United States District Court, D. Colorado
ORDER ON DEFENDANT’S MOTION TO DISMISS (Docket No. 20)
MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE
This case is before this Court for all purposes pursuant to the Court’s Pilot Program and 28 U.S.C. § 636(c) upon consent of the parties and the Order of Reference Upon Consent to Jurisdiction of Magistrate Judge issued by Chief Judge Marcia S. Krieger on September 15, 2015 (Docket Nos. 15 & 16).
Now before the Court is the Defendant’s Motion to Dismiss (Docket No. 20). Plaintiff filed a response (Docket No. 24) and defendant filed a reply (Docket No. 25). The Court has reviewed the parties’ filings. The Court has further taken judicial notice of the Court’s entire file in this case and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court grants the motion in part and denies the motion in part.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff, who proceeds in this matter pro se, brings claims against Defendant, his former employer, pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Equal Pay Act. (Docket No. 1 at 1-2, 8-11.) He is an immigrant from Angola, a lawful resident, and authorized to work in the United States. (Id.) Plaintiff was hired by Defendant on October 7, 2013, and left his employment just over four months later on February 10, 2014. (Id. at 1, 7.) He was hired for the position of “drop wings” in the production area of the beef plant. (Id. at 3.) As a new hire, he wore a “gold hat” as a symbol of a “non qualified” employee. (Id. at 3-4.) He satisfactorily performed his job duties, and within thirty days, on or about November 6, 2014, he became a “qualified employee” because he had previous work experience from another beef plant as a Quality Assurance Technician. (Id. at 4.) Plaintiff was thus given a “white hat” as a symbol of a “qualified employee, ” and his pay was raised from $13.95 per hour to $14.04 per hour. (Id.)
Employees with a “gold hat” can be switched and tried in different positions to see in which position they best perform. (Id.) In addition, a new hire with a gold hat must take orders from “seniors” at any time. (Id.) If there is a new opening, the new hire does not have a right to bid for it. (Id.) The senior workers respect the qualified employees. (Id.) As a qualified employee, Plaintiff had the opportunity to bid for any preferable position. (Id.) He bid for a quality assurance position and was told to wait until there would be an opening in the quality assurance department. (Id.)
Plaintiff was harassed by an Hispanic co-worker, Emilio Garcia, who was “backed by a Hispanic supervisor Javier Villanova.” (Docket No. 1 at 2, 4.) On or about November 18, 2013, Plaintiff filed a complaint with the union representative. (Docket No. 1 at 4; Docket No. 1-3.) About a week later, “defendant recklessly and intentionally retaliated against the plaintiff for having filed a complaint with the Union Representative against the employer” at the “Union’s office located in the facility of the beef plant.” (Docket No. 1 at 2.) On or about November 24, 2013, “the supervisor backed by the floor manager Mirna, another Hispanic lady . . . recklessly and intentionally inflicted emotional distress on the plaintiff in [a] humiliating manner.” (Id. at 4-5.) More specifically, “[t]hey stripped [Plaintiff] of his white hat as a retaliation because of the complaint . . . . They cut his working hours [and] . . . . They exposed him to public humiliation[, ] mockery and subject[ed Plaintiff] to taking order[s] from seniors. He was humiliated by wearing [a] gold hat agin [sic].” (Id. at 5.) As a result of emotional distress, the next day Plaintiff did not go to work and was treated at Centennial Mental Health. (Id. at 5.)
Plaintiff was removed from “Drop Wing to Tender Loin” and assigned a new position, “Tender pullers, ” the hardest in the production area. (Id.) He was given thirty days to qualify and was told failure to do so would result in termination of his employment. (Id.) “The employer knowingly [sic] it was the toughest job, the plaintiff would not be able to qualify or he would voluntarily quit[.] However, he surprisingly beat all the odds and performed very well in less than three weeks.” (Id. at 5.) At that time, the pay rate for that position was $16.15 per hour, but the “drop wing” rate of pay was $14.05 per hour. (Id.) “The employer had realized that they made a mistake to put the guy they didn’t want to see around in a position to make good money.” (Id.) Plaintiff was sent back to the “drop wing” position on December 17, 2013. (Id. at 6.) Plaintiff “was harassed in exchanged with the restitution of white hat [sic].” (Id. at 6.) On or about December 17, 2013, Plaintiff “filed a complaint with Human Resources of the company” which “addressed ‘Discrimination treatment, Retaliation, and Hostile work environment.’” (Docket No. 1 at 5-6.) “As a condition the the [sic] plaintiff was removed and sent back again to drop wings where he was harassed in exchange with the restitution of white hat.” (Docket No. 1 at 6.) Brendan, the Human Resource delegate told plaintiff he had no choice.
On December 23, 2013, plaintiff decided to file a grievance with the union. (Docket No. 1 at 4, 6 & Docket No. 1-4). After doing so, the manager “implemented new strategies, ” namely, assigning another employee to be involved with part of plaintiff’s job duties. (Docket No. 1 at 6-7.) That co-worker was not performing the job correctly and Plaintiff was being blamed for it. (Id. at 7.) Plaintiff asked his supervisor to intervene, but nothing happened. (Id.) After Plaintiff complained, the co-worker threw a large piece of fat at Plaintiff, causing pain when it struck on the side of Plaintiff’s head. (Id.) When Plaintiff complained about the fat-throwing incident, the manager admitted it was her fault because she did not include Plaintiff in a meeting about a change she made. (Id.) Nothing was done in response to Plaintiff’s complaint to his manager. (Id.) The co-worker was not punished and the policy of zero tolerance for violence in the workplace was not enforced. (Id.) As a result, Plaintiff tendered his resignation on February 10, 2014. (Id.) Plaintiff “had no other choice.” (Id.)
Prior to his resignation, on or about January 3, 2014, Plaintiff applied for a quality assurance position. Plaintiff had an interview with quality assurance manager Justin and was called for a second interview with Justin and Lucy, another quality assurance manager, in the presence of Irene, a Human Resources hiring manager. They were all “without a shadow of doubt impressed by his experience.” (Id. at 6.) Plaintiff was told “he would be placed on January 28, 2014.” (Id.) A Hispanic female from outside the company was placed in that job. (Id.)
Plaintiff alleges that Defendant’s treatment of him constitutes discrimination based on race and national origin, and retaliation in violation of Title VII, Section 1981, and the Colorado Anti Discrimination Act. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on April 29, 2014. (Id. at 2.) Plaintiff received a right to sue letter, dated June 8, 2015, from the EEOC. (Docket No. 1-2.) Plaintiff raises the following claims for relief: (1) a Title VII violation based upon defendant recklessly and intentionally discriminating against plaintiff who is black and from Angola, Africa; (2) a claim that Defendant retaliated “against plaintiff for having filed a complaint with the Union representative of the employees” by stripping him of his white hat, violating the Union contract, exposing plaintiff to public humiliation, mockery, and subject to taking orders from seniors, cutting plaintiff’s hours, denying plaintiff’s promotion, and urging another co-worker to assault plaintiff, in violation of Title VII; (3) a Title VII claim alleging that Plaintiff was subject to a hostile work environment and denied a promotion; (4) a claim brought under the Equal Pay Act (“EPA”), 29 U.S.C. § 206, and 42 U.S.C. § 1981 because Plaintiff was paid $14.05 per hour when he worked in the position “tender loin” from November 24 to December 17, 2013, and should have been paid $16.15 per hour; and (5) a claim that Plaintiff was demoted, harassed, and subject to unfair terms and conditions of employment due to his national origin (he would not have received such different treatment if he was Hispanic or American).
In the motion, Defendant argues that each of Plaintiff’s claims is subject to dismissal pursuant to Fed.R.Civ.P. 12. Defendant avers that the Court lacks jurisdiction over Plaintiff’s retaliation claim because the National Labor Relations Board has primary jurisdiction over the claim. Defendant further argues that Plaintiff’s Title VII and Section 1981 claims fail because Plaintiff did not suffer an adverse employment action. Specifically, Defendant maintains that neither wearing a gold hard hat nor being temporarily assigned to a new position constitute adverse employment actions. With regard to Plaintiff’s allegation that he was not selected for a quality assurance position, Defendant argues that Plaintiff was not qualified for the position. Defendant also argues that Plaintiff’s hours were not reduced in retaliation for his complaint to his union. Defendant further argues that Plaintiff was not constructively discharged from his job. Regarding Plaintiff’s hostile work environment claim, Defendant maintains that the alleged harassment was not so severe or pervasive as to alter the terms and conditions of his employment. Finally, Defendant argues that Plaintiff’s EPA claim fails because he does not allege that he suffered any discrimination based on his sex or gender.
Notably, Plaintiff’s response includes additional factual allegations. However, the Court cannot consider these additional factual allegations when determining whether the motion should be granted because the Court is limited to the allegations in the Complaint. This is because the purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the ...