Ybarra v. Comprehensive Software Systems, LLC

          ORDER ON PARTIAL MOTION TO DISMISS

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Defendant Comprehensive Software Systems, LLC, d/b/a Talisys's (“Defendant” or “Talisys”) Partial Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Motion” or “Partial Motion to Dismiss”), filed September 28, 2018. See [#18]. This civil action was referred to the undersigned Magistrate Judge to preside over fully for all purposes. See [#12]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73; D.C.COLO.LCivR 72.2. The court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having reviewed the Motion and associated briefing, applicable case law, and the entire docket, the court GRANTS the Partial Motion to Dismiss for the reasons stated herein.

         BACKGROUND

         The court draws the following facts from the Amended Complaint, the operative pleading in this matter, and presumes they are true for purposes of the instant Motion. Plaintiff Adrian Ybarra (“Plaintiff” or “Mr. Ybarra”) began working as a Software Engineer for Defendant in or about May 2012. See [#22 at ¶ 11]. Plaintiff alleges that within six months he received a “performance-based pay increase” and that his supervisor informed him that he was doing “an excellent job.” [Id. at ¶ 12]. Mr. Ybarra voluntarily resigned from Talisys on June 5, 2013, but continued working for Talisys as a consultant, and Plaintiff's supervisor allegedly informed Mr. Ybarra that he was eligible for rehire. See [id. at ¶¶ 16-17].

         Mr. Ybarra began working again full-time for Talisys as an Operations Support Specialist on March 3, 2014. See [#22 at ¶ 19]. Plaintiff maintains that he “was an exemplary employee for Talisys who performed his job duties satisfactorily or better, ” and because of his “excellent performance, ” the Vice President of Software Development offered Plaintiff a position in her department, which Plaintiff declined. See [id. at ¶¶ 23, 26-27]. About August 2014, as a “result of re-organization, ” Steve Moran (“Mr. Moran”) became Mr. Ybarra's supervisor. See [id. at ¶ 24]. Not soon after, Plaintiff noticed “concerning behaviors from Mr. Moran and subsequently Mr. Ybarra's co-workers, including sexual and religious based jokes.” [Id. at ¶ 25]. For instance, in response to an email chain concerning sexually-explicit and religiously-insensitive subject matter, Mr. Ybarra asked Mr. Moran and several co-workers if they “had taken harassment training.” See [id. at ¶¶ 28-34]. Mr. Moran allegedly belittled Plaintiff in response, see [id. at ¶ 35], and then allegedly spoke ill of Plaintiff to another Talisys employee, see [id. at ¶ 36]. Plaintiff alleges that Mr. Moran continued to send sexually-explicit, demeaning, and offensive emails to Mr. Ybarra, and that Mr. Moran, along with another co-worker, harassed Mr. Ybarra- Mr. Ybarra believed the harassment stemmed from Mr. Moran's perception of Plaintiff as a homosexual. See [id. at ¶¶ 37-53].

         Plaintiff's issues with Mr. Moran continued when Mr. Moran “verbally attacked” Plaintiff in a meeting. See [#22 at ¶ 58]. Following the meeting, Plaintiff addressed his concerns with Mr. Moran directly pursuant to Talisys's 2015 Employee Handbook and 2015 Open Door Policy. See [id. at ¶¶ 61-63, 80]. Mr. Moran allegedly stated that he was “‘aware' of the behaviors of which Mr. Ybarra was concerned” but that this was just the way Mr. Moran was. See [id. at ¶¶ 64-68]. Feeling dissatisfied with his meeting with Mr. Moran, Mr. Ybarra levied a formal complaint with TriNet, Talisys's external human resources department, stating that the situation with Mr. Moran was “unbearable” and had worsened since their meeting. See [id. at ¶¶ 71, 79-80]. TriNet, against Mr. Ybarra's wishes, reported Mr. Ybarra's complaint to Talisys's internal human resources Administrative Director, who then informed Mr. Moran of Plaintiff s complaint. See [id. at ¶¶ 71-76, 78, 82]. Plaintiff alleges that, though sharing concerns with Mr. Ybarra regarding Mr. Moran's conduct, TriNet took no further action on his complaints. See [id. at ¶¶ 81, 86].

         Roughly five days after his discussions with TriNet Talisys issued a 30-day behavior improvement plan to Mr. Ybarra-his first disciplinary action at Talisys-based not on his work performance but his “attitude.” See [id. at ¶¶ 89-93]. Mr. Moran allegedly stated that he was aware of Plaintiffs complaint with TriNet and that the behavior improvement plan was Defendant's response. See [id. at ¶¶ 94-95]. Mr. Ybarra soon raised his concerns with TriNet that Talisys was retaliating against him for levying a complaint against Mr. Moran; Plaintiff also raised these concerns with Talisys. See [id. at ¶¶ 97-104]. Mr. Ybarra alleges that neither TriNet nor Talisys's human resources Administrative Director investigated his retaliation claim, and that Mr. Moran failed to “appropriately administer the [behavior improvement plan] or comply with the conditions stated therein.” [Id. at ¶¶ 106-09].

         Talisys terminated Plaintiffs employment on December 10, 2015, claiming that it was outsourcing his position, though Defendant hired a different employee to handle some of Mr. Ybarra's prior responsibilities. See [#22 at ¶¶ 110-12, 119]. Despite an interest in remaining with Talisys and being qualified for additional openings, “Mr. Ybarra was not given the opportunity to continue working for Talisys in a different role.” [Id. at ¶¶ 113-14]. Mr. Ybarra filed charges of discrimination with both the Equal Employment Opportunity Commission (“EEOC”) and the Colorado Civil Rights Division (“CCRD”), with the EEOC assuming responsibility for the investigation. See [id. at ¶¶ 120-121]. On April 3, 2018, the EEOC issued Plaintiff a Notice of Right to Sue letter. See [id. at ¶ 122]. This suit followed.

         Plaintiff now asserts claims against Defendants for sex discrimination (“Claim 1”), harassment (“Claim 2”), and retaliation (“Claim 3”) in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; for sex discrimination (“Claim 4”), harassment (“Claim 5”), and retaliation (“Claim 6”) in violation of the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. § 24-34-301 et seq.; and for wrongful discharge in violation of public policy (“Claim 7”) for violations of CADA. See generally [#22]. On September 28, 2018, Talisys filed its Answer to Claims 1-6 and the instant Motion seeking dismissal of Claim 7. See [#18; #20]. Though Plaintiff filed an Amended Complaint as a matter of right pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, Talisys informed the court that the Amended Complaint did not moot its Partial Motion to Dismiss. See [#24]. Accordingly, Plaintiff has since responded to the Partial Motion to Dismiss [#26] and Defendant replied [#27]. The Motion is now ripe for disposition, and I consider the Parties' arguments below.

         LEGAL STANDARD

         Under Rule 12(b)(6) a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A plaintiff may not rely on mere labels or conclusions, “and a formulistic formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the scope of the allegations in a complaint, ” and that the allegations must be sufficient to nudge a plaintiff's claim(s) “across the line from conceivable to plausible.”). The court must ultimately “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         ANALYSIS

         At issue on the instant Motion is Claim 7, wherein Mr. Ybarra asserts that Talisys wrongfully discharged him in violation of public policy for Talisys's alleged violations of CADA. [#22 at ¶¶ 170-75]. “Absent an express contract providing otherwise, Colorado law presumes that an employment relationship is terminable at will by either party.” Mullin v. Hyatt Residential Grp., Inc., 82 F.Supp.3d 1248, 1251-52 (D. Colo. 2015) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 105 (Colo. 1992)). But Colorado courts recognize an exception to the at-will employment relationship if the termination stems from the employee's refusal to engage in illegal or unethical conduct or if the employee exercises a job-related right. See Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540, 547, 551-52 (Colo. 1997) (characterizing the exception as “an employee, whether at-will or otherwise, should not be put to the choice of either obeying an employer's order to violate the law or losing his or her job” (internal quotation marks omitted)). To plead a viable wrongful discharge in violation of public policy (“wrongful discharge”) claim, Mr. Ybarra must allege that (1) Talisys employed Mr. Ybarra, (2) Talisys terminated his employment, and (3) Talisys terminated his employment in retaliation for exercising a job-related right or performing a specific statutory duty, or in violation of a clearly expressed public policy. See Brown v. Premier Roofing, LLC, 173 F.Supp.3d 1181, 1184 (D. Colo. 2016) (applying Colorado law).

         Defendant moves to dismiss Claim 7 on two related grounds. First, Defendant argues that Plaintiff cannot maintain a wrongful discharge claim based on Talisys's alleged violations of CADA, because CADA provides Mr. Ybarra with the exclusive remedy he seeks for his alleged wrongful termination. See [#18 at 4-17; #27 at 2-15]. Second and relatedly, Defendant argues that Mr. Ybarra cannot ...