Opinion
Civil Action No. 1:17-cv-02661-RM-SKC
09-30-2019
GREGORY C. CAMPBELL, Plaintiff, v. EATON CORPORATION, d/b/a Cooper Lighting Inc., Defendant.
REPORT & RECOMMENDATION RE: MOTION TO DISMISS PLAINTIFF'S COMPLAINT [#23]
This Report and Recommendation ("Recommendation") addresses Defendant Eaton Corporation, d/b/a Cooper Lighting Inc.'s ("Eaton") Motion to Dismiss Plaintiff's Complaint ("Motion") [# 23]. The Motion was referred to me by District Judge Raymond Moore. [#36.] The Court has reviewed the Motion, Plaintiff Gregory C. Campbell's ("Campbell") response ("Response") [#40], Eaton's reply ("Reply") [#41], the entire docket, and applicable law. Oral argument will not materially assist the Court's Recommendation. For the following reasons, it is RECOMMENDED that the Motion be GRANTED.
The Court uses "[#___]" to refer to specific docket entries in CM/ECF.
A. JURISDICTION
The Court notes that Campbell appears pro se in this action. To the extent he brings a claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-3(a), the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., or the Occupational Safety and Health Act's ("OSHA") anti-retaliation provision, 29 U.S.C. § 660(c), this Court has jurisdiction pursuant to 28 U.S.C. § 1331. Additionally, venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b)(2) because the events giving rise to the claims occurred in Colorado.
B. BACKGROUND
The following facts are taken from the Second Amended Complaint [#70]. The Court assumes these facts to be true for purposes of deciding the Motion and construes them in the light most favorable to Campbell, the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
Eaton hired Campbell as an Assembler II in April 2015. [#1 at p.10.] The Complaint alleges that Campbell was late to work or missed work on five occasions in April 2017. [Id. at pp. 7-8.] Although he admits to being late and missing work during that month, Campbell asserts that he had a valid and approved excuse for each late arrival and absence. [Id.] Nonetheless, Eaton terminated Campbell's employment on or about May 2, 2017, for arriving 45 minutes late for work.
Eaton has a four-step corrective action plan to address an employee's unsatisfactory performance or conduct. The first and second steps entail "documented" verbal discussion or coaching by a supervisor. [Id. at p. 14-15.] The third step requires verbal discussion or coaching and an improvement plan. [Id.] This step "requires HR approval prior to [an] emp[loyee] meeting." [Id.] Finally, the fourth step is employee discharge. [Id.] However, "[d]epending on the nature of the issue, [Eaton] reserves the right to skip any steps at its discretion." [Id.]
Campbell missed three consecutive days of work in late April 2017. [Id. at pp. 7, 14-15.] When he returned to work on or about April 27, 2017, he was issued a corrective action plan write-up by his supervisor, Josh Foxen ("Foxen"). [Id.] The write-up noted that: (1) corrective action steps one and two had been previously issued, and that Eaton gave Campbell "several verbal warnings over [the] last few months regarding attendance[;]" (2) Eaton considered Campbell's "14 days of [absences from] work since the beginning of the year" to be unsatisfactory performance/conduct; and (3) Eaton placed Campbell on a performance improvement plan that required him to "show up for work consistently [and] on time." [Id. at p.15.] Two days after receiving his step three write-up, a snow storm delayed Campbell's morning commute and he arrived to work 45 minutes late. [Id. at p. 7.] As a result, Eaton terminated Campbell's employment on May 2, 2017. [Id. at pp. 7, 14.]
Aside from the above, any remaining cogent allegations are difficult to decipher. Campbell appears to allege that Eaton's stated reasons for his discharge are pretextual, and that its real reason for terminating his employment was because he: (1) is a 54 year-old black male; and (2) he voiced worker-safety concerns over "hazardous conditions" at work. [Id. at pp.7-10.] To these ends, Campbell asserts that: several other co-workers missed time from work ranging from "a couple of days" to three months; he was forced to work with other employees who created a hostile work environment with their bad attitudes and sicknesses; he questioned the safety of working in an enclosed work environment with smoke and chemical fumes; and that one employee has serious health issues that she attributes to working in the smoke-filled fabrication area. [Id. at pp. 7-9.]
Campbell filed his Charge of Discrimination with the EEOC (the "Charge") on August 4, 2017. [Id. at p.10.] In the Charge, Campbell asserts that he was discriminated against based on gender and race in violation of Title VII, that Eaton discriminated against him because of his age in violation of the ADEA, and that Eaton retaliated against him for engaging in "protected activity." [Id..]
The Complaint does not delineate claims by statute or basis. Rather, using the form Title VII Complaint, Campbell merely checks a number of pre-set boxes to indicate that Eaton discriminated against him because of race, color, sex, retaliation, wrongful termination, failure to promote, demotion/discharge from employment, and unspecified "whistle blower." [#1 at p. 2.] As a result, the Court can only ascertain the exact statutes and basis for Campbell's claims by piecing together his allegations from the documents comprising the Complaint, including the Charge. Accordingly, the Court construes the Complaint to allege the following claims: (1) Title VII claims for gender and race discrimination, retaliation, and hostile work environment; (2) age discrimination under the ADEA; and (3) whistleblower retaliation claim under OSHA's anti-retaliation provision.
Campbell's Complaint consists of the following: (1) a Form Title VII Complaint with no written allegations or claims delineated [#1 at pp. 1-6]; (2) a typed grievance signed by Campbell [id. at pp.7-9]; (3) his August 4, 2017 Charge [id. at p.10]; (4) his Notice of Unemployment Insurance Appeal Hearing issued by Colorado Department of Labor and Employment [id. at pp. 11-13]; (5) his employee counselling form issued by Eaton [id. at pp. 14-15]; and (6) his Unemployment Insurance Appeal Hearing Decision [id. at pp. 16-27]. Although unorthodox, the Court notes that for pleadings, "[n]o technical form is required," and pleadings must be construed "so as to do justice." Fed. R. Civ. P 8(d)(1) and (e). Accordingly, under the circumstances of this case, the Court views all of these documents as comprising the Complaint (as opposed to a complaint with six attachments), and cites to the Complaint by page number for purposes of this Recommendation.
Court's will not "construct a legal theory for plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
C. LEGAL STANDARDS
1. Fed. R. Civ. P. 12(b)(6)
In deciding a motion under Fed. R. Civ. P. 12(b)(6), the 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, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. This standard requires more than the mere possibility that a defendant has acted unlawfully. Id. Facts that are "merely consistent" with a defendant's liability are insufficient. Id.
The Court's ultimate duty 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). "Nevertheless, the standard remains a liberal one, and 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'" Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). 2. Pro se Parties
A federal court must construe a pro se plaintiff's pleadings "liberally" and hold the pleadings "to a less stringent standard than formal pleadings filed by lawyers." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). "[The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Id. (citing Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The Tenth Circuit has suggested that
if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) ("[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.").
D. ANALYSIS
Eaton moves for dismissal of Campbell's Complaint. [#71.] The Court addresses the Motion as it relates to each claim in turn.
1. Title VII Claims
a. Discrimination
Campbell alleges Eaton discriminated against him based on his gender and race. [#1 at pp. 2, 10.] 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 prohibits both intentional discrimination (known as 'disparate treatment') as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as 'disparate impact')." Ricci v. DeStefano, 557 U.S. 557, 577 (2009).
In order to establish a prima facie case of discrimination based on race, 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). A prima facie case of gender discrimination requires a plaintiff to demonstrate that (1) he was a member of a protected group, (2) he was qualified for the job from which he was discharged, (3) he was discharged despite his qualifications, and (4) after the discharge, the position remained open and the employer sought applicants whose qualifications were no better than plaintiff's. Mattioda v. White, 323 F.3d 1288, 1292 (10th Cir. 2003) (citing Reynolds v. Sch. Dist. No.1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995)).
Title VII prohibits discrimination against members of majority and minority groups alike. Taken v. Okla. Corp. Comm'n, 125 F.3d 1366, 1369 (10th Cir. 1997) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-80 (1976)). In a reverse discrimination claim, such as Campbell's gender discrimination claim, a plaintiff can establish a prima facie case of discrimination through one of two methods. McGarry v. Bd. of Cty. Comm'rs of Cty. of Pitkin, 175 F.3d 1193, 1199 (10th Cir. 1999) (citations omitted). First, under a modified version of the McDonnell Douglas test, a plaintiff "must, in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority." Notari v. Denver Water Dep't, 971 F.2d 585, 589 (10th Cir. 1992). Under the second method, a plaintiff can establish a prima facie case through "direct evidence of discrimination, or indirect evidence sufficient to support a reasonable probability, that but for the plaintiff's status the challenged employment decision would have favored the plaintiff." Id. at 590. "[I]t is not enough, under this alternative formulation, for a plaintiff merely to allege that he was qualified and that someone with different characteristics was the beneficiary of the challenged employment decision." Id.
Here, short of alleging that Campbell is an African-American male, the Complaint fails to state a race or gender discrimination claim. First, the Complaint fails to plausibly allege disparate treatment necessary to maintain a race discrimination claim. [See generally #1.] The only reference to race is in the Charge where Campbell states: "I have been discriminated against because of . . . my race (Black)." [Id. at p.10.] Campbell does sufficiently allege that other similarly-situated employees were treated differently from him. [Id.] While the Complaint generally alleges other employees "were not similarly disciplined and discharged," the Complaint fails to allege the races of these co-workers. [Id. at pp. 7-10.] Absent this allegation, the Complaint fails to plausibly allege a race discrimination claim.
Second, regarding a putative reverse gender discrimination claim, Campbell has not plausibly alleged background circumstances supporting an inference that Eaton discriminates against males. [See generally id.] Put simply, there are no allegations that remotely suggest Eaton discriminates against its male employees. Additionally, the Complaint lacks any direct or indirect allegations that plausibly support a "reasonable probability" that but for Campbell being a man, Eaton would have decided to retain him as an employee. See Notari, 971 F.2d at 590. Thus, Campbell has failed to plausibly allege a claim for reverse gender discrimination. Campbell's Title VII discrimination claim should be dismissed.
b. Retaliation
To state a claim for retaliation, a plaintiff must show "(1) that he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action." Estate of Bassatt v. Sch. Dist. No. 1, 513 F.3d 1206, 1212 (10th Cir. 2014) (quotations omitted).
The Complaint does not assert, let alone plausibly allege, that Campbell opposed discriminatory conduct by Eaton. [See generally #1.] Nowhere does Campbell allege that he complained of discriminatory conduct, or allege the who, what, when, where, and how, of any discrimination complaints he made to Eaton internally. At most, Campbell's allegations regarding retaliatory conduct amount to the type of "'naked assertions' devoid of 'further factual enhancement'" that Courts generally find to fall short of plausibly sufficient allegations. Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (alterations omitted). Campbell's retaliation claim should be dismissed.
c. Hostile Work Environment
Campbell alleges Eaton created a hostile work environment when it forced him to work with "John," a co-worker who would "talk[] down and belittle[e] co-workers," cuss, and talk bad about the company. [#1 at pp. 7-8.] The Court construes these allegations as supporting a potential Title VII hostile work environment claim.
To state a hostile work environment claim, Campbell must allege that: (1) he is a member of a protected group; (2) he was subject to unwelcome harassment; (3) the harassment was based on his race, color, or sex; and (4) the severity and pervasiveness of the harassment altered the term, condition, or privilege of the plaintiff's employment and created an abusive working environment. Lounds v. Lincare, inc., 812 F.3d 1208, 1222 (10th Cir. 2015) (quotations and citation omitted); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n.10 (2002) ("Hostile work environment claims based on racial harassment are viewed under the same standard as those based on sexual harassment.").
Campbell fails to state a claim in this regard because he fails to allege that any harassment he faced was based on his protected-class status—i.e., his race, color, or sex. Therefore, even assuming Campbell sufficiently alleged the remaining elements of a hostile work environment claim, he has failed to plausibly allege the claim without factual allegations to suggest that John's conduct was based on Campbell's protected-class status.
The Court also notes that additional grounds for dismissal may exist because Campbell does not appear to have exhausted his administrative remedies on a hostile work environment claim. [See #1 at p. 10.]
For all of these reasons, Campbell's allegations fail to plausibly allege a claim under Title VII.
2. ADEA Claims
Campbell's August 4, 2017 EEOC Charge alleges age discrimination in violation of the ADEA. [#1 at p. 10.] To establish a prima facie case of age discrimination, the plaintiff must show that "(1) he is within the protected age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his position was filled by a younger person." Rivera v. City & Cty. Of Denver, 365 F.3d 912, 920 (10th Cir. 2004) (quoting McKnight v. Kimberly Clark Corp., 149 F.3d at 1128 (internal quotation marks omitted)).
Campbell alleges that he is 54 years old and that he was discharged, thus establishing the first and third elements of the prima facie case. [#1 at pp. 7-10.] However, the Complaint is devoid of allegations regarding the quality Campbell's work or who filled his position after his discharge. [See generally id.] Even reading the Complaint in the light most favorable to Campbell, the allegations call into question the quality of his contributions as an employee because allegations in Complaint suggest that he was often absent and late to work. [Id. at pp. 7-9.] Moreover, Campbell has not alleged that his position was filled by a younger person. Because the Complaint lacks allegations concerning the second and fourth element of an age discrimination claim, it should be dismissed.
3. OSHA Whistleblower Retaliation Claim
The Complaint further alleges that Campbell brought worker-safety concerns to his supervisor about the conditions in the fabrication area. [#1 at pp. 8-9.] Campbell was concerned that smoke in the area was a by-product of paint, fabrication chemicals, and "the metal's fumes." [Id.] He seems to allege that his termination may have been retaliatory because he raised these safety concerns in front of his crew-mates. [Id. ("Seems like retaliation for bring[ing] it up[.]").]
OSHA's anti-retaliation provision, 29 U.S.C. § 660(c), provides the exclusive remedy for an alleged whistleblower retaliation claim. Marshall v. Certified Welding Corp., No. 77-2048, 1978 WL 19111, at *4 (10th Cir. Dec. 28, 1978) ("The statute thus authorizes only the Secretary [of Labor] to bring an action for violation of [OSHA]."); see cf. Frohlick Crane Serv., Inc. v. Occupational Safety & Health Review Comm'n, 521 F.2d 628, 631 (10th Cir. 1975) (holding that, by statute, the "existing private rights of an injured employee . . . were to be unaffected by the various sections of [OSHA]."). Tus, OSHA provides no private right of action under its anti-retaliation provisions. Marshall, 1978 WL 19111, at *4. The Complaint, therefore, fails to plausibly allege a claim under OSHA.
E. CONCLUSION
Based on the foregoing, the Court RECOMMENDS GRANTING United's Motion to Dismiss [#23]. The Court RECOMMENDS Campbell's Title VII and ADEA claims be dismissed WITHOUT PREJUDICE. The OSHA retaliation claim should be dismissed WITH PREJUDICE because there is no private right of action under that statute.
DATED: September 30, 2019.
BY THE COURT:
/s/_________
S. Kato Crews
United States Magistrate Judge 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 and waives appellate review of both factual and legal questions. Thomas v. Arn , 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse , 91 F.3d 1411, 1412-13 (10th Cir. 1996).