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Easley v. Fairway Independent Mortgage Corp.

United States District Court, D. Colorado

February 16, 2016




Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint [filed December 1, 2015; docket #8]. The matter is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the motion.[1]


Plaintiff initiated this lawsuit by filing his Complaint on October 15, 2015, claiming Defendant violated the Colorado “Unlawful Prohibition of Legal Activities as a Condition of Employment” statute, Colo. Rev. Stat. § 24-34-402.5, for wrongfully terminating Plaintiff’s employment based on his lawful activities. Complaint, docket #1. On December 1, 2015, Defendant filed the current Motion, asserting the Complaint fails to state a claim and, thus, his case should be dismissed. Motion, docket #8. Plaintiff responded on December 21, 2015 [docket #19], and Defendant replied on January 5, 2016 [docket #20].

The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiff in his Complaint, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Defendant is a mortgage banking organization headquartered in Wisconsin that has 260 branches nationwide. Complaint, docket #1 at 2. Plaintiff began his employment with Defendant on or about October 13, 2013, working as a loan originator out of the Denver, Colorado, branch. Id. Plaintiff’s supervisor, Curtis Helton, who managed both the Denver and Grand Junction branches, was a personal friend of Plaintiff’s predating this job; the two met through a mutual personal friend then worked together at a previous company. Id. Plaintiff and Helton’s friendship continued during the time they both worked for Defendant. Id. For example, they participated together in church activities. Id.

In June 2015, Helton met socially with Gavin Ekstrom outside of the offices of Defendant. Id. at 3. Plaintiff did not attend, was not told of the meeting between Helton and Ekstrom, and knew nothing about its purpose. Id. On or about June 9, 2015, Defendant fired Helton for meeting with a competitor (Ekstrom). Id. The same day, Defendant fired Plaintiff, accusing him of being at the meeting with Helton and Ekstrom. Id. Multiple employees of Defendant told Plaintiff that the company terminated him “because of his association and friendship with Mr. Helton, and due to his participating in social activities with Mr. Helton outside of work.” Id.

Plaintiff asserts his termination of employment was based on a legal activity and violates Colorado law pursuant to Colo. Rev. Stat. § 24-34-402.5. Id. Defendant argues the Plaintiff has failed to plausibly plead he was terminated in violation of that statute.


“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, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.


Colo. Rev. Stat. § 24-34-402.5 (the “Statute”) protects an employee from the employer’s unlawful prohibition of legal activities as a condition of employment, and provides, in relevant part:

(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activities off the premises of the ...

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