United States District Court, D. Colorado
KRISTEN L. MIX, Magistrate Judge.
matter is before the Court on Defendant Mountain Song
Community School's ("MSCS") Motion to Dismiss
[#25] (the "Motion"). Plaintiff
filed a Response [#28] in opposition to the Motion, and
Defendant MSCS filed a Reply [#29]. The Court has reviewed
the Motion, Response, Reply, the entire case file, and the
applicable law, and is sufficiently advised in the premises.
For the reasons set forth below, the Motion [#25] is GRANTED
in part and DENIED in part.
Summary of the Case
is the former School Director of Defendant MSCS, a Colorado
charter school located in Colorado Springs, Colorado.
Compl. [#1] Â¶Â¶ 6-7. In connection with the following
events, Plaintiff asserts five claims: (1) gender
discrimination in violation of Title VII, 42 U.S.C. Â§
2000e-2, against Defendant MSCS; (2) violation of the
Fourteenth Amendment right to intimate association against
Defendant MSCS; (3) violation of the Colorado Open Meetings
Law, Colo. Rev. Stat. Â§ 24-6-402, against Defendant MSCS; (4)
violation of the Colorado Lawful Off-Duty Activities Statute,
Colo. Rev. Â§ 24-34-402.5, against Defendant MSCS; and (5)
violation of the First Amendment right to free speech and
association, against Defendant MSCS and the other two
Defendants, Evelyn Cortez-Ford and James Jack Roberts.
Id. Â¶Â¶ 166-221. In the present Motion [#25],
Defendant MSCS seeks dismissal of the first four claims
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
a female, was a founder of Defendant MSCS and in March 2013
was offered the position of School Director. Compl.
[#1] Â¶Â¶ 31-32, 42. In the 2013-2014 school year, Bradley
McCullough ("McCullough") began teaching at the
school as a sixth grade teacher. Id. Â¶Â¶ 48-49. In
November 2013, he informed Plaintiff that he had feelings for
her and wanted to develop a relationship with her, which they
did over the course of the following two months, although the
Complaint does not provide detail about the parameters of the
relationship. Id. Â¶ 54-55. Both Plaintiff and Mr.
McCullough separated from their respective spouses and
discussed marrying. Id. Â¶ 57. Although the two did
not discuss their relationship or engage in activities
related to their relationship at the school or during work
hours, they decided to meet with the school's pedagogical
director on January 5, 2014 in order to disclose the
existence of their relationship. Id. Â¶Â¶ 59-60. On
January 6, 2014, Plaintiff also informed School Board Vice
President Raj Solanki ("Solanki") of the
relationship. Id. Â¶ 63. On February 5, 2014, Mr.
Solanki told Plaintiff that he had decided to call a closed
Board meeting on February 6, 2014, in order to discuss
Plaintiff and her relationships with her husband and Mr.
McCullough. Id. Â¶ 86. On the afternoon of February
6, 2014, before the meeting, Mr. Solanki went to
Plaintiff's house and told her that he did not agree with
how she had put her professional ambitions ahead of her
responsibilities to her family. Id. Â¶ 91. Plaintiff
attended the Board meeting later that day and answered the
Board's questions. Id. Â¶ 95. Two days later, the
Board held another closed meeting to discuss the same issues,
and Plaintiff answered more questions. Id. Â¶Â¶ 101,
107-08. On February 8 or 9, 2014, Mr. McCullough resigned his
position with the school. Id. Â¶Â¶ 122, 195. On
February 9, 2014, a Sunday, the Board held another meeting,
in which it decided to terminate Plaintiff's employment.
Id. Â¶Â¶ 126, 130.
Standard of Review
matter jurisdiction may be challenged by a party or raised
sua sponte by the court at any point in the proceeding.
E.g., Am. Fire & Cas. Co. v. Finn, 341 U.S.
6, 16-19, (1951); Harris v. Illinois-California Express,
Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed.R.Civ.P.
12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may
take two forms: a facial attack or a factual attack. When
reviewing a facial attack on a complaint pursuant to Rule
12(b)(1), the Court accepts the allegations of the complaint
as true. Holt v. United States, 46 F.2d 1000, 1002
(10th Cir. 1995). When reviewing a factual attack on a
complaint supported by affidavits or other documents, the
Court makes its own factual findings and need not convert the
motion to one brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Id. at 1003.
12(b)(1) concerns whether the Court has jurisdiction to
properly hear the case before it. Dismissal of a federal
claim for lack of subject-matter jurisdiction "is proper
only when the claim is so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy." Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89 (1998) (quoting Oneida
Indian Nation v. County of Oneida, 414 U.S. 661, 666
(1974)). Because "federal courts are courts of limited
jurisdiction, " the Court must have a statutory basis to
exercise its jurisdiction. Montoya v. Chao, 296 F.3d
952, 955 (10th Cir. 2002); see Fed.R.Civ.P.
12(b)(1). Statutes conferring subject-matter jurisdiction on
federal courts are to be strictly construed. F. & S.
Const. Co. v. Jensen, 337 F.2d 160, 161 (10th Cir.
1964). "The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction."
Id. (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)).
12(b)(6) tests "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 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, 570 (2007)).
"[P]lausibility 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
plaintiff[ ] [has] not nudged [his] claims across the line
from conceivable to plausible." Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (internal
quotations and citations omitted).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 677
(2009). However, "[a] pleading that offers labels and
conclusions' or a formulaic recitation of the elements of
a cause of action will not do. Nor does the complaint suffice
if it tenders naked assertion[s]' devoid of further
factual enhancement.'" Id. (citation
omitted). That said, "[s]pecific facts are not
necessary; the statement need only give the defendant fair
notice of what the... claim is and the grounds upon which it
rests;" the 12(b)(6) standard does not "require
that the complaint include all facts necessary to carry the
plaintiff's burden." Khalik, 671 F.3d at
plausibility standard is not akin to a probability
requirement, ' but it asks for more than a sheer
possibility that defendant has acted unlawfully."
Id. (citation omitted). As the Tenth Circuit has
explained, "the mere metaphysical possibility that
some plaintiff could prove some set of
facts in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that
this plaintiff has a reasonable likelihood of
mustering factual support for these claims."
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007) (emphasis in original). "Where a
complaint pleads facts that are merely consistent with' a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.'" Iqbal, 556 U.S. at 678 (citation
Title VII Gender Discrimination
asserts a disparate treatment claim of intentional gender
discrimination under Title VII. Compl. [#1] Â¶Â¶
Mormon v. Campbell County Memorial Hospital, ___
F.Appx. ___, ___, No. 14-8090, 2015 WL 7753244 (10th Cir.
Dec. 2, 2015), the Tenth Circuit Court of Appeals recently
discussed the standard gender discrimination claims must meet
to overcome a motion to dismiss. Although Mormon
involved a case of gender discrimination under the Fourteenth
Amendment, "the elements of a plaintiff's case are
the same, based on the disparate treatment elements outlined
in McDonnell Douglas, whether that case is brought
under Â§Â§ 1981 or 1983 or Title VII." 2015 WL 7753244, at
*5 n.5 (quoting Drake v. City of Fort Collins, 927
F.2d 1156, 1162 (10th Cir. 1991); see also, e.g., Mancell
v. McHugh, ___ F.Appx. ___, ___, No. 15-2079, 2016 WL
285087, at *1 (10th Cir. Jan 25, 2016) (applying
McDonnell Douglas framework in the context of a
Title VII gender discrimination claim).
prove an equal-protection claim based on disparate treatment,
a plaintiff must provide either direct evidence of
discrimination or prevail under the burden-shifting framework
of McDonnell Douglas Corp. v. Green,411 U.S. 792
(1972)." Mormon, 2015 WL 7753244, at *5 (citing
Khalik, 671 F.3d at 1192). "Under McDonnell
Douglas, the plaintiff must first prove a prima facie
case of discrimination." Id. "If she does
so, then the burden shifts to the defendant to produce a
legitimate, non-discriminatory reason for the adverse
employment action.'" Mormon, 2015 WL
7753244, at *5 (quoting Khalik, 671 F.3d at 1192).
"If the defendant provides such a reason, the burden
then shifts back to the plaintiff to show ...