United States District Court, D. Colorado
RANDY R. ROGERS, Plaintiff,
NATIONAL OILWELL VARCO TUBOSCOPE, Defendant.
ORDER GRANTING MOTION TO DISMISS AND GRANTING LEAVE TO FILE AN AMENDED COMPLAINT
JOHN L. KANE, Senior District Judge.
Defendant National Oilwell Varco, L.P. ("Varco") moves to dismiss this action per Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 11. In his Complaint, Plaintiff Mr. Randy R. Rogers alleges that he was unlawfully discriminated against by Varco, his employer, because of his "race, Caucasian, or color, White, or national origin, Non-Hispanic, " and that he was retaliated against "for contacting the Human Resources Department, or for engaging in this protected activity." See Compl. at unnumbered ¶¶ 1, 4. Mr. Rogers brings these reverse discrimination and retaliation claims under Title VII and the Colorado Anti-Discrimination Act ("CADA"). I find the allegations fail for want of specificity and accordingly GRANT Varco's Motion for the reasons that follow.
I. Standard of Review and Legal Principles
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court clarified this pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009): to withstand a Rule 12(b)(6)motion to dismiss, a complaint must contain enough allegations of fact, taken as true, "to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Because Mr. Rogers appears pro se, I review his "pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). That said, I may not assume that a pro se plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a pro se plaintiff has not alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court's role is not to act as pro se litigant's advocate); Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues").
The 12(b)(6) standard does not require that a plaintiff establish a prima facie case in his complaint. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). Nonetheless, the elements of each alleged cause of action help to determine whether a plaintiff has set forth a plausible claim. Id. at 1192. I thus start by discussing the elements a plaintiff must prove to establish claims for discrimination and retaliation under Title VII and the CADA, which statutes share the same elements for the two types of claims. See Larson v. United Air Lines, 482 F.Appx. 344, 351 (10th Cir. June 1, 2012).
Title VII makes it unlawful "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves a violation of Title VII either by direct evidence of discrimination or by following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir.2011). Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove a prima facie case of discrimination. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002). To set forth a prima facie case of discrimination, a plaintiff must establish that (1) he is a member of a protected class, (2) he suffered an adverse employment action, (3) he qualified for the position at issue, and (4) he was treated less favorably than others not in the protected class. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir.1998). When a plaintiff is a member of a historically favored group and brings a reverse discrimination claim, he must also point to "background circumstances support[ing] the suspicion that the defendant is that unusual employer who discriminates against the majority.' " Adamson v. Multi Cmty. Diversified Servs. Inc., 514 F.3d 1136, 1149 (10th Cir.2008) (citations omitted). If a plaintiff satisfies his prima facie case, including establishing additional background facts to demonstrate reverse discrimination, if applicable, the burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. See Garrett, 305 F.3d at 1216. If the defendant does so, the burden shifts once more back to the plaintiff to show that the plaintiff's protected status was a determinative factor in the employment decision or that the employer's explanation is pretext. Id.
Title VII also makes it unlawful for an employer to retaliate against an employee "because [s]he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). A plaintiff establishes retaliation either by directly showing that retaliation played a motivating part in the employment decision, or indirectly by relying on the three-part McDonnell Douglas framework. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir.2011). To state a prima facie case for retaliation under Title VII, a plaintiff must show "(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Id. at 998 (internal quotation marks omitted) (alteration in original).
As stated earlier, though Mr. Rogers is not required to set forth a prima facie case for each element, he is required to set forth plausible claims. His Complaint submits the following allegations:
Mr. Rogers was unlawfully discriminated against because of his race (Caucasian), or color (white), or national origin (non-Hispanic) and he suffered retaliation for engaging in protected activity. Compl. ¶ 1.
Mr. Rogers performed his job satisfactorily at all times. Compl. ¶ 2.
On or about July 25th, 2012, Mr. Rogers complained to facility management about his facility supervisor, who is not of his class, who was harassing him by yelling, name calling, and intimidation. ¶ 2.
Because the behavior complained about on July 25th did not cease, Mr. Rogers made a formal complaint to Pete Lauren, Varco's Human Resources representative. He complained about his facility supervisor's harassment and complained that the same was denying him advancement opportunities, giving them instead to those with less tenure who were of Hispanic origin. Compl. ¶ 3.
Facility management was very angry with any employees for overriding Management and contacting the Human ...