United States District Court, D. Colorado
Decided: October 20, 2014.
For Gayle Dunn, Plaintiff: Craig Tyler Truitt, LEAD ATTORNEY, Whitney Charles Traylor, Traylor Law Group, LLC, Denver, CO.
For Eric K. Shinseki, Secretary, Department of Veterans Affairs, Defendant: Elizabeth Mary Froehlke, LEAD ATTORNEY, U.S. Attorney's Office-Denver, Denver, CO.
R. Brooke Jackson, United States District Judge.
This case concerns alleged retaliation against Gayle Dunn, an employee at the Department of Veteran Affairs (" the Agency" ), after she filed a race discrimination lawsuit against her employer. Jurisdiction is proper under 28 U.S.C. § 1331. Ms. Dunn alleges that after she filed her lawsuit, the Agency retaliated by placing her on a Performance Improvement Plan, subjecting her to a period of probation, and ultimately terminating her. The Agency moves to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 15. For the reasons explained below, the Agency's motion is denied.
Ms. Dunn first began working at the Department of Veteran Affairs in 2000 and transferred to her position at the Health Administrative Center in Denver, Colorado in March 2007. ECF No. 11 at ¶ 10. In November of 2010, Ms. Dunn filed a lawsuit against the Agency, claiming that it had unlawfully failed to promote her on the basis of her race. Id. at ¶ 12. A timeline of the events that plaintiff alleges followed is helpful here:
May 24, 2011: Ms. Dunn was deposed by the Agency's attorneys. Id. at ¶ 13.
August 9, 2011: Ms. Dunn received a memorandum from Supervisor Ellen Stewart informing her of a meeting on August 12, 2011 to develop a Performance Improvement Plan (" PIP" ). Id. at ¶ 14.
September 1, 2011: Ms. Dunn received a Warning of Unacceptable Performance and was placed on a PIP. Id. at ¶ 15.
November 15, 2011: Ms. Dunn's counsel in her discrimination lawsuit submitted a motion to compel, including an affidavit from Ms. Dunn that reflected her recollection of conversations regarding deposition scheduling and asserted that Defendant's ongoing failure to produce certain witnesses for depositions had prejudiced her case. Id. at ¶ 16.
November 17, 2011: Ms. Dunn received notice that her PIP was terminated,
and she was placed on probation until the following August. Id. at ¶ 17.
November 18, 2011: One of Ms. Dunn's supervisors, Stephen Morales, made comments to another supervisor stating that Ms. Dunn " thinks she has immunity because of that shit lawsuit she has" and that " her stats are going to be all ...