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Clark v. DCPS

United States District Court, D. Colorado

July 6, 2018

LARRY CLARK, Plaintiff,
v.
DCPS, and TONY ORTIZ, Defendants.

          ORDER

          MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE

         Defendant 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.

         BACKGROUND

         I. Facts

         The 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).

         Mr. 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.

         While 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.

         II. Procedural History

         Proceeding 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 in employment).

         Mr. 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.

         LEGAL STANDARDS

         I. Dismissal Pursuant to Fed.R.Civ.P. 12(b)(6)

         “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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