Opinion
Civil Action No. 20-cv-01615-RM-MEH
11-30-2020
KELLERIE GANN, Plaintiff, v. KATMAI GOVERNMENT SERVICES, LLC, KATMAI INFORMATION TECHNOLOGIES, LLC, and CORPORATE ALLOCATION SERVICES, INC., Defendants.
RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff Kellerie Gann ("Plaintiff") asserts six claims in her operative First Amended Complaint ("Amended Complaint") against Defendants. ECF 34. Defendants Katmai Government Services, LLC ("KGS") and Corporate Allocation Services, Inc. ("CAS") have filed the present motion to dismiss ("Motion"), seeking dismissal based on the alleged lack of personal jurisdiction and for failure to state a claim. ECF 37. The Motion is fully briefed and has been referred to this Court for a recommendation by District Judge Raymond P. Moore. As set forth below, this Court respectfully recommends denying the Motion.
BACKGROUND
Normally, the Court would simply take Plaintiff's allegations as true for analysis under Fed. R. Civ. P. 12(b)(2) pursuant to OMI Holdings, Inc. v. Royal Ins. Co., 149 F.3d 1086, 1091 (10th Cir. 1998) and under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court will do that as appropriate, there are conflicting affidavits that muddy what facts the Court must take as true. Therefore, the Court will only provide an abbreviated recitation of the facts as to the parties and events here. As appropriate in this Recommendation, the Court will recite the necessary facts as needed under each analysis. As always, the Court only considers material, factual allegations as opposed to legal conclusions, bare assertions, or mere conclusory allegations.
Plaintiff is a resident of Colorado. Am. Compl. at ¶ 2. Defendant Katmai Information Technologies, LLC ("KIT") and KGS are Alaska limited liability companies. Id. at ¶¶ 3-4. CAS is a Colorado corporation. Id. at ¶ 5. KIT and CAS are wholly owned subsidiaries of KGS. Id. at ¶¶ 10-11. Plaintiff worked as a "Manager 1" for, at least, KIT, id. at ¶ 8, since July 8, 2013, id. at ¶ 43. Around the beginning of July 2018, Plaintiff began suffering from symptoms of carpal tunnel. Id. at ¶ 44. On or around July 9, 2018, Plaintiff reported her symptoms to Defendants and filed a workers' compensation claim. Id. at ¶ 45. Due to pain, Plaintiff presented a doctor's note and requested to be off work July 31, 2018 and August 1, 2018. Id. at ¶ 48. Dr. Julie Mullin, Plaintiff's workers' compensation provider, issued a report on August 3, 2018, detailing some temporary restrictions. Id. at ¶ 49. Beginning August 3, 2018, Dr. Mullin indicated a suspicion that Plaintiff suffered from "tendonitis and carpal tunnel." Id. at ¶ 51. Plaintiff alleges that a "few weeks after [she] reported her carpal tunnel and tendonitis symptoms . . . Defendants began discussing whether to terminate Plaintiff." Id. at ¶ 56. Following additional medical visits and reports, Plaintiff requested accommodations on or around September or October 2018, id. at ¶ 62, which were denied, id. at ¶ 63. The parties continued to struggle over accommodations for Plaintiff—following additional medical appointments and recommendations—until Plaintiff's termination on or around March 19, 2019. Id. at ¶ 92.
The Court notes that the preceding paragraph in the Amended Complaint is contradictory to the extent it states that "Plaintiff began working for Defendants on or around September 24, 2004." Am. Compl. at ¶ 42.
Plaintiff now brings this lawsuit, asserting six claims for relief: (1) disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a) and (b)(5)(A); (2) retaliation under the ADA; (3) disability discrimination under the Rehabilitation Act ("Rehabilitation Act") of 1973, 29 U.S.C. §§ 70, et seq.; (4) retaliation under the Rehabilitation Act; (5) retaliation under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601, et seq.; and (6) wrongful termination in violation of public policy.
LEGAL STANDARDS
I. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(2)
"Jurisdiction to resolve cases on the merits requires . . . authority over the parties (personal jurisdiction), so that the court's decision will bind them." Gadlin v. Sybron Int'l Corp., 222 F.3d 797, 799 (10th Cir. 2000) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999)). When no evidentiary hearing is held "the plaintiff need only make a prima facie showing that jurisdiction exists." Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995); see also Old Republic Ins. Co. v. Continental Motors, Inc., 877 F.3d 895, 900 (10th Cir. 2017). "The plaintiff may make this prima facie showing by demonstrating, via affidavit or other written materials, facts that if true would support jurisdiction over the defendant." OMI Holdings, Inc., 149 F.3d at 1091; see also Old Republic Ins. Co., 877 F.3d at 900.
The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits. If the parties present conflicting affidavits, all factual disputes must be resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party. However, only the well ple[a]d[ed] facts of plaintiff's complaint, as distinguished from mere conclusory allegations, must be accepted as true.Wenz, 55 F.3d at 1505 (citations and internal quotation marks omitted). "[T]o defeat a plaintiff's prima facie showing of jurisdiction, a defendant must present a compelling case demonstrating that the presence of some other considerations would render jurisdiction unreasonable." OMI Holdings, Inc., 149 F.3d at 1091 (citation and internal quotations omitted). "If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Behagen v. Amateur Basketball Ass'n of U.S.A., 744 F.2d 731, 733 (10th Cir. 1984).
II. Dismissal Pursuant to Fed. R. Civ. P. 12(b)(6)
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. 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)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Twombly requires a two-prong analysis. First, a court 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 680. Second, the Court 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 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.'" Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 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 the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1192. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. The complaint must provide "more than labels and conclusions" or merely "a formulaic recitation of the elements of a cause of action," so that "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. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has made an allegation, "but it has not shown that the pleader is entitled to relief." Id. (quotation marks and citation omitted).
ANALYSIS
I. Materials Beyond the Pleadings
As an initial matter, the parties dispute whether matters outside the pleading may be considered in adjudicating the Motion. In the context of a Fed. R. Civ. P. 12(b)(2) motion, additional documents, including affidavits, may be (and typically are) considered. See OMI Holdings, Inc., 149 F.3d at 1091. For a Fed. R. Civ. P. 12(b)(6) motion, "[g]enerally, the sufficiency of a complaint must rest on its contents alone." Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir.2010). There are limited exceptions to this general rule by which a court may consider materials beyond the four corners of the complaint. Id. These three exceptions are: "(1) documents that the complaint incorporates by reference; (2) 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; and (3) matters of which a court may take judicial notice." Id. (internal citations and quotations omitted). As the parties' affidavits do not fall under any of these exceptions, they will not be considered under this Court's Rule 12(b)(6) analysis.
II. Personal Jurisdiction
"The Due Process Clause of the Fourteenth Amendment constrains a State's authority to bind a nonresident defendant to a judgment of its courts." Walden v. Fiore, 571 U.S. 277, 283 (2014). The law of the forum state and constitutional due process limitations govern personal jurisdiction in federal court. Intercon, Inc. v. Bell Atl. Internet Solutions, Inc., 205 F.3d 1244, 1247 (10th Cir. 2000); see Fed. R. Civ. P. 4(k)(1)(A). Colorado's long-arm statute, Colo. Rev. Stat. § 13-1-124, extends jurisdiction to the Constitution's full extent. Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004); Mr. Steak, Inc. v. District Court, 574 P.2d 95, 96 (Colo. 1978) (en banc). Thus, the specific personal jurisdiction analysis here is a single due process inquiry. See Benton, 375 F.3d at 1075.
When evaluating personal jurisdiction under the due process clause, the Tenth Circuit conducts a two-step analysis. At the first step, the court examines "whether the non-resident defendant has 'minimum contacts' with the forum state such 'that he should reasonably anticipate being haled into court there.'" TH Agric. & Nutrition, LLC v. Ace European Grp., Ltd., 488 F.3d 1282, 1287 (10th Cir. 2007) (citations omitted). If the defendant has sufficient contacts, the court then asks whether "exercise of jurisdiction over the defendant offends 'traditional notions of fair play and substantial justice,'" that is, whether the exercise of jurisdiction is "reasonable" under the circumstances of a given case. Id. (citations omitted). "This analysis is fact specific." ClearOne Commc'ns, Inc. v. Bowers, 643 F.3d 735, 763 (10th Cir. 2011) (quoting Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1159 (10th Cir. 2010)).
"Personal jurisdiction can be general or specific." Rockwood Select Assets Fund XI (6)-1, LLC v. Devine, Millimet & Branch, 750 F.3d 1178, 1180 (10th Cir. 2014). "'General jurisdiction' permits a court to exercise personal jurisdiction over a defendant for any cause of action arising from the defendant's activities, even if those activities occurred outside the forum state." Clean Energy Collective LLC v. Borrego Solar Systems, Inc., 394 P.3d 1114, 1117 (Colo. 2017). "A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum State." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The "paradigm" forums where a corporation is "at home" and therefore subject to general jurisdiction is the state of incorporation and the principal place of business. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).
A. KGS
"[S]pecific jurisdiction is confined to adjudication of 'issues deriving from, or connected with, the very controversy that establishes jurisdiction.'" Goodyear, 564 U.S. at 919 (citation omitted). The Supreme Court relatively recently re-articulated the criteria for establishing specific jurisdiction. Walden v. Fiore, 571 U.S. 277 (2014). "The inquiry whether a forum State may assert specific jurisdiction over a nonresident defendant 'focuses on the relationship among the defendant, the forum, and the litigation.'" Id. at 283-84 (citation omitted). The "defendant's suit-related conduct must create a substantial connection with the forum state," and "the relationship must arise out of contacts that the 'defendant himself' creates with the forum State[,]"with the "minimum contacts analysis look[ing] to the defendant's contacts with the forum State itself, not the defendant's contacts with persons who reside there." Id. at 285 (citation omitted) (emphasis in original). The "plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connections with the forum State" to support the basis for specific jurisdiction. Id. (citation omitted). Thus, "[i]f the question is whether an individual's contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party's home forum, we believe the answer clearly is that it cannot." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985).
Accordingly, even in the absence of "continuous and systematic" contacts, a state's courts may exercise specific jurisdiction over a defendant who "purposefully directed" activities at the state's residents if the cause of action arises out of those activities. Id. at 472-73. Thus, "[u]nder the specific-jurisdiction requirement, a plaintiff satisfies the minimum-contacts standard by showing that (1) the defendant has purposefully availed itself of the privilege of conducting activities or consummating a transaction in the forum state, and (2) the litigation results from the alleged injuries that arise out of or relate to those activities." Bartile Roofs, Inc., 618 F.3d at 1160; see also Benton, 375 F.3d at 1076 ("A defendant's contacts are sufficient if the defendant purposefully directed its activities at residents of the forum, and the plaintiff's claim arises out of or results from actions by the defendant himself that create a substantial connection with the forum state.") (internal quotation marks and citation omitted).
To establish purposeful direction, a plaintiff must demonstrate more than mere foreseeability of causing injury in another state. Old Republic Ins. Co., 877 F.3d at 905 (citing Burger King, 471 U.S. at 474). The plaintiff's demonstration will succeed "where the defendant deliberately has engaged in significant activities within a State, . . . [such that] he manifestly has availed himself of the privilege of conducting business there." Id. Supreme Court Associate Justice Neil Gorsuch, in an opinion reviewing an order by this Court, stated: "In this arena, the Supreme Court has instructed that the 'minimum contacts' standard requires, first, that the out-of-state defendant must have 'purposefully directed' its activities at residents of the forum state, and second, that the plaintiff's injuries must 'arise out of' defendant's forum-related activities." Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir. 2008).
As an initial matter, Plaintiff relies, in part, on the notion that KIT, KGS, and CAS constitute a single employer to establish jurisdiction. "The single-employer or integrated enterprise test allows a finding of liability based on the relationship between the purported employers to each other." Kennedy v. Mountainside Pizza, Inc., No. 19-cv-01199-CMA-STV, 2020 WL 4454897, at *5 (D. Colo. May 14, 2020) (quoting E.E.O.C. v. Roark-Whitten Hosp. 2, LP, No. 14-cv-00884-MCA-KK, 2016 WL 10587968, at *7 (D.N.M. Mar. 31, 2016)). Theories of liability do not serve as the basis for personal jurisdiction, because "'personal jurisdiction derives from a constitutional inquiry of due process,' whereas 'liability theories arise from federal or state statutes.'" Id. (quoting Creech v. P.J. Wichita, L.L.C., No. 16-cv-02312-JAR-GEB, 2017 WL 914810, at *3 (D. Kan. Mar. 8, 2017)). To that end, "to impute the contacts between a purported (in-state) employer and an in-state employee to an out-of-state employer . . . is inconsistent with controlling due process jurisprudence." Id. at *6 (quoting Roark-Whitten Hosp. 2, LP, 2016 WL 10587968, at *7).
i. Minimum Contacts
Plaintiff offers the following principal facts as evidence of KGS's contacts with Colorado: KGS has up to four office locations in Colorado (Resp., Exh. A at ¶ 2); KGS maintained staff at three of its Colorado locations (Id. at ¶ 3); KGS currently has a Colorado-based employee who works remotely (Compl. at ¶ 22(g)); Jerry Roach, "a KGS employee, and Plaintiff's direct supervisor for a period of time[,] . . . frequently travled to Colorado on behalf of Defendants and provided significant work related to Colorado-based contract management for Defendants (Id. at ¶ 22(e)); around "20 to 25 of CAS's and/or KGS's Colorado-based employees were involved in working on and/or managing" a contract concerning an Air Force base in Colorado Springs (Resp. at 15, Exh. A at ¶ 7); Plaintiff managed Colorado-based, government contracts on behalf of KGS and/or CAS (Id. at ¶ 9); a contract was awarded to KGS that Plaintiff worked on with around twenty of KGS's Colorado-based employees (Id. at ¶ 10); and "contracts that were managed by CAS and/or KGS included Colorado addresses as the Defendants' local address" (Id. at 15, Exh. A at ¶ 11).
KGS and CAS argue that "[m]ost of the statements contained in [Plaintiff's] Affidavit are outside of her personal knowledge, are vague and demonstrably false." Reply at 9. They have attached three affidavits of their own to counter Plaintiff's assertions. ECF 37-1, 40-1, 40-2. When evaluating the existence of personal jurisdiction, "[t]he allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant's affidavits." Behagen v. Amateur Basketball Ass'n, 744 F.2d 731, 733 (10th Cir. 1984). However, "[i]f the parties present conflicting affidavits, all factual disputes are resolved in the plaintiff's favor, and the plaintiff's prima facie showing is sufficient notwithstanding the contrary presentation by the moving party." Id.
"Affidavits submitted in support of or in opposition to the motion to dismiss for lack of jurisdiction must comply with the requirements of Rule 56(e)." Consumer Crusade, Inc. v. JD&T Enterprises, Inc., 05-cv-00211-EWN-MJW, 2005 WL 8178491, at *3 (D. Colo. Oct. 17, 2005). Part of the requirements of Fed. R. Civ. P. 56(e) is "personal knowledge." Id.; see Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) ("Under the personal knowledge standard, an affidavit is inadmissible if '"the witness could not have actually perceived or observed that which he testifies to."'"). When the affidavit is not based on personal knowledge, the Court may disregard the assertions made. Consumer Crusade, Inc., 2005 WL 8178491, at *4 (declining "to accept . . . affidavit consisting of hearsay statements on important facts relating to personal jurisdiction.").
Plaintiff's affidavit explicitly states that it is based on personal knowledge, and under Fed. R. Civ. P. 56(e) and Fed. R. Evid. 602, that suffices. Therefore, the Court does not view CAS's and KGS's blanket objection as controverting the facts stated. However, the Court will assess whether, in each instance, Plaintiff was in the position to have personal knowledge of the facts she presents. While the Court questions whether Plaintiff has personal knowledge on some of the alleged facts—for example, whether Plaintiff has reason to know the "locations" listed on KGS's website are actual work offices—there are two allegations of which the Court finds Plaintiff has personal knowledge: (1) Plaintiff managed a contract for KGS "that was related to a HUD contract, based in Colorado" for which she "was frequently asked to go to KGS's Denver, office" and (2) Plaintiff managed "two [Colorado-based] contracts with the Department of the Interior on behalf of CAS and KGS[,]" requiring "Colorado employees and Colorado contract management." Resp., Exh. A at ¶¶ 8-9. Defendants dispute these two assertions, Reply at 11, but that merely creates a factual disagreement which the Court, at this stage, must resolve in Plaintiff's favor. Behagen, 744 F.2d at 733.
If the Court sets aside all other alleged facts and factual disputes between the parties and simply considers these two assertions, the Court finds KGS has the required minimum contacts with Colorado. Resolving the factual dispute in favor of Plaintiff, KGS directed its activities to Colorado in the form of contracts with HUD and the Department of the Interior, requiring the use of Colorado-based employees. The Court finds that these actions demonstrate that KGS "purposefully avails itself of the privilege of conducting activities within [Colorado], thus invoking the benefits and protections of its laws." GCIU-Employer Retirement Fund v. Coleridge Fine Arts, 808 F. App'x 655, 664 (10th Cir. 2020) (quoting Burger King, 471 U.S. at 475). Also, KGS employed Plaintiff to manage those contracts. Plaintiff is now suing KGS, in part, based on alleged discrimination while allegedly employed by KGS. This dynamic fits the requirement that an "out-of-state defendant must have 'purposefully directed' its activities at residents of the forum state, and . . . the plaintiff's injuries must 'arise out of' defendant's forum-related activities." Dudnikov, 514 F.3d at 1071. Accordingly, the Court finds that KGS has sufficient minimum contacts with Colorado such that this Court may exercise personal jurisdiction.
ii. Fair Play and Substantial Justice
If a plaintiff meets its burden of showing minimum contacts, this Court "must still inquire whether the exercise of personal jurisdiction would offend traditional notions of fair play and substantial justice." Id. at 1080. At this point, the defendant must "present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Id. KGS and CAS have not made an argument in that regard, and the Court finds no such considerations here. Therefore, the Court respectfully recommends that the Motion be denied on the grounds of personal jurisdiction as to KGS.
In finding the exercise of specific personal jurisdiction proper, the Court does not address whether general personal jurisdiction can be exercised over KGS.
B. CAS
As mentioned above, the "paradigm" forums where a corporation is subject to general jurisdiction is the state of incorporation and the principal place of business. Daimler AG, 571 U.S. at 137. Here, CAS admits it is incorporated in Colorado. Mot. at 7. CAS attempts to convince this Court that it should not exercise personal jurisdiction over CAS because CAS "no longer has sufficient minimum contacts with Colorado." Id. at 7-8. That mistakenly conflates the specific jurisdiction inquiry with the general jurisdiction analysis. If a Court may exercise general jurisdiction over a defendant, there is no need to inquiry as to that defendant's minimum contacts with the forum. Because CAS is a Colorado corporation, the Court respectfully recommends denying the Motion as to the exercise of personal jurisdiction over CAS.
In finding the exercise of general personal jurisdiction proper, the Court does not address whether specific personal jurisdiction can be exercised over CAS.
III. Single Employer Theory
Having found the exercise of personal jurisdiction proper as to KGS and CAS, the Court now turns to whether Plaintiff has plausibly stated a claim. Plaintiff relies exclusively on the single employer doctrine, arguing that KGS and CAS should be considered Plaintiff's employer along with KIT. Resp. at 8. When considering whether multiple, potential employers constitute a single employer, courts will weigh four factors: "(1) interrelations of operation; (2) common management; (3) centralized control of labor relations; and (4) common ownership and financial control." Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1226-27 (10th Cir. 2014). The Tenth Circuit has found that the third factor is "'highly determinative,' with the critical question being '[w]hat entity made the final decisions regarding employment matters relating to the person claiming discrimination?" Hare v. Denver Merchandise Mart, Inc., No. CIVA04CV02416-PSF- OE, 2005 WL 3372791, at * 3 (D. Colo. Dec. 12, 2005) (quoting Florez v. Holly Corp., 154 F. App'x 707, 708 (10th Cir. 2005)).
As stated above, for purposes of analyzing a motion to dismiss for failure to state a claim, the Court will not consider the parties' affidavits. The Court will only examine the allegations in the Amended Complaint. Gee, 627 F.3d at 1186 ("Generally, the sufficiency of a complaint must rest on its contents alone."). The Court does so recognizing that these "facts" may very well change when the Court is not constrained to view only the allegations in the Amended Complaint; that is, on a motion for summary judgment for example, when the Court may consider extrinsic evidence such as affidavits, a different picture may be painted. Until then, the Court must take the well-pleaded allegations in the Amended Complaint as true. While not all-inclusive, the Court finds the following facts to be most relevant to this analysis:
KIT, KGS, and CAS use the same employee handbook. Am. Compl. at ¶ 13. Angie Richards, Vice President of Human Resources at KGS, hired Plaintiff to work for KIT. Id. at ¶ 22(b). Plaintiff was hired to work for KIT on KGS stationary. Id. The hiring paperwork for Plaintiff indicates that she was hired by a Hiring Manager from KGS. Id. at ¶ 22(c). KGS, CAS, and KIT use a centralized Human Resources department. Id. at ¶ 14. Jerry Roach, Director of Professional Services for KGS, served as Plaintiff's direct supervisor for years. Id. at ¶ 22(d). Tammi Norcutt, Operation Manager for CAS, also served as a direct supervisor of Plaintiff for years, id., including at the time of her termination, id. at ¶ 22(f). Ms. Norcutt held herself out as "an employee of 'Corporate Allocation Services/Katmai.'" Id. at ¶ 22(h). When Plaintiff sought workers' compensation coverage, Debbie Dunn, Director of Human Resources for KGS, and Ms. Norcutt discussed it with Plaintiff. On Plaintiff's workers' compensation paperwork, Plaintiff's employer is identified as KGS with the primary contact person listed on behalf of KGS as Huong Nguyen. Id. at ¶ 22(j). When Plaintiff sought time off from work for surgery, she requested her leave from Ms. Norcutt and Ms. Nguyen. Id. at ¶ 22(m). Also, Ms. Norcutt and Mr. Roach often made joint decisions "regarding employee wages and incentives, including decisions regarding Plaintiff's employment." Id. at ¶ 22(k). Ms. Norcutt and Mr. Roach "were primary decision makers in the decision to terminate Plaintiff." Id. at ¶ 22(n). Similar to when she was hired, Plaintiff's termination letter was on KGS stationary. Id. at ¶ 22(o). The termination letter was from Ms. Dunn. Id.
Generally, "'determining whether an entity qualifies as an employer is a fact issue for the jury.'" Montoya v. A & M Apartments, Inc., No. 11-cv-03354-CMA-MJW, 2012 WL 5332203, at *2 (D. Colo. Oct. 29, 2012) (quoting Bristol v. Bd. of Cty. Comm'rs of Cty. of Clear Creek, 312 F.3d 1213, 1221 (10th Cir. 2002)). At this stage, the Court's inquiry is limited to "whether Plaintiff has plead[ed] sufficient facts to plausibly state a claim for relief." Id. Based on these facts, which the Court must take as true, the Court can find that Plaintiff has stated a plausible claim based on the single employer theory.
As to the first two factors—interrelations of operations and common management—Plaintiff's allegations demonstrate a shared used of resources and people between KIT, KGS, CAS. This includes people such as Ms. Dunn who is Director of Human Resources for KGS but hired and terminated Plaintiff from her employment at KIT or Ms. Norcutt who is Operation Manager for CAS but served as a direct supervisor for Plaintiff. Those facts also support the third factor—whether there is centralized control of labor relations. Ms. Dunn and Mr. Roach from KGS and Ms. Norcutt from CAS are alleged to have controlled Plaintiff's employment in various ways, including hiring, taking leave, and termination. From these allegations, the Court can reasonably find that KGS and CAS were "entit[ies that] made the final decisions regarding employment matters" as to Plaintiff. Florez, 2005 WL 3047965, at *1. As to the fourth factor—common ownership and financial control—the allegations do not speak to the financial control of the companies, but Defendants admit that KIT and CAS are subsidiaries of KGS. Mot. at 3. Therefore, when considering all factors, the Court finds that they ultimately weigh in favor of KIT, CAS, and KGS constituting Plaintiff's single employer. Because CAS and KGS seek dismissal only on the theory that Plaintiff failed to show that they were her employers, the Court respectfully recommends denying the Motion as to failure to state a claim.
CONCLUSION
Accordingly, the Court respectfully RECOMMENDS that Judge Moore DENY the Motion to Dismiss [filed August 31, 2020; ECF 37].
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)).
Entered this 30th day of November, 2020, at Denver, Colorado.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge