United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
KRISTEN L. MIX MAGISTRATE JUDGE
This
matter is before the Court on Defendant's Motion
to Dismiss Pursuant to F.R.C.P. 12(b)(6)
[#9][1]
(the “Motion”). Plaintiff filed a Response [#17]
in opposition to the Motion, and Defendant filed a Reply
[#18]. The Court has reviewed the Motion, the Response, the
Reply, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons stated
below, the Court respectfully RECOMMENDS
that the Motion [#9] be DENIED in part and GRANTED in
part.
I.
Background
Plaintiff
alleges the following facts as the basis for his
claims.[2] Plaintiff has worked in the mortgage
banking industry for more than thirty years and was employed
with Neat Capital, Inc., (“Defendant” or
“Neat”) as the Director of Operations from March
16, 2016, until Plaintiff's employment was terminated on
October 28, 2016. Compl. [#3] ¶¶ 7-9.
Plaintiff was fifty-eight years old at the time of his
termination. Compl. [#3] ¶ 13. In January 2016,
Plaintiff was recruited by Neat, and was receiving a salary
of $100, 000 per year, exclusive of benefits. Id.
¶ 9. During the course of his employment, Plaintiff was
the only employee in the operations department and, as a
result, Plaintiff often worked ten-to-fourteen hour days to
complete all of his work. Id. ¶ 10. Plaintiff
made multiple requests for additional assistance, but no
assistance was provided. Id. Plaintiff performed his
job diligently and received no negative reviews or warnings
regarding his job performance. Id.
On
October 28, 2016, due to health issues, Plaintiff requested
time off via email. Id. ¶ 11. A few hours after
sending the request, Plaintiff was informed that his
employment was being terminated. Id. Plaintiff was
informed by Neat founder and CEO Luke Johnson
(“Johnson”) that Plaintiff was being terminated
as a result of his performance, specifically failing to
perform his processing duties. Id. ¶ 12. Later,
Mr. Johnson added additional reasons for Plaintiff's
termination, including that Plaintiff failed to meet target
sales and revenue goals in September and October.
Id. However, these additional reasons were not
included in Defendant's original termination letter to
Plaintiff, and Plaintiff was not in a sales position and
therefore did not have any sales or revenue goals.
Id.
Plaintiff
asserts that Defendant violated the Colorado
Anti-Discrimination Act (“CADA”) because
Neat's basis for Plaintiff's “termination is
completely inconsistent with his job performance with the
company and was nothing more than an unlawful pretext for age
discrimination.” Id. ¶ 13. As a result,
Plaintiff claims that Defendant's action against
Plaintiff was consistent with “a pattern and practice
of terminating older employees and replacing them with
younger employees.” Id. ¶ 15. Plaintiff
also alleges that following his termination, Defendant
replaced Plaintiff “with an employee that was
significantly younger than Mr. Dunham.” Id.
¶ 14.
Plaintiff
asserts only state law claims in this action. Compl.
[#3] ¶¶ 16-31. Jurisdiction is proper based on
diversity of citizenship. 28 U.S.C. § 1332(a)(1).
Plaintiff is a citizen of Arlington Heights, Illinois, and
Defendant is a Colorado corporation, with its principal place
of business located in Boulder, Colorado. Compl.
[#3] ¶¶ 1-2. Plaintiff also seeks an amount in
controversy exceeding $75, 000. See [#1-4] at 2.
The
Motion [#9] seeks dismissal of Plaintiff's Complaint [#3]
pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff agrees
voluntarily to dismiss his Second Claim for Relief, Age
Harassment, and Third Claim for Relief, Wrongful Termination,
without prejudice. However, Plaintiff opposes dismissal of
his First Claim for Relief, Age Discrimination. See
Response [#17] at 1 n.1. Defendant contends that
dismissal of this First Claim is appropriate because
Plaintiff has not stated a plausible CADA claim.
II.
Standard
The
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test “the sufficiency of the allegations within the
four corners of the complaint after taking those allegations
as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a
complaint may be dismissed for “failure to state a
claim upon which relief can be granted”). “The
court's function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present at
trial, but to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.” Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted). To withstand a motion to dismiss pursuant
to Rule 12(b)(6), “a complaint must contain enough
allegations of fact to state a claim for relief that is
plausible on its face.” Robbins v. Oklahoma,
519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
the plaintiff's allegations.” (quoting
Twombly, 550 U.S. at 570)).
“A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions
or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it
tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original;
internal quotation marks omitted).
To
survive a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint “must be enough to
raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555
F.3d 1188, 1191 (10th Cir. 2009). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, ” a factual
allegation has been stated, “but it has not show[n][ ]
that the pleader is entitled to relief, ” as required
by Fed.R.Civ.P. 8(a). Iqbal, 556 U.S. at 679 (second
brackets added; citation and internal quotation marks
omitted).
III.
Analysis
Defendant
argues that Plaintiff's CADA claim should be dismissed
because: (1) the allegations contained in the Complaint [#3]
are conclusory; and (2) Plaintiff has failed to plead the
necessary elements of a CADA claim. See Motion [#9]
at 5-6. At the outset, the Court notes that Defendant's
request seeking dismissal of the First Claim of age
discrimination borders on frivolous. While Plaintiff's
allegations in the Complaint [#3] are sparse, case law is
clear that detailed allegations of age discrimination are not
required at this stage of the proceedings. See generally
Colo. Civil Rights Comm'n v. Big O Tires, Inc., 940
P.2d 397, 400 (Colo. 1997). However, Defendant's Motion
[#9] also sought dismissal of Plaintiff's Second Claim
and Third Claim, and, in response, Plaintiff did ...