Borgonah v. Rocky Mountain Health Center Pediatrics P.C.

          ORDER ON MOTION TO DISMISS

          NINA Y. WANG UNITED STATES MAGISTRATE JUDGE

         This 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.

         BACKGROUND

         The court draws the following facts from the Complaint [#1] and presumes they are true for purposes of the instant Motion.

         Plaintiff 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].

         Believing 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”), ^[1] and tortious interference with employment opportunities (“tortious interference” or “Claim 4”). See [#1 at 3].

         RMHCP 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.

         LEGAL STANDARDS

         I. Rule 12(b)(1)

         Federal 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).

         II. Rule 12(b)(6)

         Under 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).

         III. Pro Se Litigants

         In 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 ...