United States District Court, D. Colorado
ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is Defendant's Partial Motion to Dismiss Plaintiff's Hostile Work Environment Claim Pursuant to Fed.R.Civ.P. 12(b)(1) [filed August 19, 2014; docket #28]. The motion is fully briefed, and the Court finds that oral argument will not assist in the adjudication of the motion. Based upon the record herein and for the reasons that follow, the Court DENIES Defendant's motion.
The following are factual allegations made by the Plaintiff in her Third Amended Complaint and offered by Defendant for jurisdictional analysis. These allegations are taken as true under Fed.R.Civ.P. 12(b)(1) pursuant to Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).
Plaintiff Karrah Johnson is 25 years old and an African-American female. (Docket #24 at 2.) Plaintiff was employed by Defendant from December 8, 2007 until she was suspended on or about July 10, 2008 and ultimately terminated effective September 9, 2008. ( Id. at 2-3.) Although Plaintiff was hired for a full-time position at the Sears outlet in Aurora, Colorado, she worked only part time as a Central Aisle Cashier. ( Id. at 3.) She alleges she was never given a job description and worked odd hours, often with split shifts. ( Id. at 4.) Tonja Mills, Plaintiff's supervisor, told Plaintiff she did not have a job description because her position would soon be changing to full time. ( Id. )
In or about April 2008, Plaintiff alleges that Ms. Mills ordered Plaintiff to wash and paint the walls. ( Id. at 3.) Plaintiff protested that painting walls was not a part of her job duties, but she complied with the assignment. ( Id. ) Plaintiff was the only African-American employee ordered to paint and wash walls and, indeed, she was the only African-American employee on her shift over eighteen years of age. ( Id. ) Plaintiff additionally alleges she worked at times as an MCA but was not paid the higher rate of an MCA. ( Id. ).
Plaintiff was assigned "low-level tasks such as placing price stickers on goods." ( Id. ) When she complained of these "low-level tasks, " Ms. Mills told her she had to perform the tasks in order to advance to full time and a management position. ( Id. ). Additionally, Plaintiff alleges that Ms. Mills was friendly to Caucasian and Hispanic employees, but "cold and terse with African-Americans." ( Id. at 5.)
Between her split shifts, Plaintiff alleges she often spent time in the mall while waiting to go back to work. ( Id. at 4.) During these periods, she was regularly questioned by mall security about why she was in the mall. ( Id. ) Plaintiff complained to Ms. Mills and to Ms. Mills' supervisor, Jeff Long, about the trouble she was having with security due to the split shifts. ( Id. )
Plaintiff's grandmother, Brenda Johnson, also contacted Ms. Mills protesting of the odd hours and the painting duties. ( Id. ) Ms. Mills allegedly told Ms. Johnson that Plaintiff "could clean and paint because it was in her blood." ( Id. ) Ms. Johnson described Ms. Mills as "harsh, rude, unprofessional, and chauvinistic." ( Id. )
On July 9, 2008 Plaintiff worked from 3:42 p.m. until 8:19 p.m. ( Id. at 5.) Around 4:30 p.m. that day, a male acquaintance of Plaintiff's came to the store and borrowed Plaintiff's car. ( Id. ) At approximately 2:00 a.m. on July 10, 2008 the Aurora police arrived at Plaintiff's home to inform her that her car had been involved in a hit and run accident between 5:00 p.m. and 7:00 p.m. the previous evening. ( Id. ) One of the officers asked Plaintiff for her work schedule on July 9, 2010. ( Id. )
The following day, July 10, 2008, Plaintiff and her grandmother went to Sears to ask Ms. Mills for Plaintiff's time card. ( Id. at 5-6.) Plaintiff alleges that Ms. Mills demanded to know why Plaintiff needed the time card. ( Id. at 6.) When Plaintiff refused to tell her, other than she "needed proof of her work for the authorities, " Ms. Mills told Plaintiff it was not Sears' policy to give out time card information, and she would have to talk to the corporate office. ( Id. ) Plaintiff and her grandmother then went to the Sears Employment Office where they retrieved copies of the time card without any questions. ( Id. )
According to Plaintiff, Ms. Mills falsely told Catherine Brown in Human Resources that Plaintiff had been arrested and accused of robbery on July 9, 2008. ( Id. ) On July 11, 2008, when Plaintiff called Ms. Mills to determine her work hours, Ms. Mills notified her that she was suspended indefinitely without pay because of her involvement in a criminal act. ( Id. )
Plaintiff asserts that Sears officials refused to communicate with Plaintiff or Ms. Johnson during the suspension and did not permit her to participate in their investigation. ( Id. at 7.) On July 16, 2008, Jeff Long, Ms. Mills' supervisor, called Ms. Johnson to tell her he was aware of Plaintiff's situation and she had been suspended until further notice. ( Id. ) Plaintiff does not ...