United States District Court, D. Colorado
GREGORY C. CAMPBELL, Plaintiff,
v.
EATON CORPORATION, d/b/a Cooper Lighting Inc., Defendant.
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.
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