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Hill v. Ser Jobs For Progress National, Inc.

United States District Court, D. Colorado

November 13, 2019

WILLIAM CLINTON HILL, Plaintiff,
v.
SER JOBS FOR PROGRESS NATIONAL, INC., Defendant.

          ORDER

          KATHLEEN M. TAFOYA UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Defendant's “Motion to Dismiss” (Doc. No. 11 [Mot.], filed August 28, 2019, to which Plaintiff filed his response (Doc. No. 20 [Resp.]), and Defendant filed its reply (Doc. No. 22 [Reply]).

         STATEMENT OF CASE

         Plaintiff filed his Amended Complaint[1] on July 29, 2019, asserting an employment discrimination claim pursuant to Title VII of the Civil Rights Act of 1964. (Doc. No. 5.) Specifically, Plaintiff alleges the defendant discriminated against him and retaliated against him because of his race. (Id. at 3-4.) Plaintiff states he is a 61-year-old African American male who was employed by Defendant as an administrative assistant since June 2017. (Id. at 6.) Plaintiff states Habitat for Humanity is a “host agency for [Defendant] where [Defendant] send[s] qualified participant[s] in its program.” (Id.) Plaintiff alleges Habitat for Humanity had an opening for an administrative assistant, and though Plaintiff was qualified for the position, he was rejected and not promoted to the position. (Id.) Plaintiff alleges the defendant kept the employment opportunity hidden until it was no longer available, and the defendant instead sent a lesser-qualified, non-African American candidate to apply. (Id.) Plaintiff states Habitat for Humanity rejected the lesser-qualified candidate in favor of Plaintiff, but Plaintiff was never notified that the position was open. (Id.)

         Plaintiff also alleges he filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and then Defendant retaliated against him by issuing unfounded disciplinary actions against him and placing him on disciplinary leave. (Id. at 7.) Defendant contends that, under these circumstances, he was constructively discharged. (Id.)

         STANDARDS OF REVIEW

         A. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         B. Failure to State a Claim upon Which Relief Can Be Granted

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         ANALYSIS

         Defendant moves to dismiss Plaintiff's Amended Complaint on the basis that Plaintiff was not an employee of Defendant and Plaintiff's constructive discharge claim for his ...


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