United States District Court, D. Colorado
Y. DANIEL, SENIOR UNITED STATES DISTRICT JUDGE
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
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
Standard of Review
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
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).
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).
Failure to Exhaust
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.
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.
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).
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
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).
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 ...