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Reveles v. Catholic Health Initiatives

United States District Court, D. Colorado

June 21, 2017

VALERIE REVELES, an individual, Plaintiff,
v.
CATHOLIC HEALTH INITIATIVES, a Colorado non-profit corporation, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          William J. Martinez United States District Judge

         Plaintiff Valerie Reveles (“Reveles”) sues her employer, Catholic Health Initiatives (“CHI”), for sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (ECF No. 1.) From the same set of facts underlying her Title VII claims, Reveles also alleges a number of state-law claims, namely, violation of the Colorado Anti-Discrimination Act, Colo. Rev. Stat. §§ 24-34-401 et seq.; negligent supervision and retention; respondeat superior; and intentional infliction of emotional distress.

         Currently before the Court is CHI's Motion to Dismiss, which argues that all claims must be dismissed for various reasons. (ECF No. 14.) As explained in detail below, the Court agrees that Reveles's two theories of Title VII liability must be dismissed. Because those are the only claims over which the Court has original jurisdiction, the Court declines to exercise supplemental jurisdiction over her state-law claims and therefore does not reach CHI's arguments regarding those claims, which will be dismissed without prejudice.[1]

         I. LEGAL STANDARD

         A. Rule 12(b)(1) Versus Rule 12(b)(6)

         At the outset, the parties raise a complicated question of the proper legal standard to apply to CHI's motion, and particularly whether this Court may consider materials beyond Reveles's complaint when evaluating whether her claims may go forward. As will become clear below, CHI's principal argument is that Reveles did not file a timely charge of discrimination with the EEOC, or at least did not file a charge fairly encompassing the allegations in her complaint. CHI characterizes this as a defect going to subject matter jurisdiction and thus invokes Federal Rule of Civil Procedure 12(b)(1). (ECF No. 14 at 5.) When a motion is brought under that rule, a court may usually consider materials beyond the complaint, such as exhibits and affidavits submitted by the defendant. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995). CHI also argues that Reveles's claims fail under a Rule 12(b)(6) analysis, which typically limits the Court to considering only the complaint. (ECF No. 14 at 5-6.)

         The Tenth Circuit has certainly held that “a plaintiff's exhaustion of his or her administrative remedies [including pursuing an EEOC charge] is a jurisdictional prerequisite to suit under Title VII-not merely a condition precedent to suit.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). But later Tenth Circuit decisions have limited this holding to situations in which a plaintiff entirely failed to file anything like a charge with the EEOC. See Jones v. Needham, 856 F.3d 1284, 1289 (10th Cir. 2017) (“our recent cases suggest that exhaustion in this context might be better characterized as a [non-jurisdictional] claims-processing obligation”); Gad v. Kansas State Univ., 787 F.3d 1032, 1039-41 (10th Cir. 2015) (criticizing Shikles as out-of-step with various Supreme Court rulings and finding that certain tasks within the process of filing a charge are non-jurisdictional).

         Moreover, specifically as to CHI's timeliness arguments, the Supreme Court itself has declared that the inquiry is not jurisdictional: “a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The Tenth Circuit thus treats timeliness as a prerequisite to suit and places the burden of proof on the plaintiff, but timeliness is not a jurisdictional requirement “and is thus subject to waiver, estoppel, and tolling when equity requires.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007).

         Given all of this, the Court concludes that CHI raises arguments that must be evaluated under Rule 12(b)(6), not Rule 12(b)(1). But this does not prevent the Court from considering the lone outside-the-pleadings document that CHI proffers, namely, Reveles's actual Charge of Discrimination filed with the EEOC on July 6, 2016 (“Charge”). (See ECF No. 14-1.) The Court may consider a document outside the pleadings even in a Rule 12(b)(6) analysis if the document is (1) “mentioned in the complaint, ” (2) “central to [the] claims [at issue], ” and (3) not challenged as inauthentic. Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013).[2] Here, the Charge is “mentioned” because Reveles alleges the existence of it and claims that she “satisfied her statutory obligation to exhaust administrative remedies” by filing it. (ECF No. 1 ¶ 11.) The Charge is also “central” because exhaustion is a prerequisite to maintaining this suit and Reveles bears the burden of proof on this matter. See Montes, 497 F.3d at 1167. Finally, Reveles does not challenge the Charge as inauthentic. Thus, the Court may consider the Charge while remaining within the restraints of a proper Rule 12(b)(6) analysis.

         B. Request for Conversion to Summary Judgment

         Reveles, however, takes the rather unusual step of: (1) urging this Court to convert CHI's motion to one for summary judgment (the usual course when matters outside the pleadings are presented in a Rule 12(b)(6) context, see Fed. R. Civ. P. 12(d)); yet also (2) arguing that genuine issues of material fact preclude summary judgment; and then (3) claiming inability to present facts essential to justify her opposition (see Fed. R. Civ. P. 56(d)) and asking for additional time to take discovery.[3](ECF No. 16 at 2, 10-15, 30-31; see also ECF No. 16-4 (Reveles's counsel's Rule 56(d) affidavit).) This appears to be a tactical move motivated by her hope that the Court will consider materials even further beyond her pleadings than her EEOC Charge.

         Given that well-established case law permits the Court to consider the Charge without straying from a proper Rule 12(b)(6) analysis, it is not clear that the Court can nonetheless declare that a motion to dismiss will be treated as a motion for summary judgment simply because Reveles now wants to, in effect, supplement her complaint- and thereby make it a moving target. CHI conferred with the Reveles before filing its motion to dismiss, and Reveles presumably refused to amend or withdraw any portion of her complaint. (See ECF No. 14 at 1.) Even so, she could have amended her complaint “as a matter of course” within 21 days after receiving CHI's motion. Fed.R.Civ.P. 15(a)(1)(B). She chose not to do so. The Court therefore rejects her request to convert CHI's motion to dismiss into a motion for summary judgment.[4] Nonetheless, the Court will sua sponte consider whether any of her additional documents may be considered under the same principles that permit the Court to consider the Charge.

         First, Reveles submits an affidavit in which she presents additional factual allegations. (See ECF No. 16-1.) Her response brief relies heavily on this affidavit. (See ECF No. 16 at 20-21, 25-26 (frequently citing to “Exhibit No. 1, ” which is her affidavit).) But plaintiffs “cannot rectify their pleading deficiencies by asserting new facts in an opposition to a motion to dismiss.” Smith v. Pizza Hut, Inc., 694 F.Supp.2d 1227, 1230 (D. Colo. 2010). Thus, the Court cannot consider Reveles's affidavit as if a part of her complaint. But the Court's analysis below will address some of Reveles's additional allegations to show that, even if they had been presented in the complaint, the Court's conclusions would remain unchanged.

         Next, Reveles submits her pre-Charge submissions to the EEOC, specifically, her intake questionnaire and a four-page letter attached to it. (ECF Nos. 16-2, 16-3.) The letter, in particular, contains significant details not embraced by the Charge itself. If the EEOC had treated Reveles's intake questionnaire and the attached letter as a charge but had never issued a formal charge of discrimination on EEOC Form 5, the Court could likely consult the questionnaire and its attachment in the same way it can consult the Charge in this case. See, e.g., Fed. Express Corp. v. Holowecki, 552 U.S. 389, 401, 405 (2008). However, that is the exception to “the general rule . . . that [the court] typically look[s] to the charge form if one exists. This is because the charge form, not a previous filing, is given to the employer to notify it of the potential claims against it and ordinarily determines the scope of the EEOC's investigation.” Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017); see also Green v. JP Morgan Chase Bank Nat'l Ass'n, 501 F. App'x 727, 731-32 (10th Cir. 2012) (refusing to look to the intake questionnaire because a formal charge issued). The Court is bound by the Tenth Circuit's holding in this regard, and therefore may not consult the intake questionnaire or the attached letter.[5]

         Moreover, in this case, Reveles specifically checked a box on the intake questionnaire stating, “I want to talk to an EEOC employee before deciding whether to file a charge. I understand that by checking this box, I have not filed a charge with the EEOC. I also understand that I could lose my rights if I do not file a charge in time.” (ECF No. 16-2 at 4 (boldface in original).) For this additional reason, the Court finds that considering the intake questionnaire is inappropriate.

         C. General Rule 12(b)(6) Standard

         Given that the Court will evaluate CHI's motion under Rule 12(b)(6), it must “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         II. PLAINTIFF'S ALLEGATIONS

         Reveles began working for CHI in 2003 as a procurement manager. (ECF No. 1 ¶ 13.) In 2008, she was transferred to the Data Management Department as a “Product Specialist.” (Id. ¶ 15.)

         Another employee in Reveles's new department, Andrew Martin, soon began sexually harassing Reveles. He pressured her for sexual favors; made explicit sexual gestures toward her; made unwelcome comments regarding her clothing and looks; left sexually explicit notes, text messages, and voicemails for her; revealed his sexual fantasies about her; and gave her unwanted gifts. (Id. ¶¶ 17-24.)

         Eventually Martin's harassment also began to take on violent overtones. His communications with her revealed that he knew her license plate number and the color of her daughter's school backpack, suggesting that he had been stalking her. (Id. ¶¶ 25, 31.) On at least two occasions, he threatened actual physical violence, including a threat that if Reveles reported his harassing behavior, he would “shove [her] into a place where nobody would ever find [her].” (Id. ¶¶ 28-29 (internal quotation marks omitted).)

         No later than mid-2009, “Mr. Martin's comments placed Ms. Reveles in apprehension of contact that was harmful, offensive, and unwelcome.” (Id. ¶ 34.) In August 2009, Reveles reported Martin's behavior to her supervisor, Kevin Kakuda, the vice president of supply chain data analytics at CHI. (Id. ¶¶ 16, 36.) Kakuda took no action. (Id. ¶ 37.)

         Reveles saw Martin sexually harassing at least four other female employees around this time or in the ensuing years. (Id. ¶ 40.) One of those employees was Kelly Trapp. (Id.) Sometime in 2011, Trapp reported Martin's harassment to Kakuda, Steve Kehrberg (senior vice president of supply chain/clinical engineering), and William Nelson (whose role at CHI is unclear). (Id. ¶ 43.)[6] Kakuda responded that he “needed proof, ” something more than Trapp's word against Martin's. (Id. ¶ 44 (internal quotation marks omitted).) Kakuda nonetheless wondered aloud whether Martin had behaved as alleged at his former employer given that he “had left [that] former employment out of the blue.” (Id. ¶¶ 45-46.) Trapp again asked Kakuda to investigate, but he reiterated his need for “proof, ” attributing that requirement to instructions he had received from the company's human resources department. (Id. ¶ 47.) Trapp replied that Reveles could produce documentation (presumably cards, text messages, voicemails, and the like). (Id. ¶ 48.) Kakuda never requested any documentation from Reveles. (Id. ¶ 49.) He also did nothing in response to Trapp's report that Martin was harassing another female employee, Molly Hible. (Id. ¶ 51.)

         In early 2014, Reveles went to lunch with Hible, “who indicated that Mr. Martin was sending unwelcome text messages and cards to her as well.” (Id. ¶ 52.) On March 18, 2014, Reveles again reported Martin's harassment of her, as well as of Hible, to Kakuda, Nelson, and Don Dudley (whom Reveles identifies as “National Director Supply Chain”). (Id. ¶ 53.) Kakuda responded, “Someone should warn her [Ms. Hible] of Mr. Martin's history, ” but also expressed concern for his own safety: “If I fire him [Mr. Martin], how do I know he won't come after me and my family?” (Id. ¶¶ 54-55 (internal quotation marks omitted; bracketed insertion in original).) Nelson, however, responded by telling Martin “to ‘stop' his behaviors” and “notify[ing] CHI's Human Resources department about the concerns.” (Id. ¶ 57.) The human resources department assigned one of its employees, Dave Seyfert, to investigate the case. (Id. ¶ 58.) It is not clear whether Reveles knew this. She told Nelson, not Seyfert, “where Mr. Martin's text messages, cards, and notes were located in her desk for HR to review as part of [its] investigation and as the ‘proof' that Mr. Kakuda continually stated was needed.” (Id. ¶ 59.) No one at CHI came to inspect these materials. (Id. ¶ 60.)

         This entire time, Martin's sexually harassing behavior toward Reveles had continued unabated. (Id. ¶ 38.) And, around this time (early 2014), Kakuda promoted Martin to a position that made him Reveles's direct supervisor. (Id. ¶ 39.) This was apparently a breaking point for Reveles. No later than May 31, 2014, Reveles requested and received a transfer to a department where her job duties would not require her to interact with Martin. (Id. ¶¶ 67-68.)[7] Kakuda remained her supervisor, however. (Id. ¶ 68.)

         From this point forward, Reveles's and Kakuda's relationship deteriorated. On some unspecified date, “Mr. Kakuda mocked Ms. Reveles in an open meeting.” (Id. ¶ 70.) “Mr. Kakuda went out of his way to avoid discussing work related matters with Ms. Reveles, assigning her tasks to other employees, sending emails to employees but excluding her from the list, [and] canceling meetings.” (Id. ¶ 73.) “Further, part of Ms. Reveles'[s] job responsibilities are ‘go lives' where a new hospital connects with CHI's software.” (Id. ¶ 74.) In January 2016, Kakuda excluded Reveles from a “go live” in Houston. (Id. ¶ 75.) Also, “Ms. Reveles has repeatedly requested additional job related training but was told, ‘i[t] i[s] not a good time for training, ' even though other employees who did not complain were allowed training.” (Id. ¶ 76.)

         In January 2016, a senior CHI human resources employee named Mary Beth Cohan contacted Reveles “to schedule an interview based on an anonymous complaint against Mr. Martin received through CHI's ethics hotline.” (Id. ¶ 77.) On February 1, 2016, Reveles spoke with Nelson and “expressed her fears about reporting Mr. Martin.” (Id. ¶ 78.) In other words, Reveles seems to have feared what Martin might do if she spoke to Cohan about him. “Mr. Nelson replied, ‘Val, I know this is a stressful time for you, we will continue to work with HR through these matters and will follow their guidance as we have done with instances you've brought to our attention in the past.'” (Id.) Reveles met with Cohan the following day “and provided her with all of the documentation again.” (Id. ¶ 79.) It is not clear what Reveles means by “again” in this allegation, unless she means to link it back to her previous instruction ...


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