Frappied v. Affinity Gaming Black Hawk, LLC

          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 ...