United States District Court, D. Colorado
T. BABCOCK, JUDGE
me is Defendant's Motion to Dismiss. ECF No. 8. Plaintiff
asserted two claims for relief: wrongful termination based on
sex and quid pro quo sexual harassment, both in violation of
Title VII. Compl., ECF No. 2 at 5-6. Defendant argues that
both claims should be dismissed. After consideration of the
parties' arguments, I DENY the Motion for the reasons set
employed Plaintiff as an assistant manager. ECF No. 2 at
¶¶ 8 & 9. Neil Bigelow was Defendant's
general manager and Plaintiff's direct supervisor.
Id. at ¶ 10. In August 2015, Bigelow invited
Plaintiff to a “pool day, ” which Plaintiff
considered to be an invitation for a romantic date.
Id. at ¶ 13. Plaintiff refused the invitation.
Id. at ¶ 14. In September 2015, Defendant hired
Justin Seymour, who dated Plaintiff at the time. Id.
at ¶¶ 15 & 16. The relationship was initially
unknown to Bigelow. Id. at ¶¶ 17 & 21.
February 15, 2016, Bigelow sent a text message to Plaintiff
that read “I truly appreciate how reliable you have
been and how hard you work, holding down the shop all night
every night! I apologize for not being 100% on top of my game
lately!” Id. at ¶ 18. Concurrent to the
text, Bigelow gave Plaintiff a bonus accompanied by a message
on her paystub that read “Please keep up the hard
work.” Id. at ¶ 19.
in February, Bigelow discovered that Plaintiff and Seymour
were dating. Id. at ¶ 21. On February 22,
Bigelow suspended Seymour and terminated him a week after.
Id. at ¶ 22. The same day Bigelow terminated
Seymour, Bigelow asked Plaintiff if she wanted to go out for
drinks after work. Id. at ¶ 24. Plaintiff took
this as an invitation for a romantic date and declined the
offer. Id. at ¶ 24 & 26. Around the same
time, Bigelow again expressed his confidence in
Plaintiff's work ability. Id. at ¶ 23.
March 4, Bigelow suspended Plaintiff after she told Bigelow
“to stop discussing her relationship with Seymour with
other employees” and told Bigelow that
“[y]ou're my manager, not my friend.”
Id. at ¶ 27. On March 8, Bigelow terminated
Plaintiff's employment. Id. at ¶ 28. When
Plaintiff received her final paycheck a few days later, the
paycheck was accompanied by three records of disciplinary
action describing events that took place on February 15,
March 1, and March 4. Id. at ¶¶ 29 &
32. Two of these records included “[a]greed-upon
improvement plans, ” but Plaintiff “never agreed
upon any improvement plan because she [did not] find out
about the plans or the records of discipline until after she
was fired.” Id. at ¶¶ 30 & 31.
avoid dismissal under Rule 12(b)(6), “a complaint must
contain enough allegations of fact, taken as true, ‘to
state a claim to relief that is plausible on its
face.'” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (quoting Be
l Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A claim is plausible on its face
“when the plaintiff pleads factual content that enables
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
may not dismiss a complaint merely because it appears
unlikely or improbable that a plaintiff can prove the facts
alleged or ultimately prevail on the merits.
Twombly, 550 U.S. at 556. Instead, a court must ask
whether the facts alleged raise a reasonable expectation that
discovery will reveal evidence of the necessary elements.
statements and legal conclusions are not accepted as true;
mere “labels and conclusions” and “a
formulaic recitation of the elements of a cause of
action” will not suffice. Khalik, 671 F.3d at
1190-91 (quoting Twombly, 550 U.S. at 555). As such,
when examining a complaint under Rule 12(b)(6), I disregard
conclusory statements and look only to whether the remaining,
factual allegations plausibly suggest the defendant is
liable. Id. at 1191.
stated two claims for relief: “Wrongful Termination
Based on Sex in Violation of Title VII” and
“Quid Pro Quo Sexual Harassment in Violation
of Title VII.” Id. at 5-6. Defendant argues
that both claims should be dismissed. ECF No. 8. I first
discuss the exhaustion of administrative remedies.
Plaintiff Exhausted Her Administrative Remedies.
Defendant argues that both of Plaintiff's claims should
be dismissed because she failed to properly allege, as a
jurisdictional prerequisite, that she exhausted her
administrative remedies. Id. at 4-5. Defendant
claims that Plaintiff did not reference in her Complaint the
filing of a charge of discrimination (the
“Charge”) with the Equal Employment Opportunity
Commission (“EEOC”), nor did she confirm that she
received a corresponding right-to-sue letter. Id.
Alternatively, Defendant argues that Plaintiff's Charge
to the EEOC did not “assert a claim for gender
discrimination or ...