Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hay v. Family Tree, Inc.

United States District Court, D. Colorado

February 28, 2018

BETSY A. HAY, Plaintiff,
FAMILY TREE, INC., a 501c3 non-profit organization conducting business in Colorado, Defendant.


          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Defendant's Second Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) [#31][1] (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.

         I. Background

         Plaintiff alleges the following facts as the basis for her claims.[2] 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.

         On 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.

         In 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[3] (“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.

         Subsequently, 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. ¶ 70-73.

         Lastly, 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.

         Key to 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.

         In 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.

         The 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.

         II. Standard

         The 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)).

         “A 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).

         To 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 omitted).

         III. Analysis

         A. Breach of Express Employment Contract

         Interpretation 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).

         Plaintiff 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. ¶ 25.

         Defendant 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.