Perkins et al v. Federal Fruit & Produce Company, Inc. et al

Filing 78

ORDER ON MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS. Defendants' Motion for Partial Judgment on the Pleadings [#15 ] is GRANTED consistent with the foregoing findings and conclusions. Otherwise, the Defendants' Motion for Partial Judgment on the Pleadings [#15 ] is DENIED, by Judge Robert E. Blackburn on 03/22/2012.(wjcsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-00542-REB-KLM
RICHARD PERKINS, individually, and
RICHARD MILLER, individually,
Plaintiffs,
v.
FEDERAL FRUIT & PRODUCE COMPANY, INC., a Colorado corporation, and
MICHAEL MARTELLI, individually,
Defendants.

ORDER ON MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
Blackburn, J.
This matter is before me on the Defendants’ Motion for Partial Judgment on
the Pleadings [#15]1 filed April 19, 2011. The plaintiffs filed a response [#24], and the
defendants filed a reply [#25]. In addition, the plaintiffs filed a notice of supplemental
authority [#40], and the defendants filed a corresponding response [#41]. I grant the
motion in part and deny it in part.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and
28 U.S.C. § 1367 (supplemental).
II. STANDARD OF REVIEW
A motion for judgment on the pleadings is evaluated under the same standard as

1

“[#15]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

a motion to dismiss for failure to state a claim under FED. R. CIV. P. 12(b)(6). Jacobsen
v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002). When ruling on a motion
to dismiss under FED. R. CIV. P. 12(b)(6), I must determine whether the allegations of
the complaint are sufficient to state a claim within the meaning of FED. R. CIV. P. 8(a).
For many years, “courts followed the axiom that dismissal is only appropriate where ‘it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d
1210, 1214 (10th Cir. 2011) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.
99, 102, 2 L.Ed.2d 80 (1957)). Noting that this standard “has been questioned,
criticized, and explained away long enough,” the Supreme Court of the United States
supplanted the standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127
S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007). Under Twombly, I now review the
complaint to determine whether it “‘contains enough facts to state a claim to relief that is
plausible on its face.’” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974). “This pleading requirement
serves two purposes: to ensure that a defendant is placed on notice of his or her
alleged misconduct sufficient to prepare an appropriate defense, and to avoid ginning
up the costly machinery associated with our civil discovery regime on the basis of a
largely groundless claim.” Kansas Penn Gaming, 656 F.3d at 1215 (citation and
internal quotation marks omitted).
As previously, I must accept all well-pleaded factual allegations of the complaint
as true. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 997 (10th Cir. 2002).
Contrastingly, mere “labels and conclusions or a formulaic recitation of the elements of
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a cause of action” will not be sufficient to defeat a motion to dismiss. Ashcroft v. Iqbal,
556 U.S. 662, – , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations and internal
quotation marks omitted). See also Robbins v. Oklahoma, 519 F.3d 1242, 1247-48
(10th Cir. 2008) (“Without some factual allegation in the complaint, it is hard to see how
a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of
the claim, but also ‘grounds' on which the claim rests.”) (quoting Twombly, 127 S.Ct. at
1974) (internal citations and footnote omitted). Moreover, to meet the plausibility
standard, the complaint must suggest “more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 129 S.Ct. at 1949. See also Ridge at Red Hawk, 493
F.3d at 1177 (“[T]he mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient; the complaint must give the
court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.") (emphases in original). For this reason, the complaint must
allege facts sufficient to “raise a right to relief above the speculative level.” Kansas
Penn Gaming, 656 F.3d at 1214 (quoting Twombly, 127 S.Ct. at 1965). The standard
will not be met when the allegations of the complaint are “so general that they
encompass a wide swath of conduct, much of it innocent.” Robbins, 519 F.3d at 1248.
Instead “[t]he allegations must be enough that, if assumed to be true, the plaintiff
plausibly (not just speculatively) has a claim for relief.” Id.
The nature and specificity of the allegations required to state a plausible claim
will vary based on context and will “require[] the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 129 S.Ct. at 1950; see also Kansas Penn
Gaming, 656 F.3d at 1215. Nevertheless, the standard remains a liberal one, and “a
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well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.“ Dias v. City
and County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quoting Twombly, 127
S.Ct. at 1965) (internal quotation marks omitted).
III. PLAINTIFF’S ALLEGATIONS & CLAIMS
The operative complaint is the plaintiffs’ Amended Complaint and Jury
Demand [#7] filed March 24, 2011 (Complaint). I will cite to the Complaint by
paragraph number (¶ 1). The plaintiffs allege that they were employed by defendants,
Federal Fruit & Produce Company, Inc., and Michael Martelli. ¶¶ 9, 35. According to
the Complaint, Mr. Martelli is a “Federal Fruit Owner/Employer” or is “one of Federal
Fruit’s owners.” ¶¶ 14, 61.
Plaintiff, Richard Perkins, is African American. Mr. Perkins alleges that he
suffered disparate treatment and a hostile work environment while working for Federal
Fruit, and that this treatment was motivated by Mr. Perkins’ race. According to Mr.
Perkins, Mr. Martelli referred to Mr. Perkins using a racial epithet on several occasions.
¶¶ 14, 15, 36, 41. Mr. Perkins complained to his supervisor, Angel Mondragon, about
Mr. Martelli’s discriminatory comments and harassing behavior. ¶ 16. Mr. Mondragon
told Mr. Perkins that he, Mondragon, had a conversation with the owners, and they said
“We will run the operation as we please and nobody will tell us otherwise.” Id. Following
this complaint, Mr. Perkins alleges, he was subjected to baseless employment actions
that placed him at a material disadvantage in comparison to other Federal Fruit
employees. ¶¶ 17 - 34. Mr. Perkins details in the Complaint the alleged continuing
harassment and disparate treatment. His employment was terminated on May 12,
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2009.
Plaintiff, Richard Miller, was employed by Federal Fruit and worked with Mr.
Perkins. In early 2009, Mr. Miller began to assist Mr. Perkins by gathering information
from employees about alleged, differential treatment of Federal Fruit employees based
on their race. ¶ 36. When Federal Fruit supervisors became aware that Mr. Miller was
supportive of Mr. Perkins in Mr. Perkins’ complaints about differential treatment based
on race, the supervisors began to retaliate against Mr. Miller. ¶ 37. Mr. Miller describes
in the Complaint various actions allegedly taken against him in retaliation for his support
of Mr. Perkins’ complaints about race discrimination. ¶¶ 35 - 47.
The plaintiffs assert seven claims in the Complaint: (1) Mr. Perkins race
discrimination claim under 42 U.S.C. § 1981; (2) Mr. Perkins’ Title VII claim alleging
disparate treatment and hostile work environment, based on race; (3) Mr. Perkins’ and
Mr. Miller’s Title VII claim alleging retaliation by the defendants in response to the
plaintiffs’ protected opposition to unlawful employment practices; and (4) Mr. Perkins’
and Mr. Miller’s claim of intentional interference with prospective business advantage;
(5) Mr. Perkins’ and Mr. Miller’s outrageous conduct claim; (6) Mr. Perkins’ and Mr.
Miller’s intentional infliction of emotional distress claim; and (7) Mr. Perkins’ and Mr.
Miller’s wrongful constructive discharge claim.
IV. ANALYSIS
A. Title VII - Exhaustion of Administrative Remedies
In the Tenth Circuit exhaustion of administrative remedies is a jurisdictional
prerequisite to a suit under Title VII. Shikles v. Spring/United Management Co., 426
F.3d 1304, 1317 (10th Cir. 2005). Under Title VII, administrative remedies may be
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exhausted by filing a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC). Verification of an EEOC charge is required. 42 U.S.C. § 2000e5(b) (“Charges shall be in writing under oath or affirmation and shall contain such
information and be in such form as the Commission requires.”) The plaintiffs, as the
parties seeking to invoke the jurisdiction of the court, have the burden to show that they
exhausted their administrative remedies. McBride v. CITGO Petroleum Corp., 281
F.3d 1099, 1106 (10th Cir. 2002).
The defendants note that the EEOC charges filed by the plaintiffs were signed
and verified by their counsel, but were not verified by the plaintiffs. Motion to dismiss
[#15], Exhibits A and B. Because the plaintiffs’ EEOC charges are not verified, as
required, the defendants assert that the plaintiffs have not exhausted their
administrative remedies and that, thus, their Title VII claims must be dismissed for lack
of jurisdiction. In this case, the EEOC proceeded with an investigation of the plaintiffs’
charges, even though they were not verified and ultimately issued a notice of right to
sue letter to both plaintiffs. Federal Fruit participated in the EEOC investigation.
Courts of appeal addressing similar circumstances have reached different
conclusions about whether an unverified EEOC charge constitutes a failure to exhaust
administrative remedies. The united States Court of Appeals for the Third Circuit held
that the verification requirement, “like the statute’s time limit for filing a charge with the
EEOC, should be subject to waiver when equity so requires.” Buck v. Hampton
Township Sch. Dist., 452 F.3d 156, 263 (3rd Cir. 2006). The Buck court noted the
holding of the United States Supreme Court in Zipes v. Trans World Airlines, Inc. In
Zipes, the Court held that Title VII’s mandatory time limit for filing an EEOC charge is
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“not a jurisdictional prerequisite to filing a Title VII suit, but a requirement subject to
waiver as well as tolling when equity so requires.” 455 U.S. 385, 398 (1982). In Zipes
the Court noted that the “provision granting district courts jurisdiction under Title VII, 42
U.S.C. §§ 2000e-5(e) and (f), does not limit jurisdiction to those cases in which there
has been a timely filing with the EEOC.” Id. at 393. Rather, the Court noted, the timely
filing provision “appears as an entirely separate provision, and it does not speak in
jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Id. at
394. The Buck court concluded that the same analysis is applicable to the requirement
that an EEOC charge be “in writing under oath or affirmation.” 42 U.S.C. § 2000e-5(b);
Buck, 452 F.3d 262 - 263. The Fifth Circuit reached a similar conclusion in Price v.
Southwestern Bell Telephone Co., 687 F.2d 74, 77 - 79 (5th Cir. 1982).
On the other hand, the Fourth Circuit and the Eleventh Circuit have held that
verification of an EEOC charge is mandatory prerequisite to the validity of the charge,
and that a verified charge is a jurisdictional prerequisite. Balazs v. Liebenthal, 32 F.3d
151, 156 - 158 (4th Cir. 1994);Vason v. City of Montgomery, Ala., 240 F.3d 905, 907
(11th Cir. 2001).
Absent Tenth Circuit authority directly on point, I conclude that verification by the
plaintiffs of their EEOC charges is not, under the circumstances of this case, a
jurisdictional prerequisite to their Title VII claims in this case. The statutory requirement
that an EEOC charge be filed within a certain time is tied to the requirement that a Title
VII plaintiff exhaust his or her administrative remedies. However, satisfaction of the
timely filing requirement is not a jurisdictional prerequisite to a Title VII suit. Zipes, 455
U.S. at 393. The verification requirement is directly analogous to the timely filing
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requirement and is not a jurisdictional prerequisite to a Title VII suit.
In this case, the EEOC, and Federal Fruit participated in the investigation of the
plaintiffs’ EEOC charges. No objection to the lack of verification was raised during the
EEOC investigation. As in Buck, I conclude that these circumstances amount to a
forfeiture by the EEOC and Federal Fruit to enforce the verification requirement.
B. Title VII Claim Against Michael Martelli
The defendants argue that the plaintiffs’ Title VII claim against Mr. Martelli must
be dismissed because individual capacity suits are not proper under Title VII. Assuming
the allegations in the Complaint to be true, Mr. Martelli is an owner or part owner of
Federal Fruit. ¶¶ 14, 61. As such, Mr. Martelli was not the employer of the plaintiffs, for
the purposes of Title VII. Given these circumstances, the plaintiffs may not assert an
individual capacity suit against Mr. Martelli under Title VII. Haynes v. Williams, 88 F.3d
898, 899 (C.A.10 (10th Cir.1996). Thus, the Title VII claim against Mr. Martelli must be
dismissed.
C. § 1981 Claim Against Michael Martelli
The defendants argue also that the plaintiffs’ allegations do not state a § 1981
claim against Mr. Martelli. “A claim seeking personal liability under section 1981 must
be predicated on the actor’s personal involvement.” Allen v. Denver Pub. Sch. Bd.,
928 F.2d 978, 983 (10th Cir. 1991), overruled on otr. grounds, Kendrick v. Penske
Transp. Servs., Inc., 220 F.3d 1220, 1228 (10th Cir. 2000). “There must be some
affirmative link to causally connect the actor with the discriminatory action.” Id.
According to the defendants, the allegations in the plaintiffs’ complaint do not draw any
causal connection between Mr. Martelli and the alleged discriminatory actions. I
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disagree. The allegations in the Complaint describe Mr. Martelli as a part owner of
Federal Fruit and as a person who was involved in the day to day operation and
supervision of Federal Fruit’s trucking operations in which the plaintiffs were employed.
Further, the plaintiffs describe in sufficient detail Mr. Martelli’s alleged racist comments
to the plaintiffs and others, as well as circumstances that indicate that Mr. Martelli was
connected with the adverse employment actions taken against the plaintiffs. This is
sufficient.
D. Plaintiffs’ Seventh Claim for Relief
The plaintiffs’ seventh claim for relief is captioned as a “Wrongful Constructive
Discharge Claim.” Complaint, p. 21. In this claim the plaintiffs allege that they were
discharged for “exercising their right to oppose Federal Fruits’ unlawful race
discrimination practices.” ¶ 98. Mr. Perkins alleges he was discharged because he is
African American, “which is a protected class under Title VII and Section 1981.” ¶ 99.
In their response [#24], the plaintiffs indicate that their seventh claim for relief is
intended to address, in part, alleged retaliation for grievances the plaintiffs filed with
their union. The plaintiffs’ employment with Federal Fruit was controlled by a collective
bargaining agreement with the Teamsters union. To the extent the plaintiffs allege
retaliation for their filing of grievances with the union, this claim must be dismissed.
Filing grievances under a collective bargaining agreement constitutes protected union
activity under § 7 of the National Labor Relations Act. NLRB v. U.S. Postal Service,
906 F.2d 482, 486 (10th Cir. 1990). Generally, federal courts do not have jurisdiction
over suits directly involving activity subject to § 7 of the National Labor Relations Act.
Rather, the court must defer to the national Labor Relations Board. San Diego Bldg.
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Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236, 244-245
(1959). To the extent the plaintiffs’ seventh claim for relief can be read to allege
retaliation in response to grievances filed with their union, this claim must be dismissed.
The complaint indicates also that Mr. Perkins and Mr. Miller both complained
about race discrimination directly to management, and the plaintiffs allege that these
complaints motivated the defendants to retaliate against them. Union grievances aside,
this aspect of the plaintiffs’ seventh claim for relief states an colorable claim under Title
VII and § 1981. However, these retaliation claims are alleged as part of the Mr. Perkins’
first claim for relief, his § 1981 claim, and Mr. Perkins and Mr. Miller’s Title VII retaliation
claim, the third claim for relief. These aspects of the plaintiffs’ retaliation claims need
not be included duplicatively in the seventh claim for relief.
In the seventh claim for relief, Mr. Miller alleges he was constructively discharged
by Federal Fruit. According to Mr. Miller, he was terminated on July 10, 2009, and then
filed a union grievance challenging his termination. ¶¶ 43 - 45. After the grievance was
resolved, Mr. Miller returned to work at Federal Fruit. After Mr. Miller’s return, Mr.
Martelli allegedly continued his campaign of retaliation. Mr. Miller says the campaign
was “so fraught with abuse and ridicule that it forced Mr. Miller to resign.” ¶ 47. While
evidence of these events may be relevant to other claims, Mr. Miller may not assert his
alleged constructive discharge as an adverse employment action in support of his Title
VII claims. This is so because Mr. Miller’s EEOC charge did not address the alleged
constructive discharge, and he did not file a separate EEOC charge concerning the
discrete incident of constructive discharge. Absent exhaustion of administrative
remedies on this issue, Mr. Miller’s alleged constructive discharge may not be used to
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demonstrate adverse employment action in support of a Title VII claim.
The only allegation in the seventh claim for relief that is not yet resolved is Mr.
Perkins’ allegation that he was discharged because he is African American, “which is a
protected class under Title VII and Section 1981.” ¶ 99. The first claim for relief is a
race discrimination claim under § 1981, and there is no reason to reassert that claim
duplicatively in the seventh claim for relief. Mr. Perkins’ allegation that he was
discharged based on his race, in violation of Title VII, is the only viable claim stated in
the seventh claim for relief. The other claims asserted in the seventh claim for relief
must be dismissed.
E. Intentional Interference with Prospective Business Advantage
The defendants argue that the plaintiffs’ allegations are not sufficient to state a
claim for intentional interference with prospective business advantage. To establish a
claim for tortious interference with prospective business relations under Colorado law, a
plaintiff must show intentional and improper interference with another's prospective
contractual relation. Dolton v. Capitol Federal Sav. and Loan Ass'n, 642 P.2d 21, 23
(Colo.App.1981). Intentional and improper interference preventing the formation of a
contract is sufficient. Id. The defendants argue that the plaintiffs have not alleged that
a sufficient prospective relationship existed or that the defendants’ intentional or
improper interference caused a third party not to enter into a contract.
The plaintiffs allege that the defendants knew that the plaintiffs were applying to
other prospective employers after the plaintiffs’ employment with Federal Fruit was
terminated. ¶ 80. Numerous prospective employers of the plaintiffs contacted Federal
Fruit for references and work history. Id. The defendants improperly and intentionally
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interfered with the plaintiffs’ prospective employment “by voicing negative and false
remarks about the Plaintiffs.” ¶ 81. The defendants actions “led to numerous
employment rejections from prospective employers.” ¶ 82. These allegations are
sufficient to state a claim for intentional interference with prospective business
advantage.
F. Outrageous Conduct and Intentional Infliction of Emotional Distress
In their fifth claim for relief, the plaintiffs assert a claim for outrageous conduct. In
their sixth claim for relief, the plaintiffs assert a claim for intentional infliction of
emotional distress. Under Colorado law, outrageous conduct and intentional infliction of
emotional distress are two different names for the same claim. Atsepoyi v. Tandy
Corp., 51 F.Supp.2d 1120, 1125 (D.Colo. 1999). Outrageous conduct is an updated
term for intentional infliction of emotional distress. Id. The defendants argue that the
plaintiffs allege no basis for an outrageous conduct claim. An outrageous conduct claim
can be based on invidious discrimination and denigrating behavior by an employer,
particularly when the behavior leads to the termination of the plaintiff-employee. Id.
The plaintiffs’ allegations are sufficient to state an outrageous conduct claim. However,
their duplicative intentional infliction of emotional distress claim must be dismissed.
V. CONCLUSION AND ORDERS
Under FED. R. CIV. P. 8 and 12(c), the allegations in the plaintiffs’ Complaint are
not sufficient to state a claim under Title VII against Michael Martelli. The allegations in
the plaintiffs’ seventh claim for relief do not state a claim on which relief may be granted,
except to the extent Mr. Perkins alleges in that he was terminated based on his race, in
violation of Title VII. The plaintiffs’ sixth claim for relief is duplicative of the plaintiffs’ fifth
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claim for relief, a claim for outrageous conduct. In this context, the plaintiffs’ sixth claim
for relief must be dismissed for failure to state a claim on which relief may be granted.
To this extent, the defendants’ motion to dismiss is granted. Otherwise, the defendants’
motion to dismiss is denied.
THEREFORE, IT IS ORDERED as follows:
1. That the Defendants’ Motion for Partial Judgment on the Pleadings [#15]
filed April 19, 2011, is GRANTED consistent with the foregoing findings and conclusions
and the following orders;
2. That under FED. R. CIV. P. 12(c), the plaintiffs’ Title VII claim against
defendant Michael Martelli, part of the plaintiffs’ second claim for relief, is DISMISSED;
3. That under FED. R. CIV. P. 12(c), the plaintiffs’ seventh claim for relief is
DISMISSED, except for the claim of plaintiff, Richard Perkins, that he was terminated
based on his race in violation of Title VII;
4. That under FED. R. CIV. P. 12(c), the plaintiffs’ sixth claim for relief for
intentional infliction of emotional distress is DISMISSED;
5. That otherwise, the Defendants’ Motion for Partial Judgment on the
Pleadings [#15] filed April 19, 2011, is DENIED.
Dated March 22, 2012, at Denver, Colorado.
BY THE COURT:

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