Opinion
Civil Action 1:22-cv-00646-RM-STV
12-16-2022
MARGUERITE “LAINEE” FLANIGAN, Plaintiff, v. ANGLOGOLD ASHANTI NORTH AMERICA INC., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak Magistrate Judge
This matter comes before the Court on Defendant's Partial Motion to Dismiss Pursuant to Rule 12(b)(6) (the “Motion”). [#11] The Motion has been referred to this Court. [#12] This Court has carefully considered the Motion and related briefing, the case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the instant Motion. For the following reasons, the Court respectfully RECOMMENDS that Defendant's Motion be GRANTED IN PART and DENIED IN PART.
I. FACTUAL BACKGROUND
Plaintiff Marguerite “Lainee” Flanigan (“Plaintiff”) is a female individual who was employed at AngloGold Ashanti North America, Inc. (“AGA” or “Defendant”). [#1 at ¶ 1] Plaintiff was employed by Defendant from July 2013 until September 3, 2021, working as a Commodity Manager (later renamed to International Category Manager) responsible for purchasing explosives and cyanide required for work in the gold mining industry. [Id. at ¶¶ 1, 9] Plaintiff was the first person hired when Defendant first formed its United States commodities group, and helped to build that group. [Id. at ¶ 9] Plaintiff normally received “exemplary” performance reviews with no complaints or disciplinary actions. [Id.] Plaintiff regularly exceeded Defendant's stated performance expectations and earned annual discretionary and performance-based bonuses. [Id.]
Shortly after AGA Senior Vice President Mike Birkhead became Plaintiff's direct supervisor, Defendant made a series of employment decisions that adversely affected Plaintiff. [Id. at ¶ 11] ¶ 2020, Plaintiff was pregnant and notified Defendant of her pregnancy. [Id. at ¶ 12] After announcing her pregnancy, Plaintiff was treated differently by Defendant. [Id.] Defendant assigned Plaintiff to tasks outside her job description based solely on her sex. [Id.] Plaintiff was assigned to commodities team “admin,” meeting note-taker, party planner, and baby shower organizer, despite the presence of male team members with less tenure and the existence of other administrative staff to handle such duties. [Id.] Plaintiff was the only female member of an all-male team and to dismiss. Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). Facts are also drawn from Plaintiff's Complaint of Discrimination [#17-2] (the “Charge”). See Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002) (“In addition to the complaint, the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” (citing GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)); see also Lincoln v. Maketa, 880 F.3d 533, 537 n.1 (10th Cir. 2018) (upholding the district court's reliance on plaintiff's EEOC charge on a motion to dismiss because “the documents are discussed in the complaint, and their authenticity is undisputed”). was supervised only by men. [Id.] Mr. Birkhead referred to Plaintiff in a business meeting as a “shebeen queen.” [Id. at ¶ 13] Mr. Birkhead instructed Plaintiff to make sure that team parties were “entertaining and fun for the men.” [Id.]
Previously, Plaintiff had requested several times to be promoted to Senior Manager. [Id. at ¶ 14] Defendant had denied her requests, informing Plaintiff that the Denver office in which Plaintiff worked had no Senior Manager position in its organization scheme. [Id.] ¶ 2020, Defendant announced that it would interview for the position of Vice President in the Denver office, and Plaintiff applied for this position. [Id. at ¶ 15] During the selection process, the Vice President position was changed to a previously nonexistent Senior Manager position. [Id. at ¶ 16] This Senior Manager position was the same position that Defendant had repeatedly denied to Plaintiff. [Id.]
Defendant selected a male employee, Dan Herr (“Mr. Herr”), for the promotion. [Id.] Plaintiff had previously helped to hire Mr. Herr at Defendant, which was Mr. Herr's first job in the gold mining industry. [Id. at ¶ 15] Plaintiff had been Mr. Herr's direct supervisor at Defendant for three years. [Id.] In his new role, Mr. Herr supervised Plaintiff, despite having “significantly less” job experience than Plaintiff. [Id. at ¶¶ 15, 17] Defendant made a plan to promote Mr. Herr to Vice President after he completed a year in the Senior Manager position. [Id. at ¶ 16]
On November 30, 2022, Plaintiff complained to Defendant's human resources department about the Vice President hiring process, alleging that it discriminated against her on the basis of her sex. [Id. at ¶ 18; #17-2 at 3] Defendant hired outside counsel to investigate Plaintiff's complaint, contrary to its practice and policy of internal investigations. [#1 at ¶ 18] The investigation took more than a month. [Id.; #17-2 at 3] Defendant's outside counsel produced their findings and conclusions which were “a nearly complete whitewash” of Defendant's conduct. [#1 at ¶ 18]
After her discrimination complaint to Defendant, Plaintiff was subjected to disciplinary action and counseling for the first time in the history of her employment at Defendant by Mr. Herr and Defendant's in-house lawyer, Wayne Chancellor. [Id.] Plaintiff was “aggressively” warned by Mr. Chancellor that she would be disciplined if she expressed further opinions about the hierarchy of the commodities group in which they worked. [Id.] Male team members also “openly and strenuously” criticized Mr. Herr's promotion, but only Plaintiff suffered disciplinary action. [Id.] At some point after her complaint, Plaintiff attended a performance review meeting with Mr. Herr and Defendant's Human Resources manager. [Id. at ¶ 19] At that meeting, Plaintiff was advised that there was no promotion path available to her and that she should leave Defendant if she intended to advance her career. [Id.]
On April 22, 2021, Plaintiff timely filed a charge of discrimination and retaliation on the basis of sex with the United States Equal Employment Opportunity Commission (“EEOC”) and the Colorado Civil Rights Division (“CCRD”) (the “Charge”). [Id. at ¶ 7; #17-2] The Charge alleges that Plaintiff “was discriminated against based on [her sex], female, and in retaliation for engaging in protected activity.” [#17-2 at 3] The Charge lists a number of retaliatory actions undertaken by Defendant after it learned of Plaintiff's exercise of protected activity, which Plaintiff alleges constituted retaliatory adverse employment actions:
(1) Contrary to its company policy of internal investigations, Defendant hired outside lawyers to investigate her complaint, which took over a month;
(2) Plaintiff was “subjected to counseling” by her supervisor;
(3) Plaintiff was “warned by AGA's in-house counsel" that she would be “further disciplined” if she expressed her opinions about the hierarchy of the commodities group; and
(4) Plaintiff was informed that, despite her performance, length of service, and repeatedly expressed intent to advance in her career with Defendant, “[t]here isn't an immediate opportunity for a raise or a promotion on the team,” and that she should consider transferring overseas if she wished promotional opportunities in the future.[Id.] The Charge was filed prior to Plaintiff's resignation, and thus does not allege constructive discharge. [See id.]
“Plaintiff's employment became so intolerable that she was forced to seek employment elsewhere.” [#1 at ¶ 20] On or about September 3, 2021, Plaintiff tendered her two weeks' notice to Defendant, after which she was locked out of her company-issued laptop, asked to “immediately” turn in her laptop, and was “immediately terminated.” [Id. at ¶¶ 1, 20] Three of Plaintiff's male colleagues on the commodities team likewise subsequently tendered their two weeks' notice to Defendant, but they were not terminated and were permitted to work the remainder of their tenure at Defendant, as opposed to “being treated like a pariah” like Plaintiff. [Id.]
The “EEOC/CCRD” issued a Notice of Right to Sue on December 17, 2021. [#1 at ¶ 7] Plaintiff timely initiated the instant action on March 15, 2022. [#1] The Complaint alleges two causes of action: (1) Gender Discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”) and the Colorado Anti-Discrimination Act, C.R.S. § 24-34-401, et seq. (“CADA”); and (2) Retaliation pursuant to Title VII and CADA. [Id. at ¶¶ 22-28] On April 8, 2022, Defendant filed the instant Motion, seeking to dismiss the retaliation claims. [#11] Plaintiff has responded to the Motion [#17] and Defendant has replied [#19].
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a 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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they 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 conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III. ANALYSIS
Defendant moves to dismiss Plaintiff's second cause of action for retaliation under Title VII and CADA. [#11] Defendant argues that: (1) Plaintiff did not exhaust her administrative remedies for her retaliation claim based on alleged constructive discharge [id. at 18]; and (2) Plaintiff's allegations fail to state a claim for retaliation [id. at 10-17]. The Court addresses each of these arguments below.
A. Exhaustion
Defendant seeks the dismissal of Plaintiff's Title VII and CADA retaliation claim to the extent it is based on an allegation of constructive discharge, because Plaintiff “failed to exhaust her administrative remedies before bringing the claim in federal court.” [Id. at 18] The Court agrees.
Although Defendant presents this issue as a jurisdictional one, under current Tenth Circuit precedent, “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.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018). Under CADA, however, exhaustion of administrative remedies is a jurisdictional issue. Barrington v. United Airlines, Inc., 566 F.Supp.3d 1102, 1111 (D. Colo. 2021). The Court therefore addresses the two statutes separately, below.
1. Title VII
“The exhaustion rule derives from two principal purposes: 1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance.” Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (quotation omitted). “To advance these purposes, after a plaintiff receives a notice of her right to sue from the EEOC, that plaintiff's claim in court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Id. (quotation omitted). While the Court must “liberally construe” the plaintiff's allegations in the EEOC charge, “the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Id. (quotations and emphasis omitted). “The ultimate question is whether the conduct alleged [in the lawsuit] would fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made [in the EEOC charge].” Id. (alterations in original) (quotation omitted).
“[A]dministrative remedies generally must be exhausted as to each discrete instance of discrimination or retaliation.” Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012). “[W]here discrete incidents of discrimination occur after an employee files an initial EEOC charge, the employee must file an additional or amended charge with the EEOC to satisfy the exhaustion requirement as to discrete incidents occurring after the initial charge.” Lincoln, 900 F.3d at 1181 (citing Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)). Constructive discharge, while it may rest on a series of events and incidents, is “a discrete and identifiable act.” Campos v. Man Tech Int'l Corp., No. 14-CV-03088-MSK-MEH, 2016 WL 9710020, at *5 (D. Colo. Aug. 2, 2016). If an employee feels they have been forced to resign, they must file a new charge of discrimination or amend a charge already filed to satisfy the administrative exhaustion requirement. Id.
A plaintiff's failure to file an EEOC charge regarding a discrete employment incident permits the employer to raise an affirmative defense of failure to exhaust. Lincoln, 900 F.3d at 1185. “The affirmative defense of failure to exhaust administrative remedies is appropriate on a motion to dismiss if ‘the grounds for the defense appear on the face of the complaint.'” Tiger v. Powell, No. 21-CV-01892-PAB-SKC, 2022 WL 4182413, at *9 (D. Colo. Sept. 13, 2022) (quoting Cirocco v. McMahon, 768 Fed.Appx. 854, 858 (10th Cir. 2019) (unpublished)). To analyze administrative exhaustion, the general rule is that courts “typically look to the charge form if one exists. This is because the charge form . . . is given to the employer to notify it of the potential claims against it and ordinarily determines the scope of the EEOC's investigation.” Jones v. Needham, 856 F.3d 1284, 1290 (10th Cir. 2017). A court may properly consider a plaintiff's EEOC charge in its evaluation of exhaustion at the motion to dismiss stage-even if not attached to the Complaint-if it is referred to in the complaint, is central to the plaintiff's claims, and there is no dispute as to its authenticity. Martinez v. Million Air Mech. Inc., No. 21-CV-02299-DDD-NRN, 2022 WL 843889, at *2 (D. Colo. Mar. 22, 2022) (citing Cnty. of Santa Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002)).
Plaintiff's Charge lays out several incidents she alleges constituted adverse employment actions, as noted above in Section I, all of which occurred during the course of her employment. [#17-2 at 3] The Charge, submitted on April 22, 2021, contains no mention of her alleged constructive discharge, which did not occur until September 3, 2021. [#1 at ¶¶ 1, 7; see also #17-2] Nor does the Complaint allege that Plaintiff filed an additional or amended charge with the EEOC after her alleged constructive discharge. [See #1] Therefore, to the extent to which Plaintiff's Title VII retaliation claim is grounded in constructive discharge, Plaintiff has failed to plead that she exhausted her administrative remedies with regards to that discrete incident of alleged discrimination.
In her response to the Motion, Plaintiff argues that her constructive discharge claim is properly exhausted because she “supplemented her administrative charge” with letters sent on July 30 and September 8, 2021. [#17 at 6-7; see also ##17-5, 17-6] The July 30 letter states that “Ms. Flanigan has thus been advised by AGA that there is no path forward for her career at AGA, that she has reached her ceiling, that there is nothing she can do to finally advance in the company, and that if she wanted career growth in the form of a promotion she would have to seek employment elsewhere.” [#17-5 at 8] The September 8 letter states that “Ms. Flanigan delivered her two-week resignation notice on September 3[,] [2021].” [#17-6 at 2] Defendant argues that, even considering these letters, Plaintiff has failed to exhaust her claim for constructive discharge. [#19 at 9-11] The Court agrees.
Additional facts contained within correspondence between a complainant and an administrative investigator do not always and automatically constitute or trigger an amendment to the charge. See Martinez v. City & Cnty. of Denver, No. 17-CV-03140-NYW, 2019 WL 1505873, at *6 (D. Colo. Apr. 5, 2019) (finding that, despite correspondence with an investigator alleging additional discrete incidents of alleged discrimination, “there is no evidence that the original EEOC charge was ever actually amended”); see also Wickware v. Manville, 676 Fed.Appx. 753, 758, 767-69 (10th Cir. 2017) (finding that a plaintiff who told the EEOC investigator of his desire to amend his charge to include a retaliation claim, but then subsequently failed to provide a statement or affidavit regarding the retaliation claim, did not exhaust his administrative remedies as it related to such claim). The Court finds no evidence in the record that Plaintiff ever requested that her Charge be amended to include a constructive discharge claim, or that she submitted any affidavit or other evidence in support of such a claim. [See generally ##1, 17-5, 17-6] For this reason alone, the record does not support Plaintiff's assertion that she exhausted her constructive discharge retaliation claim.
Even if the letters did constitute amendments to the Charge, such amendments would not have been sufficient to exhaust Plaintiff's constructive discharge claim, as neither letter alleges that Plaintiff was constructively discharged. [See generally ##17-5, 17-6] Nor does either letter contain sufficient facts to provide notice to Defendant or the EEOC investigator of a potential constructive discharge claim. Smith, 904 F.3d at 1164 (indicating that exhaustion is meant to give notice of the alleged violation to the charged party and to give the EEOC an opportunity to conciliate the claim); Martinez, 2019 WL 1505873, at *6 (“[T]here is no basis to conclude that the facts as stated in the original charge, the correspondence, or the ‘second' charge would have prompted an investigation of [the plaintiff's] race-based discrimination claim.”). The July 30, 2021 letter predates Plaintiff's resignation, and therefore cannot speak to constructive discharge. [#17-5 at 2; see also Campos, 2016 WL 9710020, at *5 (holding that if an employee feels they have been forced to resign, they must file a new or amended charge after the discharge is complete)] The September 3 letter, sent on the day of Plaintiff's resignation, does state that Plaintiff “delivered her two-week resignation notice on September 3” and that she was then “[a]lmost immediately” cut off from work resources and instructed not to work any further (unlike male colleagues who had also recently resigned). [#17-6 at 2] The letter does not, however, allege or present facts to suggest that Defendant, by its illegal retaliatory acts, “had made working conditions so difficult that a reasonable person” in Plaintiff's position would feel “compelled” to resign, as is required for a claim of constructive discharge. Jackson v. Cheyenne Mountain Conf. Resort, 92 F.Supp.2d 1118, 1121 (D. Colo. 2000). Indeed, far from suggesting constructive discharge, the conduct complained of in the September 3 letter is the different treatment Plaintiff experienced, compared to her male colleagues, after Plaintiff provided her resignation. [#17-6 at 2] Thus, for this additional reason, even if the letters did amend the Charge, Plaintiff's allegation of constructive discharge remains unexhausted. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent it seeks to dismiss Plaintiff's Title VII retaliation claim to the extent it is premised upon a constructive discharge.
2. CADA
Although the Colorado courts look to Title VII for guidance in applying the CADA, the Tenth Circuit's interpretation of federal statutes does not bind this Court with regard to state law claims. Barrington, 566 F.Supp.3d at 1111. The Court is instead bound to apply state substantive state law. Id. CADA instructs that “‘no district court shall have jurisdiction to hear' an untimely claim.” Id. (quoting C.R.S. § 24-34-306(2)(b)(I)(C)). Accordingly, exhaustion is a “condition precedent to bringing an action [under CADA] in district court.” Colorado Springs v. Conners, 993 P.2d 1167, 1169 (Colo. 2000). This Court is not aware of any case wherein the Colorado Supreme Court has chosen to reconsider the CADA exhaustion requirement in light of Lincoln, and this Court must thus continue to analyze such claims under the existing state law precedent. Barrington, 566 F.Supp.3d at 1111.
As detailed above, Plaintiff has not exhausted her administrative remedies with respect to her retaliation claim premised upon an alleged constructive discharge. As a result, this Court lacks jurisdiction to hear such a claim under CADA. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED to the extent it seeks to dismiss Plaintiff's CADA retaliation claim to the extent it is premised upon a constructive discharge.
B. Failure to State a Claim
Plaintiff's Claim 2 is not based solely on her allegations of constructive discharge, but also on other acts of alleged retaliation, which Plaintiff did administratively exhaust. [#1 at ¶¶ 18-19; see also #17-2 at 3] The Court therefore considers whether these allegations state a plausible claim for retaliation. See Jones v. Bock, 549 U.S. 199, 221 (2007) (affirming that as “a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad”). Defendant argues that Plaintiff's retaliation claim should be dismissed because Plaintiff did not suffer an adverse employment action and because there is no nexus between the alleged adverse employment action and the protected activity. [#11 at 11-13, 17] The Court disagrees.
Title VII makes it unlawful to retaliate against an employee for opposing employment practices made unlawful by the statute. 42 U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, a plaintiff must establish “that retaliation played a part in the adverse employment decision.” Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016) (quotation omitted). This proof may be made either by presenting direct evidence that retaliatory animus was a motivating factor, or under the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hansen, 844 F.3d at 925.
Regardless of whether a plaintiff proceeds with direct proof or pursuant to McDonnel Douglas, to plausibly plead a Title VII retaliation claim the plaintiff must allege that they suffered a materially adverse employment action-one that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White (“Burlington”), 548 U.S. 53, 68 (2006) (quotations omitted). This is a more liberal standard than the adverse employment action standard applied in Title VII's anti-discrimination context. Id. at 61-70; see also Winston v. Ross, 725 Fed.Appx. 659, 665-66 (10th Cir. 2018). This more liberal standard “prevent[s] employer interference with ‘unfettered access' to Title VII's remedial mechanisms . . . by prohibiting employer actions that are likely ‘to deter victims of discrimination from complaining to the EEOC,' the courts, and employers.” Id. at 54 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). “The standard is objective, but it is phrased in ‘general terms because the significance of any given act of retaliation will often depend upon the particular circumstances.'” Barone v. United Airlines, Inc., 355 Fed.Appx. 169, 183 (10th Cir. 2009) (quoting Burlington, 548 U.S. at 69). Identifying objectively material adverse actions requires the court “to take a ‘case-by-case approach examining the unique factors relevant to the situation at hand.'” Carr v. Morgan Cnty. Sch. Dist. RE-3, No. 06-CV-01006-EWN-MJW, 2007 WL 2022055, at *8 (D. Colo. July 9, 2007) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir.2004)). The substantive analysis of CADA retaliation claims is “identical to that under Title VII.” Barrington, 566 F.Supp.3d at 1107 n.2 (citing Agassounon v. Jeppesen Sanderson, Inc., 688 Fed.Appx. 507, 509 (10th Cir. 2017)).
Plaintiff alleges that, as a result of her complaint about sex discrimination in the promotion process, she suffered “a campaign of further discrimination and retaliation.” [#1 at ¶ 18] Specifically, Plaintiff pleads (and has exhausted) four discrete allegations of materially adverse employment actions, listed in Section I, above. The Court examines each of these allegations.
First, Plaintiff alleges that, contrary to its company policy and handbook provisions, Defendant hired outside lawyers to investigate her complaint. [#1 at ¶ 18; #17-2 at 3] The Tenth Circuit has held in the First Amendment retaliation context that commencement of an internal investigation of potential wrongdoing does not qualify as a retaliatory action. Nealis v. CoxCom, LLC, 731 Fed.Appx. 787, 791 (10th Cir. 2018) (citing Lincoln v. Maketa, 880 F.3d 533, 543 (10th Cir. 2018)) And apart from her allegation that the outside investigation involved “weeks of delay” and that its outcome was not to her liking [#1 at ¶ 18], Plaintiff pleads no facts suggesting that unique factors relevant to the situation at hand made the outside investigation more stressful or cumbersome than an internal investigation would have been, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination. [See #1]
Second, Plaintiff alleges that she was retaliated against in that Mr. Herr and Defendant's Human Resources manager advised Plaintiff that there was “no promotion path available to her, and that she should leave Defendant if she intended to advance her career.” [#1 at ¶ 19, #17-2 at 3] Although Plaintiff acknowledges that she had previously been told that there were no promotional opportunities available to her before she engaged in a protected activity [#1 at ¶ 14], she alleges that “[p]revious to Plaintiff's discrimination complaint, Defendant had never responded to Plaintiff's prior requests for advancement in such a harsh, unjustified manner” [id. at ¶ 19]. But even if the tone of Defendants' response harshened after Plaintiff's protected activity, the Court cannot find that Defendant's continued refusal to promote her-which had begun before her protected activity-constitutes retaliation for her protected activity. Salemi v. Colorado Pub. Employees' Ret. Ass'n, 747 Fed.Appx. 675, 696 (10th Cir. 2018) (finding that an employer that had previously decided not to promote an employee did not engage in retaliation when the employer continued to believe the employee should not be promoted following the employee's protected activity).
Third, Plaintiff alleges that she was “subjected to disciplinary action and counseling for the first time in the history of her employment at Defendant” by her supervisor. [#1 at ¶ 18; #17-2 at 3] “Courts have been reluctant to deem written counseling, warnings, or reprimands to constitute adverse actions under [Burlington].” Felix v. City & Cnty. of Denver, 729 F.Supp.2d 1243, 1258 (D. Colo. 2010) (collecting cases), opinion adhered to on reconsideration, No. 08-CV-02228-MSK-KMT, 2011 WL 1085766 (D. Colo. Mar. 24, 2011), aff'd, 450 Fed.Appx. 702 (10th Cir. 2011). In particular, a supervisor's discipline and counseling is less likely to be a materially adverse employment action when “there is at least a colorable basis for [the] findings in the reprimand. [That is, when] [t]he reprimand reflects an attempt by the Defendant to apply its pre-existing disciplinary rules to a situation where, at least on some level, those rules were arguably violated.” Id. at 1259. Here, Plaintiff has declined to plead with specificity the nature of the “disciplinary action and counseling” she received. The fact that this was “the first time in the history of her employment at Defendant” that Plaintiff received counseling or disciplinary action- without any factual background about the disciplinary action and counseling or whether such disciplinary action and counseling were warranted-would ordinarily, standing alone, be insufficient to allow the Court to conclude that a reasonable worker would have been dissuaded from making or supporting a charge of discrimination.
But this allegation must be considered in light of Plaintiff's final alleged instance of retaliation. Plaintiff alleges that she was “aggressively warned” by Mr. Chancellor, Defendant's in-house counsel, “that she would be further disciplined if she expressed any further opinions about the hierarchy of the commodities group in which she worked that led to the denial of her receiving a promotion.” [#1 at ¶ 18; #17-2 at 3] Plaintiff's “opinions about the hierarchy of the commodities group . . . that led to the denial of her receiving a promotion” which Mr. Chancellor sought to quash were her allegations about the role of sexism in Mr. Herr's promotion, and Plaintiff's own non-promotion within the hierarchy. [#1 at ¶ 18, #17-2 at 3] In other words, Plaintiff was “aggressively warned” that she would be further disciplined if she persisted in supporting her charge of discrimination. The exact nature of this warning is not clear from the Complaint or the Charge, but those documents do allow the reasonable inference that the warning was intended to dissuade Plaintiff from continuing to make or support her charge of sex discrimination. And though a jury may ultimately conclude that this warning would not dissuade a reasonable worker from reporting discriminatory conduct, the Court concludes that Plaintiff has sufficiently pled a materially adverse employment action. See Doe v. Sch. Dist. No. 1, Denver, Colorado, 970 F.3d 1300, 1311-12 (10th Cir. 2020) (in the discrimination context, “matters of degree-such as severity and pervasiveness-are often best left to the jury”).
This is especially true when considered in the context of Plaintiff's allegations that she was disciplined for the first time ever after complaining of discrimination, and that Mr. Chancellor told her that she would be “further disciplined” if she continued to complain about the promotion process Plaintiff viewed as discriminatory. [#1 at ¶ 18 (emphasis added)] A reasonable inference from this statement is that the initial discipline was also related to Plaintiff's complaint of discrimination, even if the allegations surrounding that discipline are somewhat conclusory. Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED.
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendant's Partial Motion to Dismiss Pursuant to Rule 12(B)(6) [#11] be GRANTED IN PART and DENIED IN PART. Specifically, the Court RECOMMENDS that the Motion be GRANTED to the extent it seeks to dismiss Plaintiff's retaliation claims premised upon a constructive discharge but DENIED to the extent it seeks to dismiss the remainder of Plaintiff's retaliation claims.