United States District Court, D. Colorado
RECOMMENDATION REGARDING DEFENDANT'S PARTIAL
MOTION TO DISMISS
B. SHAFFER, Magistrate Judge.
matter comes before the court on a Partial Motion to Dismiss
[Doc. 10] filed on August 11, 2015, by Defendant Falcon
School District No. 49. The Motion was referred to the
Magistrate Judge by Order of Reference [Doc. 14] dated August
24, 2015. This court has carefully considered the motion and
related briefing, the entire case file, and applicable case
law. For the following reasons, the court recommends that the
motion be granted in part and denied in part.
Brimm brings this action pursuant to Title VII, 42 U.S.C. Â§Â§
2000e, et. seq., the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. Â§Â§ 621, et. seq.,
the Americans with Disabilities Act ("ADA"), 42
U.S.C. Â§Â§ 12102 et seq., and the Family Medical
Leave Act (FMLA), 29 U.S.C. Â§ 2615, et. seq. This
action arises out of Mr. Brimm's employment with Falcon
School District No. 49 ("the District") and his
alleges the following facts. Plaintiff is a sixty-four year
old male with a physical disability; he suffers from a
deteriorated meniscus in his knee. [Doc. 1 at Â¶Â¶ 8, 16]. Mr.
Brimm began working as a security guard at Falcon High School
("Falcon High") in 2002. Id. at Â¶ 13.
During the twelve years that he worked at Falcon High, he
"received positive evaluations for his performance"
and gained the respect of administrators. Id. at Â¶Â¶
13-15. "Plaintiff was the only security guard in his
fifties-sixties" employed at Falcon High. Id.
at Â¶ 18.
time of Mr. Brimm's termination, Falcon High employed two
males (including Plaintiff) and one female security guard;
both of his co-workers were "many years younger than the
Plaintiff." Id. at Â¶Â¶ 19-21. As a result of Mr.
Brimm's seniority at the school, he would often
informally serve as "lead security guard."
Id. at Â¶ 22. The female security guard, Laurie
Carson, "took umbrage at Mr. Brimm's seniority,
" a fact demonstrated by her disparaging remarks towards
him as well as her "[interference] with his work"
and "positive relationships with school staff."
Id. at Â¶ 23.
April 2013, Mr. Brimm's supervisor, Steve Oberg, noted
during a performance evaluation, "Plaintiff had been
moving slower than normal." Id. at Â¶ 24.
Plaintiff responded to Mr. Oberg's concern by stating
that he had recently begun experiencing a back problem, but
he would get it taken care of as soon as the school year was
over. Id. The school year concluded without further
comments to Mr. Brimm about his performance. Id. at
Â¶ 25. During July 27-29, 2013, the District scheduled a staff
training session. Id. at Â¶Â¶ 26-27. Plaintiff
"suddenly experienced severe back pain" and
"informed the District's HR department that he could
not attend the last day of training." Id. at Â¶
27. As a result of the injury, Mr. Brimm took FMLA leave as
well as "41 days of accrued sick leave;" he
returned to work on January 7, 2014, more than five months
after he made the FMLA request. Id. at Â¶Â¶ 29, 34.
Ms. Carson "took charge" while Plaintiff was on
leave, and during that time "there were complaints about
her demeanor and performance." Id. at Â¶ 31.
after Mr. Brimm returned to work, January 8, 2014, Mr. Oberg
convened a meeting with the security guard team to announce
that "he was designating Plaintiff as the official lead
security-guard, due to his excellent record at the school and
because he had been serving de-facto in that capacity for
years." Id. at Â¶ 34. During this meeting, Ms.
Carson "became visibly upset, and she "went to
Oberg and complained." Id. at Â¶Â¶ 34-35. The
next day, Ms. Carson informed Plaintiff of her conversation
with Mr. Oberg claiming that "she had vocally
blistered' Oberg, including f-bombing' him."
Id. at Â¶ 36. Later that day, Mr. Brimm arrived late
to an emergency call on the school's upper-floor.
Id. Thereafter, Mr. Oberg told Plaintiff that
"[he] had been going up the stairs too slowly for an
emergency call.'" Id. at Â¶ 37.
following week, Mr. Brimm learned that the HR department had
scheduled a fitness for duty exam with the District's
doctor for January 15, 2014, as a result of an
"anonymous call, " which Mr. Oberg later admitted
to placing. Id. at Â¶Â¶ 38-39. During the exam,
"the doctor did not examine Plaintiff other than to take
his blood pressure, and look at his hands; no x-rays [or
image scans] were taken." Id. at Â¶ 40. Although
the doctor "expressed concerns about [Plaintiff's]
knee" and its effect on Mr. Brimm's ability to carry
out his duties, "the doctor did not opine that Plaintiff
was unfit for duty" during the exam. Id. at Â¶
41. However, after the doctor spoke with the District's
HR department about Plaintiff's job description, he
"opined that the patient is not fit for duty and could
only continue the current position as a security officer with
modified duty.'" Id. at Â¶ 41.
January 16-30, 2014, Plaintiff worked without any duty
modifications. Id. at Â¶ 45. Additionally, no further
concerns were brought to Mr. Brimm's attention prior to
his termination. Id. On January 30, 2014, Plaintiff
was called into a meeting and informed that "he was
terminated for being physically unable to perform his
duties." Id. at Â¶ 46. Subsequently, Mr. Oberg
told Plaintiff "this never would have happened if you
hadn't gone to HR with your back issue."
Id. at Â¶ 47. After Mr. Brimm's termination, Ms.
Carson was "promoted to Plaintiff's position."
Id. at Â¶ 48.
Partial Motion to Dismiss, Defendant argues that Plaintiff
has not pled sufficient factual allegations to make out
plausible claims under Title VII, the ADEA, or the FMLA, and
therefore, those claims should be dismissed. To support
his first claim of gender discrimination, Plaintiff contends
that a biased female co-worker improperly influenced the
District's decision to terminate him. Plaintiff's
third claim of age discrimination relies on assertions that
he was over 60 years old when terminated, he was qualified
for the security guard position, and someone younger replaced
him. Plaintiff's fourth claim alleges that the
District's decision to terminate him 3-weeks after
returning from a leave of absence was retaliation for
exercising his rights under FMLA.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
court may dismiss a complaint for "failure to state a
claim upon which relief can be granted." See
Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule
12(b)(6), the court must "accept as true all
well-pleaded factual allegations... and view these
allegations in the light most favorable to the
plaintiff." Casanova v. Ulibarri, 595 F.3d
1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court
is not, however, "bound to accept as true a legal
conclusion couched as a factual allegation." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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."
Iqball, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570) (internal quotation marks omitted). While a
plaintiff need not plead a prima facie case in the
complaint, "the elements of each alleged cause of action
help to determine whether the plaintiff has set forth a
plausible claim." Khalik v. United Air Lines,671 F.3d 1188, 1192 (10th Cir. 2012) (citation omitted);
Kendrick v. Penske Transp. Servs., Inc., 1999 WL
450886, at *1 (D. Kan. Apr. 13, 1999) aff'd, 220
F.3d 1220 (10th Cir. 2000) ("Although plaintiff need not
precisely state each element of its claim, plaintiff must
plead minimal factual allegations on those material elements
that must be proved."). A claim is plausible when the
plaintiff "pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqball, 556 U.S.
at 678 (citation omitted). This standard requires more than
the sheer possibility that a defendant has acted unlawfully.