Opinion
Civil Action 20-cv-01173-WJM-NYW
12-08-2020
JASON WOODFORK, Plaintiff, v. JEFFERSON COUNTY FAIRGROUNDS, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Nina Y. Wang, United States Magistrate Judge
Magistrate Judge Nina Y. Wang This matter comes before this court for recommendation on Defendant Jefferson County Fairground's (“Defendant” or the “County”) Motion to Dismiss Amended Employment Discrimination Complaint [ECF No. 20] (the “Motion to Dismiss” or “Motion”), filed on September 8, 2020. [#22]. The presiding judge, the Honorable William J. Martinez, referred the Motion to Dismiss to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b) and the Memorandum dated September 8, 2020, [#23]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon review of the Motion and associated briefing, the applicable case law, and being otherwise fully advised in its premises, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART.
BACKGROUND
The court draws the following facts from the Amended Complaint [#20] and presumes they are true for purposes of the instant Motion. On or about August 16, 2017, the County hired Plaintiff Jason Woodfork (“Plaintiff” or “Mr. Woodfork”), a “Moorish American” whose race is “Asiatic” and religion is “Islamism, ” to the position of Supervisor. [#20 at 3]. Mr. Woodfork's job responsibilities included managing the County's campgrounds, acting as the campground's ambassador, and assisting sales and marketing staff, among other responsibilities. See [id.]. Not long after his hire, Mr. Woodfork alleges that Defendant and its agents treated Plaintiff differently than non-Asiatic, non-Islamic employees. See generally [id. at 3-13]. For instance, Mr. Woodfork alleges Defendant and its agents:
• hired only European/Caucasian employees,
• stripped Plaintiff of his functions and obligations to support on-site camp hosts,
• rejected Plaintiff's suggestion that the County provide sexual harassment training,
• forced Plaintiff to cover shifts when other employees were unavailable,
• ignored Plaintiff's reporting of other employees' sexual harassment complaints,
• threatened and intimated Plaintiff for reporting the sexual harassment complaints,
• reprimanded and accosted Plaintiff,
• hindered Plaintiff's ability to participate in trainings,
• prohibited Plaintiff from speaking about his religion and culture,
• forced Plaintiff to work on Sabbath,
• “singled out and criticized” Plaintiff publicly,
• forced Plaintiff to wear a different colored shirt than other staff,
• refused to provide Plaintiff business cards,
• retaliated against Plaintiff for complaining about discrimination, and
• failed to compensate Plaintiff for all hours worked.See [id. at 3-13]. Ultimately, Plaintiff felt compelled to resign from his employment. [Id. at 11].
Believing Defendant discriminated against him because of his race and religion, Plaintiff initiated this action by filing his pro se employment discrimination Complaint on April 27, 2020. [#1]. The Honorable Gordon P. Gallagher granted Plaintiff leave to proceed in forma pauperis and drew this civil action to the undersigned, and upon the Parties' non-consent, the Clerk of the Court redrew this matter to Judge Martinez who referred it to the undersigned. See [#4; #5; #14; #15; #16]. The County moved to dismiss Plaintiff's original Complaint, but Plaintiff amended his Complaint in response as a matter of right under Rule 15(a) of the Federal Rules of Civil Procedure. See [#12; #20].
Plaintiff filed two amended complaints within days of each other, and at the August 31, 2020 Status Conference, this court confirmed that the Amended Complaint filed on August 24, 2020 is the operative Amended Complaint. See [#21].
As interpreted by this court, Mr. Woodfork's Amended Complaint asserts claims for wrongful termination and disparate treatment based on race, religion, and color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Colorado Anti-Discrimination Act (“CADA”), Colo. Rev. Stat. §§ 24-34-401 et seq., (“Claims 1 and 2”); harassment and hostile work environment in violation of Title VII and CADA (“Claims 3 and 4”); retaliation in violation of Title VII and CADA (“Claims 5 and 6”); and “failure to pay wages under State and Federal law/Breach of contract/Promissory Estoppel/Unfair business practices” (“Claim 7”). [#20]. The County filed the instant Motion on September 8, 2020, arguing that the court lacks subject matter jurisdiction over Plaintiff's CADA claims because they are untimely and barred by the Colorado Governmental Immunity Act (“CGIA”), and that the court should dismiss Plaintiff's claims because Plaintiff fails to plead plausible claims for relief. See [#22]. Mr. Woodfork has since responded to the Motion to Dismiss and the County replied. See [#26; #31]. Because the Motion is ripe for Recommendation, I consider the Parties' arguments below.
LEGAL STANDARDS
I. Rule 12(b)(1) of the Federal Rules of Civil Procedure
Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring); see also Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir. 2014) (explaining that federal courts have an independent obligation to determine whether subject matter jurisdiction exists). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to bring either a facial or factual attack on subject matter jurisdiction. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). For a facial attack the court takes the allegations in the Complaint as true; for a factual attack the court may not presume the truthfulness of the Complaint's factual allegations and may consider affidavits or other documents to resolve jurisdictional facts. Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012) (citing Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)). The burden of establishing jurisdiction rests with the party asserting jurisdiction, and a court must dismiss an action when it lacks subject matter jurisdiction. See Kline v. Biles, 861 F.3d 1177, 1180 (10th Cir. 2017).
II. Rule 12(b)(6) of the Federal Rules of Civil Procedure
“To survive a [Rule 12(b)(6)] 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.” Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). In making this determination, the “court accepts as true all well-pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff.” Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018).
III. Pro Se Litigants
In applying these legal principles, this court is mindful that Mr. Woodfork proceeds pro se and is entitled to a liberal construction of his papers. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt her from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
ANALYSIS
I. Subject Matter Jurisdiction
The County argues that the court lacks subject matter jurisdiction over Mr. Woodfork's CADA claims. First, the County asserts that Mr. Woodfork's CADA claims are untimely because Mr. Woodfork failed to file those claims within 90 days of receiving the Colorado Civil Rights Division's (“CCRD”) notice of dismissal of Mr. Woodfork's CADA complaint. [#22 at 2-3; #31 at 2-3]. Second, assuming Mr. Woodforks CADA claims are timely, the County contends that the CGIA bars Mr. Woodfork's CADA claims because Mr. Woodfork failed to comply with the CGIA's notice provision. See [#22 at 4-6; #31 at 3-4]. Because I agree with the County's first argument, I focus on it exclusively.
A. CADA
CADA makes it unlawful for any employer “to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry[.]” Colo. Rev. Stat. § 24-34-402(1)(a). It also prohibits retaliation against any person who “has opposed any practice made a discriminatory or an unfair employment practice” or who “has filed a charge with the [Colorado Civil Rights] commission[.]” Id. § 24-34-402(e)(IV). For actions accruing on or after January 1, 2015, the Job Protection and Civil Rights Enforcement Act of 2013 amended CADA to allow plaintiffs to seek both compensatory and punitive damages for violations of CADA. See Ybarra v. Comprehensive Software Sys., LLC, No. 18-CV-01679-NYW, 2019 WL 266310, at *5 (D. Colo. Jan. 18, 2019) (discussing Colo. Rev. Stat. § 24-34-405(3)).
But, “[a]s a condition precedent to brining an action in district court [under CADA], a party must exhaust her administrative remedies[.]” City of Colorado Springs v. Conners, 993 P.2d 1167, 1169 n.3 (Colo. 2000). This requires the plaintiff to first file a complaint with the Colorado Civil Rights Commission, Colo. Rev. Stat. § 24-34-306(1)(a); the plaintiff then must file suit in district court within 90 days of receiving the CCRD's dismissal of the CADA complaint, id. § 24-34-306(2)(b)(I)(B); see also Rodriguez v. Wet Ink, LLC, 603 F.3d 810, 814 (10th Cir. 2010) (explaining that the plaintiff's receipt of the CCRD's right-to-sue notice is one way to trigger the 90-day window for filing suit). “If a party fails to file suit within ninety days, the claim is ‘barred, and no district court shall have jurisdiction to hear the action'”-this “absolute bar to filing after ninety days applies equally in state and federal court.” Robinson v. Reg'l Transportation Dist., No. 16-CV-2870-WJM-MJW, 2018 WL 2414866, at *3 (D. Colo. May 29, 2018) (quoting Colo. Rev. Stat. § 24-34-306(2)(b)(I)(C)).
When, as here, a federal court exercises supplemental jurisdiction over a plaintiff's state law claims, it must apply the state's substantive law regarding exhaustion of administrative remedies, which necessarily requires this court to apply CADA's exhaustion requirements to Mr. Woodfork's CADA claims. Zapata v. Colorado Christian Univ., No. 18-CV-02529-CMA-NYW, 2019 WL 1544179, at **4-5 (D. Colo. Mar. 15, 2019).
Although some courts have treated a plaintiff's failure to exhaust administrative remedies as an affirmative defense to suit arising under Rule 12(b)(6), e.g., Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (holding that “a plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.”); Bank v. Allied Jewish Fed'n of Colo., 4 F.Supp.3d 1238, 1243 (D. Colo. 2013) (dismissing under Rule 12(b)(6) the plaintiff's CADA claim for failure to exhaust administrative remedies), CADA clearly commands that “no district court shall have jurisdiction to hear” an untimely claim, Colo. Rev. Stat. § 24-34-306(2)(b)(I)(C) (emphasis added). Thus, this court considers the issue as a factual attack on the court's subject matter jurisdiction under Rule 12(b)(1). See Lasser v. Charter Commc'ns, Inc., No. 19-CV-02045-RM-MEH, 2020 WL 2309506, at *4 (D. Colo. Feb. 10, 2020) (“[G]iven the jurisdictional implications of failure to exhaust administrative remedies under CADA, the Motion is properly characterized a factual attack on the Court's subject matter jurisdiction.”); Robinson v. Reg'l Transportation Dist., No. 16-CV-2870-WJM-MJW, 2018 WL 2414866, at *3 (D. Colo. May 29, 2018) (same).
The County contends that the court lacks subject matter jurisdiction over Mr. Woodfork's CADA claims because Mr. Woodfork failed to file suit within 90 days of receiving the CCRD's notice of dismissal of Mr. Woodfork's CADA complaint. [#22 at 2-3; #31 at 2-3]. According to the County, the CCRD issued its notice of dismissal on October 14, 2019 but Mr. Woodfork did not file the instant suit until April 27, 2020-well outside the 90-day limit. See [#22 at 2-3; #31 at 2-3]. This court respectfully agrees with the County.
On October 14, 2019, the CCRD issued its determination on Mr. Woodfork's CADA complaint, indicating it found no probable cause to support Mr. Woodfork's claims of discrimination and retaliation. See [#22-1]. The notice advised Mr. Woodfork that he must file suit within 90 days “of the mailing of this notice if no appeal is filed with the Colorado Civil Rights Commission” or risk having his action barred. [Id. at 4]. There is no indication that Mr. Woodfork appealed the notice of dismissal to the Colorado Civil Rights Commission, and thus the 90-day period began to run as of October 14, 2019. Because Mr. Woodfork did not file this action until April 27, 2020, approximately six months after the notice of dismissal, his CADA claims are untimely and thus barred. Fleites v. Pueblo Med. Inv'rs, LLC, No. CIV 07-CV02658REBMJW, 2008 WL 4371924, at *3 (D. Colo. Sept. 22, 2008) (“In short, viewing the allegations in the complaint as true, the complaint indicates that the plaintiff's CADA claim was filed more than 90 days after the CCRD's jurisdiction over that claim ceased. Under § 24-34-306[(2)(b)(I)(C)], this claim is time barred.”).
Because the County levies a factual attack on the court's subject matter jurisdiction, this court may properly consider matters outside the pleading without converting the Motion to Dismiss to one for summary judgment. See Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272 n.1 (10th Cir. 2012).
Mr. Woodfork argues that his CADA claims are timely because he filed suit within 90 days from receiving his right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”). [#26 at 1-2]; see also [#1-1 at 2]. But the EEOC right-to-sue letter “is irrelevant . . . because it only goes to federal claims.” Bankston v. Antlers Hilton Hotel, No. 11-CV-01018-WYD-CBS, 2011 WL 6153024, at *4 n.2 (D. Colo. Nov. 3, 2011) (emphasis added). Indeed, although the EEOC informed Mr. Woodfork that it adopted the CCRD's disposition of Mr. Woodfork's discrimination and retaliation claims, it explained that the right-to-sue letter encompassed only “federal law” and advised that the time to file suit under “state law may be different.” [#1-1 at 2]; see Robinson, 2018 WL 2414866, at *4 (concluding that the plaintiff's CADA claims were untimely because he filed suit well after the 90-day limit and there was no “legal authority for combining the state and federal claims” such that the EEOC right-to-sue letter saved the untimely CADA claims). Thus, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED as to Mr. Woodfork's CADA claims (Claims 2, 4, and 6).
II. Failure to State a Claim
The County also moves to dismiss Plaintiff's remaining Title VII claims (Claims 1, 3, 5) and state law claim (Claim 7) for two reasons. First, the County contends that Mr. Woodfork's Title VII claims should be limited to only those instances of discrimination and retaliation alleged in his EEOC charge of discrimination, because he has not exhausted his administrative remedies as to any allegations not included in his EEOC charge of discrimination. See [#22 at 6-8; #31 at 5-6]. Second, it argues that Mr. Woodfork fails to plead plausible Title VII violations (for those allegations properly exhausted) or any violation of state law. See [#22 at 8-15; #31 at 6-11]. For the following reasons, I respectfully agree in part with the County.
A. Whether Mr. Woodfork Exhausted Title VII Administrative Remedies as to All Allegations of Discrimination
“Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that ‘specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)). Section 2000e-5(e)(1) sets forth the parameters for filing a charge related to an unlawful employment practice:
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.42 U.S.C. § 2000e-5(e)(1). “[E]ach discrete incident of [discriminatory or retaliatory] treatment constitutes its own ‘unlawful employment practice' for which administrative remedies must be exhausted, ” which requires the plaintiff to file “an additional or amended charge with the EEOC to satisfy the exhaustion requirement as to discrete incidents occurring after the initial charge.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181 (10th Cir. 2018). Thus, a plaintiff may not pursue “a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Bertsch v. Overstock.com, 684 F.3d 1023, 1030 (10th Cir. 2012) (quotation marks omitted).
Exhaustion under Title VII is no longer a jurisdiction prerequisite to suit, but rather is an affirmative defense that an employer may raise on a Rule 12(b)(6) motion to dismiss. See Lincoln, 900 F.3d at 1185.
Mr. Woodfork's charge of discrimination states Defendant and its agents discriminated against Mr. Woodwork based on his religion (Islam) and race/color (African American/Black) and retaliated against Mr. Woodfork for engaging in protected activity. See [#1-1 at 4]. The specific incidences of unlawful employment practices Mr. Woodfork identified in his charge of discrimination included: (1) Mr. Woodfork performed his work satisfactorily; (2) about April 2018, Mr. Woodfork's supervisor yelled at him and threatened to mistreat him, an incident he reported as discrimination to Human Resources, which then lead to others belittling him and criticizing him in front of others; and (3) about July 2018, he was told he needed to be on call over the weekends and was not provided business cards even though others did not have to work weekends and were provided business cards, and Caucasian co-workers did not help Mr. Woodfork. See [id.]. Thus, this court agrees with the County that Mr. Woodfork's Title VII claims should be limited to the incidents of discrimination and/or retaliation contained in his charge of discrimination, as it appears Mr. Woodfork has failed to exhaust his administrative remedies regarding additional incidents alleged in his Amended Complaint yet not included in the charge of discrimination. See Lincoln, 900 F.3d at 1181. This includes any allegations of discrimination based on being Moorish-American or Asiatic race, insofar as they are distinct from his identification of African American/Black in his administrative charge of discrimination. Compare [#20 at ¶ 44] with [#1-1 at 4].
This court may consider the charge of discrimination attached to Mr. Woodfork's original Complaint on the instant Motion to Dismiss. See Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir. 2006) (explaining that the court can take judicial notice of documents in the court's own files on a motion to dismiss); Martinez v. City & Cty. of Denver, No. 08-CV-01503-PAB-MJW, 2010 WL 1380529, at *1 (D. Colo. Mar. 31, 2010) (holding that the court may take judicial notice of the EEO administrative records on a motion to dismiss).
Nonetheless, for the sake of completeness because this court proceeds by Recommendation and given that Mr. Woodwork proceeds pro se, this court considers all of Mr. Woodfork's allegations of discrimination and retaliation in the Amended Complaint when considering whether Mr. Woodwork pleads plausible Title VII claims. For the reasons below, this court respectfully concludes that, even considering all of Mr. Woodfork's allegations, he fails to plead plausible Title VII claims.
B. Whether Mr. Woodfork Pleads Title VII Claims
1. Claim 1 - Wrongful Termination and Disparate Treatment
As this court interprets Mr. Woodfork's Amended Complaint, Claim 1 asserts that Defendant wrongfully terminated Plaintiff under a constructive discharge theory and treated Plaintiff differently based on Plaintiff's race/color and religion. For the following reasons, this court concludes that Mr. Woodfork fails to plead facts establishing plausible wrongful termination or disparate treatment claims.
To plead a plausible wrongful termination claim, Mr. Woodfork must allege:
1. Defendant subjected Mr. Woodfork to an adverse employment action,
2. Defendant did so despite Mr. Woodfork performing his job satisfactorily, and
3. Defendant did so because of Mr. Woodfork's race/color and/or religion.See Stover v. Martinez, 382 F.3d 1064, 1077 (10th Cir. 2004) (wrongful termination based on religion); Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (wrongful termination based on race). For a disparate treatment claim, Mr. Woodfork must generally plead the same elements with the additional element that Defendant treated Mr. Woodfork less favorably than those not in a protected class or of a different religion. See Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). “A complaint raising a claim of discrimination does not need to conclusively establish a prima facie case of discrimination, but it must contain more than threadbare recitals of the elements of a cause of action, supported by mere conclusory statements”; and it “must include enough context and detail to link the allegedly adverse employment action to a discriminatory . . . motive with something besides sheer speculation.” Bekkem v. Wilkie, 915 F.3d 1258, 1274 (10th Cir. 2019).
The County argues that Mr. Woodfork cannot plead a plausible wrongful termination claim or a disparate treatment claim because he did not suffer an adverse employment action and has not pleaded that the County treated similarly situated employees differently. [#22 at 8-9; #31 at 4-5, 6]. Mr. Woodfork largely reiterates his allegations from the Amended Complaint that he was qualified for his position and Defendant and its agents discriminated against Mr. Woodfork and treated him differently because of his race/color and religion. See [#26 at 5-8]. For the following reasons, this court respectfully disagrees with Mr. Woodfork.
This court agrees with the County that Mr. Woodfork may not raise new allegations in his Response to the Motion to Dismiss, and thus this court limits its inquiry to those facts pleaded in the Amended Complaint. See Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (“Plaintiff, however, cannot amend her complaint by adding factual allegations in response to Defendant's motion to dismiss.”).
Courts in this Circuit liberally define the phrase “adverse employment action, ” and employ a case-by-case approach when determining whether an adverse action occurred. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999). “In general, only acts that constitute a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits will rise to the level of an adverse employment action, ” and Plaintiff must demonstrate that the adverse action caused more than de minimis harm to her job opportunities or status. E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1040 (10th Cir. 2011) (internal brackets, quotations, and citations omitted). “One factor that strongly indicates a challenged action is an ‘adverse employment action' is that the action causes ‘harm to future employment prospects.'” Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004) (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir. 1996) (explaining that an adverse action may be found where an employer's actions carry “a significant risk of humiliation, damage to reputation, and a concomitant harm to future employment prospects.”))).
Plaintiff alleges that part of his responsibilities as a Supervisor included “support[ing] camp hosts, ” but that this “completely stopped” when the County hired a new Director because the new Director told Plaintiff “not to worry” about various camp hosts' complaints of sexual harassment. See [#20 at p. 3, ¶¶ 5, 11-12; id. at p. 4, ¶ 19]. Mr. Woodfork further alleges he was required to work over weekends, was denied business cards, was denied training opportunities, was reprimanded, and was forced to resign because of persistent harassment and discrimination. See [id. at p. 4, ¶¶ 14, 18; p. 5, ¶ 37; p. 6, ¶ 42; p. 8, ¶¶ 6-9, 11; p. 11, ¶ 15; p. 12 at ¶ 6]. The County argues that these allegations are insufficient to demonstrate an adverse employment action and are largely mere inconveniences. See [#22 at 8-9; #31 at 6]. Moreover, the County contends that Mr. Woodfork's allegations fail to establish that he was constructively discharged. See [#31 at 4-5]. I respectfully agree.
At most, this court concludes that Mr. Woodfork complains of “mere inconvenience[s] or an alteration of job responsibilities, ” both of which do not constitute adverse employment actions. Exby-Stolley v. Bd. of Cty. Comm'rs, Weld Cty., Colorado, 906 F.3d 900, 917 (10th Cir. 2018) (citation and internal quotation marks omitted); cf. Lincoln v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018) (noting in Title VII cases that “an adverse employment action is something that would have dissuaded a reasonable worker from making or supporting a charge of discrimination.”). Aside from conclusory assertions, Mr. Woodfork fails to allege how each of these instances caused more than a de minimis harm or impact on his job opportunities or status. See Dick v. Phone Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005) (explaining that an adverse employment action requires a “significant change in employment status”). Indeed, courts have found that the most serious allegation-that Mr. Woodfork was made to work weekends-still does not arise to the level of an adverse employment action because such assignment did not significantly diminish the employee's material responsibilities. See Rio v. NHC/OP, L.P., 149 F.Supp.3d 839, 845 (M.D. Tenn. 2016).
Further, this court respectfully concludes that Mr. Woodfork fails to state a plausible constructive discharge claim. “A constructive discharge occurs when an employer, through unlawful acts, makes working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign.” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004) (emphasis added). “The plaintiff's burden in establishing constructive discharge is substantial.” Fischer v. Forestwood Co., 525 F.3d 972, 980 (10th Cir. 2008). Courts “apply an objective standard [to constructive discharge claims]: The conditions of employment must be objectively intolerable; the plaintiff's subjective views of the situation are irrelevant.” Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1269 (10th Cir. 2015) (internal quotation marks omitted). Mr. Woodfork fails to allege sufficient facts to permit a factfinder to conclude that his working conditions were so intolerable that he was forced to resign, and instead makes only vague and conclusory allegations regarding harassment and perceived discrimination.
Based on the foregoing, this court respectfully concludes that Mr. Woodfork fails to allege a plausible wrongful termination or disparate treatment claim because he fails to allege he suffered an adverse employment action. Thus, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED as to Claim 1.
2. Claim 3 - Harassment and Hostile Working Environment
To plead a plausible hostile work environment and/or harassment claim, Mr. Woodfork must allege (1) he is a member of a protected class; (2) he was subject to unwelcome harassment, based (3) on his race or religion; and (4) the harassment was so severe or pervasive that it altered a term, condition, or privilege of his employment and created an abusive work-environment. See Payan v. United Parcel Serv., 905 F.3d 1162, 1170 (10th Cir. 2018); Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007). The County argues that Mr. Woodwork alleges only vague and conclusory allegations of harassment. [#22 at 10-11; #31 at 8]. It further contends that Mr. Woodwork fails to link any harassment to a discriminatory animus and does not establish the pervasiveness of the alleged harassment. See [#22 at 10-11].
While Mr. Woodfork alleges that he was the only African American/Moorish American or Islamic employee and was treated poorly, the Amended Complaint contains only vague and conclusory allegations that the harassment was racially-hostile. Rather, he alleges he was yelled at, humiliated, criticized, and treated differently, but he must allege more than the “run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces, ” and instead must allege that the environment was both objectively and subjectively abusive. See Morris v. City of Colorado Springs, 666 F.3d 654, 664-65 (10th Cir. 2012) (explaining that objectivity refers to whether a reasonable person would find the harassment severe under the circumstances, while subjectivity refers to whether the plaintiff perceives the environment to be hostile). “Under this rubric, the plaintiff must show more than a few isolated incidents of racial enmity. . . . Instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1223 (10th Cir. 2015) (internal citations and quotation marks omitted). The Amended Complaint, however, fails to assert sufficient factual allegations, even taken as true and drawing all inferences in his favor, to allow a factfinder to conclude that Mr. Woodfork was subjected to severe harassment due to his race/color and/or religion. Thus, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED as to Claim 3.
3. Claim 5 - Retaliation
Title VII prohibits employers from “discriminat[ing] against any of [its] employees . . . because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). “Opposition is protected under [42 U.S.C.] § 2000e-3(a) only if it is opposition to a practice made an unlawful employment practice by Title VII.” Zokari v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009) (internal quotation marks omitted). To plead a plausible retaliation claim, Mr. Woodfork must allege that (1) he “engaged in protected opposition to discrimination, ” (2) “a reasonable employee would have found the challenged action materially adverse, ” and (3) “a causal connection existed between the protected activity and the materially adverse action.” Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008) (internal quotation marks omitted). In other words, Mr. Woodfork must establish that his protected activity was a but-for cause of the adverse employment decision. See Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014).
The County argues that Mr. Woodfork fails to plead a plausible retaliation claim because he does not allege he suffered a material adverse employment decision due to his complaints of discrimination. See [#22 at 12-13; #31 at 8-10]. I respectfully agree.
In his Amended Complaint and his Response to the Motion to Dismiss, Mr. Woodfork asserts he encouraged camp hosts to report sexual harassment and even reported those complaints to his supervisors but was essentially ignored. See [#20 at 10-11; #26 at 14-16]. He further asserts that the County retaliated against him for reporting sexual harassment by forcing Mr. Woodfork to work more hours, refusing to hire him for a manager position, and then accosting and reprimanding him in a meeting with his Director and another employee. See [#20 at 5-6, 10-11]. For the reasons articulated above, Mr. Woodfork fails to allege sufficient facts to support a conclusion that he has suffered an adverse employment action. See supra; see also McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006) (“The materiality of a claimed adverse action is to be determined objectively; petty slights, minor annoyances, and simple lack of good manners will not deter a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted)).
It is not clear whether Plaintiff ever complained of race/color and/or religious discrimination to the County, and because Plaintiff filed his charge of discrimination with the EEOC after he resigned, his charge of discrimination cannot form the basis of a retaliation claim. See McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1101 (10th Cir. 2011) (“Neither the filing of her EEOC charge nor her filing of this suit can serve as protected activity for purposes of her retaliation claim, however, because neither of those activities occurred before she filed the EEOC charge mentioned in her complaint” (emphasis in original)).
Assuming for purposes of the instant Motion that Plaintiff suffered a materially adverse employment action, Mr. Woodfork fails to allege any facts establishing a casual connection between his protected activity and the materially adverse employment action. See Bennett, 792 F.3d at 1269 (explaining that a plaintiff must “demonstrate that, but for her protected activity, she would not have faced the alleged adverse employment action.”).
The Amended Complaint provides that Mr. Woodfork complained of sexual harassment and suffered acts of alleged retaliation, but there are no factual allegations linking the adverse actions with Mr. Woodfork's complaints. There is no indication as to the temporal proximity between his protected activity and this alleged retaliation. See Hennagir v. Utah Dep't of Corrs., 587 F.3d 1255, 1267 (10th Cir. 2009) (approving the notion that “when the adverse action occurs on the heels of protected activity, such a circumstance would be limited to matters occurring within days, or at most, weeks of each other” but not where “months separated the alleged protected activity and adverse action.”). Instead, the Amended Complaint contains only speculative assertions that the County retaliated against Mr. Woodfork, but this is insufficient. See Khalik, 671 F.3d at 1193 (“Plaintiff's general assertions of discrimination and retaliation, without any details whatsoever of events leading up to her termination, are insufficient to survive a motion to dismiss.”). Thus, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED as to Claim 5.
C. Whether Mr. Woodfork Pleads an Unpaid Overtime Claim - Claim 7
Mr. Woodfork labels Claim 7 as “Failure to Pay wages under State and Federal law/Breach of contract/Promissory Estoppel/Unfair business practices.” [#20 at 11]. Mr. Woodfork alleges that Human Resources informed him to “bank the hours” he overworked, but that he “was not able to submit his hours to [Human Resources] and get compensated.” [#20 at 12]. Mr. Woodfork asserts he is entitled to approximately “166.5 [overtime] hours at a rate of $14.00 per hour.” [Id.]. As this court interprets Claim 7, Mr. Woodfork is seeking unpaid overtime wages.
At the outset, this court interprets Claim 7 as arising under the Fair Labor Standards Act (“FLSA”) and related Colorado Wage Claim Act (“CWCA”). “The FLSA generally requires covered employers to pay its employees overtime pay for work in excess of forty hours a week” to compensate for the “wear and tear of extra work, ” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011) (internal quotation marks omitted), and to do so “at a rate not less than one and one-half times the regular rate at which he is employed, ” 29 U.S.C. § 207(a)(1); accord Brownlee v. Lithia Motors, Inc., 49 F.Supp.3d 875, 878 (D. Colo. 2014) (explaining that the CWCA, Colo. Rev. Stat. § 8-4-101 et seq., “is designed to require employers to pay wages earned by their employees in a timely manner.”). While the FLSA and CWCA “do not preempt a state law claim compensable pursuant to a contract but not the FLSA or [CWCA], ” Abdulina v. Eberl's Temp. Servs., Inc., 79 F.Supp.3d 1201, 1205 (D. Colo. 2015), Mr. Woodfork fails to allege he seeks compensation under a contract for wages other than unpaid overtime wages. Cf. Gomez v. Children's Hosp. Colorado, No. 18-CV-00002-MEH, 2018 WL 3303306, at *4 (D. Colo. July 8, 2018) (“Unlike Ms. Gomez' overtime causes of action, the FLSA does not preempt her claims for straight time in excess of the minimum wage.”). Additionally, Mr. Woodfork's purported promissory estoppel claim likewise centers on the wrongful withholding of overtime wages. Under such circumstances, the FLSA preempts such state law claims. See Id. at **3-4 (dismissing the plaintiff's promissory estoppel claim seeking unpaid overtime wages because it was duplicative of her FLSA claim); Valverde v. Xclusive Staffing, Inc., No. 16-cv-00671-RM-MJW, 2017 WL 3866769, at *9 (D. Colo. Sept. 5, 2017) (“Plaintiffs' contract/quasi contract claims are preempted to the extent they are for unpaid overtime wages or are simply a restatement of their FLSA claim.”). Thus, this court considers whether Plaintiff pleads a plausible FLSA and CWCA claim.
Further, to the extent that Mr. Woodfork predicates his breach of contract and promissory estoppel claims on the failure of the County to provide business cards, such claims fail because Mr. Woodfork does not identify a contract and/or promise that the County would provide such business cards. See Spring Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv., II, LLC, 887 F.3d 1003, 1033 (10th Cir. 2018) (“Under Colorado law, a breach of contract claim has four elements: (1) the existence of a contract . . . .”); Peace v. Parascript Mgmt., Inc., 59 F.Supp.3d 1020, 1029 (D. Colo. 2014) (“To recover on a promissory estoppel theory, a party must establish that (1) the promisor made a promise to the promise . . . .”).
The County argues that Mr. Woodfork's claim for unpaid overtime fails because he admits that he did not submit his overtime hours for compensation, and thus the County had no knowledge Mr. Woodfork worked overtime. See [#22 at 14]. It further alleges that any FLSA claim is barred by the applicable two-year statute of limitations because Mr. Woodfork first asserted his FLSA claim on August 24, 2020, well after the July 4, 2020 deadline. See [id.]. I respectfully disagree with the County.
Although the County is correct that Mr. Woodfork alleges he never submitted his overtime hours to Human Resources, Mr. Woodfork's Amended Complaint contains several allegations suggesting he was required to be available “all the time” and to work over weekends and cover shifts for other employees. See, e.g., [#20 at 4, 8, 12-13]. Though this court would prefer more robust pleading, it is reasonable to infer that the County should have known, at the least, that Mr. Woodfork was working overtime. See McGrath v. Cent. Masonry Corp., 276 Fed.Appx. 797, 799 (10th Cir. 2008) (“[A] plaintiff proceeding under [the FLSA] must also show that the employer had actual or constructive knowledge of the overtime.”). Mr. Woodfork further alleges he is entitled to approximately 166.5 in unpaid overtime hours. See [#20 at 12]. “The requirements to state a claim of a FLSA violation are quite straightforward, requiring plaintiff to show a failure to pay overtime compensation and/or minimum wages to covered employees-no more.” Rayfield v. Sandbox Logistics, LLC, 217 F.Supp.3d 1299, 1300 (D. Colo. 2016) (internal quotation marks omitted) (finding that the plaintiff pleaded a plausible FLSA claim where the plaintiff alleged he worked in excess of 40 hours per week and did not receive overtime, and noting the plaintiff “is not required to itemize or provide detailed dates and times of his work at the pleading stage of his case”). Further, the CWCA allows for wages “vested and determinable” for labor performed yet unpaid. See Fang v. Showa Entetsu Co., Ltd., 91 P.3d 419, 422 (Colo.App. 2003). A liberal interpretation of the Amended Complaint suggests Mr. Woodfork was not paid for all hours worked. Thus, I conclude Mr. Woodfork pleads a plausible FLSA and CWCA claim.
The County also argues that any FLSA claim is untimely because Mr. Woodfork left his employment in July 2018 but did not assert a claim for unpaid overtime until August 24, 2020. See [#22 at 12]. But Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure states that an amendment relates back to the date of the original pleading when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). Here, Mr. Woodfork's FLSA and CWCA claim relates back because it arises from the same conduct, transaction, or occurrence as the original pleading. Indeed, in his initial Complaint, Mr. Woodfork sought unpaid overtime wages and asserted a claim under the Equal Pay Act. See [#1 at 5]. Thus, Mr. Woodfork's FLSA and CWCA claim (Claim 7) relates back to the date he filed his original Complaint, April 27, 2020, which is within the two-year statute of limitations. Cf. Anderson v. PAR Elec. Contractors, Inc., 318 F.R.D. 640, 643 (D. Kan. 2017) (concluding that the plaintiff's wrongful termination claim, though untimely, related back to the filing of his original complaint asserting a claim for negligence because his negligence and wrongful termination claims each arose from his on-the-job injury).
Based on the foregoing, I respectfully conclude Mr. Woodfork pleads a plausible FLSA and CWCA claim for unpaid overtime wages. Thus, I respectfully RECOMMEND that the Motion to Dismiss be DENIED as to Claim 7.
In so deciding, this court expressly does not rule on whether Mr. Woodfork can adequately support this claim at summary judgment or prevail at trial.
CONCLUSION
For the reasons stated herein, this court respectfully RECOMMENDS that:
(1) Defendant's Motion to Dismiss [#22] be GRANTED IN PART and DENIED IN PART,
(2) Plaintiff's Claims 1-6 be DISMISSED, and (3) Plaintiff's Claim 7 REMAIN as limited to arising only under the FLSA and CWCA.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
A copy of this Recommendation shall be sent to:
Jason Woodfork PO Box 716 Wheat Ridge, CO 80034