Opinion
Civil Action 20-cv-00473-RM-NRN
01-12-2021
DESTINIE BASKERVILLE, Plaintiff, v. THE EMPLOYMENT FIRM, INC., Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Dkt. # 34)
N. REID NEUREITER United States Magistrate Judge
This case is before the Court pursuant to an Order (Dkt. #39) issued by Judge Raymond P. Moore referring Defendant The Employment Firm's (“TEF” or “Defendant”) Motion to Dismiss for Failure to State a Claim. Dkt. #34. The Court has carefully considered the motion, Plaintiff Destinie Baskerville's response (Dkt. #41), and TEF's reply (Dkt. #42), and on November 5, 2020, the Court heard argument from the parties. See Dkt. #44. The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being full informed recommends that the motion to dismiss be granted.
I. BACKGROUND
On February 21, 2020, Ms. Baskerville, proceeding pro se, filed a Complaint (Dkt. #1), an Equal Employment Opportunity Commission (“EEOC”) Dismissal and Notice of Rights (Dkt. #2), and an Application to Proceeding in District Court without Prepaying Fees or Costs. Dkt. #3. The Court granted her leave to proceed in forma pauperis (Dkt. #5). Ms. Bakerville filed an Amended Employment Discrimination Complaint (“Amended Complaint”) (Dkt. #7), which is the operative pleading.
In her Amended Complaint, Ms. Baskerville alleges that TEF, a recruiting/staffing company and her former employer, discriminated and retaliated against her because of her race, color, and national origin. The details are scant, but Ms. Baskerville claims that shortly after TEF placed her at a client company, Steven Roberts Original Desserts (“SRO”), she was called racial slurs in Spanish “after reporting to management concerning food safety handling and consumer health.” She then filed a complaint with the Human Resources department after witnessing discrimination against another SRO employee. Due to “such racial slurs and abuse, ” Ms. Baskerville volunteered to move to a different section, but after a manager overheard her comment “on how no one cares about public health so forget it, ” she was pulled from the assembly line. Upon being informed of the situation, TEF instructed Ms. Baskerville to leave the job. TEF then got Ms. Baskerville an interview at another business, but she was not offered the position. Ms. Baskerville claims that during the subsequent EEOC investigation, TEF falsely accused her of not appearing at the scheduled interview (“no-showing”). As relief, Ms. Baskerville requests “compensate[ion] for lost damages.”
Some of the information contained herein is found in Ms. Baskerville's EEOC Charge of Discrimination, which TEF attached to its motion. See Dkt. #34-1. The Court may consider this document as it is referenced in the Amended Complaint. See Dkt. #7 at 8. Moreover, the Court can take judicial notice of this administrative record. See Martinez v. City & Cty. of Denver, No. 08-CV-01503-PAB-MJW, 2010 WL 1380529, at *1 (D. Colo. Mar. 31, 2010) (the court may consider charges of discrimination without converting a motion to dismiss into one for summary judgment).
II. LEGAL STANDARDS
a. Pro se Plaintiff
Ms. Baskerville is proceeding pro se. The Court, therefore, “review[s] [her] pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle her to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
b. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at1198. “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “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 679-81. Second, the court considers 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.
However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. (internal quotation marks and citation omitted).
In assessing a motion to dismiss under Rule 12(b)(6), the usual rule is that a court should consider no evidence beyond the pleadings. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1216 (10th Cir. 2007). “If, on a motion under Rule 12(b)(6), . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). However, “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.” Alvarado, 493 F.3d at 1216 (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)(“[i]f a document is referenced in and central to a complaint, a court need not convert the motion but may consider that document on a motion to dismiss.”). In addition, “facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
III. ANALYSIS
TEF argues that Ms. Baskerville's Amended Complaint fails to state a plausible for of employment discrimination or retaliation. The Court agrees.
Under Title VII, it is unlawful “to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits employers from retaliating against employees for engaging in protected activities. See 42 U.S.C. § 2000e-3(a).
A plaintiff may prove a Title VII violation through either direct or circumstantial evidence. See Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1548-49 (10th Cir. 1987). If the plaintiff proceeds by means of circumstantial evidence, the Tenth Circuit has explained the burden-shifting framework applicable to such claims as follows:
Under the McDonnell Douglas framework, the plaintiff must carry the initial burden under the statute of establishing a prima facie case of [discrimination or retaliation]. Once the plaintiff has established a prima facie case, [t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for its employment action. If the defendant makes this showing, the plaintiff must then show that the defendant's justification is pretextual.Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (internal quotation marks and citations omitted).
In order to establish a prima facie case of discrimination, a plaintiff must show (1) membership in a protected class, (2) an adverse employment action, and (3) disparate treatment amongst similarly situated employees. Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005). “At the prima facie stage of the McDonnell Douglas analysis, a plaintiff is only required to raise an inference of discrimination, not dispel the non-discriminatory reasons subsequently proffered by the defendant.” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193 (10th Cir. 2000). To survive a motion to dismiss, “[a] complaint raising a claim of discrimination does not need to conclusively establish the prima facie case of discrimination, but it must contain more than ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'” Bekkem v. Wilkie, 915 F.3d 1258, 1274 (10th Cir. 2019) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012)).
To establish a prima facie case of retaliation under McDonnell Douglas, a plaintiff must demonstrate (1) that she engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action. Argo v. Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d 1193, 1202 (10th Cir. 2006).
Thus, to state a claim under Title VII's retaliation provision and its substantive discrimination provision, Ms. Baskerville must plausibly allege that she suffered an adverse employment action. “An adverse employment action includes 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.” Dick v. Phone Directories Co., 397 F.3d 1256, 1268 (10th Cir. 2005). The Tenth Circuit “liberally define[s] the phrase ‘adverse employment action, '” and “[o]ne factor that strongly indicates a challenged action is an ‘adverse employment action' is that the action causes harm to future employment prospects.” Dunn v. Shinseki, 71 F.Supp.3d 1188, 1191 (D. Colo. 2014) (quoting Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004)).
TEF argues that Ms. Baskerville's EEOC charge raised discrimination based on national origin, not color or race, and therefore Ms. Baskerville did not exhaust her administrative remedies as to those claims. But even if Ms. Baskerville's EEOC charge is liberally construed to encompass color and race discrimination, the Court's finding that the Amended Complaint fails to state plausible claims applies with equal force to all three types of discrimination.
Ms. Baskerville claims that after witnessing unsanitary conditions at SRO and being subjected to racial slurs and abuse from SRO employees, she “volunteered to move to a different section.” When nothing changed and she again was overheard complaining, she was pulled from the assembly while SRO discussed the matter with TEF. Then, Ms. Baskerville alleges that TEF “calls to tell me to leave and they will find me another job.” She left SRO and a day or so later she got an interview with another TEF client, but she did not get called back for that position.
None of these events constitute adverse employment action. Ms. Baskerville states that she voluntarily moved to different area at SRO and, in any event, her Amended Complaint does not indicate that this constituted any significant change in employment status. SRO, who is not even a defendant here, did not terminate her employment. Instead, Ms. Baskerville chose to leave because TEF told her that it would find her another job. In her response, Ms. Baskerville concedes that she was given the option to stay or leave but argues that TEF “coerced” her to leave. However, this allegation is belied by the fact that the Amended Complaint establishes that within days TEF did in fact arrange an interview for Ms. Baskerville. Although she did not get called back, there are no allegations that TEF was involved in its client's decision to not offer Ms. Baskerville a position. Nor does she allege that this new position was worse than the one at SRO. And her claim that TEF “falsely accused [her] of a no call no show on an interview” during the EEOC investigation is irrelevant. Ms. Baskerville alleges that she went to the interview; what TEF later told the EEOC has no bearing why she did not hear back from the prospective employer.
Even if she had suffered an adverse employment action, Ms. Baskerville does not plausibly allege that TEF had the requisite discriminatory motive or intent. Indeed, according to her own allegations, once TEF learned that Ms. Baskerville was having issues at SRO, representatives told her to leave and within days arranged for her to interview at a different company. Standing alone, these allegations fail to state a claim for discrimination or retaliation under Title VII.
The Court acknowledges that Ms. Baskerville does plead that she was called racial slurs, but by SRO, not TEF, employees. The mere existence of a joint employer relationship will not in itself render an employer liable for its co-employer's discriminatory actions. Rather, TEF, as a joint employer with SRO, may be “liable under Title VII based on its co-employer's discriminatory conduct where it participated in the discrimination, or where it knew or reasonably should have known of the discrimination but failed to take prompt corrective measures within its control.” Byorick v. CAS, Inc., 114 F.Supp.3d 1123, 1127 (D. Colo. 2015). As discussed above, there is no allegation that TEF participated in any discriminatory conduct. And when TEF learned that Ms. Baskerville was not satisfied at SRO, either because of the unsanitary conditions or due to the allegedly hostile work environment, it promptly attempted to have her placed in other employment. As to why that did not work out, the Amended Complaint is silent. In short, the Court finds that Ms. Baskerville has not sufficiently alleged that TEF knew of or participated in any alleged discrimination or harassment.
Finally, insofar as the Amended Complaint can be liberally construed to allege a claim for hostile work environment, that claim fails because it was not administratively exhausted. Title VII requires that an employee file timely charges with the EEOC prior to filing suit in federal court. See Hansen v. SkyWest Airlines, 844 F.3d 914, 922 (10th Cir. 2016) (citing 42 U.S.C. § 2000e-5(e)(1)); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)). The purposes of administrative exhaustion include providing “notice of the alleged violation to the charged party” and giving “the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance.” Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994) (citations omitted), abrogated on other grounds by Martinez v. Potter, 347 F.3d 1208 (10th Cir. 2003).
“To satisfy the exhaustion requirement, a claim must be within the scope of the administrative investigation that could reasonably be expected to follow from the allegations raised in the charge.” Macias v. Sw. Cheese Co., 624 Fed.Appx. 628, 634-35 (10th Cir. 2015) (quotations omitted). “Allegations ‘are minimally sufficient to satisfy the requirements for the contents of a charge of discrimination and the purposes of the notice requirement' when they ‘identif[y] the type of discrimination complained of, the alleged harasser, and an approximate time period.'” Id. at 635 (quoting Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1260 (10th Cir. 1998)).
Discrimination charges filed with the EEOC are to be “liberally construed” by the Court when it determines whether administrative remedies have been exhausted as to a particular claim. Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1186 (10th Cir. 2007); Gerald v. Locksley, 785 F.Supp.2d 1074, 1091 (D.N.M. 2011). Although the plaintiff's failure to check a box on the form creates a presumption that the plaintiff is not asserting the claims that the box represents, the plaintiff can overcome this presumption if the charge's text “clearly sets forth that claim.” Jones, 502 F.3d at 1186.
The exhaustion rule has 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. Inv'rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (citations and internal quotation marks omitted). To promote the purposes of the exhaustion rule, “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. (quoting MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). “The charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Id. (quotation marks 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. at 1164-65 (citations and internal quotation marks omitted).
A hostile work environment claim requires a showing that the plaintiff's “workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Williams v. FedEx Corp. Servs., 849 F.3d 889, 897 (10th Cir. 2017) (quoting Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998)). “General harassment alone is not actionable.” Id. (citing Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)).
Ms. Baskerville's charge contains no factual allegations sufficient to allege a hostile work environment. It merely states that on one day, October 29, 2018, employees of SRO called her racial slurs in Spanish. Consequently, her Title VII hostile work environment claim should be dismissed for failure to exhaust administrative remedies. See Mitchell v. City & Cty. of Denver, 112 Fed.Appx. 662, 667-68 (10th Cir. 2004) (dismissing hostile work environment claim where EEOC charge did not lay a factual foundation for that claim).
IV. RECOMMENDATION
WHEREFORE, for the foregoing reasons, it is hereby RECOMMENDED that Defendants' Motion to Dismiss for Failure to State a Claim (Dkt. #34) be GRANTED
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).