Vanterpool v. Fed'n of Chiropractic Licensing Bds.

• Decision Date: 02 November 2022
• Docket Number: Civil Action 22-cv-01208-CNS-NRN
• Parties: KEITA VANTERPOOL, Plaintiff, v. FEDERATION OF CHIROPRACTIC LICENSING BOARDS; CAROL WINKLER; and KARLOS BOGHOSIAN; Defendant.
• Court: U.S. District Court — District of Colorado

KEITA VANTERPOOL, Plaintiff,
v.
FEDERATION OF CHIROPRACTIC LICENSING BOARDS; CAROL WINKLER; and KARLOS BOGHOSIAN; Defendant.

Civil Action No. 22-cv-01208-CNS-NRN

United States District Court, D. Colorado

November 2, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DKT. #15)

N. Reid Neureiter United States Magistrate Judge

This matter is before the Court on an Order (Dkt. #16) from Judge Regina M. Rodriguez^[1] referring Defendants' Motion to Dismiss (Dkt. #15). Plaintiff, Dr. Vanterpool, responded to the Motion to Dismiss (Dkt. #18) and Defendants replied. (Dkt. #23.)

The Court heard oral argument on August 25, 2022. (See Dkt. #30.) The Court has taken judicial notice of the docket and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court RECOMMENDS that Defendants' Motion to Dismiss be GRANTED.

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BACKGROUND^[2]

Dr. Vanterpool is the Vice President of the Federation of Chiropractic Licensing Boards (“FCLB”) and a member of the FCLB Board of Directors (the “Board”). (Dkt. #1 at 1, ¶ 1.) FCLB is a nonprofit corporation under the laws of Wyoming with a principal place of business in Colorado. (Id. at 2, ¶ 8.) Defendant Karlos Boghosian is the past President of FCLB and Defendant Carol Winkler is the current President. (Id., ¶¶ 9-10.)

Dr. Vanterpool is eligible for candidacy for FCLB President at the elections to be held in May 2023 and had intended to run for the position. (Id. at 1, ¶ 1; see also id. at 3, ¶ 19.) However, on March 5, 2022, FCLB suspended Dr. Vanterpool for six months. (Id. at 3, ¶ 20.) As a result of the suspension, Dr. Vanterpool was barred from attending the May 2022 FCLB conference in Denver, Colorado, which she alleges was her (and all candidates) last opportunity to engage with members regarding her candidacy for President prior to the May 2023 election. (Id. at 2, ¶ 5.) She therefore “lost opportunities to gain support of new and current members of FCLB, including stakeholder support for the upcoming election, resulting in significant irreparable damage.” (Id., ¶ 6.)

Dr. Vanterpool alleges that her suspension was unwarranted, in violation of FCLB bylaws and policies and procedures, and was carried out for discriminatory reasons as she is an African American woman. (Id. at 3, ¶ 20.) According to Dr. Vanterpool, FCLB claimed that she had violated FCLB policies and engaged in activities

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inconsistent with those expected of FCLB Board members, but FCLB never identified any policies or the allegedly inconsistent activities. (Id. at 4, ¶ 4.) Dr. Vanterpool claims that FCLB instead “attempted to silence a political rival and discriminate against [her]” based on her race, as she is the only African American officer in the Board's history. (Id., ¶ 25.)

Dr. Vanterpool also alleges a history of allegedly discriminatory conduct against her (see generally id. at 4-6, ¶¶ 26-35) and disparate treatment compared to white Board members. (See generally id. at 6, ¶¶ 36-41.) For example, she claims that, while serving as Treasurer of FCLB, she acted pursuant to FCLB policy and refused to reimburse a cash tip incurred by Executive Director Dr. Jon Schwartzbauer without a receipt. (Id. at 4, ¶ 27.) Dr. Boghosian instructed her to approve the reimbursement, and threatened that if she did not, he would usurp her authority as Treasurer and approve the reimbursement himself. (Id.) Dr. Vanterpool explains that Dr. Boghosian did not attempt to interfere with other non-African American Board members in the performance of their official roles. (Id. at ¶ 28.) She also alleges that during online voting for the FCLB elections in 2021 when she was ran for Vice President, delegates complained that they were unable to cast votes for Dr. Vanterpool. (Id. at 5, ¶ 30.)

Dr. Vanterpool also alleges that she received worse treatment than white FCLB members. As one example, a white member was fined by the Texas Department of Insurance for fraud. FCLB suspended this member for only three months, while Dr. Vanterpool was suspended for six months. This member was allowed to attend the annual meeting, whereas Dr. Vanterpool was not. (Id. at 6, ¶ 38.)

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Based on these allegations, Dr. Vanterpool brings claims for breach of contract, violation of 42 U.S.C. § 1981, and violation of 42 U.S.C. § 1985. She seeks injunctive relief, declaratory judgment, and an award of attorneys' and expert witness fees under 42 U.S.C. § 1988, as well as monetary damages.^[3]

Defendants have moved to dismiss all claims against them for failure to state a claim. The Court addresses each claim below.

LEGAL STANDARD

Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “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.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1198. “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two

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prongs of analysis. First, the Court identifies “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 679-81. Second, the Court considers 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.

However, the Court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

ANALYSIS

I. Breach of Contract

Defendants argue that Dr. Vanterpool's breach of contract claim fails because she has failed to plausibly allege the existence of an enforceable contract. For the reasons discussed below, the Court agrees.

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Dr. Vanterpool does not allege which state law governs her breach of contract claim. However, as Defendants note, the Board's Policies and Procedures Manual explains that FCLB's business will be conducted in accordance with the laws of Wyoming and Colorado. (See Dkt. #15-1 at 15.) It makes little difference which law this Court applies, as the elements required for a breach of contract claim in either state are very similar. Under Wyoming law, “[t]he elements for a breach of contract claim consist of a lawfully enforceable contract, an unjustified failure to timely perform all or any part of what is promised therein, and entitlement of injured party to damages.” Schlinger v. McGhee, 268 P.3d 264, 268 (Wyo. 2012) (quoting Reynolds v. Tice, 595 P.2d 1318, 1323 (Wyo. 1979)). Thus, a party seeking to recover for a breach of contract must prove the existence of a contract. Prudential Preferred Props. v. J & J Ventures, Inc., 859 P.2d 1267, 1272 (Wyo. 1993). The “basic elements of a contract are offer, acceptance, and consideration.” Boone v. Frontier Ref., Inc., 987 P.2d 681,687 (Wyo. 1999) (citing Bouwens v. Centrilift, 974 P.2d 941, 946 (Wyo. 1999)). An offer is a “manifestation of assent to enter into a bargain.” Bouwens, 974 P.2d at 946. Consideration may be demonstrated by a bargained for performance or return promise consisting of “an act other than a promise . . . a forbearance, or . . . the creation, modification, or destruction of a legal relation.” Prudential Preferred Props., 859 P.2d at 1272.

Similarly, “[u]nder Colorado law, a breach of contract claim has four elements: ‘(1) the existence of a contract; (2) performance by the plaintiff or some justification for nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting damages to the plaintiff.'” Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., LLC, 887 F.3d 1003, 1017-18 (10th Cir. 2018) (quoting W. Distrib. Co. v. Diodosio, 841 P.2d

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1053, 1058 (Colo. 1992)). “An enforceable contract must be supported by consideration.” Butera v. Crane, No. 13-cv-03327-RBJ, 2015 WL 5562175, at *2 (D. Colo. Sept. 22, 2015). “In the context of most written contracts, there is a presumption that the contract is supported by consideration.” Id. [A] promise exchanged for a promise imposes mutual obligations and is sufficient consideration to render the contract...