Bartok-Bennett v. Pulte Mortgage, Inc.

BRIEF in Support of 9 MOTION to Dismiss Plaintiff's Complaint

D. Colo.February 6, 2017

4832-5144-6335.5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 1:16-cv-03002-MSK-NYW ILI BARTOK-BENNETT, Plaintiff, v. PULTE MORTGAGE, INC., Defendant. ______________________________________________________________________________ DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT ____________________________________________________________________________ Defendant, Pulte Mortgage, LLC (“Pulte Mortgage”)1, by and through its undersigned counsel and pursuant to Federal Rules of Civil Procedure (FRCP) 12(b)(1) and 12(b)(6), submits this Brief in Support of Its Motion to Dismiss Plaintiff Ili Bartok-Bennett’s (“Plaintiff’s”) Complaint for lack of subject matter jurisdiction with respect to her unfair labor practice, disability discrimination, and Title VII claims (besides retaliation), and for failure to state a claim upon which relief can be granted for all claims. In her Complaint, Plaintiff recites perceived legal wrongs and then describes various events during her employment with Pulte Mortgage. However, instead of providing a short and plain statement showing that she is entitled to relief as required by FRCP 8(a), Plaintiff merely describes documents attached to her complaint without alleging sufficient facts that could constitute plausible violations of federal laws. See D.E. 1 (“Compl.”) at 3-6. Plaintiff also 1 Plaintiff incorrectly named Pulte Mortgage, Inc. as the Defendant in her Complaint. Plaintiff was employed by Pulte Mortgage, LLC at all relevant times, and Pulte Mortgage, LLC is the business located at the address listed in the Complaint (7390 S. Iola Street, Englewood, CO 80112). Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 1 of 20 2 4832-5144-6335.5 alleges that Pulte Mortgage failed to comply with various disclosure requirements with respect to her application for a mortgage loan, but she has not stated a claim because there is no private right of action to enforce such disclosure violations and she has not alleged basic jurisdictional requirements. See id. at 7-8. Accordingly, Plaintiff’s entire Complaint is insufficient under the familiar Twombly/ Iqbal pleading standard and should be dismissed under FRCP 12(b)(6). In addition, because the National Labor Relations Board has exclusive authority to hear federal labor law claims in the first instance, her self-styled unfair labor practice claim should be dismissed for lack of subject matter jurisdiction under FRCP 12(b)(1). BACKGROUND The text of Plaintiff’s Complaint is nine pages long, followed by a one-page Civil Cover Sheet and 158 pages within 14 exhibits, containing dozens of emails and other documents (for 168 pages total). See Compl. In her two “claims for relief,” Plaintiff lists various wrongs, sometimes names statutes and regulations, and then summarizes various events or circumstances that occurred during her employment. However, she does not allege sufficient facts, or provide a nexus to legal violations, as to state a legally cognizable claim for relief as required under pleading rules. In her “First Claim For Relief,” Plaintiff alleges that Pulte Mortgage used “‘Bait and Switch’ tactics to justify cover-up of knowledge of discrimination, harassment, retaliation, violations of Federal Labor Standards Act and violation of Weingarten Rights by management.” Id. at 3.2 As her “Second Claim for Relief,” Plaintiff alleges violations of “the Real Estate 2 On her Civil Cover Sheet, Plaintiff checked the box indicating that her cause of action was based on “Title VII of the Civil Rights Act of 1964 and/or the Americans with Disabilities Act (ADA).” However, Plaintiff does not reference the ADA anywhere in her Complaint or allege that she is disabled or that she experienced discrimination on the basis of any disability. Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 2 of 20 3 4832-5144-6335.5 Settlement Procedures Act (RESPA) REG X and Truth-in Lending (TILA) REG Z pertaining to my application for a Mortgage Loan, while an employee of Pulte Mortgage” and asserts that Pulte Mortgage failed to comply with various requirements under 12 C.F.R. Part 1024. Compl. at 7-8. Plaintiff’s employment-related grievances are discussed on pages 3-6 of her Complaint. Instead of alleging facts in chronological order or connecting alleged facts to specific legal claims, Plaintiff mentions employment discrimination, retaliation, wage and hour violations, unfair labor practices, and mortgage loan disclosure violations haphazardly in the order in which they supposedly relate to each exhibit. For example, Plaintiff discusses Pulte Mortgage’s position statement to the EEOC, which she attached to her Complaint as Exhibit 2, and asserts “numerous discrepancies” which she says suggest Pulte Mortgage and its attorneys “are trying to cover-up discrimination & retaliation by management.” Id. at 3. Plaintiff goes on to allege, in her discussion of Exhibit 2, that she followed Pulte Mortgage’s policies for reporting discrimination and harassment, that management did not provide her with investigative notes she requested, and that the date on an investigative report is incorrect. Id. at 3-4. Pulte Mortgage will not repeat all of Plaintiff’s descriptions of her exhibits, but suffice it to say that, even giving her the benefit of the doubt, she fails to set forth the requisite facts to satisfy the legal elements of any particular employment claim. Plaintiff’s mortgage loan disclosure claims are primarily discussed on pages 7-8 of her Complaint, although those claims are also referenced on page 6 in connection with her description of Exhibit 11. While Plaintiff references RESPA and TILA, she also alleges that Pulte Mortgage violated its disclosure obligations required for her mortgage loan application “in Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 3 of 20 4 4832-5144-6335.5 retaliation for filing and reporting age discrimination and retaliation by upper management.” Id. at 7. Plaintiff goes on to allege that she did not receive specific disclosures required by federal law and regulations, and that it is “her opinion” that the loan originator handling her application contacted her managers as part of the verification process to retaliate against her. Id. at 7-8. These allegations fail to include sufficient facts to state a claim under federal law, and Plaintiff cannot bring a private cause of action to enforce violations of mortgage loan disclosure requirements in any event. LEGAL STANDARDS As a threshold matter, if federal courts lack subject matter jurisdiction over certain claims, they must be dismissed under FRCP 12(b)(1). Courts “presume no jurisdiction exists absent an adequate showing by the party invoking federal jurisdiction.” United States ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999) (citing United States ex rel. Precision Co. v. Koch Indus., Inc., 971 F.2d 548, 551 (10th Cir. 1992)). Dismissal pursuant to FRCP 12(b)(6) is proper when a complaint fails to state a claim that is plausible on its face. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In short, plaintiffs must plead “sufficient facts” in support of their claims to survive a motion to dismiss. Id. at 687. Plaintiffs do not allege sufficient facts where they give only “labels and conclusions” or set forth “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). If allegations are “so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 4 of 20 5 4832-5144-6335.5 conceivable to plausible.’” Robbins v. Okla. ex rel. Dep’t of Human Servs., 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” in addition to other requirements. Fed. R. Civ. P. 8(a)(2). The requirements of FRCP 8(a) have been “incorporated” into the Rule 12(b)(6) inquiry. Kaplan v. Archer, No. 11-cv-02094, 2012 U.S. Dist. LEXIS 111815, at *23 (D. Colo. July 3, 2012) (citing United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1171 (10th Cir. 2010)). FRCP 12(b)(6) motions test the sufficiency of a plaintiff’s allegations “within the four corners of the complaint,” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994), and courts are not obligated to discern potential claims by reviewing “voluminous exhibits” attached to a complaint. See Wedel v. Centera Bank, No. 10-1069, 2010 U.S. Dist. LEXIS 74071, at *15 (D. Kan. July 22, 2010). Indeed, courts have consistently dismissed complaints that include irrelevant exhibits or unintelligible allegations. See, e.g., Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007) (dismissing 99-page “unintelligible” complaint that failed to identify “a concrete legal theory” and stressing that it “was not the district court’s job to stitch together cognizable claims for relief from the wholly deficient pleading”); Kaplan, 2012 U.S. Dist. LEXIS 111815 at *10 (dismissing 43-page complaint that “sets forth a rambling narration of disjointed allegations, bizarre accusations, and seemingly unrelated conclusory assertions of legal violations”). Additionally, while courts construe a pro se litigant’s pleadings “liberally,” this “does not relieve [the plaintiff] of the burden of alleging sufficient facts on which a recognized legal claim could be based” because “a pro se plaintiff requires no special legal Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 5 of 20 6 4832-5144-6335.5 training to recount facts” in support of her claims. Olson v. Carmack, 641 Fed. Appx. 822, 826 (10th Cir. 2016) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). ARGUMENT I. This Court Lacks Jurisdiction to Decide Plaintiff’s Unfair Labor Practice and New Employment Discrimination “Claims.” A. Federal District Courts Lack Jurisdiction Over Unfair Labor Practice “Claims.” Congress has granted the National Labor Relations Board (NLRB) exclusive jurisdiction to decide unfair labor practice claims under the National Labor Relations Act (NLRA) in the first instance, and the NLRB’s decisions are subject to judicial review only in the federal courts of appeals. See 29 U.S. Code §§ 160(a), (e), (f); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265 (1940) (noting that “Congress has entrusted to the Board exclusively” to investigate and adjudicate unfair labor practice claims). Accordingly, federal district courts lack jurisdiction to hear unfair labor practice claims under the NLRA. See, e.g., San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959) (emphasizing that “federal courts must defer to the exclusive competence” of the NLRB over activities that “arguably” constitute unfair labor practices under the NLRA). Plaintiff alleges that Pulte Mortgage violated her “Weingarten Rights” in connection with an alleged refusal to allow her to bring a representative to meetings with management. Compl. at 4. In National Labor Relations Board v. J. Weingarten, Inc., the Supreme Court held that the NLRA “guarantees an employee’s right to the presence of a union representative” at certain investigatory interviews and that an employer’s denial of this right is an unfair labor practice. 420 U.S. 251, 257, 262 (1975) (emphasis added). Because Plaintiff’s Weingarten “claim” Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 6 of 20 7 4832-5144-6335.5 alleges an unfair labor practice under the NLRA, the NLRB has exclusive jurisdiction over it and this Court lacks jurisdiction to decide it. Her Weingarten claim therefore must be dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).3 B. Plaintiff Has Not Exhausted Her Administrative Remedies to Bring New Disability or Title VII “Claims.” To the extent that Plaintiff alleges employment discrimination claims besides age discrimination and retaliation - including disability discrimination as indicated on her Civil Cover Sheet - Plaintiff has failed to exhaust her administrative remedies because she only alleged age discrimination and retaliation in her EEOC charge. Compl. Ex. 1 p.1. Before a federal court may hear claims under Title VII of the Civil Rights Act or the Americans with Disabilities Act, the plaintiff must exhaust her administrative remedies by filing an EEOC charge and receiving a right-to-sue letter. Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1309-10 (10th Cir. 2005). Because Plaintiff has not exhausted those administrative processes with the EEOC in this case for any claims besides age discrimination and retaliation, this Court lacks subject matter jurisdiction over her disability discrimination claim and any other such claims. Id. at 1317. II. Plaintiff Has Not Stated a Plausible Claim Entitling Her to Relief for Any Claims. A. Plaintiff’s Complaint is Incoherent, Attempts to Rely Upon Exhibits Without Establishing a Connection to Her Claims, Fails to State a Claim, and Should Be Dismissed in its Entirety on that Basis. Plaintiff’s Complaint is nine pages long with 158 pages of attachments and makes wide- ranging allegations, many of which have nothing to do with any possible legal claims For 3 Plaintiff also fails to state a claim entitling her to relief under the NLRA because she has not alleged that she or other employees in Pulte Mortgage’s workforce are represented by a union. The NLRB has held that Weingarten rights do not apply in nonunionized workplaces. See IBM Corp., 341 N.L.R.B. 1288, 1288 (2004). Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 7 of 20 8 4832-5144-6335.5 example, Plaintiff alleges that Pulte Mortgage’s policy requiring employees to pay for state tests to become licensed Loan Consultants, after failing twice, was not in writing or disclosed to her when she began her employment (Exhibit 6), that the number of licenses required for her position were at the “sole discretion” of her manager (Exhibit 9), that Pulte Mortgage did not provide her with recorded telephone calls after she requested them (Exhibit 10), that she did not receive “place cards for interviews” (Exhibit 11), and that commenters on blogs have written that Pulte Mortgage engages in discrimination and dishonesty (Exhibit 14). Compl. at 4-6. Plaintiff’s allegations in her “Second Claim for Relief” conflate her claims regarding Pulte Mortgage’s failure to provide required disclosures in connection with her mortgage loan application with her retaliation claims. Id. at 7-8. Many of Plaintiff’s allegations have no basis in law, but simply allege general unfairness by Pulte Mortgage, and it is unclear which exhibits relate to which alleged legal wrongs. FRCP 8(a)(2) requires that pleadings contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But Plaintiff’s Complaint is anything but “short and plain,” and she needlessly attached 158 pages of documents to her Complaint, leaving it for Pulte Mortgage and the Court to discern which documents are relevant to her many claims. Plaintiff’s general allegations “encompass a wide swath of conduct, much of it innocent,” see Robbins 519 F.3d at 1247, and this Court is not required to go outside of the “four corners” of her Complaint to figure out which documents support which legal claims. Mobley, 40 F.3d at 340. Even applying a less stringent standard for pro se litigants, courts have routinely dismissed rambling and disorganized complaints that, like Plaintiff’s, contain irrelevant information and documents. See, e.g., Mann, 477 F.3d at 1148 (dismissing “unintelligible” pro Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 8 of 20 9 4832-5144-6335.5 se complaint); Kaplan, 2012 U.S. Dist. LEXIS 111815 at *10 (dismissing pro se complaint containing “rambling narration of disjointed allegations”); Wedel, 2010 U.S. Dist. LEXIS 74071, at *15 (dismissing complaint with “no logical construction” that contained “voluminous exhibits”). Therefore, because Plaintiff’s Complaint does not succinctly or coherently articulate factual assertions supporting her legal claims, this Court should dismiss it in its entirety. B. Plaintiff Has Not Stated Plausible Employment Discrimination and Retaliation Claims. Even piecing together Plaintiff’s disorganized allegations in the best light for her, she still fails to make a plausible claim for employment discrimination or retaliation. Accordingly, those claims should be dismissed pursuant to FRCP 12(b)(6). 1. Plaintiff Has Failed to State an Age Discrimination Claim. Plaintiff filed a “Title VII Complaint” but does not allege that she experienced discrimination in violation of Title VII of the Civil Rights Act. Instead, Plaintiff alleges that she suffered age discrimination but fails to cite the Age Discrimination in Employment Act (ADEA). See Compl. at 1-2. In support of her age discrimination claim, Plaintiff alleges that “other younger” Loan Consultants were granted requests to change teams after they failed state tests twice and were not required to pay for taking tests a third time. Compl. at 5. Plaintiff also vaguely alleges she was “discriminated” against elsewhere in her Complaint without specifying that such discrimination was on account of her age, such as when she alleges that she was “discriminated and threatened over a ‘Policy’ regarding state testing that did not exist.” Compl. at 4. In order to establish discrimination under the ADEA, a plaintiff must show that: “(1) she is within a protected class [i.e., at least 40 years old], (2) adverse employment action was taken Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 9 of 20 10 4832-5144-6335.5 against her, (3) she was doing satisfactory work at the time the adverse employment action was taken, and (4) that a comparable employee who received more favorable treatment was substantially younger than Plaintiff.” Seely v. Runyon, 966 F. Supp. 1060, 1063 (D. Utah 1997) (citing, e.g., MacDonald v. Delta Air Lines, 94 F.3d 1437 (10th Cir. 1996)). The plaintiff must also establish that “age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., 557 U.S. 167, 178 (2009). Plaintiff has not set out a plausible age discrimination claim in this case because she has not alleged basic requirements under the ADEA in the Complaint itself, including that she was doing satisfactory work at the time she experienced an adverse employment action. See Seely, 966 F. Supp. at 1063. Besides her termination, other alleged wrongs that Plaintiff claims she experienced, such as “discriminatory meetings” (Compl. at 3), do not constitute adverse employment actions. See Haynes v. Level 3 Commc’ns., 456 F.3d 1215, 1222 (10th Cir. 2006). Plaintiff also fails to allege how “other younger” Loan Consultants were similarly situated to her or indicate that any of them are “substantially younger” than her. See Seely, 966 F. Supp. at 1063. In the Complaint, Plaintiff does not name alleged comparators, give any indication that they are substantially younger than her, or specify how they are similarly situated to her in terms of experience, job duties, supervisors, and other factors. Plaintiff also has not alleged facts showing that age is the “but for” cause of her termination, which she also attributes to retaliation and other motivations by Pulte Mortgage in her Complaint. See Gross, 557 U.S. at 178. This Court has consistently dismissed similar age discrimination claims that fail to meet these basic pleading requirements. See, e.g., Oldham v. Brennan, No. 15-cv-2464, 2016 U.S. Dist. LEXIS 175800, at *19 (D. Colo. Dec. 20, 2016) (dismissing age discrimination claim by plaintiff where Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 10 of 20 11 4832-5144-6335.5 her allegations did not show that age was the “but for” cause of pay discrepancies, which “might be because of either age or date of hire”); Backus v. Univ. of Colo., No. 15-cv-01340, 2015 U.S. Dist. LEXIS 176995, at *17 (D. Colo. Dec. 14, 2015) (dismissing age discrimination claim by plaintiff who did “not allege that the other people who purportedly enjoy greater benefits are similarly-situated and outside her protected age class, or that her ‘age was the factor that made a difference’”). 2. Plaintiff Has Failed to State a Retaliation Claim. In support of her retaliation claim, Plaintiff alleges that Pulte Mortgage retaliated against her in a number of ways for filing an EEOC charge and making internal complaints, such as insisting that she meet state testing requirements for Loan Consultants, issuing her an “unjustified” written warning, “not receiving place cards for interviews,” not providing required disclosures in connection with her application for a mortgage loan, and terminating her employment. Compl. at 3-8. Plaintiff asserts that she was terminated on July 8, 2016 and that emails attached to her Complaint demonstrate a “direct causal connection between a protected activity and adverse employment action.” Id. at 4. To make out a retaliation claim under the ADEA or Title VII, a plaintiff must show a “causal connection” between protected activity and an adverse employment action. Miller v. Auto. Club of New Mexico, Inc., 420 F.3d 1098, 1119 (10th Cir. 2005); see also Shinwari v. Raytheon Aircraft Co., 2000 U.S. App. LEXIS 12816, at *11 (10th Cir. June 8, 2000) (noting that the same test applies to both ADEA and Title VII retaliation claims). The plaintiff must also demonstrate that retaliation is the “but for” cause of the adverse employment action at issue. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 11 of 20 12 4832-5144-6335.5 Here, Plaintiff fails to state a plausible retaliation claim because she has not alleged that Pulte Mortgage treated her any differently after she filed an EEOC charge or made internal complaints than before she engaged in any protected activity. With respect to her claim about having to meet state testing requirements, Plaintiff does not allege that Pulte Mortgage insisted that she become licensed in certain states or pay for tests only after she engaged in protected activity. In fact, Plaintiff’s exhibits show that Pulte Mortgage put the testing requirements in place before she engaged in any protected activity. Plaintiff filed an EEOC charge alleging age discrimination and retaliation on March 31, 2016, and in that charge she alleged that Pulte Mortgage began “pushing” her to take state licensing tests around March 4, 2016 and that she first complained to Human Resources about this on March 16, 2016. Compl. Ex. 1 p.1. Plaintiff also complained in her EEOC charge that Pulte Mortgage informed her that she “would be terminated” if she did not pass the tests. Id. (emphasis added). Pulte Mortgage’s position insisting that Plaintiff pass state licensing tests occurred at least as early as March 4, according to Plaintiff’s Complaint, and pre-dated any of her protected activity. Accordingly, Plaintiff has not alleged a causal connection between protected activity and an adverse employment action, or that retaliation was the “but for” cause of her termination. See Miller, 420 F.3d at 1119; Nassar, 133 S. Ct. at 2534. Plaintiff fails to state a retaliation claim because courts consistently hold that there is no retaliation in cases where the “actions that led to” a plaintiff’s adverse employment action “began before her protected activity.” Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006) (emphasis in the original). In other words, Pulte Mortgage merely followed through on the position it took before Plaintiff ever filed a complaint or an EEOC charge Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 12 of 20 13 4832-5144-6335.5 according to the Complaint. Plaintiff’s bare allegation of a “causal connection” between protected activity and her termination, see Compl. at 4, is a conclusory allegation that is insufficient to state a claim. See Twombly, 550 U.S. at 555 (2007). Plaintiff also alleges that a written warning, failure to provide mortgage loan disclosures, and other minor issues like “not receiving place cards” were in retaliation for her protected activity, but those do not constitute adverse employment actions. 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’” can “rise to the level of an adverse employment action”; “not every perceived indignity” is an adverse employment action. Haynes, 456 F.3d at 1222 (quoting Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005)); see also Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) (emphasizing that “not everything that makes an employee unhappy is an actionable adverse action”). Because Plaintiff does not allege that her written warning, failure to receive mortgage loan disclosures, and other “perceived indignities” she may have experienced altered her employment status in any meaningful way (in terms of pay, benefits, job responsibilities, etc.), she has not alleged a sufficient claim for retaliation on those grounds. See, e.g, Anderson v. Clovis Mun. Schs, 265 Fed. Appx. 699, 704-05 (10th Cir. 2008) (an employee who was issued a written warning that he would face consequences if he did not improve his performance did not suffer an adverse employment action); Haynes, 456 F.3d at 1224 (placing an employee on a “performance improvement plan” was not an adverse employment action). Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 13 of 20 14 4832-5144-6335.5 C. Plaintiff Has Not Properly Alleged Wage and Hour Violations. In support of her Fair Labor Standards Act (FLSA) claim, Plaintiff alleges that she was eligible for bonuses under a “Loan Consultant Incentive Plan,” but did not receive several $500 payments that she deserved on account of her job performance. Compl. at 5. Plaintiff further alleges that her requests to receive bonus payments were denied, in violation of the FLSA. Id. at 6. Plaintiff has not alleged a valid wage and hour claim under the FLSA because she does not state basic information needed to make such a claim, including her exempt or non-exempt status, her wages, and the number of hours she worked. The FLSA generally guarantees that non-exempt employees be paid at least $7.25 per hour and earn at least 1.5 times their regular rate of pay for all hours worked beyond 40 hours each workweek. 29 U.S.C. §§ 206(a), 207(a). Plaintiff does not allege that she earned less than the federal (or applicable state) minimum wage at any point during her employment, or that she worked more than 40 hours in any given week without earning requisite overtime pay, even assuming that she was non-exempt in the first place. Without information about Plaintiff’s wages or hours of work, her allegations that she did not receive $500 bonuses during her employment cannot amount to an FLSA violation as a matter of law. See, e.g., Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d 106, 116 (2d Cir. 2013) (stressing that “the text of FLSA requires only payment of minimum wages and overtime wages”); Taylor v. McLane Foodservice, Inc., No. 12-2697, 2013 U.S. Dist. LEXIS 32924, at *21-23 (D. Kan. Mar. 11, 2013) (dismissing complaint for failing to state an FLSA claim by plaintiffs who earned at least the federal minimum wage on average and did not allege working uncompensated overtime hours). Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 14 of 20 15 4832-5144-6335.5 D. Plaintiff Has Not Properly Alleged Mortgage Loan Disclosure Violations, and Does Not Have a Private Right of Action to Bring Such Claims in any Event. In support of her mortgage loan disclosure claims, Plaintiff alleges that she applied for a mortgage loan with Pulte Mortgage but did not receive certain disclosures required by the Real Estate Settlement Procedures Act (RESPA) and Truth in Lending Act (TILA). Compl. at 7-8. Plaintiff asserts that she did not receive “pertinent and timely disclosures regarding the nature and costs of a real estate settlement process” or the “required booklet,” and that Pulte Mortgage’s failure to provide these required disclosures violated numerous provisions of 12 C.F.R. Part 1024 (RESPA Regulation X). Id. She also indicates that Pulte Mortgage violated requirements under TILA Regulation Z, which is codified at 12 C.F.R. Part 1026. Plaintiff’s RESPA claims fail as a matter of law because there is no private cause of action. Plaintiff’s allegations that Pulte Mortgage did not provide her a required “booklet” is a claim under RESPA Section 5, codified at 12 U.S.C. § 2604. Lenders generally must provide applicants a “special information booklet” and “good faith estimate” within three business days after receiving an application for a federally related mortgage loan under 12 C.F.R. § 1024.6 and § 1024.7, respectively. But this Court has held that RESPA Section 5, which encompasses the special information booklet and good faith estimate disclosure requirements, does not “expressly or impliedly create[] a private enforcement right,” reasoning that an earlier version of the statute explicitly providing a private cause of action was repealed in 1976. McDonald v. J.P. Morgan Chase Bank, N.A., No. 12-cv-02749, 2015 U.S. Dist. LEXIS 36949, at *8-9 (D. Colo. Mar. 23, 2015). Courts outside of this Circuit have reached the same conclusion. See, e.g., Collins v. FMHA-USDA, 105 F.3d 1366, 1368 (11th Cir. 1997) (holding that “neither the statute nor the legislative history reveals a congressional intent to create a private cause of action [for violations Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 15 of 20 16 4832-5144-6335.5 of RESPA Section 5], and actually indicate that Congress intended not to provide such a remedy”). This Court has also held that there is no private cause of action to enforce RESPA Section 4, codified at 12 U.S.C. § 2603, which requires a HUD-1 “Settlement Statement” disclosure at loan closing. Dalton v. Countrywide Home Loans, Inc., 828 F. Supp. 2d 1242, 1250 (D. Colo. 2011) (concluding that there is no private cause of action to enforce RESPA disclosure requirements under 12 U.S.C. §§ 2603 and 2604). Accordingly, because there is no private cause of action to enforce RESPA Section 4 (to the extent she makes such a claim) or Section 5, Plaintiff fails to state a claim for alleged disclosure violations in connection with her loan application. In addition to lacking a private cause of action to enforce RESPA disclosure violations, Plaintiff has not made the jurisdictional showing that the loan she applied for was even subject to RESPA as a “federally related mortgage loan” defined by 26 U.S.C. § 2602(1). Because Plaintiff “do[es] not allege facts to support a finding that the loan is a ‘federally related mortgage loan’ covered by RESPA,” her conclusory assertions that Pulte Mortgage violated RESPA requirements in connection with her loan application are insufficient to state a claim. See Fimbres v. Chapel Mortg. Corp., No. 09-CV-0886, 2009 U.S. Dist. LEXIS 109261, at *29 (S.D. Cal. Nov. 20, 2009). Additionally, Plaintiff does not allege that she experienced any “actual damages,” financial or otherwise, resulting from the alleged disclosure violations, so she fails to state a claim on this basis as well. See Ricotta v. Ocwen Loan Servicing, LLC, No. 06-cv-01502, 2008 U.S. Dist. LEXIS 13816, at *16 (D. Colo. Feb. 22, 2008) (observing that RESPA “makes no provision for relief other than an award of actual damages,” and finding that “a RESPA plaintiff Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 16 of 20 17 4832-5144-6335.5 must plead and prove, as an element of the claim, that he or she suffered some actual damage as a result of the alleged RESPA violation”). Plaintiff alleges that Pulte Mortgage violated various other provisions of 12 C.F.R. Part 1024, but none of her allegations amount to violations for which she can obtain relief. See Compl. at 8. Plaintiff lists 12 C.F.R. § 1024.2(b), which is simply the “Definitions” section that defines various terms used in the regulation. She also cites 12 C.F.R. § 1024.15, which deals with “Affiliated business arrangements,” but that regulation provides an exemption to RESPA’s “Prohibition against kickbacks and unearned fees” under 12 U.S.C. § 2607 and does not require any disclosures in the absence of the sort of referral arrangements at issue in the regulation (which Plaintiff does not allege exist here). Plaintiff’s citation to 12 C.F.R. § 1024.17, which concerns escrow accounts, does not amount to a claim because she does not allege any facts suggesting that Pulte Mortgage violated any requirements for escrow accounts. In addition, Plaintiff cites 12 C.F.R. §§ 1024.30, 1024.32, and 1024.33, but these provisions deal with mortgage loan servicing requirements and Plaintiff has not alleged any facts implicating these provisions, such as that her loan was serviced or that the servicing of her loan was transferred to another entity. Therefore, Plaintiff has not stated a single RESPA claim as a matter of law, and her bare assertions that Pulte Mortgage violated various regulations are insufficient to state a claim. Finally, Plaintiff has not alleged any violations of TILA. She does not refer to any provision in the TILA statute or its accompanying regulations in her Complaint, as her only citations are to RESPA regulations at 12 C.F.R. Part 1024. Compl. at 8. Instead, Plaintiff discusses RESPA disclosure rules and describes them as required by both RESPA and TILA. Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 17 of 20 18 4832-5144-6335.5 See id. at 7-8. The Complaint does not explain how Pulte Mortgage’s alleged conduct amounts to a TILA violation, and Plaintiff’s conclusory allegations are insufficient to state a claim. See Twombly, 550 U.S. at 555 (2007). Additionally, Plaintiff does not even allege that Pulte Mortgage is subject to TILA as a “creditor” under 15 U.S.C. § 1602(g), which she must do to survive a motion to dismiss. See Grimes v. Fremont Gen. Corp., 785 F. Supp. 2d 269, 283 n.21 (S.D.N.Y. 2011) (“Plaintiffs must allege that the Defendants accused of violating TILA are creditors and thus subject to TILA.”) Plaintiff’s TILA allegations therefore fail to state a claim. CONCLUSION For the reasons set for above, Pulte Mortgage respectfully asks this Court to dismiss Plaintiff’s Complaint in its entirety. Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 18 of 20 19 4832-5144-6335.5 Dated: February 6, 2017 Respectfully submitted, BALLARD SPAHR LLP By: s/ Steven W. Suflas Steven W. Suflas (50505) J. Matt Thornton (48803) 1225 17th Street, Suite 2300 Denver, CO 80202 Phone: 303-292-2400 Facsimile: 303-296-3956 suflass@ballardspahr.com thorntonj@ballardspahr.com FOLEY & LARDNER LLP JOHN F. BIRMINGHAM, JR. (P47150) 500 Woodward Ave., Suite 2700 Detroit, Michigan 48226 Telephone: (313) 234-7100 Facsimile: (313) 234-2800 E-mail: jbirmingham@foley.com SCOTT T. ALLEN (1044354) 777 East Wisconsin Avenue Milwaukee, WI 53202 Telephone: (414) 319-7172 Facsimile: (414) 297-4900 Email: sallen@foley.com Attorneys for Defendant Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 19 of 20 20 4832-5144-6335.5 CERTIFICATE OF SERVICE I hereby certify that on February 6, 2017, I electronically filed the foregoing Defendant’s Brief in Support of Its Motion to Dismiss Plaintiff’s Complaint with the Clerk of the Court, using the CM/ECF system. I also certify that I mailed a copy of the foregoing, first class, postage-paid to Plaintiff at the below address: Ili Bartok-Bennett 1001 Hanover Street Aurora, CO 80010 s/ Darlene D. Dethlefs Darlene D. Dethlefs Case 1:16-cv-03002-MSK-NYW Document 10 Filed 02/06/17 USDC Colorado Page 20 of 20