Grays v. Granicus, LLC

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS PLAINTIFF'S COMPLAINT (DKT. ##17, 20, & 21)

          N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE

         Now before the Court are Defendants Jessica Richey, Chris Downard, and Granicus, LLC's (“Granicus, ” and collectively “Defendants”) Motions to Dismiss Plaintiff's Complaint. (Dkt. ##17, 20, & 21.) Plaintiff Tiffany Grays filed a Response to the Motions on November 27, 2018, (Dkt. #25), to which Defendants filed a Reply. (Dkt. #26.) On December 14, 2018, the Court permitted Ms. Grays to file a Surreply. (Dkt. #31.) The Motions have been referred to me by Judge Christine M. Arguello. (Dkt. ##18 & 22.) Finally, the Court heard oral argument on the Motions on November 20, 2018. (Dkt. #24.) The Court has taken judicial notice of the Court's file, considered the applicable Federal Rules of Civil Procedure and case law, and now, being fully informed, makes the following recommendation.

         I. BACKGROUND

         a. Ms. Grays' Allegations

         The following allegations are taken from Ms. Grays' Amended Complaint (Dkt. ##6 & 6-1) and assumed to be true for the purposes of a motion to dismiss.^[1]

         Ms. Grays is an Information Technology (“IT”) specialist with over 12 years of experience and is a “registered Certified Scrum Master.” (Dkt. #6-1 ¶ 7.) Granicus hired Ms. Grays, who is African American, as a “Product Owner” on January 2, 2018. (Id. ¶ 1.) According to Granicus' job posting, a “Product Owner” is “responsible gathering business requirements from cross-functional stakeholders, then guiding the vision of what needs to be built and conveying that vision to their agile team and business partners.” (Id. ¶ 11.) Defendant Richey was Granicus' Program Manager and Ms. Grays' direct boss. (Id. ¶ 9.) Defendant Downard was the Director of Software Development but had no organizational authority over Ms. Grays. (Id. ¶ 10.)

         According to Ms. Grays, only seven percent of Granicus' workforce was African American, and there were no other African Americans at or above her position level. (Id. ¶ 12.)

         Ms. Grays difficulties with Granicus began before her first day of work. She alleges that the Human Resources (“HR”) department was plagued by poor communication, and she describes at some length issues regarding the signing of an Employee Rights and Covenants Agreement (“ERCA”). (Id. ¶¶ 19-58.) These communication problems persisted after Ms. Grays started on the job. She clashed with individuals on her development team over what she perceived to be their unprofessional demeanor and took over work from an engineer she felt was ineffective. (Id. ¶¶ 60, 62-65.) Ms. Grays “also began to have conflict” with Product Manager Matt McFarland about their respective roles in the company, and McFarland's “lack of awareness and input” in the product they were working on. (Id. ¶¶ 66, 68.) Ms. Grays believes that Defendant Downard essentially took McFarland's side in this dispute. (Id. ¶ 69.) After unsuccessful attempts to resolve the issue with McFarland, Defendant Richey sent Ms. Grays a 30-60-90-day outline, which provided performance goals that Ms. Grays was expected to attain. (Id. at ¶ 76.)

         On March 8, 2018, Ms. Grays was invited to a team lunch the next day. (Id. at ¶ 78.) Ms. Grays was upset because everyone else knew about the lunch the day before, and she would not be able to make it because she would be working from home that day. (Id.) She felt the slight was intentional. (Id.) She then sent a Granicus executive, Nick Harris, an email with her concerns. (Id. ¶ 79.) Ms. Grays turned down Harris' offer to reschedule the lunch. (Id.)

         Ms. Grays continued to have issues with Defendant Downard, whom she felt was overstepping his role, despite not being her supervisor. (Id. ¶ 80.) Downard informed Ms. Grays that Defendant Richey asked him to watch her, and admitted that he was having difficulty with Ms. Grays because he was used to people just doing what he told them to do. (Id.)

         During her 60-day review with Richey, Ms. Grays was told she was doing well except for her “communication issue.” (Id. ¶ 81.) Ms. Grays thought she had resolved these problems (even though she still felt McFarland was “ineffective”), and when she asked Richey for examples, Richey brought up the email to Harris. (Id.) Despite Richey's claim that Harris sent her the email, Ms. Grays believes that it was Downard who forwarded it on, which constituted “further proof of the conspiracy[] and improper supervision [he] was enacting against” Ms. Grays. (Id.) Ms. Grays also notes that she was not provided with an updated discussion list prior to the 60-day meeting. (Id. ¶ 82.)

         On March 15, 2018, Richey scheduled an impromptu meeting with Ms. Grays. (Id. ¶ 83.) Richey told Ms. Grays that, contrary to a statement made during the 60-day meeting, she would not do a write-up of Ms. Grays' communication problems, and it was up to Ms. Grays to figure out where she needs to improve. (Id.) As Ms. Grays did not feel she did anything wrong, she believed she was being set up to fail. (Id.)

         On March 20, 2018, 77 days after she started, Ms. Grays' employment with Granicus was terminated. Given the company-wide communication problems, she believes that the “fact [her] communication issues were pointed out and used as a point to move someone's agenda to remove Ms. Grays from the company, shows that Plaintiff was being targeted and discriminated against.” (Id. ¶ 86.) Essentially, she believes she was held to different and higher standards than her white counterparts. (Id.)

         After her termination, Ms. Grays filed a charge with the Equal Employment Opportunity Commission (“EEOC”) against Granicus alleging retaliation and discrimination on the basis of color, race, and sex. (Id. ¶ 7.) Ms. Grays received a right to sue letter from the EEOC on June 2, 2018. (Id.) A month later, Ms. Grays initiated a lawsuit in Colorado state court (the “State Court Action”) that included claims for declaratory relief as to the validity of the ERCA, outrageous conduct, breach of fiduciary duty, negligence, and intentional infliction of emotional distress against Granicus and four Granicus HR employees, none of whom are parties to this action. (Dkt. #20-3.)^[2]The State Court Action was dismissed on the defendants' motion on August 5, 2018.

         Ms. Grays asserts nine claims for relief: (1) a Title VII claim; (2) a 42 U.S.C. § 1985(3) conspiracy claim; (3) a 42 U.S.C. § 1981 claim; (4) wrongful termination; (5) outrageous conduct; (6) breach of contract/promissory estoppel;^[3] (7) blacklisting; (8) slander; and (9) breach of fiduciary duty.^[4] Defendants seek dismissal of all claims under Rule 12(b)(6).

         b. Defendants' Motions to Dismiss

         Defendants argue that Ms. Grays' Amended Complaint fails as a matter of law and should be dismissed for multiple reasons.

         As an initial matter, Defendants note that it not entirely clear which claims are brought against which Defendants. This implicates the pleading standards set forth in Rule 8. See Fed. R. Civ. P. 8(a) (requiring a complaint to “contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief”). See also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (explaining that to state a cognizable claim in federal court that complies with Rule 8, a plaintiff “must describe briefly, plainly, and adequately the specific legal right allegedly violated and all relevant facts that support each claim, which includes explaining what each named defendant did to him; when the defendant did it; and how the defendant's action harmed him”). The requirements of Rule 8(a) guarantee “that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest.” TV Commc'ns Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir. 1992). The liberal pleading standard for unrepresented litigants does not override a pro se plaintiff's responsibility to provide a simple and concise statement of his claims and the specific conduct that gives rise to each asserted claim. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

         Ms. Grays' Amended Complaint does not specify which claims are asserted against which Defendant. Thus, Defendants were left to guess which claims were brought against whom. Defendant Richey assumed that the 42 U.S.C. § 1985(3), promissory estoppel, and breach of fiduciary duty claims were asserted against her in her individual capacity. (Dkt. #17 at 2.) Defendant Downard assumed that Ms. Grays asserted only her § 1985(3) claim against him individually. (Dkt. #20 at 2.) Defendant Granicus, for its part, did not respond to the § 1985(3) or breach of fiduciary duty claim. (Dkt. #21 at 2 n.2.) Ms. Grays' Response (Dkt. #25) provided little clarification. The Court will therefore adopt Defendants' framing of the relevant claims.

         Defendants further argue that all of Ms. Grays' claims are barred under the doctrine of res judicata, now generally referred to as the doctrine of “claim preclusion, ” due to the dismissal of the State Court Action. Defendants additionally contend that all the claims can be dismissed under Rule 12(b)(6).

         II. LEGAL STANDARDS

         a. Pro Se Plaintiff

         Ms. Grays is proceeding pro se. The Court, therefore, “review[s] [her] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle her to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         b. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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 ...