United States District Court, D. Colorado
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
William J.-Martínez United States District Judge
Plaintiff Therese Byorick (“Plaintiff”) brings this action for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., against Defendants CAS, Inc. (“CAS”) and Northrop Grumman Systems Corporation (“Northrop”). Northrop filed a Motion to Dismiss Plaintiff’s Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) (“Motion”), which is now before the Court. (ECF No. 59-1.) For the reasons set forth below, the Motion is denied.
The following facts and allegations are gathered from Plaintiff’s Second Amended Complaint (“Complaint”). (ECF No. 56.) Northrop was the primary contractor on the Missile Defense Agency JRDC contract (“JRDC Contract”) at Schriever Air Force Base in Colorado Springs. (Id. at 2.) Plaintiff was employed by one of Northrop’s subcontractors, CAS. (Id.) Subcontractor workers on the JRDC Contract must apply for their positions through JRDC Staffing/Northrop, which is a business group within Northrop that manages all employee hiring on the JRDC Contract. (Id. at 2-3) Plaintiff applied for, and received, a position on the JRDC Contract after JRDC Staffing/Northrop approved her application. (Id. at 3.)
Plaintiff worked under the supervision of Ron Sintas, an employee of another subcontractor, Boecore, Inc. (Id. at 4, 6.) Mr. Sintas sexually harassed Plaintiff during her employment. (Id. at 6.) Plaintiff reported the harassment to CAS, which CAS reported to Boecore. (Id. at 7.) Boecore concluded that Mr. Sintas acted inappropriately and he was removed from the JRDC Contract. (Id.) On November 1, 2013, Northrop eliminated Plaintiff’s position on the JRDC Contract. (Id. at 5-6.) However, Plaintiff remained employed with CAS until February 20, 2014, at which time CAS terminated her employment after failing to find her a replacement position. (Id. at 12.) Plaintiff alleges that she was subjected to materially adverse employment actions from CAS and Northrop in retaliation for her sexual harassment complaints. (Id. at 13.)
II. LEGAL STANDARD
Under Rule 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
It is unlawful under Title VII for an “employer” to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” on the basis of sex. 42 U.S.C. § 2000e-2. Nor can an employer “discriminate against any of his employees . . . because [the employee] has opposed any . . . unlawful employment practice.” 42 U.S.C. § 2000e-3; Tabor v. Hilti, Inc., 703 F.3d 1206, 1219 (10th Cir. 2013) (“Title VII forbids retaliation against an employee because she has opposed any practice made unlawful by Title VII”) (citation and internal quotation marks omitted).
To present a prima facie case of Title VII retaliation against Northrop, Plaintiff must prove that it was her employer. Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1225 (10th Cir. 2014). If Plaintiff is unable to do so, her claims fail as a matter of law. Id. Northrop argues that it was not Plaintiff’s employer, and therefore Plaintiff’s Second Amended Complaint fails to state a cause of action under Title VII. (ECF No. 59-1.) The Court addresses this argument below using the Tenth Circuit’s joint- employer analysis.
Two entities are joint employers if they “share or co-determine those matters governing the essential terms and conditions of employment” and “exercise significant control over the same employees.” Knitter, 758 F.3d at 1226. An entity with “sufficient control over the terms and conditions of employment of a worker formally employed by another is a joint employer within the scope of Title VII.” Id. The most important factor to determining control over the terms and conditions of employment is “the right to terminate it under certain circumstances.” Id. Courts also consider “the ability to promulgate work rules and assignments, and set conditions of employment, including compensation, benefits, and hours; . . . day-to-day supervision of employees, including employee discipline; and . . . control of employee records, including payroll, insurance, taxes and the like.” Id. The various factors are discussed in turn.
1. Ability to Terminate Employment
Defendant likens this matter to Knitter. (ECF No. 59-1 at 8.) In Knitter, the plaintiff worked as a handyman for Lewis General Contracting, Inc. (“LG”). 758 F.3d at 1217. The plaintiff was assigned to work for the defendant, which was one of LG’s only clients. Id. at 1219. One of the defendant’s maintenance supervisors sexually harassed the plaintiff during her employment. Id. at 1222. When the plaintiff reported the harassment to the defendant, the defendant contacted LG and asked it not to send the plaintiff to perform any further work. Id. at 1223. LG thereafter terminated the plaintiff’s employment because it had no work assignments available for the plaintiff beyond handyman work with the defendant. Id. The plaintiff alleged that the defendant effectively forced LG to fire her, and thus it had the power to terminate her employment. Id.
The Tenth Circuit disagreed. The court found that the defendant was unaware that all, or nearly all, of LG’s business came from the defendant. Id. at 1229. If LG did have additional clients, her removal from the defendant’s projects “might well have resulted in her reassignment to a different client and not termination.” Id. Moreover, the defendant had no power to terminate the plaintiff’s employment with LG and, at most, could only remove her from its own handyman projects. Id. The court accordingly held that there was no genuine dispute “that control over the most ...