Patterson v. Dex Media, Inc.

Filing 25

ORDER. ORDERED that: Defendant's Partial Motion to Dismiss With Prejudice 15 is GRANTED. Nothing in this Order shall preclude Plaintiff from pursuing her Title VII claim that Defendant discriminated against her "in the areas of job hiring and transfer and terms and conditions [of employment] (2008 performance appraisal process and rating)," by Judge Lewis T. Babcock on 8/31/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 11-cv-02336-LTB-BNB
BRENDA PATTERSON,
Plaintiff,
v.
DEX MEDIA, INC.,
Defendant .
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Defendant Dex Media, Inc.’s Partial Motion to Dismiss With
Prejudice [Doc # 15]. After consideration of the motion, all related pleadings, and the case file, I
grant Defendant’s motion.
I. Background
This action arises out of Plaintiff’s employment with Defendant from December 1978
until February 2009. Plaintiff’s Complaint was filed through counsel in the District Court for the
City and County of Denver, Colorado on August 11, 2011 and removed to this Court on
September 1, 2011. Plaintiff’s counsel subsequently withdrew from the case, and Plaintiff has
been proceeding in this matter pro se.
On November 14, 2011, after the filing of Defendant’s motion to dismiss, Plaintiff sought
leave to amend her complaint. By Order dated November 17, 2011, the Magistrate Judge denied
Plaintiff’s request on the basis that Plaintiff failed to provide a proposed amended complaint on
the court’s standardized form. The Court has received no further filings from Plaintiff, and my

analysis of Defendant’s motion therefore focuses on the allegations in Plaintiff’s August 11,
2011 Complaint and all related pleadings.
II. Factual Allegations
In 1999, Plaintiff, an African American female, assumed a managerial position in
Defendant’s Internet Department. Complaint, ¶ 5. In approximately 2003, Plaintiff alleges that
she developed an idea for the live streaming of advertising material and submitted it to her
superiors. Id. at ¶ 16. Defendant acknowledged Plaintiff’s idea and rewarded Plaintiff with a
citation “In Recognition of Outstanding Contributions, Customer Service and Entrepreneurship”
and a $100 gift certificate. Id. at ¶ 17. Defendant’s use of Plaintiff’s idea “became a major
source of income for the Defendant.” Id.
In 2004, Plaintiff, along with the rest of her group, were demoted to union jobs as part of
a company reorganization. Id. at ¶ 6. That same year, Plaintiff received a negative performance
appraisal that she deemed unfair. Id. at ¶ 11. Following her demotion, Plaintiff was not given
the opportunity to continue working on internet projects, and her applications to transfer back
into the Internet Department were denied. Id. at ¶ 7. Between 2004 and 2009, Plaintiff
unsuccessfully applied and interviewed for 4-5 positions for which she was qualified. Id. at ¶ 8.
Plaintiff alleges that she was denied other employment opportunities with Defendant because of
her age and race. Id. at ¶¶ 10 & 12.
Plaintiff alleges that she was constructively discharged in early 2009 when she left
Defendant’s employ as a result of the disparate treatment and hostile work environment to which
she was subjected. Id. at ¶ 13. Later in 2009, Plaintiff filed a Charge of Discrimination with the
EEOC that she later supplemented and amended. Id. at ¶¶ 10 & 12; Exs. C & D to Motion. In

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May of 2011, the EEOC issued a Right to Sue Letter to Plaintiff. Complaint, ¶ 15.
Plaintiff asserts claims against Defendant for violation of Title VII (First Claim for
Relief); wrongful discharge and intentional infliction of emotional distress (Second Claim for
Relief); fraud, conversion and theft (Third Claim for Relief); and unjust enrichment and quantum
meruit (Fourth Claim for Relief).
III. Standard of Review
A. Rule 12(b)(1)
In seeking dismissal under Fed. R. Civ. P. 12(b)(1), a party may go beyond the
allegations in the complaint and challenge the facts upon which subject matter jurisdiction is
based. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). In such instances, a court has
wide discretion to allow affidavits and other documents without converting the motion to dismiss
into a motion for summary judgment. Id. Once subject matter jurisdiction is challenged, the
plaintiff bears the burden of proving it exists by a preponderance of the evidence. United States
ex rel. Hafter v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999).
B. Rule 12(b)(6)
Under Rule 12(b)(6), “[d]ismissal is appropriate only if the complaint, viewed in the light
most favorable to plaintiff, lacks enough facts to state a claim to relief that is plausible on its
face.” United States ex rel. Conner v. Salina Regional Health Center, 543 F.3d 1211, 1217 (10th
Cir. 2008) (quotations and citations omitted). A claim is plausible on its face “when the plaintiff
pleads factual content that enables 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) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

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‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id.
“[I]n general, a motion to dismiss should be converted to a summary judgment motion if
a party submits, and the district court considers, materials outside the pleadings.” Prager v.
LaFaver, 180 F.3d 1185, 1188 (10th Cir. 1999). In ruling on a Rule 12(b)(6) motion to dismiss,
however, a court may properly consider facts subject to judicial notice such as court files and
matters of public record, as well as documents referred to in the complaint if the documents are
central to the plaintiff’s claim and their authenticity is not disputed. Grynberg v. Koch Gateway
Pipeline Co., 390 F.3d 1276, 1279 n.1 (10th Cir. 2004) (citations omitted); Jacobsen v. Deseret
Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
IV. Analysis
Defendant seeks the dismissal of a number of Plaintiff’ claims with prejudice on the
bases of (1) Plaintiff’s failure to exhaust administrative remedies under Title VII; (2) the
applicable statue of limitations on Plaintiff’s state law claims; and (3) bankruptcy proceedings
involving Defendant and affiliated entities.
A. Plaintiff’s Failure to Exhaust Administrative Remedies
Plaintiff’s complaint alleges that she was subjected to a hostile work environment and
that she was constructively discharged. Complaint, ¶¶ 12 & 13. Defendant argues that Plaintiff
is precluded from pursuing these claims under Title VII because she did not include them in
either her original or amended EEOC Charge of Discrimination. I agree.
Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title
VII. Bertsch v. Overstock.com, 684 F.3d 1023, 1030 (10th Cir. 2012). “Therefore, a plaintiff

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normally may not bring a Title VII action based upon claims that were not part of a timely-filed
EEOC charge for which the plaintiff has received a right-to-sue letter.” Id. (citation omitted).
In determining whether a plaintiff has exhausted administrative remedies, the appropriate inquiry
is the scope of the administrative investigation that can reasonably be expected to follow from
the discriminatory acts alleged in the administrative charge. Jones v. United Parcel Serv., Inc.,
502 F.3d 1176, 1186 (10th Cir. 2007).
Plaintiff’s initial Charge of Discrimination stated that she believed Defendant
discriminated against her “in the areas of job hiring and transfer.” Plaintiff goes on to reference
her transfer from Defendant’s Internet Department and her inability to return to that department
despite her qualifications and numerous applications. The only allegation that Plaintiff provides
to link Defendant’s adverse actions against her to her race is that she “observed some members
of the Internet Department during a company-wide meeting and, of the employees [she] saw,
none had her appearance.”
Plaintiff’s amended Charge of Discrimination stated that she believed Defendant
discriminated against her “in the areas of job hiring and transfer and terms and conditions (2008
performance appraisal process and rating).” Plaintiff again references her transfer from
Defendant’s Internet Department and her inability to return to that department but adds details
about the unsatisfactory annual performance rating that she received in 2008. Once again, the
only referenced link between Defendant’s adverse actions and Plaintiff’s race is Plaintiff’s
observation that none of the employees of the Internet Department that she saw had her
appearance.

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A racially hostile work environment is one that is “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.’” Sandoval v. City of
Boulder, Colo., 388 F.3d 1312, 1326-27 (10th Cir. 2004) (quoting Davis v. United States Postal
Serv., 142 F.3d 13343, 1341 (10th Cir. 1998)). The allegations in Plaintiff’s EEOC Charge and
Amended Charge of relatively isolated and racially neutral incidents over a ten year period could
not reasonably be expected to lead to an EEOC investigation into whether Defendant subjected
Plaintiff to a racially hostile work environment. Plaintiff is therefore precluded from asserting a
Title VII hostile work environment claim.
There is no allegation in either Plaintiff’s EEOC Charge or Amended Charge that she
terminated her employment with Defendant as a result of intolerable working conditions. See
Strickland v. United Parcel Serv., Inc., 555 F.3d 1224, 1228 (10th Cir. 2009) (“Constructive
discharge occurs when an employer unlawfully creates working conditions so intolerable that a
reasonable person in the employee’s position would feel forced to resign.”). In fact, it is not
even clear from Plaintiff’s Charge and Amended Charge that she was no longer employed by
Defendant. See Exs. C & D to Motion (“I believe that [Defendant] has been discriminating
against me....”). Under these circumstances, the allegations in Plaintiff’s EEOC Charge and
Amended Charge could not reasonably be expected to lead to an EEOC investigation into
whether Plaintiff was constructively discharged by Defendant. Plaintiff is therefore precluded
from asserting a Title VII constructive discharge claim.
In her response to Defendant’s motion, Plaintiff also seeks to bring her allegations
regarding Defendant’s use of her video streaming idea within the purview of her Title VII claim.

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Although neither Plaintiff’s EEOC Charge nor Amended Charge make any reference to this
issue, Plaintiff asserts that “information regarding her [video streaming idea] is within the
paperwork that was turned in [to the EEOC]” but provides no supporting documentation.
In order for the information Plaintiff provided to the EEOC regarding her video
streaming idea to constitute a discrimination charge under Title VII, it must contain the
information required by EEOC regulations and be reasonably construed as a request for the
EEOC to take remedial action with respect to the alleged discrimination. Semsroth v. City of
Wichita, 304 Fed. Appx. 707, 713 (10th Cir. 2008) (citing Fed. Express Corp. V. Holowecki, 552
U.S. 389, 402 (2008)). Without being able to review the specific information Plaintiff provided
to the EEOC, I am unable to conclude that this information constituted a charge of race
discrimination with respect to Defendant’s use of Plaintiff’s video streaming idea. Plaintiff is
therefore precluded from asserting a Title VII claim relating to her video streaming idea for
failure to exhaust administrative remedies.
B. Statute of Limitations on State Law Claims
Defendant argues that Plaintiff’s state law claims for wrongful discharge, intentional
infliction of emotional distress, fraud, conversion, theft, unjust enrichment and quantum meruit
are barred by the applicable statute of limitations. I agree.
There is no dispute that Plaintiff employment with Defendant ended in early 2009.
Plaintiff’s vague claim for wrongful discharge, if even viable, is a tort claim subject to a 2-year
statute of limitations pursuant to C.R.S. § 13-80-102(a). See Martin Marietta Corp. v. Lorenz,
823 P.2d 100, 115 (Colo. 1992) (claim for wrongful discharge based on public-policy exception
to at-will employment doctrine sounds in tort). Plaintiff’s claim for intentional infliction of

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emotional distress is likewise subject to a 2-year statute of limitations pursuant to C.R.S. § 1380-102(a).
Plaintiff did not assert her claims for wrongful discharge and intentional infliction of
emotional distress against Defendant in the early part of 2011 and was not precluded from doing
so by bankruptcy proceedings involving Defendant and affiliated entities. See In re R.H.
Donnelly Corp., et al., United States Bankruptcy Court for the District of Delaware, Case No.
09-11833 (KG), Doc # 1224 (June 29, 2010 Order recognizing the right of Plaintiff and other
claimants to pursue their claims in an alternate non-bankruptcy forum). These claims are
therefore untimely.
Plaintiff’s remaining state law claims for fraud, conversion, theft, unjust enrichment and
quantum meruit relating to Defendant’s use of her video streaming idea are subject to a 3-year
statute of limitations pursuant to C.R.S. § 13-80-101. See Hannon Law Firm, LLC v. Melat,
Pressman & Higbie, LLP, – P.3d –, 2011 WL 724742 (Colo. App. Mar. 3, 2011) (applying
C.R.S. 13-80-101(1)(a) to quantum meruit claim); Sterenbuch v Goss, 266 P.3d 428, 437 (Colo.
App. 2011) (applying C.R.S. 13-80-101(1)(a) to unjust enrichment claim); Curtis v. Counce, 32
P.3d 585, 588 (Colo. App. 2001) (applying C.R.S. 13-80-101(1)(h) to claims for conversion and
theft).
Plaintiff alleges that she submitted her video streaming idea to Defendant in 2003 but
Defendant did not acknowledge or make use of it until May of 2006. Accepting these allegations
as true despite inconsistencies in Plaintiff’s Complaint (see Complaint, § 17 & Ex. B), the time
for Plaintiff to assert these claims expired in 2010 at the latest. See 11 U.S.C. § 108(c)
(providing that non-bankruptcy time periods for commencing action against debtor expire the

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later of the end of such period or 30 days after expiration of bankruptcy stay). Because Plaintiff
did not assert these claims until August of 2011, they are barred as untimely. Finally, to the
extent that Plaintiff ’s claim for intentional infliction of emotional distress is based on
Defendant’s use of her video streaming idea it is likewise time-barred under the applicable twoyear statute of limitations. See C.R.S. § 13-80-102(a).
C. Defendant’s Bankruptcy Proceedings
Alternatively, Defendant argues that Plaintiff’s state law claims for wrongful discharge,
intentional infliction of emotional distress, fraud, conversion, theft, unjust enrichment and
quantum meruit are barred as a result bankruptcy proceedings involving Defendant and affiliated
entities. See In re R.H. Donnelly Corp., et al., supra. Because I have already concluded that
these claims are barred by the applicable statute of limitations, I need not address this argument.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Defendant’s Partial Motion to Dismiss With Prejudice [Doc # 15] is GRANTED;
2. Plaintiff’s Title VII claims against Defendant for hostile work environment and
constructive discharge and Plaintiff’s Title VII claim relating to Defendant’s use of her video
streaming idea are DISMISSED WITH PREJUDICE for lack of jurisdiction;
3. Plaintiff’s state law claims for wrongful discharge, intentional infliction of emotional
distress, fraud, conversion, theft, unjust enrichment and quantum meruit are DISMISSED WITH
PREJUDICE for failure to state a claim upon which relief may be granted; and

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4. Nothing in this Order shall preclude Plaintiff from pursuing her Title VII claim that
Defendant discriminated against her “in the areas of job hiring and transfer and terms and
conditions [of employment] (2008 performance appraisal process and rating).”

Dated: August

31 , 2012 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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