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Douglas v. Mountain Song Community School

United States District Court, D. Colorado

April 15, 2016

MOUNTAIN SONG COMMUNITY SCHOOL, EVELYN CORTEZ-FORD, in her individual capacity, and JAMES JACK ROBERTS, in his individual capacity, Defendants.


          KRISTEN L. MIX, Magistrate Judge.

         This matter is before the Court on Defendant Mountain Song Community School's ("MSCS") Motion to Dismiss [#25][1] (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.[2]

         I. Summary of the Case[3]

         Plaintiff is the former School Director of Defendant MSCS, a Colorado charter school located in Colorado Springs, Colorado. Compl. [#1] ¶¶ 6-7. In connection with the following events, Plaintiff asserts five claims: (1) gender discrimination in violation of Title VII, 42 U.S.C. § 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. § 24-6-402, against Defendant MSCS; (4) violation of the Colorado Lawful Off-Duty Activities Statute, Colo. Rev. § 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. ¶¶ 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).

         Plaintiff, a female, was a founder of Defendant MSCS and in March 2013 was offered the position of School Director. Compl. [#1] ¶¶ 31-32, 42. In the 2013-2014 school year, Bradley McCullough ("McCullough") began teaching at the school as a sixth grade teacher. Id. ¶¶ 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. ¶ 54-55. Both Plaintiff and Mr. McCullough separated from their respective spouses and discussed marrying. Id. ¶ 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. ¶¶ 59-60. On January 6, 2014, Plaintiff also informed School Board Vice President Raj Solanki ("Solanki") of the relationship. Id. ¶ 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. ¶ 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. ¶ 91. Plaintiff attended the Board meeting later that day and answered the Board's questions. Id. ¶ 95. Two days later, the Board held another closed meeting to discuss the same issues, and Plaintiff answered more questions. Id. ¶¶ 101, 107-08. On February 8 or 9, 2014, Mr. McCullough resigned his position with the school. Id. ¶¶ 122, 195. On February 9, 2014, a Sunday, the Board held another meeting, in which it decided to terminate Plaintiff's employment. Id. ¶¶ 126, 130.[4]

         II. Standard of Review

         A. Fed.R.Civ.P. 12(b)(1)

         Subject 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.

         Rule 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)).

         B. Fed.R.Civ.P. 12(b)(6)

         Rule 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).

         "A 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 1192.

         "The 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 omitted).

         III. Analysis

         A. Title VII Gender Discrimination

         Plaintiff asserts a disparate treatment claim of intentional gender discrimination under Title VII. Compl. [#1] ¶¶ 166-74.

         In 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 §§ 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).

         "To 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 ...

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