United States District Court, D. Colorado
ORDER ADOPTING AND AFFIRMING MAY 7, 2015 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO, District Judge.
This employment discrimination case was referred to United States Magistrate Judge Nina Y. Wang pursuant to 28 U.S.C. § 636. On May 7, 2015, Magistrate Judge Wang issued a Report and Recommendation concerning Stallion Rockies, Ltd.'s and Stallion Oilfield Services Ltd.'s ("Defendants'" or "Stallion's") Motion to Dismiss (Doc. # 58.) Judge Wang recommended that all claims be dismissed with prejudice. ( See id. )
The factual and procedural background of this matter is set out at length in Magistrate Judge Wang's thorough Recommendation, and the Court incorporates that recitation herein. As such, this Court provides only a brief overview of the facts and procedural history and will expand on them, when necessary, within the analysis.
Plaintiff Robert Steele worked as a truck driver at Stallion's facility in Rifle, Colorado, driving a company truck between various work sites and performing maintenance work. (Doc. #4, ¶ 15.) He was 47 years old at the time of his termination, and suffered from diagnosed Lumbar Degenerative disease. ( Id., ¶¶ 12, 17.) He alleges that Stallion was aware of his back condition and also aware that he utilized medical marijuana and was listed in the Colorado Medical Marijuana Registry. ( Id. )
In March of 2013, Stallion hired a third-party company to administer "across-the-board" drug tests at its Rifle facility, and the results of Plaintiff's test were indeterminate due to a malfunctioning in the testing mechanism. ( Id., ¶¶ 25-27.) Stallion maintains a Drug and Alcohol Policy in its Handbook prohibiting the off-the-job use of controlled substances interfering with job performance and testing positive for such substances at work. ( Id., ¶ 37.) Plaintiff was asked to retake the test "wherein he would be observed, " whereas a management employee whose test results were similarly indeterminate was asked to retake the test at a later time. ( Id., ¶¶ 29-30.) Plaintiff entered the Operation Manager's office to retake his drug test and informed Anderson, a Regional Safety Manager for Stallion who did not work at the Rifle facility, that "he was a Medical Marijuana Participant and had been since before his employment with Stallion." ( Id., ¶ 31.) Anderson responded by telling Plaintiff that his employment was terminated for his violation of the drug and alcohol policy. ( Id., ¶¶ 39, 43.) Plaintiff alleges that he was terminated "for reminding Stallion Management of his status as a registered member in the Colorado Medical Marijuana Registry" or "because of his possession of a medical marijuana card." ( Id. )
Plaintiff filed this lawsuit in the District Court, City and County of Denver, on August 4, 2014, asserting state and federal claims of employment discrimination under the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the Colorado Anti-Discrimination Act ("CADA"). (Doc. # 4.) Plaintiff's Complaint also asserted a claim that Plaintiff styled "Wrongful Termination for Breach of Implied Contract." ( Id. ) Defendants removed the action to this Court (Doc. # 1) and filed the instant Motion to Dismiss (Doc. # 19.)
In her recommendation, Magistrate Judge Wang found that Plaintiff failed to plead facts to plausibly establish that Defendants were liable for age or disability discrimination, under either federal or Colorado state law. (Doc. # 58 at 8-13.) She recommended that these claims be dismissed with prejudice. ( Id. ) Likewise, she found that Plaintiff failed to state a breach of contract claim, and made the same recommendation with respect to that claim. ( Id. at 14-17.) On May 14, 2015, Plaintiff filed timely objections to several aspects of the Recommendation. (Doc. # 59.)
II. STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." Fed.R.Civ.P. 72(b)(3). In conducting its review, "[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id. The Court has conducted the requisite de novo review of the issues and the relevant pleadings, including the Recommendation and Plaintiff's objections thereto.
Dismissal for failure to state a claim, "without affording the plaintiff notice or an opportunity to amend is proper only when it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.'" Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (internal quotation marks and citation omitted).
Plaintiff asserts that Magistrate Judge Wang erred in four respects: (1) she applied the incorrect burden of proof in deciding whether Plaintiff plausibly alleged disability and age discrimination (i.e., he asserts that she applied the more stringent trial burden); (2) she erroneously required that Plaintiff show that his age was a "but for" cause of his termination, rather than "the factor that made the difference, " and she also discounted evidence demonstrating a plausible connection between his age and his termination; (3) she discounted evidence that Plaintiff was disabled and also that he was terminated as the result of his disability; and (4) she applied ...