United States District Court, D. Colorado
A. Brimmer, United States District Judge.
matter comes before the Court on Defendants' Motion to
Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) [Docket No. 13].
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
allegations in plaintiff's Complaint and Jury Demand
[Docket No. 1] are to be taken as true in considering a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Brown v.
Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011).
worked as an office manager for defendant JOBEC, Inc.
(“JOBEC”) between March 5, 2012 and May 4, 2017.
Docket No. 1 at 2, ¶ 3. JOBEC provides management
services and oversight to defendants Colorado Hamburger
Company, Inc. and Farmington Hamburger Company, Inc. (the
“McDonald's defendants”). Id.,
¶ 4. In particular, JOBEC issues paychecks and provides
policy manuals and job descriptions for employees of all
defendants. Id. at 2-3, ¶ 7. John Bronson is
the owner of each defendant and was plaintiff's direct
supervisor at JOBEC. Id. at 3, ¶ 10.
Collectively, defendants have approximately 645 employees.
Id., ¶ 7. Plaintiff alleges that, over the
course of her employment, John Bronson subjected her to
verbal and physical sexual harassment. Id. at 3-5,
¶ 11. Plaintiff further alleges that Brett Bronson, John
Bronson's son, retaliated against her for complaining
about John Bronson's sexual harassment. Id. at
5, ¶ 12. As a result of John Bronson's and
Brett Bronson's actions, plaintiff was forced to quit her
job. Id., ¶ 13. On March 27, 2018, plaintiff
filed this lawsuit against JOBEC and the McDonald's
defendants. Id. Plaintiff asserts a claim against
all defendants under Title VII of the Civil Rights Act of
1964 as amended, 42 U.S.C. § 2000e et seq., for
maintaining a hostile work environment based on gender.
Id. at 1.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [his] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).
Whether the Defendants are an “Integrated
alleges that, although she was employed by JOBEC, the
McDonald's defendants are also liable because the three
entities make up an “integrated enterprise.”
Docket No. 1 at 2-3, ¶ 7. Defendants argue that
plaintiff's allegations regarding defendants being an
“integrated enterprise” are not plausibly
alleged. Docket No. 13 at 3.
VII makes it unlawful for an “employer” to
“discriminate against any individual with respect to .
. . compensation, terms, conditions, or privileges of
employment” on account of sex. 42 U.S.C. §
2000e-2(a)(1); Knitter v. Corvias Military Living,
LLC, 758 F.3d 1214, 1225 (10th Cir. 2014). An
“employer” is “a person engaged in an
industry affecting commerce who has fifteen or more
employees.” 42 U.S.C. § 2000e(b). At the motion to
dismiss stage, plaintiff must allege facts that, if proven,
would show that defendant was an “employer” for
purposes of Title VII.
does not claim that JOBEC has more than fifteen employees;
rather, she claims that JOBEC and the McDonald's
defendants collectively have more than fifteen employees and
may be considered together as a single employer. See
Docket No. 16 at 2, ¶¶ 1, 5. To determine whether
multiple entities effectively constitute a single employer
(also called an “integrated enterprise”), courts
weigh four factors: “(1) interrelations of operation;
(2) common management; (3) centralized control of labor
relations; and (4) common ownership and financial
control.” Knitter, 758 F.3d at 1227 (citing
Bristol v. Board of Cty. Comm'rs of Cty. of Clear
Creek, 312 F.3d 1213, 1220 (10th Cir. 2002)).
“Courts generally consider the third factor -
centralized control of labor relations - to be the most
important.” Bristol, 312 F.3d at 1220.
support of her assertion that defendants are a single
employer, plaintiff makes the following allegations.
Defendant JOBEC provides management services and oversight to
the McDonald's defendants. See Docket No. 1 at
2, ¶ 4. John Bronson owns all defendants. See
id. at 3, ¶ 10. Defendant JOBEC cuts the paychecks,
issues policy manuals, and issues job descriptions for
employees of all defendants. See id. at 2-3, ¶
7. The Court finds that these allegations do not plausibly
allege that defendants make up an integrated enterprise.
Plaintiff has presented some evidence to support the first
factor, since issuing paychecks is one piece of evidence that
is “routinely used to show interrelated
operations.” See Frank v. U.S. West, Inc., 3
F.3d 1357, 1363 (10th Cir. 1993) (citing McKenzie v.
Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th
Cir. 1987)). However, plaintiff has not presented any
evidence indicating that JOBEC and the McDonald's
defendants had common management other than the
“management services” provided by JOBEC.
See Docket No. 1 at 2, ¶ 4. Common management
requires some showing that defendants had common officers and
more than one common manager. See Frank, 3 F.3d at
1364 (collecting cases). Additionally, plaintiff has not
alleged facts plausibly indicating that the defendants had
centralized control of labor relations, which is the most
important factor. See Bristol, 312 F.3d at 1218.
“To satisfy the control prong, a parent must control
the day-to-day employment decisions of the subsidiary.”
See Frank, 3 F.3d at 1363 (collecting cases).
Plaintiff's allegation that JOBEC issued policy manuals
and job descriptions for the McDonald's defendants is
insufficient to show centralized control. See Lockard v.
Pizza Hut, Inc., 162 F.3d 1062, 1071 (10th Cir. 1998)
(“The existence of [one entity's] policies is not
enough to demonstrate [one entity's] centralized control
of [another entity's] labor relations.) Plaintiff makes
no assertion that JOBEC could hire and fire individual
employees at either of the McDonald's defendants (and
vice versa). See id. (holding that the third factor
is not satisfied when plaintiff does not provide evidence
whether one entity controlled or made final decisions
regarding another entity's employment decisions).
Finally, while plaintiff does allege that defendants share
common ownership, “this factor, standing alone, can
never be sufficient to establish parent liability.”
See Frank, 3 F.3d at 1364. Without more, the Court
cannot conclude that the complaint plausibly alleges that
defendants are a single employer.
claims that a stipulation in a related case confirms that the
defendants are an integrated enterprise. See Docket
No. 16 at 6 (citing EEOC v. Colo. Hamburger Co., No.
06-cv-01871-MSK-CBS, Docket No. 30 (D. Colo. Sept. 13,
2007)). The four corners of the complaint do not refer to the
stipulation. See Docket No. 1. Even if the Court
could consider the stipulation on a motion to dismiss,
however, the stipulation is expressly limited to the earlier
action. See EEOC, Docket No. 30 at 1
(“Defendants hereby stipulate in this action
that Colorado Hamburger Company, Inc., Farmington Hamburger
Company, Inc., and JOBEC, Inc. are an integrated enterprise.
. . .” (emphasis added)). “[I]ssue preclusion
ordinarily does not attach ...