Sellitto v. Vail Corp.

          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 ...