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Kennedy v. Regents of University of Coloardo

United States District Court, D. Colorado

September 30, 2019




         This matter is before the Court on Defendant’s Partial Motion to Dismiss [Docket No. 11]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

         I. BACKGROUND[1]

         Plaintiff began working for defendant in October 2010 as a Program Coordinator: Grant and Finance Administration for the Medical Campus. Docket No. 9 at 2, ¶ 10. Due to her success in that position, she was soon promoted to the position of Graduate Administrator. Id., ¶ 11. Between 2012 and 2016, plaintiff was nominated for several awards, including the Service Excellence Award, the President’s Diversity Award, and the CU Undergraduate Pre-Health Program Preceptor Award. Id., ¶ 12.

         In October 2015, plaintiff was contacted by Dr. Catherine Jarvis, an Associate Dean for Student and Professional Affairs in the Skaggs School of Pharmacy and Pharmaceutical Sciences (“SSPPS”). Id. at 3, ¶ 14. Dr. Jarvis informed plaintiff that “the former Director of Admissions had resigned and SSPPS needed an employee with [plaintiff’s] skillset.” Id., ¶ 14. SSPPS formally offered plaintiff the position on November 23, 2015, and plaintiff “agreed to accept lateral pay in order to gain the working title of Director.” Id., ¶¶ 17, 19. Plaintiff began the director position on December 10, 2015. Id., ¶ 20. Between December 2015 and February 2016, plaintiff increased the number of applications to SSPPS by eighty-five through her marketing efforts. Id., ¶ 22.

         On June 7, 2016, plaintiff received an email stating that she had been demoted and that Dana Brandorff was being promoted to Director of Marketing, Communications and Alumni Affairs, where she would assume plaintiff’s primary Director responsibilities. Id., ¶ 23. The email was sent to the entire department. Id.

         During a meeting on June 10, 2016, Anthony Airhart, the Associate Dean of Finance, Budget and Administration, informed plaintiff and several other staff members that all SSPPS employees’ positions were being re-evaluated and that some employees would be required to reapply for their positions as part of SSPPS’s reorganization. Id. at 4, ¶¶ 25-26.

         On June 16, 2016, plaintiff met with Ms. Brandorff, Assistant Director of Distance Degrees and Programs Operations Jennifer Payne, and Recruiting Strategist Justin Rowe to discuss her future role with SSPPS. Id., ¶ 29. During the meeting, Ms. Brandorff and Ms. Payne insisted that plaintiff’s position was equal to Mr. Rowe’s, even though plaintiff was more experienced and held a higher-level position within SSPPS. Id. at 5, ¶¶ 31-35.

         On October 28, 2016, plaintiff met with Jay Rodenburg, Director of Personnel, and Laura Borgelt, Associate Dean for Administration and Operations at SSPPS. Id. at 6, ¶¶ 39-40. After Mr. Rodenburg and Ms. Borgelt attempted to convince plaintiff that she had always been Mr. Rowe’s equal, plaintiff shared her belief that Mr. Rodenburg was discriminating against her based on her sex. Id., ¶ 43. Mr. Rodenburg responded to the accusation by telling plaintiff that she lacked a “higher level of decision making.” Id., ¶ 44. Mr. Rodenburg and Ms. Borgelt also suggested that plaintiff was “delusional” and had fabricated her Director title. Id., ¶ 45.

         On or around November 2, 2016, plaintiff met with Mr. Rodenburg to discuss her “wellness.” Id. at 6-7, ¶¶ 49-50. Mr. Rodenburg started the meeting by presenting plaintiff will pre-filled-out Family and Medical Leave paperwork. Id. at 7, ¶ 51. He then told plaintiff throughout the meeting that she needed to see a doctor because she had a “mental health condition.” Id., ¶ 53.

         On November 7, 2016, Mr. Airhart accused plaintiff of violating policy and improperly using her University credit card, even though plaintiff had not violated any policy. Id. at 7-8, ¶¶ 56, 58. During a meeting on November 21, 2016, Mr. Rodenburg, Ms. Borgelt, and Ralph Altiere, Dean of the School of Pharmacy, terminated plaintiff’s employment for “unsatisfactory performance and unprofessional conduct.” Id. at 8, ¶¶ 59-60. Sometime thereafter, plaintiff’s position was filed by a male. Id. at 8, ¶ 64.

         Plaintiff filed this lawsuit on August 30, 2018. Docket No. 1. In her operative complaint, Docket No. 9, plaintiff asserts gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Docket No. 9 at 8-10. On November 23, 2018, defendant moved to dismiss plaintiff’s gender discrimination claim under Fed.R.Civ.P. 12(b)(6). Docket No. 11. Plaintiff filed a response to the motion on December 14, 2018, Docket No. 15, to which defendant replied on December 28, 2018. Docket No. 19.


         To 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 [his] 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 ...

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