United States District Court, D. Colorado
JOSEPH E. GOMEZ, III, Plaintiff,
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.
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.
LAW GOVERNING A MOTION TO DISMISS
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).
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).
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.
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.
FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
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.
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).
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.