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Davis v. Bae Systems Information Solutions, Inc.

United States District Court, D. Colorado

October 12, 2017

ANDREW DAVIS, a Colorado resident, Plaintiff,
v.
BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES, INC., a foreign corporation, Defendants.

          ORDER

          LEWIS T. BABCOCK, LEWIS T. BABCOCK, JUDGE.

         This 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 case.

         I. BACKGROUND

         BAE 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]

         Then, 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 Before he started work, however, the recruiter informed him that the offer had been rescinded due to a “personality conflict.”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]

         Plaintiff 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]

         II. APPLICABLE LAW

         In this 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).

         A 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).

         While 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).

         III. MOTION TO DISMISS

         A claim 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).

         A. February 2014 Lay-Off

         In this 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 ...


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