United States District Court, D. Colorado
ORDER GRANTING DEFENDANT LAWRENCE LINDLOFF'S AND EXCELIS' MOTION TO DISMISS PLAINTIFF'S 42 U.S.C. § 1981 CLAIMS AND RESERVING RULING ON EXELIS' MOTION TO DISMISS PLAINTIFF'S OUTRAGOUS CONDUCT CLAIM
CHRISTINE M. ARGUELLO, District Judge.
In this employment discrimination action, Plaintiff Rashanna Marshall alleges that Defendants discriminated against her on the basis of race during her employment on Bagram Airfield, the largest military base in Afghanistan. This matter is before the Court on Defendant Lawrence Lindloff's Motion to Dismiss Plaintiff's 42 U.S.C. § 1981 Claims Pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. # 44.) Also before the Court is Defendant Exelis Systems Corporation's ("Exelis") Motion to Dismiss Plaintiff's 42 U.S.C. § 1981 and Outrageous Conduct Claims. (Doc. # 47.) For the reasons discussed below, the Court dismisses Plaintiff's Section 1981 claims and reserves ruling on her outrageous conduct claim.
Marshall, an African-American female, worked for Exelis for five years, starting in 2006. Exelis employs over 7, 800 employees worldwide and performs numerous contracts for the United States government related to defense services. During her employment, Marshall worked at Bagram Airfield in Afghanistan. (Doc. # 31, at 1-2.)
Marshall alleges that in the summer of 2011, she discovered that Defendants were discriminating against her and her African-American co-workers. She alleges that Defendants passed her and other African Americans over for job opportunities and provided them less favorable terms and conditions of employment than were provided to their similarly situated non-African-American counterparts. Marshall reported her concerns to her supervisor, Lindloff, and when he refused to remedy the problems, she reported her concerns to Exelis human resources and upper management. ( Id. at 1-2.) Hours after meeting with upper management to discuss her concerns regarding race discrimination, Lindloff retaliated against Marshall by giving her a disciplinary write-up, in part because she "accused him of being a racist...." ( Id. at 8.)
On November 9, 2011, Marshall began to experience chest pains. She sought treatment at an on-base medical center, where a paramedic placed Marshall on bed rest pending further tests. The paramedic wrote a letter informing Exelis of Marshall's condition. Lindloff and another employee contacted the medical center to attempt to verify the veracity of a letter and demanded information on Marshall's medical condition. ( Id. at 9.)
On November 11, 2011, Lindloff fired Marshall. Following her termination, Lindloff and another Exelis employee attempted to obtain access to Marshalls' medical records in an effort to provide a post hoc justification for her termination; however, medical employees refused to provide that information. ( Id. at 8-12.)
B. PROCEDURAL HISTORY
Plaintiff filed the instant action, alleging race discrimination and retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as well as claims of outrageous conduct and intentional interference with contract and/or prospective business advantage under Colorado law. (Doc. # 31, at 13-23.) Both Defendants moved to dismiss Marshall's 42 U.S.C. § 1981 claims, arguing that Section 1981 does not apply extraterritorially to conduct occurring in Afghanistan. (Doc. ## 44, 47.) In considering the merits of these motions, the Court has reviewed the motions, Marshall's responses, the replies, as well as supplemental briefing ordered by the Court. (Doc. ## 44, 45, 47, 48, 56, 60, 65, 66.)
II. STANDARD OF REVIEW
A motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) tests the formal sufficiency of a complaint. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). A complaint will survive such a motion if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). For a motion to dismiss, "[t]he question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1192 (10th Cir. 2009). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted).
In reviewing a Rule 12(b)(6) motion, a court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a complaint does not "suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which a relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).
Whether a statute applies to extraterritorial conduct does not concern subject matter jurisdiction. Rather, by determining what conduct a statute reaches (and consequently, what conduct a statute prohibits), courts define the merits of the plaintiff's substantive claim. Morrison v. Nat'l Australia Bank Ltd., 130 S.Ct. 2869, 2877-78 (2010). Therefore, when a court determines a statute does not apply extraterritorially, it properly dismisses the corresponding claims under Fed.R.Civ.P. 12(b)(6). Id.
Defendants move to dismiss Marshall's employment discrimination and retaliation claims arising under 42 U.S.C. § 1981, arguing that Section 1981 does not apply extraterritorially to conduct in Afghanistan. Marshall responds with the novel argument that under the framework of Boumediene v. Bush, 553 U.S. 723 (2008), Bagram Airfield is a de facto territory of the United States and thus concerns about Section 1981's extraterritorial application are not implicated. She also argues that, because she is "a person within the jurisdiction of the United States" under the language of Section 1981, extraterritorial application is not required. These competing arguments draw upon three lines of cases dealing with the extraterritorial application of U.S. laws, the Constitution, and Section 1981 in particular, which the Court will discuss in turn. However, first, the Court provides an overview of the history of Section 1981.
A. SECTION 1981 AND ITS HISTORY
Section 1981 was passed following the Civil War as a part of the Civil Rights Act of 1866. Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431, 434 (1973). Congress initially passed Section 1981 to enforce the Thirteenth Amendment's prohibition against slavery and as a counter to the "Black Codes"-laws passed in several southern states immediately following the ratification of the Thirteenth Amendment that were designed to restrict African Americans' rights and freedoms. George Rutherglen, The Improbable History of Section 1981: Clio Still Bemused and Confused, 55 Sup. Ct. Rev. 303, 308-09 (2003) (hereinafter "The Improbable History").
Following the adoption of the Fourteenth Amendment, Congress reenacted Section 1981 as a part of the Enforcement Act of 1870. Hurd v. Hodge, 334 U.S. 24, 32-33 (1948). Despite its apparent importance in early civil rights legislation, Section 1981 fell into a long period of disuse, in part due to the Supreme Court's decision in the Civil Rights Cases. 109 U.S. 3 (1883) (although the Thirteenth Amendment applies to private conduct, Congress's power related to that amendment was limited to ensuring an end to slavery and did not extend to eliminating discrimination); see also The Improbable History, 55 Sup. Ct. Rev. 303, ...