Andalib v. JBS USA, LLC

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

          MARCIA S. KRIEGER SENIOR UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court pursuant to the Defendants' Motion to Dismiss (# 12), Mr. Andalib's response (# 21), and the Defendants' reply (# 23).

         FACTS

         Mr. 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.

         In or 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 situation.

         A few 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.”

         In 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.

         Thereafter, 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.

         During 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 Africa.”

         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.^[1] 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.

         Based 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.

         The 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.

         ANALYSIS

         A. ...