Edmond v. Broadmoor Hotel, Inc. et al

Filing 24

ORDER granting 22 Motion to Dismiss for Failure to State a Claim; granting 23 Motion for Partial Judgment on the Pleadings. by Judge R. Brooke Jackson on 8/27/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-03262-RBJ-KLM
MICHAEL SEAN EDMOND,
Plaintiff,
v.
BROADMOOR HOTEL, INC., and
DANA BARTON, Director of Recruitment,
Defendants.

ORDER

This case comes before the Court on Defendant Barton’s Motion to Dismiss Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) [ECF No. 22] and on Defendant Broadmoor Hotel, Inc.’s
Motion for Partial Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) [ECF No. 23].
The Court asserts jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and
supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367. For the
following reasons, the motions are granted.
BACKGROUND
This case arises out of the plaintiff’s failure to be hired as a Temporary Stock Clerk for
the Broadmoor Hotel in early December 2010. On December 6, 2010 Mr. Edmond interviewed
with Defendant Dana Barton, then Director of Recruitment for the Broadmoor Hotel, over the
phone. During the call, Mr. Edmond voluntarily stated that he had a felony conviction from

1

1999 for sale of a Schedule II controlled substance. Ms. Barton then informed Mr. Edmond that
the Broadmoor Hotel could not hire him because of his felony conviction. She sent Mr. Edmond
a letter reiterating this position on December 9, 2010. On or around December 13, 2010, Mr.
Edmond filed a charge of discrimination with the EEOC alleging race discrimination in violation
of Title VII. The EEOC issued a Right to Sue letter on August 30, 2013. Mr. Edmond received
this letter on September 2, 2013 and timely filed this lawsuit on November 29, 2013.
Mr. Edmond asserts three claims for relief against the defendants: (1) race discrimination
in violation of Title VII; (2) violation of 42 U.S.C. § 1981; and (3) intentional interference with
prospective business relations. The first two claims for relief are asserted against both
defendants whereas the third is only asserted against Ms. Barton.
Ms. Barton filed an answer and a motion to dismiss simultaneously on June 24, 2014.
The Broadmoor Hotel filed its answer on February 11, 2014 and moved for partial motion for
judgment on the pleadings on June 24, 2014. Mr. Edmond failed to respond to either dispositive
motion. As such, both motions are now ripe for review.
ANALYSIS
To survive a 12(b)(6) motion to dismiss, the complaint must contain “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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). While the Court must accept the well-pleaded allegations of the complaint as true and
construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210
(10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Ashcroft v.
Iqbal, 556 U.S. 662, 681 (2009). However, so long as the plaintiff offers sufficient factual

2

allegations such that the right to relief is raised above the speculative level, he has met the
threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d
1282, 1286 (10th Cir. 2008).
While a motion to dismiss must be filed prior to or simultaneously with an answer, a
motion made after filing the answer should be treated as a motion for judgment on the pleadings
under Fed. R. Civ. P. 12(c). Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n.2 (10th Cir.
2002). The Court applies the same standard when evaluating 12(b)(6) and 12(c) motions. Id.
A. Title VII.
Ms. Barton has moved to dismiss Mr. Edmond’s Title VII claim for failure to state a
claim upon which relief can be granted. In particular, Ms. Barton contends that she is not an
employer under Title VII, and therefore cannot be sued under the Act. Title VII prohibits
discrimination by an “employer.” See 42 U.S.C. § 2000e-2(a). Under the statue, the term
“employer” means “a person engaged in an industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year, and any agent of such a person . . . .” 42 U.S.C. § 2000e(b). The Tenth
Circuit has held that an individual supervisor cannot be held personally liable under Title VII.
See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir. 1996) (“[P]ersonal capacity suits against
individual supervisors are inappropriate under Title VII.”). As such, Ms. Barton cannot be held
personally liable for the Broadmoor Hotel’s alleged discrimination under Title VII and the claim
against her must be dismissed. Because the Broadmoor Hotel did not seek a motion for
judgment on the pleadings on this claim, the Title VII claim against it remains.

3

B. 42 U.S.C. § 1981.
Mr. Edmond alleges that the defendants violated his right under 42 U.S.C. § 1981 to form
contracts in the same manner as white citizens when they refused to hire him. According to the
Complaint, the defendants refused to hire Mr. Edmond in early December 2010. Because the
alleged violation took place nearly three years before Mr. Edmond filed this lawsuit, both
defendants have moved to dismiss the claim as time barred.
42 U.S.C. § 1981 does not contain a statute of limitations. The Tenth Circuit has held
that “claims under § 1981 relying upon discrimination in contract formation . . . [are] governed
by residual state statutes of limitations, here two years.” Cross v. The Home Depot, 390 F.3d
1283, 1288 (10th Cir. 2004) (applying Colorado state law) (emphasis in original). Because Mr.
Edmond’s claim relies upon the assertion that he was discriminated against in contract
formation, his claim is subject to a two-year statute of limitations. See C.R.S. § 13-80-102;
Cross, 390 F.3d at 1288. The limitations period begins to run when the plaintiff first knew or
should have known of his injury; here, at the time the defendants refused to enter into a contract
with Mr. Edmond. Cf. Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir.
2011). The defendants refused to hire Mr. Edmond in early December 2010, nearly three years
before he filed this lawsuit. As such, this claim is time barred and must be dismissed.
C. Intentional Interference with Prospective Business Relations.
Mr. Edmond alleges that Ms. Barton interfered with his prospective employment
relationship with Hotel Broadmoor by intentionally misrepresenting the hotel’s hiring policy.
Ms. Barton argues that this claim is time barred under the applicable statute of limitations.
Under Colorado law, tort actions, including ones for interference with relationships, are subject

4

to a two-year statute of limitations. C.R.S. § 13-80-102(1)(a). Once again, the cause of action
accrues when the plaintiff knew or should have known of the allegedly tortious conduct.
According to Mr. Edmond, the hotel’s employment application “specifically states that a
criminal conviction or even a criminal charge pending does not automatically disqualify an
applicant from employment,” and yet Ms. Barton allegedly stated that the hotel was ‘unable to
employ individuals with criminal charges.” Complaint [ECF No. 1] at p. 5, ¶¶ 3, 5 (emphasis
omitted). Though the Complaint does not say when he became aware of the hotel’s official
policy, Mr. Edmond’s charge of discrimination dated December 24, 2010 1 states that “[t]he job
application stated that my conviction would not prevent me from being hired.” [ECF No. 22-1]. 2
The Court therefore finds that Mr. Edmond was aware of the alleged policy violation, and in turn
the tortious conduct, by at least December 24, 2010. This lawsuit was not filed until nearly three
years later, rendering it time barred by the applicable statute of limitations.
COSTS
The prevailing party is typically awarded its costs pursuant to Fed. R. Civ. P. 54(d)(1)
and D.C.COLO.LCivR 54.1. However, the Court finds duplicative defense counsel’s filing of
two separate answers [ECF Nos. 13 & 21] as well as, in effect, two motions to dismiss [ECF
Nos. 22 & 23]. Therefore, while costs will still be awarded, the clerk’s office shall disregard any
amount that would not have been incurred except for these duplicative filings.
1

It appears that Mr. Edmond filed two charges of discrimination, one on December 13, 2010 with the
EEOC and another on December 24, 2010 with the Colorado Civil Rights Division. Compare [ECF No.
1 at 5] with [ECF No. 22-1].

2

“[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). However, “the district court may consider 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.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002).
5

ORDER
For the foregoing reasons, Defendant Barton’s Motion to Dismiss Complaint Pursuant to
Fed. R. Civ. P. 12(b)(6) [ECF No. 22] and Defendant Broadmoor Hotel, Inc.’s Motion for Partial
Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c) [ECF No. 23] are GRANTED. All
claims against Ms. Barton have been dismissed. The only claim remaining in this action is Mr.
Edmond’s Title VII claim against the Broadmoor Hotel.
The parties are hereby ORDERED to contact chambers to set a scheduling conference,
which is to take place within the next fourteen (14) days.
As the prevailing party Defendants are awarded their costs pursuant to Fed. R. Civ. P.
54(d)(1) and D.C.COLO.LCivR 54.1 in an amount to be determined by the clerk’s office
consistent with this Order.
DATED this 27th day of August, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

6