United States District Court, D. Colorado
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
PLAINTIFF'S EMPLOYMENT DISCRIMINATION COMPLAINT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
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.
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.)
April 17, 2019, Mr. Rattler, appearing pro se in
this matter, commenced this action (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.)
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.)
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.)
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.
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).
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”).
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).
TITLE VII EMPLOYMENT ...