United States District Court, D. Colorado
BETSY A. HAY, Plaintiff,
FAMILY TREE, INC., a 501c3 non-profit organization conducting business in Colorado, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant's Second
Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6)
[#31] (the “Motion”). Plaintiff
filed an Amended Response [#39] in opposition to the Motion,
and Defendant filed a Reply [#48]. The Motion has been
referred to the undersigned for a recommendation pursuant to
28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3).
See [#33]. The Court has reviewed the Motion, the
Response, the Reply, the entire case file, and the applicable
law, and is sufficiently advised in the premises. Based on
the following, the Court respectfully
recommends that the Motion [#31] be
GRANTED in part and DENIED in part.
alleges the following facts as the basis for her
claims. Plaintiff has worked as a social worker
for more than twenty years and earned a master's degree
in Social Work in 1985 and a Ph.D in Social Work in 2012.
Second Am. Compl. [#13] ¶¶ 12-13.
Plaintiff worked for Defendant, a non-profit organization
that provides “multiple issue family assistance,
” from 2007 until November 15, 2014. Id. 5,
14-15. Plaintiff “always received adequate performance
evaluations.” Id. ¶ 16. In June 2014,
Plaintiff was informed that the contracts for the programs
she worked in, the Arapahoe County Kinship Family
Sustainability Program and Arapahoe County Military Family
Assistance Program, would end on August 30, 2014.
Id. ¶¶ 17-18. During the last six months
of her employment, and until February 6, 2015, Plaintiff
“sought transfers and applied for replacement
jobs” with Defendant. Id. ¶ 19. Plaintiff
was “laid off from permanent employment on August 30,
2014.” Id. ¶ 20.
August 31, 2014, Plaintiff was assigned temporary, part-time
employment that was split between two positions. Id.
¶ 23. Plaintiff spent three-quarters of her time with
the Supportive Services for Veterans' Families program
(“SSVF”) and one-quarter of her time with the
“Adams County Kinship TANF Stable Families
Program” (“Adams County Kinship Program”).
Id. While Plaintiff was working with SSVF, she
“asked to be transferred into” a full-time
position that had opened. Id. ¶ ¶ 34-35.
After being encouraged to do so, Plaintiff submitted an
application for the full-time SSVF position on approximately
September 2, 2014. Id. ¶¶ 42-43. Other
employees whose positions had ended when Defendant's
contracts had been “reduced” or ended had been
transferred to the SSVF program in the past. Id.
¶¶ 38-41. However, on October 31, 2014, Plaintiff
was told that someone else had been hired for the full-time
position and that her temporary, part-time position with SSVF
would end. Id. ¶ 44. The woman who was hired
for the full-time position was “much younger.”
Id. ¶ 46. Additionally, Plaintiff's
assignment to the Adams County Kinship Program ended because
Plaintiff was told that an employee who had been working
part-time would be returning to work full-time. Id.
¶ 31. However, Plaintiff alleges that this employee did
not return to work full-time. Id. ¶ 32. All of
Plaintiff's temporary employment ended on approximately
November 15, 2014. Id. ¶ 29. At the time of her
“separation from employment, ” Plaintiff was
sixty-eight years of age, and she was sixty-nine when she was
“not hired for a position, ” as explained in more
detail below. Id. ¶ 3.
addition to the SSVF position, Plaintiff applied for and
“tried to transfer” to “one of three open
positions” in the “SafeCare Program.”
Id. ¶¶ 48-49. Plaintiff was told by a
member of Defendant's Human Resources Department that she
could not transfer into the SafeCare positions because
Defendant “had a policy of not transferring employees
when they are laid off.” Id. ¶ 50.
However, Plaintiff contends that “[y]ounger employees
are routinely transferred to new positions when they are laid
off.” Id. ¶ 53. She provides examples
such as, among others, “Sherry Stedman, a younger and
less experienced individual, was automatically transferred to
an SSVF position when she was laid off from the Arapahoe
County Kinship position in approximately 2011.”
Id. ¶¶ 54-59. Plaintiff was interviewed by
Amy Hixon (“Hixon”) for the SafeCare
positions, but she was ultimately told that “she was
not selected for one of the three SafeCare positions because
[Defendant] wanted a ‘green' employee with less
experience” and that Hixon “did not think
[Plaintiff] would follow the strict new service model adopted
in the SafeCare Program because she was so
experienced.” Id. ¶¶ 62-64.
after not being hired for a position with the SafeCare
Program, “Hixon told Plaintiff to apply to a case
manager position with the CFRT program” because
“she was a good fit for that job.” Id.
¶ 66. Hixon told Plaintiff that she had “already
interviewed” for the CFRT position and would let her
know when it came open.” Id. ¶ 67.
Plaintiff did not officially submit an application for the
position and was not informed when it became open for
applicants, but the position was ultimately given to
“Amy Halvorson, a younger less experienced employee who
did not have to apply for the position.” Id.
Plaintiff applied for a position with the Douglas County
Kinship Program on approximately February 9, 2015, and
received a message from Human Resources stating that she
“would be contacted if her qualifications met their
needs.” Id. ¶¶ 86-92. Plaintiff was
not contacted for an interview and “Defendant has
stated that on February 6, 2014, the Douglas County Kinship
Program was given to a younger and less qualified applicant,
Michelle Johnson.” Id. ¶¶ 96-97.
this dispute, Plaintiff asserts that Defendant “had an
official policy well known to employees that they would
retain employees in the face of lay-offs and maintain
diversity in employment, through values identified in the
Kaleidoscope program.” Id. ¶ 24. This
“value” was identified in “Kaleidoscope
documents” and was “implemented by a policy and
practice of retaining employees who are in good standing by
transferring them into other jobs instead of laying them off
when contracts ended.” Id. ¶ 25.
Plaintiff contends that “numerous younger employees
were given an opportunity to be rehired after they were laid
off” and specifically names five employees who were
“re-hired.” Id. ¶¶ 100(a)-(e).
Further, Plaintiff was told by her manager, Dennis Desparrois
in June 2014, that “everyone who wanted to continue
working at Family Tree after a lay-off had been able to do
so.” Id. ¶ 74.
Claim One, Plaintiff alleges that Defendant violated the Age
Discrimination in Employment Act (“ADEA”) by
“refusing to transfer or hire Plaintiff into jobs for
which she applied or expressed interest and for which she was
best qualified.” Id. ¶¶ 116-123. In
Claim Two, Plaintiff alleges that the unspecified
Kaleidoscope program documents constitute an express
employment contract that Defendant breached, and that
“statements made by management officials” also
constitute express contracts that Defendant also breached.
Id. ¶¶ 124-128. In the alternative,
Plaintiff alleges that the unspecified Kaleidoscope program
documents and the “statements by management
officials” constitute implied contracts breached by
Defendant. Id. ¶¶ 138-150. In Claim Three,
Plaintiff alleges promissory estoppel, asserting that she
“expected continued employment” and “relied
to her detriment on Defendant's policy of
retention.” Id. ¶¶ 151-162.
Motion [#31] seeks dismissal of Plaintiff's Second
Amended Complaint [#13] pursuant to Fed.R.Civ.P. 12(b)(6).
Defendant contends that dismissal of these claims is
appropriate for the following reasons: (1) Plaintiff has
failed to allege that she gave special consideration in
exchange for a contract for permanent employment; (2)
Plaintiff has not stated a plausible ADEA claim because her
allegations are conclusory; and (3) the allegations Plaintiff
does provide to support her ADEA claim fail to allege that
she was properly qualified for the positions for which she
applied. Motion [#31] at 6-14.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][ ]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks
Breach of Express Employment Contract
of a contract is a matter of state law. DIRECTV, Inc. v.
Imburgia, 136 U.S. 463 (2015). The parties appear to
agree that Colorado law controls here. See Motion
[#31] at 2, 6; Response [#39] at 8. “When the
federal courts are called upon to interpret state law, the
federal court must look to the rulings of the highest state
court, and, if no such rulings exist, must endeavor to
predict how that high court would rule.” Johnson v.
Riddle, 305 F.3d 1107, 1118 (10th Cir. 2002).
alleges that Defendant breached an employment contract,
Kaleidoscope, and additional contracts that were created by
statements of management officials when she was “laid
off from permanent employment.” Second Am. Compl.
¶¶ 20, 134. Plaintiff contends that
Defendant's Kaleidoscope program consitutted an
employment contract that promulgated “an official
policy well known to employees that they would retain
employees in the face of lay-offs and maintain diversity in
employment, through values identified in the Kaleidoscope
program.” Id.¶ 24. Plaintiff alleges that
by “refusing to transfer or hire Plaintiff in the
numerous openings for which she was highly qualified after
the Arapahoe County Kinship Program contract ended, ”
Defendant breached the employment contract. Id.
¶ 134. Specifically, Plaintiff contends that this
“value” was implemented by “a policy and
practice of retaining employees who are in good standing by
transferring them or hiring them into other jobs instead of
laying them off when contracts ended.” Id.
argues that Plaintiff's breach of contract claim fails as
a matter of law and should be dismissed because: (1)
“Plaintiff's at-will employment contract expressly
prohibits any modifications unless in writing, signed by the
President and the employee”; and (2) “Plaintiff
has failed to allege special consideration.”
Motion [#31] at 6. In response, Plaintiff argues
that she “does not have to show special
consideration” because special consideration is only
required when there is no contract and here, “there is