Grady v. Swire Coca-Cola Co.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT (DKT. #48)

          N. REID NEUREITER UNITED STATE MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Swire Coco-Cola's (“Swire”) Motion to Dismiss Second Amended Complaint (Dkt. #48), filed December 6, 2018. Having carefully reviewed Defendant's motion, Plaintiff David Grady's response (Dkt. #49), and Swire's reply (Dkt. #50), and having heard and considered the arguments of counsel presented at a hearing held on January 9, 2019, Defendant's Motion is DENIED.

         I. Plaintiff David Grady's Allegations

         Mr. Grady is deaf. (Dkt. #51 at ¶ 1.) Swire's predecessor hired Mr. Grady in September 2013, and he became an employee of Swire in May 2014. (Id. at ¶¶ 2-3.) Mr. Grady expressed interest in obtaining a commercial driving position with Swire in the Spring of 2015. (Id. at ¶ 4.) He obtained a hearing exemption to operate commercial motor vehicles from the U.S. Department of Transportation, Federal Motor Vehicle Carrier Safety Administration, and took written tests with the Colorado Department of Motor Vehicles, and obtained his commercial driver's license learner's permit. (Id. at ¶ 5.) Having met the requirements to be hired, Swire offered Mr. Grady employment as a driver to begin in August 2015. (Id. at ¶ 6.) But in August 2015, Swire informed Mr. Grady he would not be hired. Mr. Grady alleges that a Swire Human Resources representative informed him that Swire's management did not want deaf people driving for Swire. (Id.)

         Mr. Grady filed his first EEOC complaint in September 2015, after being told he would not be hired as a driver. (Id. at ¶ 7.) In April 2016, Mr. Grady took and passed the Department of Transportation (DOT) test and obtained his commercial driver's license. (Id. at ¶ 9.) Mr. Grady alleges that when it became apparent he would obtain his license, Swire began scrutinizing his performance to find reasons to discipline him, in furtherance of Swire's desire not to employ deaf people in driving jobs. (Id. at ¶ 10.) According to the Second Amended Complaint, drivers starting out and learning the job of driving who did not have any hearing impairment were not subject to similar scrutiny and formal discipline. (Id.)

         Within a few weeks of obtaining his DOT license, Mr. Grady says Swire transferred him back to his non-driving job. (Id. at ¶11.) Then, on July 1, 2016, Defendant fired Mr. Grady allegedly because he had cut himself opening a box, part of his non-driving duties. (Id. at ¶12.) Mr. Grady claims that Swire's use of a minor job-related injury as grounds for firing Mr. Grady was a pretext for dismissing him in retaliation for his protected activity of filing his initial EEOC complaint, and in furtherance of Swire's desire not to have deaf people driving for Swire. (Id. at ¶13.) Mr. Grady timely raised the issue of his termination with the EEOC.

         Mr. Grady alleges he has exhausted his administrative remedies by filing complaints with the EEOC in a timely manner. He received two “right to sue” letters from the EEOC, one on August 16, 2017, and the other dated August 18, 2017. (Id. at ¶15.)^[1]In terms of the relief sought, Mr. Grady seeks injunctive relief, back pay and front pay, exemplary damages, as well as his attorneys fees and costs. (Id. at ¶ 16.)

         II. Defendant Swire Coca-Cola's Motion to Dismiss

          Swire has moved, pursuant to Fed. R. Civ. Pro. 12(b)(6), to dismiss the Second Amended Complaint for failure to state a claim, and seeks dismissal of the entire action with prejudice. Swire argues that Mr. Grady's Second Amended Complaint fails to contain sufficient factual matter to meet the “plausibility” standard set by the Supreme Court in the famous cases of Iqbal and Twombly. In support of its position, Swire argues that because Mr. Grady includes additional factual allegations in his legal complaint that are not reflected in his EEOC charging document, those allegations must be ignored for failure to exhaust administrative remedies. And when one ignores the additional allegations, Swire argues, Mr. Grady's Second Amended Complaint “is legally deficient for facial implausibility and failure to comply with Rule 8 of the Federal Rules of Civil Procedure.” (Dkt. #48 at 1.)

         III. Standard for Motion to Dismiss

         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 be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at1198. “To survive a motion to dismiss, 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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads ...