United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendant's partial motion
to dismiss (ECF No. 18), seeking dismissal of five of the six
claims asserted by Plaintiff in the first amended complaint
(ECF No. 17). Plaintiff has filed a response (ECF No. 28), in
which she concedes that dismissal of three of those claims
(Claims Four, Five, and Six) is appropriate. Defendant filed
a reply. (ECF No. 28.) The Court has reviewed the pleadings,
case file, and applicable law. For the reasons stated below,
the motion is granted.
I.
LEGAL STANDARD
In
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
court must accept as true all well-pleaded factual
allegations in the complaint, view those allegations in the
light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff's favor.
Brokers' Choice of America, Inc. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint
must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14
(2007); see also Id. at 555 (“Factual
allegations must be enough to raise a right to relief above
the speculative level.”). Conclusory allegations are
insufficient, Cory v. Allstate Ins., 583 F.3d 1240,
1244 (10th Cir. 2009), and courts “are not bound to
accept as true a legal conclusion couched as a factual
allegation, ” Twombly, 550 U.S. at 555
(quotation omitted).
To
determine whether a claim is plausible, a court considers
“the elements of the particular cause of action,
keeping in mind that the Rule 12(b)(6) standard doesn't
require a plaintiff to set forth a prima facie case for each
element.” George v. Urban Settlement Servs.,
833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted).
However, if the allegations “are so general that they
encompass a wide swath of conduct, much of it innocent,
” the plaintiff has not “nudged [her] claims
across the line from conceivable to plausible.”
Khalik v. United Air Lines, 671 F.3d 1188, 1191
(10th Cir. 2012) (quotation omitted).
II.
BACKGROUND
The
following facts are taken from the first amended complaint
and are viewed in the light most favorable to Plaintiff.
Plaintiff was fifty-five when she was hired by Defendant as a
senior developer in July 2017. (ECF No. 17 at ¶ 7, 11.)
She resigned five months later. (Id. at ¶ 46.)
The only training Defendant provided Plaintiff was “a
one-hour ‘white board session'” with her
supervisor. (Id. at ¶ 16.) Plaintiff was
repeatedly criticized by her supervisor for being too slow
and not completing enough work. (Id. at ¶ 18.)
According to the complaint, these and other criticisms
Plaintiff received “were false and exaggerated, and
they would not have been brought against younger and male
employees under the same or similar circumstances.”
(Id.) Plaintiff's supervisor shared his
criticism of Plaintiff with his own supervisor. (Id.
at ¶ 27.)
Plaintiff
was further criticized for stepping away from a meeting to
make calls in November 2017 and alleges that “no other
employee-younger, male, or disabled-would have been, or was,
so criticized under the same circumstances.”
(Id. at ¶ 23.)
Plaintiff
explained to Defendant that she disagreed with the criticisms
she received. (Id. at ¶ 19.) She also informed
Defendant she had been diagnosed with attention deficit
hyperactivity disorder (“ADHD”), “which she
sometimes referred to as mild autism.” (Id. at
¶ 20.) Although Plaintiff complained about
discrimination, Defendant conducted no investigations based
on her complaints. (Id. at ¶¶ 23, 24, 29.)
And despite the relentless criticism of Plaintiff's job
performance, Defendant employed none of its various forms of
discipline. (Id. at ¶ 40.) Instead, Plaintiff
was required to participate in one-on-one weekly meetings,
during which she faced more criticism. (Id. at
¶ 41.) Plaintiff perceived the criticism of her job
performance as “harassment” and alleges that she
was “constructively terminated from her job” and
forced to resign in December 2017. (Id. at
¶¶ 46, 80.)
III.
ANALYSIS
In
addition to the allegations summarized above, the complaint
contains numerous conclusory and general assertions of
discrimination that are not supported by factual allegations.
For example, Plaintiff alleges that (1) her supervisor's
“criticisms were inaccurate, exaggerated and
unfair” (id. at ¶ 19); (2) her supervisor
“had no legitimate reason to criticize [her] job
performance (id. at 22); (3) her “mistreatment
. . . grew worse” (id. at ¶ 25); (4)
“[c]omparable male employees who were not over 40 years
old, had no disabilities, and/or had not complained about
discrimination were treated leniently or not disciplined at
all as compared to plaintiff for identical or similar alleged
shortcomings in their job performance, or were not falsely
criticized” (id. at ¶ 44); (5)
“[t]he actions against plaintiff were because of her
age, her disability and her sex, and because she complained
about discrimination” (id. at ¶ 45);
“[c]orporate management waged a campaign to undermine
plaintiff in her work setting, brand her as an undesirable,
and treat her as an incompetent” (id. at
¶ 47); and (6) “[t]he escalation of criticisms
against plaintiff was discriminatory and retaliatory”
(id. at ¶ 50). Such allegations are not
presumed to be true for present purposes and are disregarded
in the following analysis. See Khalik, 671 F.3d at
1193 (striking conclusory allegations that the plaintiff was
“targeted” because of her protected status, that
she was “subjected to a false investigation and false
criticism, ” and that the defendant's stated
reasons for adverse employment actions were
“exaggerated and false”).
The
Court also disregards legal conclusions couched as statements
of belief. For example, the complaint states that Plaintiff
“recognized the discriminatory treatment” she
received (id. at ¶ 23) and that she
“believed” Defendant's agents and employees
“were specifically trying to drive her out of the
company because of her sex, age and disability, as well as
her complaints of discrimination (id. at ¶ 30).
The Court is not bound to accept the non-factual assertions
within these statements as true. See Twombly, 505
U.S. at 555.
A.
Title VII Claim (Claim Two)
Title
VII of the Civil Rights Act prohibits discrimination based on
sex. 42 U.S.C. § 2000e-2(a)(1). Where, as here, a
plaintiff does not point to direct evidence of
discrimination, discrimination claims are analyzed based on
the framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). The first step under
that framework requires the plaintiff to “establish
that (1) she is a member of a protected class, (2) she
suffered an adverse employment action, (3) she qualified for
the position at issue, and (4) she was treated less favorably
than others not in the protected class. Khalik, 671
F.3d at 1192. If the plaintiff establishes a prima facie case
of discrimination, then the burden shifts to the defendant to
produce a legitimate, non-discriminatory reason for the
adverse employment action. Id. Once the defendant
...