Lawrence v. Bonaventure of Castle Rock

• Court: U.S. District Court — District of Colorado
• Writing for the Court: Kristen L. Mix United States Magistrate Judge
• Decision Date: 27 December 2022
• Docket Number: Civil Action 22-cv-01143-WJM-KLM
• Citation: Lawrence v. Bonaventure of Castle Rock, Civil Action 22-cv-01143-WJM-KLM (D. Colo. Dec 27, 2022)
• Parties: MICHAEL LAWRENCE, Plaintiff, v. BONAVENTURE OF CASTLE ROCK, Defendant.

MICHAEL LAWRENCE, Plaintiff, v. BONAVENTURE OF CASTLE ROCK, Defendant.

Civil Action No. 22-cv-01143-WJM-KLM

United States District Court, D. Colorado

December 27, 2022

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Kristen L. Mix United States Magistrate Judge

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [#10]^[1](the “Motion”). Plaintiff proceeding as a pro se litigant^[2], filed a Response [#16] in opposition to the Motion [#10], and Defendant filed a Reply [#17]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motion [#10] has been referred to the undersigned for a recommendation regarding disposition. See [#11]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#10] be GRANTED and that Plaintiff's Petition for Declaratory Judgment and Complaint [#1] (“Complaint”) be dismissed with prejudice.

I. Background^[3]

This case arises out of Plaintiff's failure to be hired as a line cook by Defendant Bonaventure of Castle Rock (“Bonaventure” or “Defendant”), a senior living facility, in October 2020. Compl. [#1] at 1. On October 27, 2020, Plaintiff had an interview with Bonaventure's chef and a meeting with its executive director, both of which “went well.” Id. The following day, on October 28, 2020, Plaintiff returned to Defendant's facility for a working interview, at the end of which Plaintiff was offered a job, contingent on passing a criminal background check. Id. On October 29, 2020, Plaintiff was informed by telephone that he could not be hired by Defendant due to a criminal conviction for forgery from July 2010, more than ten years before the events in question . Id. at 1-2.^[4]

Plaintiff filed a charge of discrimination with the EEOC alleging a Title VII disparate impact claim based on race, and the EEOC issued a Right to Sue letter on May 2, 2022. Notice of Right to Sue. Compl. [#1], Ex. 6. Plaintiff filed this lawsuit on May 9, 2022. Id. Plaintiff asserts a Title VII disparate impact claim against Defendant. Id. at 6. Defendant asserts that Plaintiff has failed to state a disparate impact claim under Rule 12(b)(6), and that the claim should be dismissed because Plaintiff failed to exhaust his administrative remedies with the EEOC. Motion [#11] at 1. Defendant further asserts that amendment of the Complaint would be futile, and that the Complaint should thus be dismissed with prejudice. Id.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.2007) (“The complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.”) (quoting Twombly, 550 U.S. at 570)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal 556 U.S. 662, 678 (2009).

“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted).

The Motion [#10] attaches matter outside the pleadings. The sufficiency of a complaint must generally rest on its allegations alone. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). If matters outside the pleadings are presented to and are not excluded by the Court, a Rule 12(b)(6) motion “shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.” David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996). There are exceptions to this rule which allow the Court to consider documents without conversion of the motion to a summary judgment motion, including the following: (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, including matters of public record. Gee, 627 F.3d at 1186; Tal v. Hogan, 453 F.3d 1244, 1265 n. 24 (10th Cir. 2006). Courts have broad discretion in determining whether or not to accept materials beyond the pleadings. Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).

The Court has determined that it will consider the EEOC Charge attached to the Motion (Exhibit 3), as that is central to Plaintiff's claims and is referenced in the Complaint. Furthermore, the Court finds it appropriate to consider the other documents attached to the Motion [#10], which include this Court's Order denying the reinstatement of Plaintiff (Exhibit 1), a Colorado Supreme Court Decision and Order Imposing Sanctions on Plaintiff (Exhibit 2), prior complaints filed by Plaintiff in Colorado (Exhibit 4), and a document entitled “ALR Program Guidance” regarding mandatory pre-employment criminal background checks issued by the CDPHE (Exhibit 5). A Court may take judicial notice of its own orders, administrative and agency documents, other civil lawsuits, and criminal convictions without converting a motion to dismiss to a motion for summary judgment. Tal, 453 F.3d at 1264 n.24; Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003); Ingle v. leros, LLC, No. 18-cv-02759-LTB, 2019 WL 2471152, at *4 (D. Colo. June 13, 2019).

III. Analysis

A. Whether Plaintiff has Stated a Plausible Title VII Disparate Impact Claim

Title VII of the Civil Rights Act of 1964 prohibits, among other things, discrimination on the basis of race or national origin. See 42 U.S.C. § 2000e-2(a). Title VII recognizes two types of claims: disparate treatment and disparate impact. Carpenter v. The Boeing Company, 456 F.3d 1183, 1186 (10th Cir.2006). Claims of disparate impact “involve employment practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity.” Int'l Board of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). “Proof of a discriminatory motive . . . is not required under a disparate impact theory.” Id. The premise behind this approach “is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).

To establish a prima facie case of disparate impact discrimination, a plaintiff must show “that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1242 (10th Cir.1991); see also 42 U.S.C. § 2000e-2(k)(1)(A)(I). A plaintiff “must point to both a significant disparate impact and to a particular policy or practice that caused the disparity.” Pippin v. Burlington Resources Oil and Gas, 440 F.3d 1186, 1200 (10th Cir.2006) (emphasis in original).

Here, the Court agrees with Defendant that regardless of how Plaintiff attempts to frame his claim in the Response [#16], the claim appears to be based on Defendant's alleged failure to follow the criminal background “test” set out in 6 C.C.R 1011-1:7-7.3(A) when it rejected him for employment. Compl. [#1] at 2-5.^[5]. Plaintiff alleges that this test requires the weighing, at a minimum, of five factors relevant to the criminal offense before an employer may choose not to hire someone because of that offense. See id. and ¶¶ 16-20. Plaintiff alleges that had Defendant properly applied the five-part test in the regulation, “it would have certainly concluded hiring the plaintiff was proper” as “[a]ll five criteria weighed in favor of hiring the plaintiff.” Id. ¶ 42. However, Plaintiff has provided no legal authority that permits a Title VII disparate impact claim based on a failure to follow a state court regulation. Moreover, the Court finds that any such claim should be rejected in light of the fact that there is no private right of action against an employer who fails to follow the regulation.

Thus only the Colorado legislature may authorize private civil actions for violations of a regulation. See McDonald v. J.P. Morgan Chase Bank, N.A., No. 12-CV-02749-MSK, 2015 WL 1403419, at *4 (D. Colo. Mar. 23, 2015). Here, the regulatory scheme and statutes regarding assisted living facilities that Plaintiff cites do...