United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S PARTIAL MOTION TO
DISMISS PLAINTIFF'S AGE DISCRIMINATION CLAIM
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter before the Court is Defendant Aurora Public
Schools' (“APS”) Partial Motion to Dismiss
Plaintiff George Christopher Ash's claim arising under
the Age Discrimination in Employment Act. (Doc. # 13.) For
the following reasons, the Court grants APS' motion.
filed a lawsuit against APS on May 24, 2018, asserting state
and federal claims of discrimination based on, race,
disability, gender, and retaliation under the Age
Discrimination in Employment Act (“ADEA”),
Americans with Disabilities Act, Title VII of the Civil
Rights Act, 42 U.S.C. Section 1981, and the Colorado
Anti-Discrimination Act. (Doc. # 1.) The following facts are
drawn from the Complaint and are taken as true for the
purposes of the instant motion.
is a 53-year-old African American male who was hired in July
2014 as a sixth-grade social studies teacher at East Middle
School, which is in the Aurora Public Schools District. (Doc.
# 1 at ¶¶ 1, 4, 6.) He alleges that, after a change
in administration at East Middle School, APS began
“engaging in a pattern and practice of discrimination
and retaliation against older African American male employees
during the 2015-2016 school year [that] worsened
thereafter.” (Id. at ¶ 14.)
“[S]chool district employees who were not older
African-American male[s] . . . received more favorable
treatment than older male African American employees with
respect to assignments, contracts, promotions, working
conditions, and other terms and conditions of
employment.” (Id. at ¶ 15.) In short, Mr.
Ash asserts a disparate treatment claim of age discrimination
under the ADEA.
“was subjected to an atmosphere that condoned and
encourages [sic] discrimination against him on the basis of
age, ” including being asked to “either resign,
or his employment would be terminated by his not being
renewed.” (Id. at ¶¶ 17, 21.) He was
harassed by his supervisor in retaliation for “his
engaging in protected activity, and [he] was discriminated
against in the way that he was treated in the workplace,
including the adverse manner in which he was treated leading
to his suffering an eye injury on April 26, 2017 which caused
him to go out on workers compensation injury leave, all
relating to his age.” (Id. at ¶ 22.)
further alleges he was “threatened” by the
Assistant Principal in a classroom setting when he expressed
his discomfort with participating in mediation with a student
who harassed him. (Id. at ¶ 23.) Another
administrator told him that “another older African
American male teacher at the same school should have his
black card taken away because he was unable to handle unruly
students.” (Id. at ¶ 31.) Mr. Ash was
assigned “more challenging students, some of whom were
on probation and some of whom posed real physical danger to
teachers and [APS] would not approve Mr. Ash's requests
to transfer students out of his class, ” while
“other [white] members of the sixth grade Social
Studies Team . . . were treated more favorably than Mr.
Ash.” (Id. at ¶¶ 24, 31.)
after being diagnosed with diabetes, Mr. Ash was reprimanded
for taking excessive leave for medical treatment.
(Id. at ¶ 18.) Mr. Ash also alleges he was
refused disability accommodation and was refused
reimbursement from APS's “Health Leave Bank.”
(Id. at ¶ 19.)
March 2017, school administrators notified Mr. Ash that he
would not be rehired for the 2018-2019 school year due to
unsatisfactory work performance. (Id. at ¶ 26.)
Mr. Ash then filed a charge of discrimination with the
Colorado Civil Rights Division and the Equal Employment
Opportunity Commission on April 18, 2017, and he received his
Right to Sue letter on February 27, 2018. (Id. at
August 6, 2018, APS filed the instant Partial Motion to
Dismiss Plaintiff's Age Discrimination Claim contending
that Mr. Ash has failed to allege any facts that plausibly
state an age discrimination claim. (Doc. # 13.) On August 24,
2018, Mr. Ash filed his Response (Doc. # 16) and APS filed
its Reply on September 7, 2018 (Doc. # 19).
APS argues that Mr. Ash's conclusory statements in his
Complaint fail to either establish that he performed
satisfactory work or demonstrate that he suffered an adverse
employment action in favor of someone younger. (Doc. # 13 at
4- 5.) By contrast, Mr. Ash argues that dismissal of his age
claim is unwarranted because he has pleaded enough facts to
establish a prima facia case of age discrimination. (Doc. #
16 at 4-8.) In the alternative, Mr. Ash requests that this
Court allow him a reasonable period of time to amend his
complaint. (Id. at 2.)
LAW GOVERNING A MOTION TO DISMISS
purpose of a motion to dismiss under Rule 12(b)(6) is to test
“the sufficiency of the allegations within the four
corners of the complaint.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A
complaint will survive such a motion only if it contains
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “The question
is whether, if the allegations are true, it is plausible and
not merely possible that the plaintiff is entitled to relief
under the relevant law.” Christy Sports, LLC v.
Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th
deciding a Rule 12(b)(6) motion, a court must accept all the
well-pleaded allegations of the complaint as true and must
construe them in the light most favorable to the plaintiff.
Williams v. Meese, 926 F.2d 994, 997 (10th Cir.
1991). Nevertheless, a complaint does not “suffice if
it tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557). “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 ...