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Marks v. Sessions

United States District Court, D. Colorado

September 27, 2017

DANIELLE MARKS, Plaintiff,
v.
JEFF SESSIONS, United States Attorney General, United States Department of Justice, Defendant.

          ORDER

          WILEY Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         THIS MATTER comes before the Court on Defendant United States Attorney General, Jeff Sessions' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 18), filed December 19, 2016. Plaintiff Danielle Marks filed a Response (ECF No. 36) on January, 19, 2017 and Defendant filed a Reply (ECF No. 44) on February 2, 2017. Specifically, Defendant seeks to dismiss Plaintiff's Amended Complaint (ECF No. 7) pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state sex discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). Additionally, Defendant also seeks the dismissal of Plaintiff's hostile work environment claim for failure to timely exhaust administrative remedies.

         By way of background, Plaintiff Danielle Marks, a former female special agent (“SA”) of the United States Federal Bureau of Investigation (“FBI”), alleges that she was discriminated against, harassed, and ultimately constructively discharged from her employment at the FBI. Plaintiff transferred to the FBI's Denver Division in January 2013, where she was assigned to the Metro Gang Task Force (“MGTF”). (Am. Compl., ECF No. 7 at ¶¶ 1, 12). Even before Plaintiff's transfer, Assistant Special Agent in Charge (“ASAC”) Mike Rankin stated that the environment in the Denver Division was “tough.” (Am. Compl. ¶ 9). Plaintiff alleges that there were six special agents assigned to the MGTF. (Id. at ¶ 14). Supervisory Special Agent (“SSA”) Todd Wilcox and ASAC Rankin were the FBI agents who oversaw operations at the Denver MGTF. (Id. at ¶ 16). Plaintiff's first and only Performance Appraisal Rating was “Successful.” (Id. at ¶ 17). Plaintiff alleges that she experienced a hostile work environment replete with inappropriate sexual comments. (Id. at ¶ 19). Most of the conduct Plaintiff alleges she endured was perpetrated by three male SAs, Sanin, Tobar, and Alexander. (Id. at ¶ 22). As a result of the hostile work environment, Plaintiff tendered her resignation on September 15, 2014. (Id. at ¶ 71). For purposes of adjudicating this Motion to Dismiss, the allegations contained in Plaintiff's Amended Complaint are treated as true and construed in the light most favorable to the Plaintiff.

         II. ANALYSIS

         A. Standard of Review

         The parties submitted an evidentiary item-the 2014 Charge. The parties agree that it is referenced in the Complaint and that the Court may consider this evidence without converting the motion to one for summary judgment. See Jacobsen v. Desert Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (explaining that a “court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim, and the parties do not dispute the documents' authenticity”); see also Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013)). Accordingly, the Court analyzes the motion pursuant to Rule 12(b)(6) and does not convert the motion to one for summary judgment.

         In considering a motion to dismiss under Rule 12(b)(6), a court must determine whether the plaintiff has stated a claim upon which relief may be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he 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).

         The Tenth Circuit has interpreted “plausibility, ” the term used by the Supreme Court in Twombly, to “refer to the scope of the allegations in a complaint” rather than to mean “likely to be true.” Robbins v. Okla. ex rel. Okla. Dep't of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008). Thus, “if [allegations] are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” Id. (internal quotations omitted). “The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Id. “This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Id. at 1248. Therefore, “a plaintiff must include enough facts to ‘nudge[] [his] claims across the line from conceivable to plausible.'” Dennis v. Watco Cos., Inc., 631 F.3d 1303, 1305 (10th Cir. 2011) (quotation omitted). Conclusory allegations are not sufficient to survive a motion to dismiss. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009).

         B. Failure to Exhaust

         Defendant first argues that Plaintiff has failed to administratively exhaust her claim of hostile work environment claim under Title VII. “[A]dministrative remedies generally must be exhausted as to each discrete instance of discrimination or retaliation.” Wickware v. Manville, 676 F.App'x 753, 768 (10th Cir. 2017). Before filing a formal EEOC complaint, an aggrieved employee must contact an EEOC “[c]ounselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1); see Mobley v. Donahoe, 498 F.App'x 793, 798 (10th Cir. 2012). As an FBI Agent, Plaintiff Marks was required to “initiate contact with an EEO Counselor within 45 days of the alleged discriminatory conduct. The 45-day period can be extended under certain circumstances, such as “when the individual shows ... that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred.” Id. § 1614.105(a)(2). Plaintiff initiated contact with the EEO Office on October 2, 2014. (EEO Compl., ECF No. 18-1). Thus, for Plaintiff to satisfy the remedy exhaustion requirement, the alleged discriminatory act must have occurred within the 45 day period between August 18, 2014 and October 2, 2014.

         “[A] plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Jones v. U.P.S., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007). Courts must liberally construe EEOC charges in determining whether remedies have been exhausted as to a particular claim. Id. However, a court's inquiry “is limited to the scope of the administrative investigation that can reasonably be expected to follow from the discriminatory acts alleged in the administrative charge.” Id.

         “In other words, the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim[.]” Id. “[T]his follows from the rule that each discrete incident of alleged discrimination or retaliation constitutes its own unlawful employment practice for which administrative remedies must be exhausted.” Id. (internal quotations omitted). Therefore, any discrete employment actions occurring after an EEOC charge are submitted are not exhausted. Id. “It is for the district court to determine whether the plaintiff has complied with the regulatory requirements when the defendant raises the issue of failure to exhaust administrative remedies.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1105-06 (10th Cir. 2002).

         Hostile work environment claims work differently, however. Under certain circumstances, hostile work environment claims may rely in part on conduct that occurred outside the limitations period. Aman v. Dillon Companies, Inc., 645 F.App'x 719, 723-24 (10th Cir. 2016). “[A]s long as an act contributing to a hostile work environment took place” within the limitations period, “a court may consider the complete history of acts comprising that hostile work environment.” Id. at 724 (citing Duncan v. Manager, Dep't of Safety, 397 F.3d 1300, 1308 (10th Cir.2005) (quotation omitted)). “But to consider pre-limitations period conduct, those acts must comprise ‘part of the same actionable hostile work environment practice' that continued into the limitations period.” Id. (quotation omitted). “[A] series of alleged events comprises the same hostile environment where the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.” Id. (quotation and alteration omitted). Therefore, as long as Plaintiff has alleged at least one discriminatory act occurred between August 18, 2014 and October 2, 2014, the Court may consider the complete history of acts contributing to her hostile work environment claim.

         Defendant argues that while Plaintiff alleges two incidents that allegedly occurred during this 45-day period, neither contributes to her hostile work environment claim. Defendant does not argue Plaintiff failed to timely exhaust her claims of retaliation or disparate treatment. The two claims Plaintiff alleges to have occurred within the relevant time period are: (1) in “early September 2014, ” SA Alexander created an operation plan and Plaintiff “realized that she was the only person not included in the plan who was at work that day, ” (Am. Compl. ¶ 69); and (2) on October 1, 2014, when Plaintiff received a second-hand account from TFO Roberts that “she heard SA Henry Sanin say to SA Aerts, “Let me lick your pussy.” (EEO Compl. at 5-6).

         It is clear that Plaintiff perceived her workplace as intolerable by September 14, 2014, at the latest-the date she tendered her resignation. Plaintiff frequently alleges SAs Tobar, Sanin, and Alexander were the primary contributors to the hostile work environment. Because Plaintiff alleges that she was excluded from an operation plan in “early September 2014, ” by SA Alexander, I find that this incident may have contributed to her hostile work environment claim for exhaustion purposes. Further, I find that Plaintiff was not required to exhaust administrative remedies with ...


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