United States District Court, D. Colorado
OPINION AND ORDER
RAYMOND P MOORE, UNITED STATES DISTRICT JUDGE.
On
October 2, 2017, Plaintiffs Christine Frappied, Christine
Gallegos, Kathleen Greene, Joyce Hansen, Kristine Johnson,
Georgean Labute, John Roberts, Jennifer Ryan, Annette
Trujillo, and Debbie Vigil (collectively,
“plaintiffs”)[1] filed a Third Amended Complaint against
Defendant Affinity Gaming Black Hawk, LLC
(“defendant”), asserting the following claims for
relief: (1) age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”) and
Colo. Rev. Stat. § 24-34-402 (Claim One); (2) gender
discrimination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”) and Colo. Rev. Stat.
§ 24-34-402 (Claim Two); (3) disparate impact in
violation of the ADEA and Colo. Rev. Stat. § 24-34-402
(Claim Three); and (4) disparate impact in violation of Title
VII and Colo. Rev. Stat. § 24-34-402 (Claim Four). (ECF
No. 39.)[2]
On
October 16, 2017, defendant filed a motion to dismiss Claims
2-4 (“the motion to dismiss”). (ECF No. 40.)
Plaintiffs filed an amended response to the motion to dismiss
(ECF No. 51), and defendant then filed a reply (ECF No. 54).
I.
Factual Background
The
Court assumes the truth of the following pertinent,
non-conclusory allegations from the Third Amended Complaint.
Around
March 2012, defendant purchased the Golden Mardi Gras Casino
(“the Casino”) in Black Hawk, Colorado, and,
around November 2012, defendant took over the day-to-day
operations of the Casino. (ECF No. 39 at ¶ 20.) After
taking over operations of the Casino, defendants required all
employees to re-apply for their jobs. (Id. at ¶
22.) Each plaintiff re-applied and was re-hired.
(Id.)
Around
January 2013, defendant held “Genuine Service”
training for all employees of the Casino. Plaintiffs attended
“Genuine Service” training, and consistently
followed defendant's “Genuine Service”
philosophy. (Id. at ¶ 21.) Until their
termination, plaintiffs each successfully performed the
requirements of their various positions at the Casino.
(Id. at ¶ 23.)
After
taking over operations of the Casino, defendant decided to
lay off a significant number of employees from virtually
every department of the Casino. (Id. at ¶ 24.)
In January 2013, defendant laid off sixty employees out of a
total of 106. (Id. at ¶¶ 25, 34.) At the
same time, defendant began replacing its laid-off employees.
(Id. at ¶ 25.) Defendant adopted criteria to be
used by management in selecting employees to be laid off,
including, job performance, attendance, attitude, and overall
interest in the job. (Id. at ¶ 28.) On one
occasion, however, Bryan Bird, a gaming supervisor, greeted
Scott Nelson (“Nelson”), the General Manager,
saying “how are you, Mr. Nelson.” (Id.
at ¶ 26.) Nelson pointed to plaintiff John Roberts
(“Roberts”) and said, “I'm not mister,
he's mister.” (Id.) Around January 2013,
plaintiff Debbie Vigil (“Vigil”) discussed
layoffs with a co-worker who had seen a list ranking
employees on the desk of Frank Giannosa, the Table Games
Director. (Id. at ¶ 27.) The list ranked
employees using a point-scale based upon age, seniority, and
work ability. (Id.)
Defendant
employed roughly 18 male employees in a “protected age
group, ” and all but 8 of these men were laid off in
January 2013. (Id. at ¶ 33.) Defendant employed
roughly 22 female employees in a “protected age group,
” and all but roughly 6 of these women were laid off in
January 2013. (Id.) Of the roughly 60 employees laid
off, roughly 33 were female and 27 were male. (Id.
at ¶ 34.) Of the 33 females laid off, at least 19 were
under the age of 40.[3] Of the 27 males laid off, roughly 10 were
in a “protected age group.” (Id.) Of the
46 employees not laid off in January 2013, roughly 18 were
males and 28 were females. (Id. at ¶
35.)[4]
Defendant retained eight males in a “protected age
group” and six females in a “protected age
group.” (Id.) Applying a “chi-square
(one-tailed Fisher Exact test)” to these numbers
produces a statistical significance of approximately 0.01231
of females “falling within the protected age
group.” (Id. at ¶ 36.) Slightly more than
half of the 18 males defendant retained fell within a
“protected age group.” (Id. at ¶
37.)[5]
Management's
explanation to each of the plaintiffs for their terminations
ranged from: “I don't know why, ” to
“you did not pass your 90-day probation, ” to you
are “not what [defendant] is looking for, ”
and/or failing to satisfy defendant's “Genuine
Service” policy. (Id. at ¶ 39.) Each
plaintiff was selected for layoff despite his or her
experience, skill, seniority, satisfactory performance,
attendance, positive attitude, overall interest in the job,
and compliance with defendant's “Genuine
Service” philosophy and training. (Id. at
¶ 38.)
Around
January 10, 2013, defendant posted an advertisement on
Craigslist for 59 open positions. (Id. at ¶
40.) In January and February 2013, defendant hired
approximately 24 workers to replace the employees laid off in
January 2013. (Id. at ¶ 41.) Of the new hires,
only 3 men and 0 women fell within a “protected age
group, ” and a substantial percentage (between 15 and
71 percent) were in their twenties at the time of hire.
(Id.)[6]
II.
Legal Standard
In
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6)
(“Rule 12(b)(6)”), a court must accept as true
all well-pleaded factual allegations in the complaint, view
those allegations in the light most favorable to the
non-moving party, and draw all reasonable inferences in the
plaintiff's favor. Brokers' Choice of America,
Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36
(10th Cir. 2014); Mink v. Knox, 613 F.3d 995, 1000
(10th Cir. 2010). In doing so, “a court may look both
to the complaint itself and to any documents attached as
exhibits to the complaint.” Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). In the
complaint, the plaintiff must allege a
“plausible” entitlement to relief. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556, 127
S.Ct. 1955 (2007). Conclusory allegations, however, are
insufficient. Cory v. Allstate Ins., 583 F.3d 1240,
1244 (10th Cir. 2009). A complaint warrants dismissal if it
fails “in toto to render [plaintiff's]
entitlement to relief plausible.” Id. at 569
n.14.
The
parties spend some time discussing how this standard applies
to this case. (See ECF No. 51 at 2-3; ECF No. 54 at
9-10.) The Court need not spend a great deal of time on this
matter, however, because the Tenth Circuit Court of Appeals
has provided the necessary guidance. Notably, in Khalik
v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.
2012), the Circuit explained that, “[w]hile the [Rule]
12(b)(6) standard does not require that Plaintiff establish a
prima facie case in her complaint, the elements of each
alleged cause of action help to determine whether Plaintiff
has set forth a plausible claim.” The Circuit further
explained that allegations in a complaint that are “so
general that they encompass a wide swath of conduct, much of
it innocent, ” are insufficient; instead, allegations
must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Id.
at 1191-92 (quotations and ellipsis omitted).
III.
Discussion
A.
Claim Two-Gender ...