Jackson-Cobb v. Sprint United Mgmt.

• Decision Date: 28 March 2016
• Docket Number: Civil Action No. 15-cv-01308-MJW
• Citation: 173 F.Supp.3d 1139
• Parties: Edith L. Jackson-Cobb, Plaintiff, v. Sprint United Management, Defendant.
• Court: U.S. District Court — District of Colorado

173 F.Supp.3d 1139

Edith L. Jackson-Cobb, Plaintiff,

v.Sprint United Management, Defendant.

Civil Action No. 15-cv-01308-MJW

United States District Court, D. Colorado.

Signed March 28, 2016

Jeffrey B. Klaus, Deisch, Marion, & Klaus, P.C., Denver, CO, for Plaintiff.

ORDER ON DEFENDANT'S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT (Docket No. 50)

MICHAEL J. WATANABE

, United States Magistrate Judge

This case is before this Court for all purposes pursuant to the Court's Pilot Program and 28 U.S.C. § 636(c)

upon consent of the parties and the Order of Reference Upon Consent to Jurisdiction of Magistrate Judge issued by Chief Judge Marcia S. Krieger on September 15, 2015 (Docket Nos. 32 & 33).

Now before the Court is the Defendant's Motion to Dismiss the Second Amended Complaint (Docket No. 50). Plaintiff filed a response (Docket No. 51) and Defendant filed a reply (Docket No. 54). The Court has reviewed the parties' filings. The Court has further taken judicial notice of the Court's entire file in this case and considered the applicable Federal Rules of Civil Procedure, statutes, and case law. Now being fully informed, the Court grants the motion.

Jurisdiction

The Court has jurisdiction pursuant to 28 U.S.C. § 1331

.

Procedural Background

Plaintiff initially filed this case pro se and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915

. (Docket Nos. 1 & 4.) As a result, the Court reviewed Plaintiff's Amended Complaint (Docket No. 6) and dismissed the claims it found frivolous. (Docket No. 9.) Therefore, when this case was reassigned to the undersigned, only Plaintiff's employment discrimination claims against Defendant Sprint United Management remained. (Id . at 3.) On September 14, 2015, the Court granted Plaintiff's request for appointment of pro bono counsel (Docket No. 29), however, counsel was not appointed at that time and the case proceeded. On November 23, 2015 at approximately 9:30 a.m., the Court granted Defendant's Motion to Dismiss (Docket No. 34) and dismissed the case with prejudice. (Docket No. 42 at 9.) Final Judgment was entered in favor of Defendant that day at approximately 10:25 a.m. (Docket No. 43.) That afternoon at approximately 1:00 p.m., attorney Jeffrey Klaus entered his appearance on behalf of Plaintiff. (Docket No. 44.) At approximately 2:30 p.m., the Clerk of the Court filed a Notice of Pro Bono Appointment informing the Court that the Clerk of the Court secured pro bono counsel pursuant to the Court's September 14, 2015 Order. (Docket No. 45) The following day, November 24, 2015, Plaintiff, through her newly-appointed pro bono counsel, filed a motion for reconsideration of the order dismissing her case and a motion seeking leave to file a Second Amended Complaint. (Docket Nos. 46 & 47.) Collectively, these motions sought reconsideration of the dismissal and asked the Court to allow Plaintiff to file a Second Amended Complaint that states a Title VII claim of discriminatory termination and a Title VII claim of retaliatory termination, as well as related claims under Colorado law. (Docket No. 47 at 2.) On November 25, 2015, the Court granted both motions and accepted the proposed Second Amended Complaint for filing. (Docket No. 48.) In response, Defendant filed the instant motion. (Docket No. 50.)

Allegations¹

Plaintiff brings claims against Defendant, her former employer, pursuant to Title VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e, et seq.

(“Title VII”) and the Colorado Civil Rights Act, Colo. Rev. Stat. § 24–30–402, et seq. (Docket No. 49 ¶¶ 2, 4, 35-44.) Plaintiff is African-American and began working for Defendant on or about April 3, 2006. (Id . ¶¶ 11-12.) Plaintiff alleges that “[f]rom 2006 until her termination, Plaintiff was qualified for her position, has satisfactorily performed all of the essential functions of his [sic] job, and has received satisfactory performance evaluations.” (Id . ¶ 13.) Plaintiff made complaints to “senior managers, including Eva-Maria Bevalaqua and/or John Messall” regarding “potentially discriminatory” treatment of herself and other black employees “[b]eginning as early as 2010 and continuing until her termination ....” (Id . ¶ 14.) Plaintiff's complaints “involved allegations of discrimination by managers/supervisors, Carol Rutan and Stacey Wilson, both white.” (Id . ¶ 16.) Plaintiff “also previously filed formal charges and complaints of discrimination with the EEOC/CCRD”² that Plaintiff alleges “constituted protected activities” under Title VII. (Id . ¶¶ 17-18.) Plaintiff maintains that Carol Rutan and Stacey Wilson were aware of those complaints and “made false or misleading statements about Plaintiff to Gregory Boots with the intent of retaliating against Plaintiff for her complaint.” (Id . ¶¶ 19-20.) Plaintiff alleges that Carol Rutan and Stacey Wilson “plotted to terminate Plaintiff.” (Id . ¶ 21.) According to Plaintiff, “[i]n the spring of 2014, [she] made FMLA leave requests in order to assist her in scheduling medical treatment and appointments related to serious medical conditions and to care for a niece recently diagnosed with MS.” (Id . ¶ 22.) “Plaintiff also applied for certain morning shifts such that she would be better able to attend medical treatment and appointments and care for her niece.” (Id . ¶ 23.) Plaintiff maintains that her seniority was such that she “should have been awarded” the requested shifts. (Id . ¶ 24.) Plaintiff alleges that she was denied those “shifts due to the wrongful and unlawful interference of certain employee [sic], including, but not limited to, Carol Rutan and Stacey Wilson.” (Id . ¶ 25.) “On or about July 25, 2015, Plaintiff experienced an internet outage” and she “complied with all policies and protocols related to [the] internet outage.” (Id . ¶¶ 26-27.) In late July 2014, Stacey Wilson became Plaintiff's supervisor and, according to Plaintiff, “[a]lmost immediately upon becoming Plaintiff's supervisor, Stacey Wilson wrongfully, without cause, and with discriminatory and/or retaliatory intent, initiated an investigation to occur, whereby Plaintiff's job activity codes were reviewed.” (Id . ¶¶ 28-29.) Defendant concluded that Plaintiff “engaged in ‘call avoidance’ on July 25 and July 28, in violation of Call Center Guidelines.” (Id . ¶ 30.) Plaintiff was terminated on or about August 1, 2015. (Id . ¶ 31.) “Plaintiff was told that the reason for [her] termination was ‘call avoidance.’ ” (Id .) Plaintiff alleges that this reason was pretextual. (Id .) Stacey Wilson was a decision-maker regarding the decision to terminate Plaintiff. (Id . ¶ 32.) Plaintiff maintains that Ms. Wilson improperly influenced the decision-making process “for discriminatory and retaliatory motives.” (Id .) Plaintiff alleges that her “job activity codes were proper, were consistent with her job activities and were consistent with job activity codes for prior periods, and that no violation of the Call Center Guidelines occurred.” (Id . ¶ 33.) Finally, Plaintiff maintains that “other employees outside [sic] Plaintiff [sic] protected class were routinely given only verbal or written warnings, or suspended before being discharged for ‘call avoidance.’ ” (Id . ¶ 34.)³

The Motion

In the motion, Defendant argues that Plaintiff's claims are subject to dismissal pursuant to Fed. R. Civ. P. 12(b)(6)

. Specifically, Defendant maintains that the “Second Amended Complaint simply repackages the same conclusory allegations found in [Plaintiff's] First Amended Complaint” and that “Plaintiff fails to add any objective,

concrete facts to support her statements of legal conclusions.” (Docket No. 50 at 2) (emphasis in original). Defendant argues that Plaintiff's claim of discrimination based on race fails because Plaintiff fails “to allege any facts showing that she was treated less favorably on the basis of race.” (Id . at 7.) As Defendant argues,

even as amended, Plaintiff does not allege sufficient facts to establish that any of Sprint's actions were taken because of her race or color. Plaintiff relies wholly on her own unfounded supposition and statements of legal conclusion, but does not offer any concrete facts demonstrating that Sprint treated her any differently from any other employee on the basis of any protected class.

(Id .) (emphasis in original). Defendant maintains that Plaintiff's allegations are not specific enough and are made “on information and belief,” which is insufficient. (Id . at 8–9.) With regard to Plaintiff's retaliation claim, Defendant argues that Plaintiff “does not allege any plausible causal connection between her alleged protected activity and her termination.” (Id . at 10.) In addition, Defendant maintains that “merely alleging a generic ‘plot’ to terminate Plaintiff” does not constitute at valid claim because “Plaintiff [does] not allege any connection between this supposed plot and her eventual termination.” (Id . at 11.)

In her Response, Plaintiff argues that her factual allegations are sufficiently specific to establish each element of her claims. (Docket No. 51 at 3.) Plaintiff further argues that the allegations made “on information and belief” are proper because they relate to “the state of mind of another person.” (Id . at 3.) Plaintiff avers that the protected activities she engaged in that led to the alleged discrimination ranged from 2010 though her termination and, in addition to the charges she filed, she also was denied shift changes which “give rise to further inferences of discriminatory and retaliatory motive.” (Id .) Plaintiff next argues that her allegations regarding the internet outage sufficiently allege that Defendant's pro-offered reason for terminating her is false. (Id . at 4.) With regard to the treatment of other employees alleged by Plaintiff, she argues that more detailed information regarding those employees is in the control of Defendant, not Plaintiff, and that these allegations are “otherwise specific enough for the Court to infer discrimination.”...