United States District Court, D. Colorado
ORDER ON PARTIAL MOTION TO DISMISS
Y. Wang United States Magistrate Judge.
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.
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
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].
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].
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].
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
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.
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).
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).
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 ...