Shay v. RWC Consulting Grp., Corp.
| Decision Date | 30 June 2014 |
| Docket Number | No. CIV 13-0140 JB/ACT,CIV 13-0140 JB/ACT |
| Court | U.S. District Court — District of New Mexico |
| Parties | NATALIE SHAY, Plaintiff, v. RWC CONSULTING GROUP, a Texas Corporation, GEORGE WREN, Manager for RWC Consulting Group, individually, CLAIRE E. OSBORNE, Secretary and Treasurer of RWC Consulting Group, individually, Defendants. |
THIS MATTER comes before the Court on the Defendants' Motion to Dismiss Complaint, filed February 15, 2013 (Doc. 6)("MTD"). The Court held a hearing on June 24, 2013. The primary issues are: (i) whether Plaintiff Natalie Shay has stated a plausible claim that Defendant RWC Consulting Group ("RWC") violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 to -17 ("Title VII"), or the Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076 ("PDA"); (ii) whether Shay's breach-of-contract claim, Count IV, is a viable claim under federal law; and (iii) whether the Court should remand the state law claims to state court if it dismisses all of the federal claims. The Court concludes that Shay has not stated a plausible Title VII or PDA claim, because the Complaint's allegations "encompass a wide swath of conduct, much of it innocent," and thus Shay "„ha[s] not nudged [her] claims across the linefrom conceivable to plausible.'" Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court also concludes that Count IV is not a viable cause of action, because Executive Order 11246 manifests no intention to impart an actionable right on federal contractor employees, like Shay, as third-party beneficiaries to federal contracts. Last, having granted the MTD as to all federal claims -- those being Counts II, III, and IV -- the Court will, pursuant to 28 U.S.C. § 1367(c)(3), decline to exercise its supplemental jurisdiction and will remand the remaining claims to state court.
This case arises out of an employment dispute that Shay brought against her former employer, RWC, and its officers, Defendants George Wren and Claire Osborne. See Complaint for Violations of Civil Rights, for Tort and for Breach of Contract ¶¶ 1-5, at 1-2, filed in state court on January 30, 2013, filed in federal court on February 11, 2013 (Doc. 1 at 18)("Complaint").2 The Court takes the facts from the Complaint, as it must when considering a motion to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rule of Civil Procedure. "RWC was an independent contractor with the federal government and maintained the discretion to operate its company outside the direction of the federal government." Complaint ¶ 22, at 4. RWC employed Shay from approximately October 10, 2008 through November 4, 2011; she had no significant performance or conduct issues. See Complaint ¶¶ 12-14, at 3.
Shay became pregnant, with a due date of October 15, 2011. See Complaint ¶¶ 17-18, at 3. Shay informed RWC "that she was pregnant and that she intended to take four (4) weeks of maternity leave upon the birth of her child." Complaint ¶ 24, at 4. On about August 11, 2011, Shay met with Wren and Stephanie Knapp;3 Shay "was informed that she may not have a job when she returned from maternity leave." Complaint ¶ 25, at 4. Osborne sent Shay an electronic mail transmission approximately six days later, on about August 17, 2011, informing Shay that if she took that amount of leave, "her job could not be guaranteed to be available to her when she returned." Complaint ¶ 26, at 4.
Medical complications required Shay to leave work on about September 9, 2011, and confined her to bed rest; she gave birth on September 22, 2011. See Complaint ¶¶ 27-29, at 4. On October 22, 2011, Shay informed Knapp that she wanted to come back to work on October 31, 2011; Knapp told Shay she would tell Wren, and talk to Shay. See Complaint ¶ 30, at 4. Shay met with Knapp two days later, on October 22, 2011; Knapp had not received word from Wren or Osborne. See Complaint ¶ 31, at 5. Shay contacted Wren five days later, on October 27, 2011; Wren said he would know the following week. See Complaint ¶ 32, at 5. Shay contacted Wren again on November 4, 2011; Wren told her "to go ahead and collect unemployment." Complaint ¶ 33, at 5. Shay argues that RWC "constructively fired" her on that date. Complaint ¶ 34, at 5.
Shay believes Wren and Osborne decided to fire her because of her pregnancy. See Complaint ¶¶ 16, 19, at 3. In her view, the Defendants had no nondiscriminatory reason to terminate her, and their alleged reasons for doing so are pretextual. See Complaint ¶ 39, at 5.
At the time of the events in the Complaint, RWC held a federal contract with the United States Forest Service. See Complaint ¶ 89, at 11. As a federal contractor, Executive Order 11246 requires RWC's "contract with the federal government include a specific provision prohibiting discriminating in employment decisions on the basis of . . . sex, [and] to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment." Complaint ¶ 88, at 10. Shay contends that she is an intended third-party beneficiary of that contract, and that RWC breached that contract by "fail[ing] to protect the employment of Ms. Shay while she was pregnant and then on her resulting maternity leave." Complaint ¶ 92, at 11. Further, Shay argues that RWC breached the contract's affirmative-action provision "by firing Ms. Shay for missing work because she was pregnant and then on maternity leave." Complaint ¶¶ 94-95, at 11. After RWC fired Shay, it lost its federal contract, but the federal government engaged a new contractor for a contract term of five years; the new contractor retained all of RWC's local employees. See Complaint ¶¶ 20-21, at 3.
Shay alleges five causes of action: (i) Count I, a state law claim for violation of the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-1 to -14 ("NMHRA"), see Complaint ¶¶ 23-44, at 4-6; (ii) Count II, a claim under federal law for violation of the PDA, see Complaint ¶¶ 45-64, at 6-8; (iii) Count III, a claim under federal law for violation of Title VII, see Complaint ¶¶ 65-84, at 8-10; (iv) Count IV, a state law claim for breach of contract, see Complaint ¶¶ 85-99, at 10-12; and (v) Count V, a state law claim for intentional infliction of emotional distress ("IIED"), see Complaint ¶¶ 100-108, at 12-13. Shay filed the case in state court, and the Defendants removed it to federal court, arguing that the Court has original federal question jurisdiction, see Notice of Removal at 2, filed February 11, 2013 (Doc. 1)(citing 28 U.S.C.§ 1331 (authorizing federal-question jurisdiction); 28 U.S.C. § 1441 (authorizing removal jurisdiction)), over the Title VII claim, and supplemental jurisdiction over the state claims, see Notice of Removal at 2 (citing 28 U.S.C. § 1367 (authorizing supplemental jurisdiction)), but not diversity jurisdiction, see 28 U.S.C. § 1332 ().
The Defendants move the Court to dismiss each cause of action. See MTD ¶¶ A-G, at 3; Defendant's Memorandum Brief in Support of Motion to Dismiss Complaint, filed February 15, 2013 (Doc. 7)("MTD Memo."). With respect to Shay's NMHRA claims, the Defendants allege that she "has not identified any employees who were treated any differently than she was nor has she identified any employee who allegedly replaced her," as she is required to do to satisfy her burden. MTD Memo. at 3-4. Further, the Defendants argue that Shay failed to exhaust her administrative remedies, because she "failed to identify any individual respondents to her claims by name" and did not amend her charge of discrimination until the same day that the New Mexico Department of Workforce Solutions Human Rights Bureau ("HRB") issued its Determination of No Probable Cause. MTD Memo. at 4-6.
With respect to Shay's Title VII and PDA claims, the Defendants argue that: (i) her PDA claim fails, because she was not "a member of a protected class under the PDA because she was not pregnant or experiencing the [e]ffects of pregnancy at the time of her separation of employment"; and (ii) her PDA and her Title VII claims both fail, because she "does not and cannot allege that similarly-situated employees who were not pregnant received more favorable treatment than she did." MTD Memo. at 6-7. With respect to Shay's breach-of-contract claim, the Defendants allege that Executive Order 11246 does not create an implied right of action for breach of contract and that the law does not support her contention that she was a third-partybeneficiary of a federal contract. See Complaint at 7-8. The Defendants also argue that the Court should dismiss Shay's IIED claim, because Shay's allegations amount to conclusory recitations of the tort's elements and that her complaint sets forth no facts to support her claim. See MTD Memo. at 8-9.
Shay disputes each argument. See Plaintiff's Response in Opposition to Defendants' Motion to Dismiss Complaint, filed March 4, 2013 (Doc. 11)("Response"). Her Response frames the issue as one of "notice": in her view, her Complaint gives sufficient notice of her allegations, and she "is not required to plead a prima facie case to meet her pleading requirements" under rule 8(a)(2) of the Federal Rules of Civil Procedure. Response at 4. She contends that "[t]he prima facie elements are an evidentiary standard, not a pleading standard," and she needed only plead enough facts to render her claim for relief under Title VII plausible. Response at 5. Shay quotes the MTD Memo.'s recitation of her causes of action as evidence that her Complaint's allegations satisfy her burden. See Response at 6-7.
With respect to the NMHRA claim, Shay contends that she exhausted her administrative remedies. See Response at 7. Shay maintains that documentary evidence shows that, despite the agency's failure to list Wren and...
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