United States District Court, D. Colorado
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 ...