United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's Partial
Motion to Dismiss Plaintiff's Second Amended Complaint
[Docket No. 63]. The Court has jurisdiction under 28 U.S.C.
Carol Klesser began working at Hewlett-Packard Company in
July 1997. Docket No. 60 at 3, ¶ 11. After the company
was split into two entities in 2015, she worked for defendant
Hewlett Packard Enterprise Company until July 21, 2017, when
she was terminated. Id., ¶ 12.
her employment, plaintiff was never informed that her
performance was less than satisfactory. Id., ¶
15. She consistently received performance reviews indicating
that she was performing at a satisfactory level or better.
Id., ¶ 14. In December 2016, plaintiff received
a performance review that she was doing a “great”
job and that her team was “very valuable.”
Id. at 6, ¶ 40. Plaintiff received company
shares and a monetary bonus as a reward for her performance.
December 2016, plaintiff was informed by her supervisor, Ms.
Kelly Ducourty, that plaintiff's salary was “much
lower” than the salaries of her male peers.
Id., ¶ 41. Ms. Ducourty promised plaintiff
that, in February, she would process an off-cycle pay
increase to remedy the disparity. Id.
February 2017, Ms. Ducourty promoted Mr. Hedley Potts to
supervise plaintiff and other individuals. Id.,
¶ 43. Ms. Ducourty did not increase plaintiff's
salary. Id., ¶ 44. On March 1, 2017, plaintiff
informed Mr. Potts that Ms. Ducourty had promised her a raise
because she was the lowest paid employee of the employees who
directly reported to Mr. Potts. Id. at 7,
¶¶ 45-46. Other than plaintiff, all of Mr.
Potts's direct reports were men. Id., ¶ 46.
On or about March 16, 2017, plaintiff spoke with
defendant's Human Resources Vice President, Ms. Seema
Iyer, about Ms. Ducourty's promised raise. Id.,
¶ 49. During this conversation, plaintiff questioned
whether the pay discrepancy between herself and her male
colleagues was based on her gender. Id., ¶ 50.
She also questioned whether her “potential
termination” was based on her gender. Id.,
¶ 51. Ms. Iyer informed plaintiff that there was no
money for a raise, but assured plaintiff that she was not
scheduled for a layoff because she was “too good”
of a manager to be terminated. Id., ¶¶
mid-March 2017, Mr. Potts informed plaintiff that she had to
find a new position. Id. at 8, ¶ 55. Mr. Potts
stated that plaintiff had “been at the company too long
and need[ed] to move on, ” as he was “looking for
younger talent with a fresh set of eyes on things.”
Id., ¶ 56. Mr. Potts told plaintiff that she
had “until June to find something else” or she
would “be laid off.” Id., ¶ 61. The
next month, Ms. Iyer called plaintiff at her home to
encourage her to leave the company. Id., ¶ 62.
Plaintiff raised to Ms. Iyer her concerns regarding whether
her treatment was based upon her gender or her age.
Id. At the time, plaintiff was sixty-three years
old. Id. at 11, ¶ 81.
5, 2017, Mr. Potts conducted plaintiff's mid-year
performance review. Id. at 10, ¶ 72. Mr. Potts
informed plaintiff that she was doing a great job and gave
her a rating of “Driver-plus, ” indicating that,
if she kept up her performance, she would be rated
“Accelerating” at the end of the year.
Id. On July 10, 2017, Mr. Potts notified plaintiff
that her position had been eliminated and that she was
terminated. Id., ¶¶ 74-75. After
plaintiff's exit, she was replaced by a younger male
employee. Id., ¶ 77.
time of her termination, plaintiff was earning a base salary
of $167, 472. Id. at 4, ¶ 20. The annual salary
of one similarly situated male employee was at least $40, 000
more than plaintiff's salary, and two other similarly
situated male employees earned at least $80, 000 more per
year than plaintiff. Id. at 4, ¶¶ 21-22;
at 5, ¶ 28.
November 22, 2017, plaintiff filed a lawsuit against
defendant, raising claims under the Equal Pay Act, 29 U.S.C.
§§ 206(d), 215(a)(3) (“EPA”) . Docket
No. 1. Upon plaintiff's motion, Docket No. 30, the Court
administratively closed the case pending the conclusion of
plaintiff's EEOC proceedings. Docket No. 31. The case was
reopened on October 22, 2018. Docket No. 40.
filed her amended complaint on February 7, 2019. Docket No.
60. She raises claims under the EPA, Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e-2, et seq., and
the Age Discrimination in Employment Act, 29 U.S.C. §
621, et seq. (“ADEA”). See id. Plaintiff
claims that, as a result of her efforts to oppose violations
of these laws, she was terminated. Id. at 11, ¶
87. She further alleges that, after she opposed these
violations, the defendant withdrew its offer to pay her
severance. Id. at 11, ¶¶ 85-86. On
February 21, 2019, defendant filed a partial motion to
dismiss under Fed.R.Civ.P. 12(b)(6). Docket No. 63. Plaintiff
filed a response to the motion on March 14, 2019, Docket No.
64, to which defendant replied on March 28, 2019. Docket No.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a complaint must allege
enough factual matter that, taken as true, makes the
plaintiff's “claim to relief . . . plausible on its
face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
- but it has not shown - that the pleader is entitled to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (internal quotation marks and alteration marks
omitted); see also Khalik, 671 F.3d at 1190
(“A plaintiff must nudge [her] claims across the line
from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)).
If a complaint's allegations are “so general that
they encompass a wide swath of conduct, much of it innocent,
” then plaintiff has not stated a plausible claim.
Khalik, 671 F.3d at 1191 (quotations omitted). Thus,
even though modern rules of pleading are somewhat forgiving,
“a complaint still must contain either direct or
inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal
theory.” Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008) (alteration marks omitted).