not an employer withing the meaning of the CADA is bolstered by two district court cases cited by Defendants. See Gatuma v. Encore Elec., Inc., 2012 WL 5354932 at *3 (D. Colo. Oct. 30, 2012) (“Although this Court has located no reported case law directly addressing the question, CADA’s definition of the term ‘employer’ makes it unlikely that supervisors engaging in discriminatory acts could be sued individually.”); Atwell v. Gabow, 2009 WL 112492 at * 4 n. 2 (D. Colo. Jan. 15, 2009) (“Neither Title VII nor CADA provide for personal liability of supervisors or managers.”).

To avoid dismissal of her CADA claim against Seserman on the basis that he was not her employer, Plaintiff alternatively argues that Seserman can be liable under C.R.S. ยง 24-34-402(1)(e)(I)-(III), which makes it a discriminatory or unfair employment ...


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