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Gomez v. Sam's West, Inc.

United States District Court, D. Colorado

August 14, 2017

JOSEPH E. GOMEZ, III, Plaintiff,
v.
SAM'S WEST, INC., Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter is before the Court on Defendant's Partial Motion to Dismiss Plaintiff's Amended Complaint. (Doc. # 23.) For the following reasons, the Motion is granted in part and denied in part.

         I. LAW GOVERNING A MOTION TO DISMISS

         The purpose of a motion to dismiss under Rule 12(b)(6) is to test "the sufficiency of the allegations within the four corners of the complaint." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint will survive such a motion only if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Ml. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law." Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009).

         In reviewing a Rule 12(b)(6) motion, a court must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff. Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991). Nevertheless, a complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d1562, 1565 (10th Cir. 1991).

         II. BACKGROUND

         Plaintiff Joseph E. Gomez has been employed by Defendant Sam's West Inc. for almost seventeen years, serving primarily as a Marketing Representative and Membership Team Lead. (Doc. # 17, p. 2.) Plaintiff contends that, throughout his employment, Defendant has discriminated against him on the basis of his race and religion - denying him promotions, transfers, and paid leave without a proper basis for doing so. On February 20, 2013, Plaintiff experienced a work-related injury but Defendant denied his workers' compensation claim and, according to Plaintiff, improperly forced him onto unpaid leave under the Family Medical Leave Act (FMLA). An administrative law judge later deemed Plaintiff's injury compensable and granted him workers' compensation benefits. Plaintiff contends that, when he returned to work, Defendant retaliated against him for seeking these benefits.

         Based generally on these allegations, Plaintiff filed two Charges of Discrimination with the EEOC - one on April 16, 2013 (Doc. # 23-1) and the other on July 13, 2015 (Doc. # 23-2). Plaintiff then initiated this lawsuit on November 10, 2016, alleging employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and Colorado common law. Plaintiff specifically raises the following seven claims for relief: discrimination based on (1) religion and (2) race; (3) violation of the ADA; (4) retaliation; (5) spoliation; (6) bad faith; and (7) defamation. Defendant moves to dismiss Plaintiffs Counts One, Two, Three, and Four on grounds that Plaintiff failed to exhaust his administrate remedies; and Counts Five and Six on grounds that Colorado does not recognize a civil tort claim for spoliation or a bad faith claim with respect to the firing of an at-will employee. The Court addresses each contention in turn.

         III. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

         Defendant first argues that Plaintiff failed to properly exhaust mandatory administrative remedies with respect to his discrimination and retaliation claims. Except with respect to a small group of claims, the Court disagrees and finds that Plaintiff properly exhausted his claims before the EEOC.

         A. LAW

         Exhaustion of administrative remedies is a prerequisite to suit under Title VII and the ADA. Shikles v. Sprint/United Mgmt Co., 426 F.3d 1304, 1317 (10th Cir. 2005); MacKenzie v. City of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). The purpose of the exhaustion requirement is to protect employers by giving them notice of the claims against them and to provide the EEOC with an opportunity to conciliate them in the first instance. Green v. Donahue, 760 F.3d 1135, 1140 (10th Cir. 2014) cert, granted, 135 S.Ct. 1892 (2015); Cooperv. Com Corp. of Am., No. 15-CV-00755-JLK, 2015 WL 5736838, at *2 (D. Colo. Oct. 1, 2015).

         Administrative remedies generally must be exhausted as to each discrete instance of discrimination or retaliation. Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012); Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194-95 (10th Cir. 2004); see also Jones v. Denver Post Corp., 203 F.3d 748, 755 (10th Cir. 2000) (when the employee gives notice of only one act of discrimination, she cannot bring suit on other, past acts of discrimination). To properly exhaust, "the [EEOC] charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim[, because] each discrete incident of alleged discrimination or retaliation constitutes its own unlawful employment practice for which administrative remedies must be exhausted." Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007) (internal quotation marks omitted); Cooper, 2015 WL 5736838, at *1. However, a subsequent suit in district court may include allegations of discrimination reasonably related to the allegations listed in the administrative charge, including new acts occurring during the pendency of the administrative charge. Aramburu v. Boeing Co., 112 F.3d 1398, 1409 (10th Cir. 1997); Brown v. Hartshome Public School Dlst. # 1, 864 F.2d 680, 682 (10th Cir. 1988).

         B. ...


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