United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
SECOND AMENDED COMPLAINT (DKT. #48)
REID NEUREITER UNITED STATE MAGISTRATE JUDGE.
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.
Plaintiff David Grady's Allegations
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.)
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.
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.
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.)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.)
Defendant Swire Coca-Cola's Motion to Dismiss
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.)
Standard for Motion to Dismiss
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).
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.
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.
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 ...