United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
TO DISMISS PLAINTIFF'S COMPLAINT (DKT. ##17, 20, &
REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
before the Court are Defendants Jessica Richey, Chris
Downard, and Granicus, LLC's (“Granicus, ”
and collectively “Defendants”) Motions to Dismiss
Plaintiff's Complaint. (Dkt. ##17, 20, & 21.)
Plaintiff Tiffany Grays filed a Response to the Motions on
November 27, 2018, (Dkt. #25), to which Defendants filed a
Reply. (Dkt. #26.) On December 14, 2018, the Court permitted
Ms. Grays to file a Surreply. (Dkt. #31.) The Motions have
been referred to me by Judge Christine M. Arguello. (Dkt.
##18 & 22.) Finally, the Court heard oral argument on the
Motions on November 20, 2018. (Dkt. #24.) The Court has taken
judicial notice of the Court's file, considered the
applicable Federal Rules of Civil Procedure and case law, and
now, being fully informed, makes the following
Ms. Grays' Allegations
following allegations are taken from Ms. Grays' Amended
Complaint (Dkt. ##6 & 6-1) and assumed to be true for the
purposes of a motion to dismiss.
Grays is an Information Technology (“IT”)
specialist with over 12 years of experience and is a
“registered Certified Scrum Master.” (Dkt. #6-1
¶ 7.) Granicus hired Ms. Grays, who is African American,
as a “Product Owner” on January 2, 2018.
(Id. ¶ 1.) According to Granicus' job
posting, a “Product Owner” is “responsible
gathering business requirements from cross-functional
stakeholders, then guiding the vision of what needs to be
built and conveying that vision to their agile team and
business partners.” (Id. ¶ 11.) Defendant
Richey was Granicus' Program Manager and Ms. Grays'
direct boss. (Id. ¶ 9.) Defendant Downard was
the Director of Software Development but had no
organizational authority over Ms. Grays. (Id. ¶
to Ms. Grays, only seven percent of Granicus' workforce
was African American, and there were no other African
Americans at or above her position level. (Id.
Grays difficulties with Granicus began before her first day
of work. She alleges that the Human Resources
(“HR”) department was plagued by poor
communication, and she describes at some length issues
regarding the signing of an Employee Rights and Covenants
Agreement (“ERCA”). (Id. ¶¶
19-58.) These communication problems persisted after Ms.
Grays started on the job. She clashed with individuals on her
development team over what she perceived to be their
unprofessional demeanor and took over work from an engineer
she felt was ineffective. (Id. ¶¶ 60,
62-65.) Ms. Grays “also began to have conflict”
with Product Manager Matt McFarland about their respective
roles in the company, and McFarland's “lack of
awareness and input” in the product they were working
on. (Id. ¶¶ 66, 68.) Ms. Grays believes
that Defendant Downard essentially took McFarland's side
in this dispute. (Id. ¶ 69.) After unsuccessful
attempts to resolve the issue with McFarland, Defendant
Richey sent Ms. Grays a 30-60-90-day outline, which provided
performance goals that Ms. Grays was expected to attain.
(Id. at ¶ 76.)
March 8, 2018, Ms. Grays was invited to a team lunch the next
day. (Id. at ¶ 78.) Ms. Grays was upset because
everyone else knew about the lunch the day before, and she
would not be able to make it because she would be working
from home that day. (Id.) She felt the slight was
intentional. (Id.) She then sent a Granicus
executive, Nick Harris, an email with her concerns.
(Id. ¶ 79.) Ms. Grays turned down Harris'
offer to reschedule the lunch. (Id.)
Grays continued to have issues with Defendant Downard, whom
she felt was overstepping his role, despite not being her
supervisor. (Id. ¶ 80.) Downard informed Ms.
Grays that Defendant Richey asked him to watch her, and
admitted that he was having difficulty with Ms. Grays because
he was used to people just doing what he told them to do.
her 60-day review with Richey, Ms. Grays was told she was
doing well except for her “communication issue.”
(Id. ¶ 81.) Ms. Grays thought she had resolved
these problems (even though she still felt McFarland was
“ineffective”), and when she asked Richey for
examples, Richey brought up the email to Harris.
(Id.) Despite Richey's claim that Harris sent
her the email, Ms. Grays believes that it was Downard who
forwarded it on, which constituted “further proof of
the conspiracy and improper supervision [he] was enacting
against” Ms. Grays. (Id.) Ms. Grays also notes
that she was not provided with an updated discussion list
prior to the 60-day meeting. (Id. ¶ 82.)
March 15, 2018, Richey scheduled an impromptu meeting with
Ms. Grays. (Id. ¶ 83.) Richey told Ms. Grays
that, contrary to a statement made during the 60-day meeting,
she would not do a write-up of Ms. Grays' communication
problems, and it was up to Ms. Grays to figure out where she
needs to improve. (Id.) As Ms. Grays did not feel
she did anything wrong, she believed she was being set up to
March 20, 2018, 77 days after she started, Ms. Grays'
employment with Granicus was terminated. Given the
company-wide communication problems, she believes that the
“fact [her] communication issues were pointed out and
used as a point to move someone's agenda to remove Ms.
Grays from the company, shows that Plaintiff was being
targeted and discriminated against.” (Id.
¶ 86.) Essentially, she believes she was held to
different and higher standards than her white counterparts.
her termination, Ms. Grays filed a charge with the Equal
Employment Opportunity Commission (“EEOC”)
against Granicus alleging retaliation and discrimination on
the basis of color, race, and sex. (Id. ¶ 7.)
Ms. Grays received a right to sue letter from the EEOC on
June 2, 2018. (Id.) A month later, Ms. Grays
initiated a lawsuit in Colorado state court (the “State
Court Action”) that included claims for declaratory
relief as to the validity of the ERCA, outrageous conduct,
breach of fiduciary duty, negligence, and intentional
infliction of emotional distress against Granicus and four
Granicus HR employees, none of whom are parties to this
action. (Dkt. #20-3.)The State Court Action was dismissed on the
defendants' motion on August 5, 2018.
Grays asserts nine claims for relief: (1) a Title VII claim;
(2) a 42 U.S.C. § 1985(3) conspiracy claim; (3) a 42
U.S.C. § 1981 claim; (4) wrongful termination; (5)
outrageous conduct; (6) breach of contract/promissory
estoppel; (7) blacklisting; (8) slander; and (9)
breach of fiduciary duty. Defendants seek dismissal of all claims
under Rule 12(b)(6).
Defendants' Motions to Dismiss
argue that Ms. Grays' Amended Complaint fails as a matter
of law and should be dismissed for multiple reasons.
initial matter, Defendants note that it not entirely clear
which claims are brought against which Defendants. This
implicates the pleading standards set forth in Rule 8.
See Fed. R. Civ. P. 8(a) (requiring a complaint to
“contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief”).
See also Nasious v. Two Unknown B.I.C.E. Agents, 492
F.3d 1158, 1163 (10th Cir. 2007) (explaining that to state a
cognizable claim in federal court that complies with Rule 8,
a plaintiff “must describe briefly, plainly, and
adequately the specific legal right allegedly violated and
all relevant facts that support each claim, which includes
explaining what each named defendant did to him; when the
defendant did it; and how the defendant's action harmed
him”). The requirements of Rule 8(a) guarantee
“that defendants enjoy fair notice of what the claims
against them are and the grounds upon which they rest.”
TV Commc'ns Network, Inc. v. ESPN, Inc., 767
F.Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964
F.2d 1022 (10th Cir. 1992). The liberal pleading standard for
unrepresented litigants does not override a pro se
plaintiff's responsibility to provide a simple and
concise statement of his claims and the specific conduct that
gives rise to each asserted claim. Ogden v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994).
Grays' Amended Complaint does not specify which claims
are asserted against which Defendant. Thus, Defendants were
left to guess which claims were brought against whom.
Defendant Richey assumed that the 42 U.S.C. § 1985(3),
promissory estoppel, and breach of fiduciary duty claims were
asserted against her in her individual capacity. (Dkt. #17 at
2.) Defendant Downard assumed that Ms. Grays asserted only
her § 1985(3) claim against him individually. (Dkt. #20
at 2.) Defendant Granicus, for its part, did not respond to
the § 1985(3) or breach of fiduciary duty claim. (Dkt.
#21 at 2 n.2.) Ms. Grays' Response (Dkt. #25) provided
little clarification. The Court will therefore adopt
Defendants' framing of the relevant claims.
further argue that all of Ms. Grays' claims are barred
under the doctrine of res judicata, now generally referred to
as the doctrine of “claim preclusion, ” due to
the dismissal of the State Court Action. Defendants
additionally contend that all the claims can be dismissed
under Rule 12(b)(6).
Pro Se Plaintiff
Grays is proceeding pro se. The Court, therefore,
“review[s] [her] 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). 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”). A plaintiff's pro se
status does not entitle her to an application of different
rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th
Failure to State a Claim Upon Which Relief Can Be
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 ...