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Dunham v. Neat Capital, Inc.

United States District Court, D. Colorado

October 22, 2018

DAVID DUNHAM, Plaintiff,
NEAT CAPITAL, INC., a Colorado corporation conducting business in Colorado, Defendant.



         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 ...

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