United States District Court, D. Colorado
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE
Tony Ortiz seeks to dismiss Plaintiff Larry Clark's
employment discrimination claims against him. Because
individual supervisors are not liable under Title VII or the
Colorado Anti-Discrimination Act (“CADA”), I
grant Mr. Ortiz' Motion to Dismiss.
following are Mr. Clark's factual allegations (as opposed
to legal conclusions, bare assertions, or merely conclusory
allegations), which I take as true for my analysis under
Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
Clark worked for Defendant DCPS from 2015 through 2017 as a
night supervisor. Compl. ¶ 1, ECF No. 1. Minority
employees Mr. Clark supervised regularly complained that
other supervisors treated them in a discriminatory manner.
Id. ¶ 2. Mr. Clark addressed these issues with
the other supervisors and Mr. Ortiz, the operations manager.
Id. ¶ 3. However, Mr. Ortiz advised Mr. Clark
that he needed to ignore the complaints. Id. ¶
3. Additionally, Mr. Ortiz told Mr. Clark that he was
“digging a hole” for himself by consistently
raising the complaints. Id. ¶ 6.
at work in February 2017, Mr. Clark had an altercation with
the tenant of a property he was cleaning. Id. ¶
7. Although the tenant called the police because of a threat
Mr. Clark allegedly made, the police did not arrest Mr. Clark
or take any other action against him. Id. at 16. Mr.
Ortiz used this incident to justify terminating Mr.
Clark's employment. Id. ¶ 8.
pro se, Mr. Clark filed the present case in Colorado state
court on January 12, 2018. Id. Mr. Clark does not
specifically delineate the claims he pleads. However, in the
EEOC charge attached to his Complaint, Mr. Clark asserts
Defendants discriminated and retaliated against him on the
basis of race. Compl. 4, ECF No. 3. Accordingly, for purposes
of this motion, I construe Mr. Clark's Complaint
liberally as asserting violations of Title VII and the CADA.
See Tex. Dep't of Cmty. Affairs v. Burdline, 450
U.S. 248, 259 (1981) (“Title VII prohibits all
discrimination in employment based upon race, sex, and
national origin.”); Colo. Civil Rights Comm'n
v. Big O Tires, Inc., 940 P.2d 397, 399-400 (Colo. 1997)
(stating that the CADA protects against race discrimination
Ortiz removed the case to this Court on February 27, 2018.
Notice of Removal, ECF No. 1. On March 6 Mr. Ortiz responded
to the Complaint by filing the present Motion to Dismiss, ECF
No. 8. According to Mr. Ortiz, Tenth Circuit precedent makes
clear that individual supervisors are not liable under Title
VII and the CADA. Id. at 3. In response, Mr. Clark
does not address whether these statutes permit claims against
supervisors. Resp. to Mot. to Dismiss, ECF No. 29. Instead,
he argues only that “Tony Ortiz had the authority to
hire and fire employees and should not be dismissed from this
case.” Id. at 1. Mr. Ortiz subsequently filed
a reply. Reply in Supp. of Mot. to Dismiss, ECF No. 30.
Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)
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 ...