United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Consolidated
Partial Motion to Dismiss Plaintiffs' Second Amended
Complaint and First Amended Complaint in Intervention [Docket
No. 53]. The Court has jurisdiction pursuant to 28 U.S.C.
Equal Employment Opportunity Commission (“EEOC”)
filed this lawsuit on September 30, 2016. Docket No. 1. The
Second Amended Complaint, filed on January 27, 2017, asserts
claims on behalf of nine former employees of defendants
“and other aggrieved individuals” who were
allegedly subjected to discrimination, retaliation, and
harassment on the basis of race, sex, color, and/or national
origin. Docket No. 31 at 1-2. On December 1, 2016, seven of
the employees represented in the EEOC action - La'Tonya
Ford, Kimberly Funchess, Marcus Adams, Kenneth Conley, Alcena
Gannaway, The Estate of Kontar Tonee Mwamba, and Marietta
Vargas - moved to intervene in the lawsuit. Docket No. 9. The
motion to intervene was granted on January 9, 2017, Docket
No. 20, and on February 23, 2017, intervenor plaintiffs filed
their First Amended Complaint in Intervention [Docket No.
51]. On March 2, 2017, defendants filed their consolidated
partial motion to dismiss. Docket No. 53. Defendants seek
dismissal of allegations asserted in both the First Amended
Complaint in Intervention and the EEOC's Second Amended
Complaint. On March 23, 2017, the EEOC and the intervenor
plaintiffs filed a consolidated response in opposition to
defendants' motion, Docket No. 58, to which defendants
replied on April 7, 2017. Docket No. 62. The facts stated
below are taken from the First Amended Complaint in
Intervention and the Second Amended Complaint and are
presumed to be true for purposes of this motion to dismiss.
Second Amended Complaint
Second Amended Complaint asserts claims for race
discrimination, sex discrimination, national origin
discrimination, retaliation, and hostile work environment
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-1 et seq., on behalf of Marcus Adams,
Kenneth Conley, La'Tonya Ford, Kimberly Funchess, Alcena
Gannaway, the Estate of Kontar Mwamba, Marietta Vargas,
George Thomas Minas Hill, Robert Blanchette, and other
aggrieved individuals. Docket No. 31 at 1, 29-32. At all
times relevant to this lawsuit, defendants Jackson National
Life Insurance Company (“JNL”), Jackson National
Life Distributors, LLC (“JNLD”), and Jackson
National Life Insurance Company of New York (“JNL - New
York”) operated as a joint employer and/or integrated
enterprise offering and distributing financial products.
Id. at 3, ¶ 7. As discussed in more detail
below, all of the aggrieved individuals worked in various
sales representative positions in defendants' Denver
office between 2007 and 2012. Those positions included
Internal Wholesaler, Business Development Consultant
(“BDC”), and External Wholesaler, with External
Wholesaler being the highest paid position. Id. at
4-5, ¶ 17.
Ford, a black female, was hired in February 2006 as an
Internal Wholesaler in defendants' Atlanta, Georgia
office. Id. at 5, ¶ 25. In 2007, Ms. Ford was
transferred to the headquarters of JNLD in Denver, where she
began reporting to Corey Walker, the Desk Director of the
Regional Broker Dealer Channel (“RBD Channel”).
Id. at 6-7, ¶¶ 26, 28, 43,
Following Ms. Ford's transfer to headquarters, she
overheard or was directly targeted with a number of racist
and/or sexist comments, including comments relating to the
size of her breasts and the breasts of other female employees
and racial slurs in reference to President Obama.
Id. at 6-7, ¶¶ 32-35, 36-37. Despite Ms.
Ford's success as an Internal Wholesaler and her ultimate
promotion to BDC in or around March 2009, she was not given
quarterly evaluations by Mr. Walker and was placed on a
written performance plan on or about September 10, 2009.
Id. at 7, ¶¶ 40-45. After the filing of a
formal charge of discrimination with the EEOC on or about
December 7, 2009 and an internal investigation into Ms.
Ford's complaints of discriminatory treatment, Ms.
Ford's performance plan was expunged and she was
reassigned to the supervision of Robert Blanchette,
Jackson's Vice President of National Sales Development.
Id. at 8, ¶¶ 49, 51-52. Both Mr. Walker
and James Bossert, Jackson's Senior Vice President of
Sales Development and Mr. Blanchette's supervisor,
pressured Mr. Blanchette to discipline Ms. Ford. Id.
at 8-9, ¶¶ 56, 59, 62. Mr. Blanchette refused,
finding no evidence that Ms. Ford's job performance was
unsatisfactory, and ultimately recommended Ms. Ford for an
External Wholesaler position in December 2009. Id.
at 8-9, ¶¶ 59, 63-64. Mr. Bossert stated that she
would not get the position, and Ms. Ford was never
interviewed. Id., ¶¶ 65-66. Ms. Ford
subsequently applied for at least eight External Wholesaler
positions in 2010. Id. at 10, ¶¶ 79-82.
Six of those positions were filled with less qualified White
males. Id. at 10-11, ¶¶ 80, 83. After
being subjected to additional incidents of racial and sexual
harassment, Ms. Ford was constructively discharged in October
2010. Id., ¶ 92.
Funchess, a black female, was hired by defendants in October
2005 as an Internal Wholesaler in the Atlanta, Georgia
office. Id. at 11, ¶ 93. In 2006, Ms. Funchess
was transferred to Denver, where she was promoted to a Desk
Director position. Id. at 12, ¶¶ 94-95. In
2008, Ms. Funchess began reporting to Mr. Bossert, who
referred to Ms. Funchess and Ms. Ford as “lazy, ”
“prima donnas, ” “bitches from Atlanta,
” and “our two resident street walkers.”
Id., ¶¶ 97-98. Mr. Bossert excluded Ms.
Funchess from lunches and meetings with other, white desk
directors in his office. Id., ¶ 100. When Ms.
Funchess complained to CEO Clifford Jack about race
discrimination in the company, Mr. Bossert warned Ms.
Funchess to be careful. Id., ¶ 102. In November
2009, Mr. Bossert subjected Ms. Funchess to unwarranted
discipline. Id., ¶ 103. The following month,
she filed a charge of discrimination. Id., ¶
104. After being subjected to unwarranted discipline a second
time in April 2010, Ms. Funchess was fired on April 14, 2010.
Id. at 13, ¶¶ 105-06.
Vargas, an African-American female of Cabo Verdean national
origin, was hired by defendants as an Internal Wholesaler in
May 2008. Id. at 13, ¶ 109. Ms. Vargas was
supervised by Mr. Walker. Id., ¶ 110. Despite
her success as an Internal Wholesaler and her completion of
additional training requirements, Ms. Vargas was not promoted
to a higher Internal Wholesaler position and was told that
she was not qualified to apply for a BDC position, which was
ultimately filled by a white male with less experience.
Id. at 13-14, ¶¶111-116. In November 2009,
two months after she complained to Human Resources about
discriminatory treatment, Ms. Vargas was involuntarily
transferred to the Bank Channel. Id. at 14,
¶¶ 117-118. In December 2009, Ms. Vargas filed a
charge of discrimination alleging retaliation and
discrimination on the basis of race, sex, and national
origin. Id., ¶ 119. Beginning in April 2010,
Ms. Vargas reported to Elizabeth Griffith, a white female,
who was in turn supervised by Mr. Bossert. Id.,
¶¶ 120-22. Ms. Griffith, Mr. Bossert, and other
supervisors actively ignored Ms. Vargas and did not respond
reliably to her emails. Id., ¶¶ 123-24.
Ms. Vargas was constructively discharged in May 2010.
Id., ¶ 125.
Kontar “Tonee” Mwamba
“Tonee” Mwamba, a black male, was hired by
defendants as a BDC in October 2008. Id., ¶
126. In January 2009, Mr. Mwamba overheard an External
Wholesaler make racist comments regarding another black
employee. Id. at 15, ¶ 128. When he complained,
Mr. Mwamba was told that the company allowed the External
Wholesaler to do what he wanted. Id., ¶ 129.
Mr. Mwamba also complained to management that white employees
were throwing foam stress balls at him during work.
Id., ¶ 130. After management ordered that the
ball-throwing stop, Mr. Bossert sent an email to all
employees overturning that directive and referring to Mr.
Mwamba as an “outsider who does not understand the
nature of the job.” Id., ¶¶ 130,
132-33. Sometime after September 2009, Mr. Mwamba - who had a
number of contacts at Merrill Lynch based on his prior
employment with the company - applied for a position designed
to deal exclusively with Merrill Lynch. Id. at 16,
¶¶ 139-141. Although Mr. Mwamba was originally
scheduled for an interview, his interview was cancelled by
Desk Director Jake Milder. Id., ¶ 142. A white
male employee who was less qualified than Mr. Mwamba was
selected for the position. Id., ¶ 144. In
September 2009, after complaining to Human Resources about
not being interviewed and about being treated less favorably
than white employees, Mr. Mwamba was placed on a performance
improvement plan. Id. at 17, ¶¶ 145-46.
Mr. Mwamba was removed from the plan on December 7, 2009, the
same day Ms. Ford filed a charge of discrimination with the
EEOC. Id., ¶ 149. Mr. Mwamba received a
negative performance evaluation in January 2010.
Id., ¶ 153. On January 26, 2010, he filed a
charge of discrimination with the EEOC. Id., ¶
154. After being subjected to continued discriminatory
treatment, Mr. Mwamba was constructively discharged in April
2012. Id. at 18, ¶¶ 155-56.
Conley, a black male, was hired by defendants as a BDC in
March 2008. Id. at 18, ¶ 157. After President
Obama's election, Mr. Conley's coworkers told Mr.
Conley to be careful not to celebrate. Id., ¶
160. Mr. Conley began reporting to Desk Directors Jake Milder
and James Horvath in July 2009. Id., ¶ 161.
Despite Mr. Conley's success as a BDC, Mr. Milder and Mr.
Horvath gave Mr. Conley low scores on his performance
evaluations. Id. at 18-19, ¶¶ 163-170. In
March 2010, Mr. Conley filed a charge of discrimination
alleging race and national origin discrimination.
Id. at 19, ¶ 172. In September and October
2010, Mr. Conley was given two unwarranted disciplinary
actions. Id. at 20, ¶¶ 181-82. Mr. Conley
was discharged on October 25, 2010. Id., ¶ 184.
Adams, a black male, was hired by defendants as an Internal
Wholesaler in February 2007. Id. at 21, ¶ 185.
During his first year of employment, Desk Directors Greg
Sodja and Corey Walker only spoke with Mr. Adams when
necessary. Id., ¶ 188. Mr. Bossert also did not
speak to Mr. Adams even though he spoke often with white
employees. Id., ¶ 189. In June 2008, Mr. Adams
inquired about the possibility of working as an External
Wholesaler. Id., ¶ 191. Divisional Vice
President John Poulson told Mr. Adams that he would not
succeed as an External Wholesaler due to his weight.
Id., ¶ 192. Although Mr. Adams subsequently
lost 60 pounds, he was not selected for an External
Wholesaler position and an employee who weighed significantly
more was promoted to the position. Id., ¶¶
193-94. In 2008 and 2009, Mr. Adams pursued two professional
training opportunities - “The Academy” and
“Boot Camp.” Id. at 22, ¶¶
196-203. Mr. Adams failed the boot camp test in October 2009
and was initially denied permission to retake it.
Id. at 23, ¶¶ 205-06. In June 2010, Mr.
Poulson finally agreed that Mr. Adams could retake the test
on the condition that Mr. Adams kept his mouth shut.
Id., ¶ 207. Mr. Adams interpreted this
statement to mean that Mr. Adams was not allowed to join or
support other black employees who had filed charges of
discrimination. Id., ¶ 208. After Mr. Adams
retook the test, Mr. Sodja applied such a stringent standard
to Mr. Adams' answers that Mr. Adams ended up failing the
test a second time. Id., ¶¶ 211-12. On
July 30, 2010. Mr. Adams filed a charge of discrimination
with the EEOC. Id., ¶ 213. Mr. Sodja and Mr.
Bossert stopped interacting with Mr. Adams and, on September
2, 2010, Mr. Adams was terminated. Id. at 23-24,