Opinion
Civil Action 23-cv-02520-RMR-JPO
07-12-2024
JENNIFER RYLATT, Plaintiff, v. CITY AND COUNTY OF DENVER, DEPARTMENT OF FINANCE, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
James P. O'Hara, United States Magistrate Judge.
Plaintiff Jennifer Rylatt (“Plaintiff”) brings three claims against Defendant City and County of Denver, Department of Finance (“Defendant”): retaliation for engaging in a protected activity, retaliation and failure to accommodate, and age discrimination. ECF 6. Defendant's Motion for Dismissal of Plaintiff's Verified Complaint and Jury Demand (“Motion”) argues Plaintiff failed to state claims upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF 11. As set forth below, the Court recommends granting the Motion.
PROCEDURAL BACKGROUND
Plaintiff originally filed this lawsuit in Denver County District Court. ECF 1-1. On September 27, 2023, Defendant removed this case to federal court. ECF 1. Plaintiff's Verified Complaint and Jury Demand (“Complaint”) alleges three claims for relief: (1) retaliation in violation of the Denver Department of Finance's Rule 18 Dispute Resolution, § 18-10 Open Door Policy; (2) retaliation and failure to accommodate in violation of the Family Medical Leave Act (“FMLA”); and (3) age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. ECF 6. On October 5, 2023, Defendant filed the instant Motion seeking dismissal of the Complaint in its entirety. ECF 11. Plaintiff filed her Response on October 12, 2023. ECF 12. On October 26, 2023, Defendant filed its Reply. ECF 13.
FACTUAL BACKGROUND
For the purposes of this ruling, the Court accepts as true the relevant factual allegations- as opposed to any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in her Amended Complaint. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a complaint's factual allegations are “accepted as true” for purposes of Fed.R.Civ.P. 12(b)(6) analysis).
Plaintiff was an employee with the City and County of Denver from 1989-1999, and then again in 2014. ECF 6 ¶ 7. In 2018, Plaintiff “was promoted to Business Operations Administrator for the Chief Financial Officer” with Defendant City and County of Denver, Department of Finance. Id. ¶ 8. Plaintiff alleges that, aside from the incidents at issue in this case, she “was never reprimanded or disciplined concerning her work performance or conduct, and in fact received the “Above the Call” Award on August 11, 2022.” Id. ¶ 11.
The Complaint describes a series of “innocent situations” and meetings underlying the claims in this case. The first occurred on June 9, 2022, when “an innocent situation occurred between Plaintiff and another younger employee, Donelle Prado-Marquez,” at work. Id. ¶ 12. Later that same day, Ms. Marquez called Plaintiff “to discuss the situation which had occurred earlier that day wherein Ms. Marquez mentioned feeling ‘bullied,'” and “apologies were exchanged” on the phone call. Id. ¶ 13. During a scheduled meeting on July 19, 2022, Ms. Marquez told Plaintiff that Plaintiff “show[ed] a pattern of abuse, commenting on an email exchange between the two of them which Ms. Marquez stated made her feel ‘triggered' and ‘disrespected,'” and also revisited the prior “innocent situation” from June 9, 2022. Id. ¶ 14. Then again on “October 6, 2022, there was yet another innocent situation between Plaintiff and Ms. Marquez,” during which Ms. Marquez allegedly “became very aggressive and hostile towards [] Plaintiff” as Plaintiff could not attend a meeting due to a work conflict. Id. ¶ 16. Later that day, the Complaint states that Ms. Marquez left Plaintiff a voicemail apologizing for her actions and “short temper,” and the two exchanged text messages which made Plaintiff believe the situation was resolved. Id. ¶ 17. A week later, during a group meeting on October 13, 2023, “yet another innocent situation occurred between Plaintiff and Ms. Marquez” where Ms. Marquez stated that “Plaintiff was bullying her.” Id. ¶ 19. The next day, Ms. Marquez sent Plaintiff an email titled “Empower Hour-Bullying” where Ms. Marquez again stated that she is “‘triggered' by Plaintiff's bullying.” Id. ¶ 21.
At this point, Plaintiff alleges that she began working to resolve the situation with Ms. Marquez “in a professional manner, ‘informally and directly'” in accordance with Defendant's Open Door Policy, to no avail. Id. ¶ 22. On October 18, 2022, Plaintiff emailed her direct report, Margret Danuser, explaining her attempts to resolve the situation with Ms. Marquez and “requested Mediation through the OHR to resolve the ongoing issues.” Id. ¶¶ 10, 23. Without viewing the attachments to, or answering, Plaintiff's email, Ms. Danuser began meeting with “HR official, Lisa Korock,” Ms. Marquez, and Courtney Meihls. Id. ¶¶ 25-26. Six days after Plaintiff emailed Ms. Danuser, the two had a “routine ‘check-in' meeting” where Ms. Danuser purportedly told Plaintiff, “You are bullying her-you bullied [another employee] too . . . I'm not losing another good employee because of you.” Id. ¶¶ 27-28. Ms. Danuser emailed Plaintiff a few days later, “indicating that the parties were interested in Mediation and that Plaintiff should expect to be contacted soon to begin the process.” Id. ¶ 30. However, on November 7, 2022, Ms. Danuser allegedly told Plaintiff during their weekly check-in meeting that Ms. Marquez no longer wanted to engage in mediation with Plaintiff, that she would be sending Plaintiff a follow-up email, and, “You better watch yourself Jennifer, I suggest you only speak to her about work related subjects.” Id. ¶ 33-34.
Ms. Danuser indeed sent Plaintiff a follow-up email, which Plaintiff alleges “victimize[d]” her, “caus[ing] Plaintiff severe physical and mental distress, forcing her to seek FMLA leave and medical treatment.” Id. ¶¶ 35, 38. On November 14, 2022, Ms. Danuser also issued Plaintiff a “[Coaching] Memorandum dated November 7, 2022, documenting a ‘coaching conversation' that did not occur.” Id. ¶ 36. Plaintiff claims that Coaching Memorandum “severely harmed” Plaintiff's reputation in the City and County of Denver, along with her “prospects of employment” in other departments within it. Id. ¶ 41.
Once Plaintiff exhausted her FMLA leave, she “began the 29-IAP Interactive process with” the City and County of Denver. Id. ¶ 39. She “submitted medical justification” as part of that process, and “requested ADA Accommodation/clearance to work in another department underneath supervision other than [Ms.] Danuser.” Id. In response to that request, Defendant informed Plaintiff that it “would seek other positions for 90 days and if a position was not found at the end of the 90 days, Plaintiff would be terminated.” Id. ¶ 40. On January 7, 2023, Plaintiff resigned from her position, with an effective date of January 28, 2023. Id. ¶¶ 43-44. Plaintiff filed her Charge of Discrimination with the Equal Employment Opportunity Commission on May 23, 2023, and received her Notice of Right to Sue on June 13, 2023. Id. ¶¶ 46-47.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “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.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Twombly requires a two-prong analysis. Id. at 678.
First, courts must identify “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are “legal conclusions,” “bare assertions,” or merely “conclusory.” Id. at 678, 680-81. Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action”; “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (internal citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. (internal quotations and citation omitted).
Second, courts must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679. Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). It “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.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, “[w]hile the 12(b)(6) standard does not require that [a plaintiff] establish a prima facie case in [a] complaint, the elements of each alleged cause of action may help to determine whether [a plaintiff] has set forth a plausible claim.” Khalik, 671 F.3d at 1191 (internal citations omitted).
ANALYSIS
Defendant argues that Plaintiff has failed to state any claims upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). ECF 11. Plaintiff maintains she has sufficiently pleaded all her claims. ECF 12. The Court agrees with Defendant that the Complaint fails to sufficiently plead any claim.
I. Count I: Retaliation in Violation of the Denver Department of Finance's Rule 18 Dispute Resolution, §18-10 Open Door Policy
Count I alleges “[r]etaliation in violation of the Denver Department of Finance's Rule 18 Dispute Resolution, §18-10 Open Door Policy.” ECF 6 ¶¶ 48-54. However, Plaintiff does not identify any law creating this cause of action; Plaintiff only vaguely refers to Defendant's “Open Door Policy,” a copy of which is not filed anywhere on the Docket, nor is the policy itself even quoted in any part in any filing that the Court can identify. ECFs 6, 12; see also Docket. The Court cannot find, nor did Plaintiff cite, any authorities which states that “the Denver Department of Finance's Rule 18 Dispute Resolution, §18-10 Open Door Policy” in and of itself creates a cause of action for retaliation with a legal remedy.
Accordingly, the Court recommends granting Defendant's request to dismiss Plaintiff's claim for retaliation in violation of the Denver Department of Finance's Rule 18 Dispute Resolution, §18-10 Open Door Policy for failure to state a claim upon which relief can be granted.
II. Count II: Retaliation and Failure to Accommodate in Violation of FMLA
Count II asserts claims of retaliation and failure to accommodate in violation of the FMLA against Defendant. ECF 6 ¶¶ 55-60. The Court addresses each legal theory in turn.
a. Retaliation in Violation of FMLA
Plaintiff argues that Defendant is liable for retaliation under the FMLA for two distinct acts Defendant allegedly took in retaliation for Plaintiff taking FMLA leave, and upon her return, requesting “to work in another department” under a different supervisor: (1) notifying Plaintiff that it “would seek other positions for 90 days and if a position was not found at the end of the 90 days, Plaintiff would be terminated,” and (2) issuing a false Coaching Memorandum on November 14, 2022. ECF 6 ¶¶ 57-59. To make out a claim for retaliation sufficient to survive a Rule 12(b)(6) motion, the Complaint must sufficiently demonstrate that “(1) she engaged in protected activity, (2) the employer took a materially adverse action, and (3) there is a causal connection between the two.” Khalik, 671 F.3d at 1193. Defendant only contests the second and third elements, see ECFs 11 at 7-8, 13 at 4, as Plaintiff's “taking of FMLA leave is a protected activity.” Salemi v. Colorado Pub. Employees' Ret. Ass'n, 747 F. App'x. 675, 700 (10th Cir. 2018). To the extent that Plaintiff intends to assert that her asking “to work in another department underneath” a different supervisor is also a protected activity for purposes of an FMLA retaliation claim, ECF 6 ¶ 57, Plaintiff cites no legal authority for that proposition, nor is the Court aware of any. Accordingly, the Court will only consider the alleged materially adverse actions in connection with Plaintiff's sufficiently pled protected activity-taking FMLA leave.
Under the second prong, materially adverse employment activities include actions such as terminating employment, changing job responsibilities, and failing to promote qualified employees. Salemi, 747 F. App'x. at 700. Here, Plaintiff alleges first that Defendant took a materially adverse action against her in its response to her request to switch positions and supervisors once she returned from FMLA leave. ECF 6 ¶ 58. As seems to be the case in much of Plaintiff's Complaint and Response, Plaintiff cites no legal support for her assertion that Defendant's offer to “seek other positions for 90 days” and terminate Plaintiff “if a position was not found at the end of the 90 days.” Id. ¶ 40. However, the act of firing an employee is a materially adverse action, Salemi, 747 F. App'x. at 700. Here, though, Defendant never actually did that; Plaintiff resigned before the ninety days lapsed. ECF 6 ¶¶ 39, 43-44. Still, viewing the facts in the light most favorable to the Plaintiff, the Court finds that Defendant's threat of future termination plausibly constitutes a materially adverse employment action. See Ross v. Pentair Flow Techs., Inc., 19-2690-SAC, 2020 WL 1028304, *11 (D. Kan. Mar. 3, 2020).
Next, Plaintiff argues that the allegedly fraudulent November 14, 2022 Coaching Memorandum was a materially adverse employment action. ECF 6 ¶ 59. Plaintiff vaguely avers that the Coaching Memorandum “resulted in Plaintiff suffering injury, loss of wages and benefits, economic damage, reputation damage and severe emotional pain and suffering.” ECF 12 at 9. Although the Complaint asserts that the Coaching Memorandum in and of itself “victimizes [] Plaintiff to materially adverse employment action,” ECF 6 ¶ 35, it fails to plead any more specific facts that sufficiently link it to Plaintiff's perceived losses. In fact, the Court is left to guess as to what the contents of the Coaching Memorandum even are, as Plaintiff has not filed a copy of it anywhere on the Docket, nor is it even quoted in any part in any filing that the Court can identify. See Docket. “The Court will not ‘search for the proverbial needle in a haystack' in the absence of sufficient citation to record support for a party's allegations.” Gomez v. Sam's W., Inc., 16-cv-02240-CMA-STV, 2018 WL 3475167, *8 (D. Colo. July 19, 2018) (quoting Gamble, Simmons & Co. v. Kerr-McGee Corp., 175 F.3d 762, 773 n.5 (10th Cir. 1999)). Thus, even viewing the Complaint in the light most favorable to Plaintiff, there are simply insufficient facts, as opposed to legal conclusions and bare assertions, pled to plausibly establish that the Coaching Memorandum was a materially adverse employment action.
As to the final element of Plaintiff's retaliation claim, “[w]e have characterized the showing required to satisfy the third prong under a retaliation theory to be a showing of bad intent or ‘retaliatory motive' on the part of the employer.” Utter v. Colclazier, 714 F. App'x. 872, 88081 (10th Cir. 2017) (quoting Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007)). The Complaint does not allege sufficient facts that would allow this Court to draw a reasonable inference of “bad intent” or “retaliatory motive” by Defendant in its response to Plaintiff's request to switch departments and supervisors upon her return from FMLA leave. Id. On the contrary, the Complaint details multiple “incidents” between Plaintiff and other employees, in which other employees accused Plaintiff of “bullying,” which serve to undermine Plaintiff's claim of Defendant's ill intentions in attempting to find her a new position in another department before terminating her. ECF 6 ¶¶ 13, 19, 21, 28-29, 31, 51. Moreover, the Complaint is devoid of any facts plausibly alleging a causal connection between Plaintiff's taking of FMLA leave and Defendant's alleged threat of future termination.
Further, even if the Coaching Memorandum was a materially adverse employment action, Plaintiff has not established any plausible connection between it and her taking of FMLA leave. The Complaint asserts that the Coaching Memorandum “severely harmed Plaintiff's reputation with the City” by causing her to not receive interviews for certain positions, but does not even attempt to explain how the interview denials could have been caused by the Coaching Memorandum. ECF 6 ¶ 59. Most importantly, the Coaching Memorandum was allegedly sent to Plaintiff on November 14, 2022, seemingly before Plaintiff took FMLA leave at all (although the Complaint fails to provide facts surrounding exactly when Plaintiff took FMLA leave). Id. ¶¶ 39, 52.
Accordingly, the Court recommends granting Defendant's request to dismiss Plaintiff's claim for retaliation in violation of the FMLA for failure to plead sufficient factual allegations.
b. Failure to Accommodate in Violation of FMLA
Plaintiff claims that she suffered damages under the FMLA for Defendant's failure to accommodate. ECF 6 ¶¶ 55-60. However, as Defendant noted in their Motion, the FMLA does not provide a cause of action for failure to accommodate. ECF 11 at 7. The Court is not inclined to allow Plaintiff to explore novel legal theories.
Accordingly, the Court recommends granting Defendant's request to dismiss Plaintiff's claim for failure to accommodate in violation of the FMLA for failure to state a claim upon which relief can be granted.
III. Count III: Age Discrimination in Violation of the ADEA
Count III alleges that Defendant discriminated against Plaintiff based on her age in violation of the ADEA. ECF 6 ¶¶ 61-66. In a disparate treatment case such as this, “liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). “To prove a prima facie case of age discrimination, a plaintiff must show: ‘1) she is a member of the class protected by the ADEA; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class.'” Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1279 (10th Cir. 2010) (quoting Sanchez v. Denver Pub. Schs., 164 F.3d 527, 531 (10th Cir. 1998)). Defendant contests only “the second and fourth prong[s],” arguing that the Complaint “provides nothing but conclusory and formulaic recitations to support her claim of age discrimination,” which are not sufficient to survive a Rule 12(b)(6) motion. ECF 11 at 9.
For the second element, “adverse employment action” is liberally defined in the Tenth Circuit. Jones, 617 F.3d at 1279. While a “mere inconvenience or an alteration of job responsibilities” is not enough to constitute an adverse employment action, Sanchez, 164 F.3d at 532 (quotation omitted), 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” is, Hillig v. Rumsfeld, 381 F.3d 1028, 1032-33 (10th Cir. 2004) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Here, Plaintiff once again argues that the November 14, 2022 Coaching Memorandum was an adverse employment action because it “documents a discussion which did not occur, which victimizes Plaintiff.” ECF 12 at 89. Defendant argues that the Complaint fails to demonstrate how the Coaching Memorandum “significantly affected her compensation, benefits, or the privileges of her position.” ECF 11 at 10. As discussed in connection with Plaintiff's claim for retaliation in violation of the FMLA above, the Coaching Memorandum is not an adverse employment action. See supra Section II.
Even if the Coaching Memorandum did somehow constitute a materially adverse employment action, Plaintiff has also not sufficiently pled facts that allow this Court to reasonably infer that Plaintiff, as a result of her age, was treated less favorably than those younger than her- specifically, Ms. Marquez. The fourth element of a disparate treatment claim based on age discrimination requires the Complaint to plausibly allege that age motivated an employer's decision to treat one employee less favorably than another. Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1424 (10th Cir. 1993) (quoting Biggins, 507 U.S. 604, 610). Here, the only factual averment in the Complaint that supports Plaintiff's contention that she suffered disparate treatment based on age is simply that Ms. Marquez is younger than Plaintiff. ECF 6 ¶ 12. None of the acts of disparate treatment between Plaintiff and Ms. Marquez alleged in the Complaint bear any reasonable undertone of age-related decision-making by Defendant, aside from Plaintiff's bald assertions that such decisions were, in fact, age-motivated. Id. ¶¶ 35-37, 63-64. Without more, a difference in age alone is not sufficient to allow this Court to reasonably infer that Defendant treated Plaintiff less favorably than Ms. Marquez because of Plaintiff's age.
Accordingly, the Court recommends granting Defendant's request to dismiss Plaintiff's claim for age discrimination in violation of the ADEA for failure to plead sufficient factual allegations.
IV. Dismissal
Dismissal of a case is a harsh remedy. Generally, “dismissal without leave to amend is appropriate if ‘it would be futile to allow the plaintiff an opportunity to amend.'” Serna v. Denver Police Dep't, 58 F.4th 1167, 1172 (10th Cir. 2023) (quoting Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)); see also Triplett v. LeFlore Cty., Okla., 712 F.2d 444, 446 (10th Cir. 1983) (“In dismissing a complaint for failure to state a claim, the court should grant leave to amend freely ‘if it appears at all possible that the plaintiff can correct the defect.'” (quoting 3 Moore's Federal Practice, ¶ 15.10, n.2 (1983))).
Here, Plaintiff has never amended her Complaint, and this is the first motion to dismiss to be resolved by the Court in this case. See Docket. The Court has recommended dismissing Counts II (only as to retaliation under the FMLA) and III because of Plaintiff's failure to provide sufficient factual allegations. Thus, in the interest of justice and for lack of obvious futility, the Court recommends dismissing these Counts without prejudice. However, Count I based on retaliation in violation of Defendant's Open Door Policy, and Count II based on failure to accommodate under the FMLA, are not cognizable causes of action. Thus, the Court recommends dismissing those Counts with prejudice.
CONCLUSION
For the foregoing reasons, the Court respectfully recommends granting Defendant's Motion to Dismiss Plaintiff's Amended Complaint. ECF 11.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply with the District Judge's practice standards for any specific requirements concerning the filing and briefing of objections.
The Court recommends dismissing without prejudice Count III in its entirety and Count II only as to retaliation under the FMLA.
The Court recommends dismissing with prejudice Count I in its entirety and Count II as to failure to accommodate under the FMLA only.