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Brimm v. Falcon School District No. 49

United States District Court, D. Colorado

February 19, 2016



          CRAIG B. SHAFFER, Magistrate Judge.

         This 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.


         Jeffrey Brimm brings this action pursuant to Title VII, 42 U.S.C. §§ 2000e, et. seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621, et. seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102 et seq., and the Family Medical Leave Act (FMLA), 29 U.S.C. § 2615, et. seq. This action arises out of Mr. Brimm's employment with Falcon School District No. 49 ("the District") and his subsequent termination.

         Plaintiff 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 ¶¶ 8, 16]. Mr. Brimm began working as a security guard at Falcon High School ("Falcon High") in 2002. Id. at ¶ 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 ¶¶ 13-15. "Plaintiff was the only security guard in his fifties-sixties" employed at Falcon High. Id. at ¶ 18.

         At the 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 ¶¶ 19-21. As a result of Mr. Brimm's seniority at the school, he would often informally serve as "lead security guard." Id. at ¶ 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 ¶ 23.

         In April 2013, Mr. Brimm's supervisor, Steve Oberg, noted during a performance evaluation, "Plaintiff had been moving slower than normal." Id. at ¶ 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 ¶ 25. During July 27-29, 2013, the District scheduled a staff training session. Id. at ¶¶ 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 ¶ 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 ¶¶ 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 ¶ 31.

         One day 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 ¶ 34. During this meeting, Ms. Carson "became visibly upset, and she "went to Oberg and complained." Id. at ¶¶ 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 ¶ 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 ¶ 37.

         The 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 ¶¶ 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 ¶ 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 ¶ 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.'"[1] Id. at ¶ 41.

         Between January 16-30, 2014, Plaintiff worked without any duty modifications. Id. at ¶ 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 ¶ 46. Subsequently, Mr. Oberg told Plaintiff "this never would have happened if you hadn't gone to HR with your back issue." Id. at ¶ 47. After Mr. Brimm's termination, Ms. Carson was "promoted to Plaintiff's position." Id. at ¶ 48.

         In its 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.[2] 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.


         Under 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).

         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." 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. Id ...

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