United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendant Rocky Mountain
Health Center Pediatrics P.C.'s (“Defendant”
or “RMHCP”) Motion to Dismiss (or
“Motion”), filed January 3, 2019. See
[#6]. The court considers the Motion pursuant to 28 U.S.C.
§ 636(c) and the Order of Reference for all purposes
dated February 1, 2019 [#10]. The court concludes that oral
argument will not materially assist in the resolution of this
matter. Accordingly, having reviewed the Motion and
associated briefing, the applicable case law, and the docket,
the court GRANTS IN PART and DENIES IN PART
the Motion to Dismiss for the reasons stated herein.
court draws the following facts from the Complaint [#1] and
presumes they are true for purposes of the instant Motion.
Candice Borgonah (“Plaintiff” or “Ms.
Borgonah”), “who is an Asian and whose
nationality is Indian, ” alleges that she began working
for Defendant as a Practice Administrator on November 17,
2014. See [#1 at 3, 11]. Nearly two years later,
RMHCP terminated Plaintiff's employment. See
[id. at 3, 11]. According to Ms. Borgonah, Defendant
directed Plaintiff to take certain actions concerning another
employee's maternity leave, but then terminated Plaintiff
when Plaintiff questioned those actions and the other
employee initiated a separate lawsuit against Defendant.
See [id. at 3, 11]. Ms. Borgonah contends
that RMHCP treated her differently than her non-Asian,
non-Indian peers and subordinates, including by
“intimidate[ing], threaten[ing], humiliat[ing], [and]
harass[ing]” her and placing her on a performance
improvement plan. See [id. at 3, 11].
RMHCP's conduct constituted a violation of her civil
rights, Plaintiff filed a charge of discrimination and
retaliation with the Equal Employment Opportunity Commission
(“EEOC”) on February 10, 2017. See [#1
at 3, 11]. On September 6, 2018, the EEOC issued Plaintiff a
Notice of Right to Sue letter. See [id. at
7-8]. Plaintiff initiated this action by filing her pro
se Complaint on December 4, 2018. See [#1].
Based on the court's interpretation of the Complaint,
Plaintiff asserts federal law claims against RMHCP under
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e et seq.,
for race and national origin discrimination (“Claim
1”) and retaliation (“Claim 2”), as well as
purported state law claims for wrongful discharge in
violation of public policy (“wrongful discharge”
or “Claim 3”),  and tortious interference with
employment opportunities (“tortious interference”
or “Claim 4”). See [#1 at 3].
moved to dismiss Plaintiff's Complaint on January 3,
2019, arguing that Ms. Borgonah fails to plead plausible
Title VII claims for discrimination and retaliation and did
not exhaust her administrative remedies related to any
tortious interference claim. See [#6; #11]. Ms.
Borgonah filed her Response to the Motion to Dismiss,
see [#8], and Defendant has since filed its Reply,
see [#11]. Because the Motion is ripe for
disposition, I consider the Parties' arguments below.
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent
obligation to determine whether subject matter jurisdiction
exists, even in the absence of a challenge from any party.
1mage Software, Inc. v. Reynolds & Reynolds,
Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure, a party may bring either a facial or factual
attack on subject matter jurisdiction, and a court must
dismiss a complaint if it lacks subject matter jurisdiction.
See generally Pueblo of Jemez v. United States, 790
F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack,
the court takes the allegations in the Complaint as true, but
when reviewing a factual attack the court may not presume the
truthfulness of the Complaint's factual allegations and
may consider affidavits or other documents to resolve
jurisdictional facts. Holt v. United States, 46 F.3d
1000, 1002-03 (10th Cir. 1995). The burden of establishing
jurisdiction rests with the party asserting jurisdiction.
Basso v. Utah Power & Light Co., 495 F.2d 906,
909 (10th Cir. 1974).
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 may also consider materials
beyond the complaint if the documents are central to the
plaintiff's claims, referred to in the complaint, and if
the parties do not dispute their authenticity. See Cty.
of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d
1031, 1035 (10th Cir. 2002). 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).
Pro Se Litigants
applying the applicable legal standards, the court is mindful
that Ms. Borgonah proceeds pro se. The court
therefore construes her pleadings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the
court does not act as her advocate, and applies the same
procedural rules and substantive law to Plaintiff as to a