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Kazazian v. Vail Resorts, Inc.

United States District Court, D. Colorado

May 31, 2018

NINA KAZAZIAN, Plaintiff,
v.
VAIL RESORTS, INC., and VAIL CORPORATION, INC., Defendants.

          ORDER

          Michael E. Hegarty United States Magistrate Judge.

         Defendant 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.

         Defendant 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.

         BACKGROUND

         I. Facts

         The 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).[1] See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Ms. 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 claim. Id.

         Ms. 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.

         In 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.

         In 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.

         In 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.

         Beginning 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. ¶¶ 32-33.

         In May 2016, Ms. Kazazian was informed that she would not be rehired as a ski instructor for the following season.[2] 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.

         II. Procedural History

         Proceeding pro se, Ms. Kazazian filed the present case on January 25, 2018.[3] 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.

         On 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.

         VRI 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. 43.

         LEGAL STANDARDS

         “To 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.

         Plausibility 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 ...


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