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Rattler v. Garside

United States District Court, D. Colorado

December 18, 2019

SYLAS RATTLER, Plaintiffs,
v.
NICK GARSIDE, and BUFFALO WILD WINGS, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S EMPLOYMENT DISCRIMINATION COMPLAINT

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants Buffalo Wild Wings (“BWW”) and Nick Garside's Motion to Dismiss Plaintiff Sylas R. Rattler's Employment Discrimination Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. # 20.) Because Mr. Rattler fails to adequately plead his case under Rule 12(b)(6), the Motion is granted.

         I. BACKGROUND

         Mr. Rattler is an American Indian with six years' experience in culinary arts. (Doc. # 12 at 4.) Prior to November 2018, Mr. Rattler worked in General Delivery at BWW. (Id. at 2.) During his employment with BWW, he alleges that employees “Nick, David, Jason, [and] Mario” discriminated against him “with death threats and unwanted sexual advances.” (Id. at 4.) In particular, Mr. Rattler alleges that, on October 13, 2018, “Jason” told Mr. Rattler that “Jason” and presumably other employees were “going to . . . kill” him and that Mr. Rattler was “not walking out [there] alive.” (Id.) Mr. Rattler also alleges that, on October 20, 2018, Defendant Garside “made unwanted sexual advances” towards him, singling him out, and requested that Mr. Rattler “give him a blowjob in front of other employees[, ]” such as “Mario.” (Id.) Mr. Rattler contends that these unwanted sexual advances persisted until his termination. (Id.) On November 6, 2018, BWW terminated Mr. Rattler. (Id.)

         On April 17, 2019, Mr. Rattler, appearing pro se in this matter, commenced this action[1] (Doc. # 1) and, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), he asserts a single employment discrimination claim against Defendants BWW and Mr. Garside based on his race, sex, color, and religion. The case was assigned to Magistrate Judge Gordon P. Gallagher, and on April 18, 2019, the Magistrate Judge issued an Order Directing Plaintiff to Cure Deficiencies (Doc. # 4), which included requirements that Mr. Rattler include omitted language from his supporting facts section and attach a copy of the administrative charge of discrimination. (Id. at 2.)

         Pursuant to the Magistrate Judge's Order, Mr. Rattler filed an Amended Complaint on May 7, 2019. (Doc. # 5.) Yet, on June 7, 2019, the Court issued another order directing Mr. Rattler to file another amended complaint. (Doc. # 7.) Therein, Magistrate Judge Gallagher set forth the elements of a Title VII claim and indicated that Mr. Rattler did “not allege these prima facie elements.” (Id. at 3.) The Magistrate Judge also reminded Mr. Rattler to attach “a copy of the administrative charge” as required by Section E of the Employment Discrimination Complaint form. (Id. at 3-4.)

         In response to Magistrate Judge Gallagher's second order, Mr. Rattler filed another amended complaint (Doc. # 8), which included additional details about his employment situation. Mr. Rattler alleged that he witnessed two employees “associated with one named Jason” assault “Tina, ” and that during one shift in October 2018, he encountered Tina in the “walk-in cooler” where she was upset, but then she allegedly offered to perform a sex act to which he declined. (Id. at 10.) Mr. Rattler repeated previous allegations of co-workers' “harassment” and “death threats” and added allegations about having his property stolen. (Id.) Magistrate Judge Gallagher recommended dismissal of the Amended Complaint without prejudice for failure to comply with the pleading requirements of Rule 8. (Doc. # 11.) However, upon the filing of another amended complaint (Doc. # 12), Magistrate Judge Gallagher withdrew his Recommendation. (Doc. # 13.)

         On August 16, 2019, this case was reassigned to this Court, and drawn to Magistrate Judge Kristen L. Mix. (Doc. # 14.) On September 26, 2019, Defendants filed the instant Motion to Dismiss (Doc. # 20) arguing that Mr. Rattler failed to adequately plead the claims against them under Federal Rule of Civil Procedure 12(b)(6). Mr. Rattler did not respond. For the following reasons, Defendants' Motion is granted.

         II. LEGAL STANDARDS

         A. RULE 12(b)(6)

         Under Rule 12(b)(6), the Court may dismiss a complaint for failure to state a claim if it appears beyond a doubt that the plaintiff can plead no set of facts in support of his claim that entitle him to relief. Golan v. Ashcroft, 310 F.Supp.2d 1215, 1217 (D. Colo. 2004). Dismissal under Rule 12(b)(6) may also be based on the lack of a cognizable legal theory. Id. at 1217. In reviewing a motion to dismiss, courts take all well-pleaded allegations in the plaintiff's complaint as true and construe the allegations in the light most favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012).

         However, a 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 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”).

         Mr. Rattler appears pro se in this matter. 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); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Mr. Rattler's pro se status does not, however, entitle him to the application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Moreover, the Court may not “construct arguments or theories for [Mr. Rattler] in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).

         B. TITLE VII EMPLOYMENT ...


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