United States District Court, D. Colorado
Michael E. Hegarty United States Magistrate Judge.
The Vail Corporation (“TVC”) seeks to dismiss
Plaintiff Nina Kazazian's second cause of action for
violations of the Fair Labor Standards Act
(“FLSA”) and the Colorado Minimum Wage Act
(“CMWA”). Ms. Kazazian bases her claim on
TVC's failure to pay the required minimum wage, and
separately, TVC's payment of an inadequate wage based on
the cost of living. I first find that, apart from the minimum
wage requirement, Colo. Rev. Stat. § 8-6-104 does not
create a private right of action to sue employers for
providing an inadequate wage. I then find that Ms. Kazazian
fails to assert sufficient factual allegations to support her
minimum wage claims. Accordingly, I grant TVC's Motion to
Dismiss Plaintiff's Second Claim for Relief. However, to
the extent Ms. Kazazian is able to assert good faith
allegations correcting this pleading deficiency, I will
permit her to file an amended complaint.
Vail Resorts, Inc. (“VRI”) separately seeks
dismissal of Ms. Kazazian's claims in their entirety. I
agree with VRI that Ms. Kazazian fails to allege facts
supporting a finding that VRI was her employer under the
Americans with Disabilities Act (“ADA”), the Age
Discrimination in Employment Act (“ADEA”), Title
VII, the FLSA, and the CMWA. Additionally, Ms. Kazazian does
not allege that VRI was the plan administrator of her
employee benefits plans, as is required to state a claim
under the Employee Retirement Income Security Act
(“ERISA”). Therefore, I find that Ms. Kazazian
fails to state a claim against VRI. However, because it
appears the Ms. Kazazian may be able to correct at least some
of these deficiencies through a simple amendment, I grant her
leave to file an amended complaint.
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Ms. Kazazian in her Amended Complaint,
which are taken as true for analysis under Fed.R.Civ.P.
12(b)(6). See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Kazazian worked as a ski instructor at Defendants' ski
resorts from January 2008 to May 2016. Am. Compl. ¶ 10,
ECF No. 53. In February 2013, Ms. Kazazian informed her
direct supervisor, Janet Lawrence, that she had a disability
requiring intermittent leave. Id. ¶ 14. Ms.
Lawrence did not indicate that this would be a problem.
Id. Then, On April 1, 2013, Ms. Kazazian fell at
work while walking to her locker room. Id. ¶
15. Because this caused Ms. Kazazian to be unable to work for
the rest of the season, she filed a workers' compensation
Kazazian resumed working the following season. Id.
¶ 16. In March 2014, Ms. Kazazian received a performance
plan regarding timeliness. Id. Ms. Kazazian informed
her supervisor that the timeliness issues were a symptom of
her disability. Id. By the end of the 2014-2015
season, Ms. Kazazian's supervisor told her that her
timeliness was no longer an issue, and she was taken off the
performance plan. Id. ¶ 21.
February 2015, Ms. Kazazian informed Defendants that they
overcharged her for COBRA premiums she paid in 2014.
Id. ¶ 34. Although Defendants admitted that
they owed Ms. Kazazian more than $1, 200.00, Defendants have
not paid her these funds. Id.
August 2015, Ms. Kazazian learned that she had permanent
hearing loss as a result of her workplace injury in April
2013, and she notified her employer that she was seeking
additional benefits under the Colorado Worker's
Compensation Act. Id. ¶ 22. In September, Ms.
Kazazian received her performance review for the 2014-2015
season. Id. ¶ 23. The review stated that
because Ms. Kazazian refused to work certain holidays and had
other performance related issues, she would be rehired only
as a part-time instructor for the 2015-2016 season.
Id. ¶ 24.
October 2015, Ms. Kazazian applied for several open full-time
positions at Defendants' resorts, including mountain
counsel, contract counsel, litigation counsel, lunchroom
monitor, and Star Rider. Id. ¶ 26. She was not
interviewed for any of the positions. Id. As a
result, Ms. Kazazian filed a charge of discrimination with
the EEOC. Id. ¶ 27.
shortly after Ms. Kazazian filed her EEOC complaint, and
continuing through April 2016, Ms. Kazazian was not assigned
any private lessons and was told not to come to work on
multiple occasions. Id. ¶¶ 29-31. When Ms.
Kazazian complained, Ms. Lawrence further reduced Ms.
Kazazian's schedule to holidays only. Id.
2016, Ms. Kazazian was informed that she would not be rehired
as a ski instructor for the following season. Id.
¶ 36. Additionally, she was designated as
“ineligible for rehire.” Id. When Ms.
Kazazian opposed the decision, Ms. Lawrence stated that
although the performance evaluation contained incorrect
statements, she could not alter Ms. Kazazian's
designation. Id. ¶ 38.
pro se, Ms. Kazazian filed the present case on January 25,
2018. Compl., ECF No. 1. Although Ms. Kazazian
initially filed this case under a pseudonym, I denied her
motion to proceed anonymously. Order on Mot. to Proceed
Anonymously, ECF No. 32. As a result, Ms. Kazazian filed the
operative Amended Complaint to include her true name. Am.
Compl., ECF No. 53. Ms. Kazazian asserts three causes of
action: (1) discrimination, (2) violations of the FLSA and
CMWA, and (3) a violation of ERISA. Id. ¶¶
39-77. Relevant here, Ms. Kazazian's second claim
contends Defendants violated the FLSA and CMWA by failing to
pay her the minimum wage. Id. ¶ 51.
Additionally, Ms. Kazazian claims Defendants violated Colo.
Rev. Stat. § 8-6-104 by paying her a wage that was
“inadequate to supply the necessary cost of living and
to maintain [her] health, ” regardless of whether it
was in compliance with the state-mandated minimum wage.
Id. ¶¶ 53-55.
March 7, 2018, TVC responded to Ms. Kazazian's
allegations through the present Motion to Dismiss. TVC's
Mot. to Dismiss, ECF No. 19. TVC contends that Ms.
Kazazian's second cause of action fails to state a claim,
because Ms. Kazazian does not allege facts showing TVC failed
to pay her the minimum wage. TVC's Mot. to Dismiss 3-4.
Furthermore, TVC asserts the CMWA does not create a private
right of action against employers for paying an inadequate
wage greater than the minimum wage. Id. at 4-5. In
response, Ms. Kazazian contends her allegation that
“Defendant failed to pay Plaintiff [the] minimum wage
for all hours worked by the Plaintiff in one or more weeks,
” is sufficient to state FLSA and CMWA claims. Resp. to
TVC's Mot. to Dismiss 3, ECF No. 34. Further, Ms.
Kazazian argues that TVC cites no authority supporting a
finding that the CMWA does not create a private right of
action for inadequate wages in excess of the minimum wage.
Id. at 4-5. Ms. Kazazian seeks leave to file an
amended complaint in the event I find her allegations
insufficient. Id. at 5-6. TVC filed a reply brief on
April 30, 2018. Reply in Supp. of TVC's Mot. to Dismiss,
ECF No. 42.
responded to the Complaint by submitting a separate motion to
dismiss, which seeks to dismiss all the claims against it.
VRI's Mot. to Dismiss, ECF No. 20. According to VRI, Ms.
Kazazian does not assert a claim against it, because she does
not allege that VRI was her employer or a plan administrator
of her employee benefits plan. Id. To support its
arguments, VRI attaches declarations of TVC employees. ECF
Nos. 20-1, 20-3. Ms. Kazazian responds by arguing that I may
not consider these declarations at the motion to dismiss
stage. Resp. to VRI's Mot. to Dismiss 2-3, ECF No. 35.
Additionally, Ms. Kazazian states that it would be premature
to consider VRI's motion as one for summary judgment.
Id. at 4-7. VRI filed its reply brief on April 30,
2018. Reply in Supp. of VRI's Mot. to Dismiss, ECF No.
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)). Plausibility, in the context of a motion to dismiss,
means that the plaintiff pleaded facts which allow “the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Twombly requires a two prong analysis. First, a court
must identify “the allegations in the complaint that
are not entitled to the assumption of truth, ” that is,
those allegations which are legal conclusions, bare
assertions, or merely conclusory. Id. at 679-80.
Second, the Court must consider the factual allegations
“to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations
state a plausible claim for relief, such claim survives the
motion to dismiss. Id. at 680.
refers “to the scope of the allegations in a complaint:
if they 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.'” 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 nature and specificity of the allegations required
to state a plausible claim will vary based on context.”
Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard
does not require that a plaintiff establish ...