United States District Court, D. Colorado
T. BABCOCK, LEWIS T. BABCOCK, JUDGE.
matter is before me on a Motion to Dismiss filed by Defendant
BAE Technology Solutions & Services, Inc.
(“BAE”), seeking dismissal of the discriminatory
retaliation claims filed against it by Plaintiff, Andrew
Davis, on the basis that he failed to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P.
12(b)(6). [Doc #27] Oral arguments would not materially
assist me in my determination. After consideration of the
parties' arguments, I GRANT the motion and I DISMISS this
provides services to the Department of Defense. In June 2011,
Plaintiff was hired by BAE as a Field Service Representative
and a Senior Desk Side Support Analyst to provide IT support.
[Doc #26 ¶8] In February of 2013, Plaintiff's
co-worker complained to him that she was being sexually
harassed by her supervisor. Plaintiff reported the harassment
allegation to BAE's human resources department. Plaintiff
asserts that the victim was subsequently “pressured to
recant” and then left BAE. “When one of BAE's
supervisory personnel learned that [Plaintiff] had been the
one to report the harassment, she stated that she was going
to make his life a ‘living hell.'” [Doc #26
¶12] Plaintiff further asserts that despite the fact
that he was in a “vital leadership role” and was
“excelling at his position, ” he was laid off a
year later in February of 2014. The reason given for the
layoff was budgetary cuts. [Doc #26 ¶13]
in November of 2015, Plaintiff was recruited for another
position working for BAE or a BAE subcontractor. Plaintiff
alleges that he was a perfect match for the position. [Doc
#26 ¶14] He was given an offer letter, which he signed
and returned. Before he started work, however, the recruiter
informed him that the offer had been rescinded due to a
“personality conflict.” [Doc #26 ¶14] He was
subsequently told that the manager at BAE in charge of hiring
asked if “he should ‘cringe' upon hearing
[Plaintiff's] name.” [Doc #26 ¶14] Plaintiff
then filed a charge of discrimination with the EEOC on March
28, 2016. [Doc #26 ¶16] BAE, in response to the charge,
claimed that the job offer was rescinded not because of a
personality conflict, but because Plaintiff lacked experience
with computer servers. Plaintiff alleges that this reason is
“patently false” because he actually has
extensive experience with servers, including
“significant amounts of server work for BAE.”
[Doc #26 ¶16] Plaintiff's First Amended Complaint
concludes, in summary, that “BAE's demonstrably
false justifications for not re-hiring [him], coupled with
its explicit threat to make his life ‘a living
hell' for reporting sexual harassment, demonstrates that
it refused to rehire him in order to retaliate for his
reporting of sexual harassment.” [Doc #26 ¶17]
brings two claims against BAE. He claims that BAE retaliated
against him for reporting, opposing and for participating in
activities designed to remedy sexual harassment in violation
of: 1) Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq.; and 2) the Colorado
Anti-Discrimination Act, Colo. Rev. Stat. §24-34-301
et seq. [Doc #26]
motion, BAE asserts that Plaintiff's retaliation claims
must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Rule
12(b)(6) allows a court to dismiss a cause of action for
“failure to state a claim upon which relief can be
granted.” When deciding a motion to dismiss under Rule
12(b)(6), the court must assume the truth of all well-pleaded
facts in the complaint, and draw all reasonable inferences
therefrom in the light most favorable to the plaintiff.
Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th Cir.
2007); David v. City & County of Denver, 101
F.3d 1344, 1352 (10th Cir. 1996).
complaint will survive dismissal under Rule 12(b)(6) if it
alleges a plausible claim for relief - that is, if the
“[f]actual allegations [are] enough to raise a right to
relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). This standard is “a middle ground
between heightened fact pleading, which is expressly
rejected, and allowing complaints that are no more than
labels and conclusions or a formulaic recitation of the
elements of a cause of action, which the Court stated will
not do.” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012)(quoting Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). The
concept of “plausibility” at the dismissal stage
refers not to whether the allegations are likely to be true;
the court must assume them to be true. Rather, “[t]he
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, L.L.C. v. Deer Valley Resort Co., Ltd., 555 F.3d
1188, 1192 (10th Cir. 2009)(citing Robbins v. Oklahoma,
supra, 519 F.3d at 1247).
the Rule 12(b)(6) standard does not require that the
plaintiff establish a prima facie case in his or her
complaint, the elements of each alleged cause of action help
to determine whether the plaintiff has set forth a plausible
claim under the applicable law. Khalik v. United,
supra, 671 F.3d at 1192 (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Bell Atlantic v. Twombly,
supra, 550 U.S. at 570). A prima facie case
of retaliation requires a plaintiff to show that: (1) he or
she engaged in protected activity; (2) the defendant took an
adverse employment action against him or her; and (3) there
exists a causal connection between the protected activity and
the adverse action. Annett v. Univ. of Kansas, 371
F.3d 1233, 1237 (10th Cir. 2004); see also Molla v.
Colorado Serum Co., 929 P.2d 1, 3 (Colo.App. 1996).
MOTION TO DISMISS
of retaliation must be grounded in a distinct allegation of a
specific unlawful employment practice. “Discrete acts
such as termination, failure to promote, denial of transfer,
or refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment
decision constitutes a separate actionable ‘unlawful
employment practice.' ” National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct.
2061, 153 L.Ed.2d 106 (2002).
February 2014 Lay-Off
motion, BAE first asserts that to the extent that Plaintiff
contends that the act of laying him off in February of 2013
was an adverse employment action, such claim is untimely - in
that Plaintiff failed to file an EEOC charge within 300 days
of the lay off, as required by 42 U.S.C. §2000e-5(e)(1),
or six months for the Colorado claim, as required by Colo.
Rev. Stat. §24-34-403 - and, thus, Plaintiff has failed
to exhaust his administrative remedies on such claim. See
Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.
2003)(ruling that a plaintiff must “exhaust
administrative remedies for each individual discriminatory or
retaliatory act.”) In his response to the motion,
Plaintiff concedes that he is not bringing a claim of
retaliation based on BAE's act of laying him off in
February of 2014. Rather, his claim for retaliation is solely