Campbell v. Eaton Corp.

          REPORT & RECOMMENDATION RE: MOTION TO DISMISS PLAINTIFF'S COMPLAINT [#23]

          S. Kato Crews United States Magistrate Judge

         This Report and Recommendation (“Recommendation”) addresses Defendant Eaton Corporation, d/b/a Cooper Lighting Inc.'s (“Eaton”) Motion to Dismiss Plaintiff's Complaint (“Motion”) [# 23].^[1] The Motion was referred to me by District Judge Raymond Moore. [#36.] The Court has reviewed the Motion, Plaintiff Gregory C. Campbell's (“Campbell”) response (“Response”) [#40], Eaton's reply (“Reply”) [#41], the entire docket, and applicable law. Oral argument will not materially assist the Court's Recommendation. For the following reasons, it is RECOMMENDED that the Motion be GRANTED.

         A. JURISDICTION

         The Court notes that Campbell appears pro se in this action. To the extent he brings a claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a), the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., or the Occupational Safety and Health Act's (“OSHA”) anti-retaliation provision, 29 U.S.C. § 660(c), this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Additionally, venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the claims occurred in Colorado.

         B. BACKGROUND^[2]

         Eaton hired Campbell as an Assembler II in April 2015. [#1 at p.10.] The Complaint alleges that Campbell was late to work or missed work on five occasions in April 2017. [Id. at pp. 7-8.] Although he admits to being late and missing work during that month, Campbell asserts that he had a valid and approved excuse for each late arrival and absence. [Id.] Nonetheless, Eaton terminated Campbell's employment on or about May 2, 2017, for arriving 45 minutes late for work.

         Eaton has a four-step corrective action plan to address an employee's unsatisfactory performance or conduct. The first and second steps entail “documented” verbal discussion or coaching by a supervisor. [Id. at p. 14-15.] The third step requires verbal discussion or coaching and an improvement plan. [Id.] This step “requires HR approval prior to [an] emp[loyee] meeting.” [Id.] Finally, the fourth step is employee discharge. [Id.] However, “[d]epending on the nature of the issue, [Eaton] reserves the right to skip any steps at its discretion.” [Id.]

         Campbell missed three consecutive days of work in late April 2017. [Id. at pp. 7, 14-15.] When he returned to work on or about April 27, 2017, he was issued a corrective action plan write-up by his supervisor, Josh Foxen (“Foxen”). [Id.] The write-up noted that: (1) corrective action steps one and two had been previously issued, and that Eaton gave Campbell “several verbal warnings over [the] last few months regarding attendance[;]” (2) Eaton considered Campbell's “14 days of [absences from] work since the beginning of the year” to be unsatisfactory performance/conduct; and (3) Eaton placed Campbell on a performance improvement plan that required him to “show up for work consistently [and] on time.” [Id. at p.15.] Two days after receiving his step three write-up, a snow storm delayed Campbell's morning commute and he arrived to work 45 minutes late. [Id. at p. 7.] As a result, Eaton terminated Campbell's employment on May 2, 2017. [Id. at pp. 7, 14.]

         Aside from the above, any remaining cogent allegations are difficult to decipher. Campbell appears to allege that Eaton's stated reasons for his discharge are pretextual, and that its real reason for terminating his employment was because he: (1) is a 54 year-old black male; and (2) he voiced worker-safety concerns over “hazardous conditions” at work. [Id. at pp.7-10.] To these ends, Campbell asserts that: several other co-workers missed time from work ranging from “a couple of days” to three months; he was forced to work with other employees who created a hostile work environment with their bad attitudes and sicknesses; he questioned the safety of working in an enclosed work environment with smoke and chemical fumes; and that one employee has serious health issues that she attributes to working in the smoke-filled fabrication area. [Id. at pp. 7-9.]

         Campbell filed his Charge of Discrimination with the EEOC (the “Charge”) on August 4, 2017. [Id. at p.10.] In the Charge, Campbell asserts that he was discriminated against based on gender and race in violation of Title VII, that Eaton discriminated against him because of his age in violation of the ADEA, and that Eaton retaliated against him for engaging in “protected activity.” [Id..]

         The Complaint does not delineate claims by statute or basis. Rather, using the form Title VII Complaint, Campbell merely checks a number of pre-set boxes to indicate that Eaton discriminated against him because of race, color, sex, retaliation, wrongful termination, failure to promote, demotion/discharge from employment, and unspecified “whistle blower.” [#1 at p. 2.] As a result, the Court can only ascertain the exact statutes and basis for Campbell's claims by piecing together his allegations from the documents comprising the Complaint, including the Charge.^[3] Accordingly, the Court construes the Complaint to allege the following claims: (1) Title VII claims for gender and race discrimination, retaliation, and hostile work environment; (2) age discrimination under the ADEA; and (3) whistleblower retaliation claim under OSHA's anti-retaliation provision.^[4]

         C. LEGAL STANDARDS

         1. Fed.R.Civ.P. 12(b)(6)

         In deciding a motion under Fed.R.Civ.P. 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the mere possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent” with a defendant's liability are insufficient. Id.

         The Court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'” Morgan v. Clements, No. ...