United States District Court, D. Colorado
KACEM M. ANDALIB, Plaintiff,
JBS USA, LLC, RIGO MENDIOLA, and ANTHONY RICKOFF, Defendants.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION TO DISMISS
S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE
MATTER comes before the Court pursuant to the
Defendants' Motion to Dismiss (# 12),
Mr. Andalib's response (# 21), and the
Defendants' reply (# 23).
Andalib's 41-page Complaint (# 2) is
lengthy and contains a considerable amount of detail and
argument, but its pertinent allegations can be succinctly
summarized. Mr. Andalib, who is of Moroccan national origin
and an adherent of Islam, was hired by Defendant JBS USA
(“JBS”) in October 2014 to work in JBS' beef
processing plant in Greely, Colorado. Mr. Andalib was soon
promoted to the position of HR Supervisor.
about April 2017, JBS hired Defendant Anthony Rickoff as a
trainer in the HR department. Shortly thereafter, during a
discussion about the Trump administration's newly-enacted
ban on Muslim immigration to the United States, Mr. Rickoff
stated to Mr. Andalib that “it's all your fault,
you freaking terrorists, ” apparently referring to Mr.
Andalib's ancestry, Moroccan national origin, and/or
Islamic faith. Mr. Andalib complained about Mr. Rickoff's
comment to Defendant Rigo Mendiola, JBS' HR Director. Mr.
Mendiola told Mr. Rickoff about Mr. Andalib's complaint,
but otherwise took no action to investigate or redress the
days later, JBS accepted applications for an open HR Manager
position. Mr. Andalib applied, but Mr. Mendiola instead gave
the position to Mr. Rickoff, making him Mr. Andalib's
direct supervisor. Mr. Rickoff began treating Mr. Andalib
less-favorably than he treated white and non-Muslim
colleagues by “ordering him around, dismissing and
denigrating his accomplishments while praising his
colleagues, keeping him out of the loop on important
information[, ] and setting him up for failure.”
October 2017, an employee from the Fleshers Department at JBS
came to the HR office on a personnel matter. At the
conclusion of that matter, Mr. Rickoff, mistakenly believing
that the employee worked in the Fabrication Department,
called a Fabrication Department supervisor to escort the
employee back to that department. Mr. Andalib attempted to
correct Mr. Rickoff's mistake, but Mr. Rickoff ignored
him. Later, when it became clear that the employee had been
sent to the wrong department, Mr. Rickoff wrote an e-mail to
Mr. Mendiola and others, falsely blaming Mr. Andalib for the
mistake. Mr. Andalib wrote to Mr. Mendiola, again complaining
about the “terrorist” comment and Mr.
Rickoff's discrimination against him. Mr. Mendiola did
not investigate the matter, but simply referred it to
JBS' Compliance Department. Although the Compliance
Department interviewed Mr. Andalib about his complaint, JBS
apparently took no further action.
Mr. Mendiola treated Mr. Andalib less-favorably than other HR
employees, refusing his request for issuance of a laptop that
was routinely approved for other employees and rejecting Mr.
Andalib's request to participate in training programs. In
early 2018, Mr. Mendiola informed Mr. Andalib that, unlike
other HR employees, he would not be awarded the annual bonus
for 2017. Mr. Mendiola also issued Mr. Andalib a disciplinary
notice for poor performance.
this period, Mr. Rickoff instructed HR employees to move Mr.
Andalib's files and belongings to a desk at the back of
the office. Mr. Rickoff criticized Mr. Andalib for using the
bathroom. Mr. Andalib again complained to Mr. Mendiola about
Mr. Rickoff's treatment of him, but nothing was done.
Some time later, Mr. Rickoff directed the termination of a
Muslim employee of Somali origin. Mr. Andalib asked why the
employee was being terminated, and Mr. Rickoff replied that
“I'm doing my share of making America great
again.” Mr. Andalib understood this comment to reflect
that Mr. Rickoff was terminating the employee because of the
employee's race, religion, and/or national origin. On
another occasion, Mr. Andalib and a fellow Moroccan employee
were speaking to one another in their native language when
Mr. Rickoff passed by. Mr. Rickoff stated “if
you're going to speak that blah-blah-blah, speak it in
April 2018, Mr. Mendiola and Mr. Rickoff each instructed Mr.
Andalib to go to the Fabrication Office to investigate a
matter involving an employee. When Mr. Andalib arrived, Mr.
Rickoff was already there, apparently conducting the
investigation. Mr. Rickoff instructed Mr. Andalib to leave
the room. Mr. Andalib protested, stating that Mr. Mendiola
specifically directed him to conduct the
investigation. Mr. Rickoff and the other HR
representatives that were present then left the room to have
a discussion outside. Mr. Rickoff returned shortly
thereafter, falsely accusing Mr. Andalib of closing and
locking the office door behind them and of raising his voice.
On April 6, 2018, JBS suspended Mr. Andalib pending an
investigation into the event, and on April 11, 2018, JBS
terminated Mr. Andalib's employment.
on these facts, Mr. Andalib asserts five causes of action:
(i) a claim under Title VII, 42 U.S.C. § 2000e et
seq., asserting that JBS discriminated against him based
on his “race, color, ethnicity, ancestry and/or
alienage, ” national origin and religion, and further
that JBS also allowed the creation of a hostile working
environment based on these same characteristics; (ii) a claim
against all three Defendants under 42 U.S.C. § 1981
and/or § 1983, in that the Defendants discriminated
against Mr. Andalib on the basis of his “race, color
ethnicity, ancestry and/or alienage”; (iii) a claim
under Title VII that JBS retaliated against Mr. Andalib for
having complained of discrimination, through the creation of
a hostile environment, the refusal to promote him to HR
Manager, and ultimately terminating him; (iv) a retaliation
claim under 42 U.S.C. § 1981, asserted against all
Defendants, based on similar facts; (v) a tort claim sounding
in outrageous conduct, presumably under Colorado common law,
against Mr. Rickoff for referring to Mr. Andalib as a
“terrorist” (and perhaps arising out of the
remaining conduct discussed above by Mr. Rickoff) and against
JBS vicariously for Mr. Rickoff's action.
Defendants move (# 12) to dismiss some of
Mr. Andalib's claims, arguing: (i) Mr. Andalib failed to
exhaust his administrative remedies regarding any claims of
disparate treatment or hostile environment, insofar as he
failed to include such allegations in his EEOC charge; (ii)
Mr. Andalib's Section 1983 claim fails because he does
not and cannot assert that the Defendants were state actors;
(iii) Mr. Andalib's retaliation claim should be limited
to his April 2017 complaint to Mr. Mendiola about Mr.
Rickoff's “terrorist” comment, and similarly
should be limited to the adverse actions of non-promotion and
termination, as those are the only actions referenced in his
EEOC charge; (iv) that Mr. Andalib's retaliation claim
fails to state a claim under Fed.R.Civ.P. 12(b)(6) because he
has not adequately alleged a causal connection between his
protected conduct and adverse actions; and (v) Mr.
Andalib's outrageous conduct claim fails to allege
sufficiently outrageous conduct.