United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on the "County Defendant's Motion to Dismiss Amended Complaint (Doc. No. 23 Pursuant to Fed.R.Civ.P. 12(b)96) and 8(a)" (Doc. No. 28 [Mot.], filed June 12, 2014), to which Plaintiff filed his response on June 30, 2014 (Doc. No. 30 [Resp.]) and Defendant filed its reply on July 8, 2014 (Doc. No. 31 [Reply]). This motion is ripe for recommendation and ruling.
STATEMENT OF THE CASE
In his Complaint, Plaintiff alleges the defendant discriminated against him because of his gender and race, in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000(e). ( See Doc. No. 23 [Compl.].) Plaintiff also alleges the defendant retaliated against him, also in violation of Title VII. ( See id. ) Specifically, Plaintiff states he began working for the El Paso County Department of Human Services in March 2012. ( Id., ¶ 13.) Plaintiff alleges shortly thereafter a female employee made "inappropriately sexual'" comments to him. ( Id., ¶ 14.) Plaintiff alleges he reported the comments to his supervisor, but rather than disciplining the employee who made the comments, Plaintiff was immediately treated differently and adversely. ( Id., ¶ 15.) Plaintiff alleges no action was taken by Defendant to cure the harassment. ( Id., ¶ 16.) Plaintiff contends he was "subjected to and adverse employment from his direct and immediate supervisor, " who treated him differently than non-Hispanic employees. ( Id. ) Plaintiff states his employment was terminated in December 2012. ( Id., ¶ 17.)
Defendant moves to dismiss Plaintiff's Complaint on the basis that Plaintiff has failed to state a claim under Fed.R.Civ.P. 12(b)(6) and 8. ( See Mot.)
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6) (2007). "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 relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1198 (10th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth, " that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 1951. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1940. Moreover, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Id. at 1949 (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 129 S.Ct. at 1949 (citation omitted).
1. Claim One for Title VII Violation
Under Title VII,
It is unlawful to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
Khalik v. United Air Lines,
671 F.3d 1188, 1192 (10th Cir. 2012) (citing 42 U.S.C. § 2000e-2(a)) ...