Rogers v. National Oilwell Varco Tuboscope

Filing 21

ORDER granting 11 Motion to Dismiss for Failure to State a Claim. However, the dismissal is WITHOUT PREJUDICE. Further, to avoid a second filing fee, I GRANT Mr. Rogers leave to file an amended complaint within 14 days if he wishes to do so by Judge John L. Kane on 08/19/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01599-JLK
RANDY R. ROGERS,
Plaintiff,
v.
NATIONAL OILWELL VARCO TUBOSCOPE,
Defendant.
ORDER GRANTING MOTION TO DISMISS AND GRANTING LEAVE TO FILE AN
AMENDED COMPLAINT
Kane, J.
Defendant National Oilwell Varco, L.P.1 (“Varco”) moves to dismiss this action
per Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Doc. 11. In his
Complaint, Plaintiff Mr. Randy R. Rogers alleges that he was unlawfully discriminated
against by Varco, his employer, because of his “race, Caucasian, or color, White, or
national origin, Non-Hispanic,” and that he was retaliated against “for contacting the
Human Resources Department, or for engaging in this protected activity.” See Compl. at
unnumbered ¶¶ 1, 4. Mr. Rogers brings these reverse discrimination and retaliation
claims under Title VII and the Colorado Anti-Discrimination Act (“CADA”). I find the
allegations fail for want of specificity and accordingly GRANT Varco’s Motion for the
reasons that follow.

1

 Plaintiff’s Complaint incorrectly named Defendant as “National Oilwell Varco Tuboscope” and the case has ever 
since been captioned with the name of Defendant as such.  Although Defendant has mentioned the erroneous 
moniker in its filings, it has not moved to amend the caption.   

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I.

Standard of Review and Legal Principles

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” The
Supreme Court clarified this pleading standard in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 662 (2009): to withstand
a Rule 12(b)(6)motion to dismiss, a complaint must contain enough allegations of fact,
taken as true, “to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. Because Mr. Rogers appears pro se, I review his “pleadings and other papers
liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of
a pro se complaint “to less stringent standards than formal pleadings drafted by
lawyers”). That said, I may not assume that a pro se plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways that a pro se plaintiff has not
alleged. See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009) (court’s role is
not to act as pro se litigant’s advocate); Whitney v. State of New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round
out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th
Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues").

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The 12(b)(6) standard does not require that a plaintiff establish a prima facie case
in his complaint. Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012).
Nonetheless, the elements of each alleged cause of action help to determine whether a
plaintiff has set forth a plausible claim. Id. at 1192. I thus start by discussing the
elements a plaintiff must prove to establish claims for discrimination and retaliation
under Title VII and the CADA, which statutes share the same elements for the two types
of claims. See Larson v. United Air Lines, 482 F. App’x 344, 351 (10th Cir. June 1,
2012).
Title VII makes it unlawful “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e–2(a)(1). A plaintiff proves a violation of Title VII
either by direct evidence of discrimination or by following the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir.2011).
Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove a prima
facie case of discrimination. See Garrett v. Hewlett–Packard Co., 305 F.3d 1210, 1216
(10th Cir.2002). To set forth a prima facie case of discrimination, a plaintiff must
establish that (1) he is a member of a protected class, (2) he suffered an adverse
employment action, (3) he qualified for the position at issue, and (4) he was treated less
favorably than others not in the protected class. See Sanchez v. Denver Pub. Sch., 164
F.3d 527, 531 (10th Cir.1998). When a plaintiff is a member of a historically favored
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group and brings a reverse discrimination claim, he must also point to “‘background
circumstances support[ing] the suspicion that the defendant is that unusual employer who
discriminates against the majority.’ “Adamson v. Multi Cmty. Diversified Servs. Inc., 514
F.3d 1136, 1149 (10th Cir.2008) (citations omitted). If a plaintiff satisfies his prima facie
case, including establishing additional background facts to demonstrate reverse
discrimination, if applicable, the burden then shifts to the defendant to produce a
legitimate, non-discriminatory reason for the adverse employment action.
See Garrett, 305 F.3d at 1216. If the defendant does so, the burden shifts once more back
to the plaintiff to show that the plaintiff's protected status was a determinative factor in
the employment decision or that the employer's explanation is pretext. Id.
Title VII also makes it unlawful for an employer to retaliate against an employee
“because [s]he has opposed any practice made an unlawful employment practice by this
subchapter.” 42 U.S.C. § 2000e–3(a). A plaintiff establishes retaliation either by directly
showing that retaliation played a motivating part in the employment decision, or
indirectly by relying on the three-part McDonnell Douglas framework. See Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir.2011). To state a prima facie case for
retaliation under Title VII, a plaintiff must show “(1) that [s]he engaged in protected
opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action.” Id. at 998 (internal quotation marks
omitted) (alteration in original).

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II.

Discussion

As stated earlier, though Mr. Rogers is not required to set forth a prima facie case
for each element, he is required to set forth plausible claims. His Complaint submits the
following allegations:
 Mr. Rogers was unlawfully discriminated against because of his race
(Caucasian), or color (white), or national origin (non-Hispanic) and he
suffered retaliation for engaging in protected activity. Compl. ¶ 1.
 Mr. Rogers performed his job satisfactorily at all times. Compl. ¶ 2.
 On or about July 25th, 2012, Mr. Rogers complained to facility management
about his facility supervisor, who is not of his class, who was harassing him
by yelling, name calling, and intimidation. ¶ 2.
 Because the behavior complained about on July 25th did not cease, Mr.
Rogers made a formal complaint to Pete Lauren, Varco’s Human Resources
representative. He complained about his facility supervisor’s harassment
and complained that the same was denying him advancement opportunities,
giving them instead to those with less tenure who were of Hispanic origin.
Compl. ¶ 3.
 Facility management was very angry with any employees for overriding
Management and contacting the Human Resources Department. Compl. ¶
4.
 Mr. Rogers was discharged from employment in retaliation from
Management, for contacting the Human Resources Department, or for
engaging in protected activity. Compl. ¶4.
After striking the first and last bullet points as legal conclusions, I now turn to
whether Mr. Rogers’s complaint sufficiently states plausible claims for relief based on
the remaining allegations, all of which I take to be true for purposes of the instant Motion
. They will sufficiently allege discrimination and retaliation if they “give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.’” Twombly, 550
U.S. at 555, 127 S.Ct. 1955.
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Varco argues that Mr. Rogers’s allegations are insufficient under Khalik and
Johnson v. Shineski, 2013 WL 2295433, *1 (D. Colo. May 24, 2013). Although I find
Mr. Rogers’s Complaint more specific than the cited authority in some respects,
principally in the realm of retaliation, I agree. In Khalik, the Tenth Circuit affirmed the
district court’s dismissal of the plaintiff’s discrimination and retaliation claims based on
allegations of physical assault (being grabbed on the arm), being subjected to a false
investigation and to false criticism, and of making internal complaints to her employer.
Khalik, 671 F.3d at 1194. The plaintiff did not allege who grabbed her by the arm, what
the context for that action was, or when it occurred. Id. She did not allege why she
believed that the action was connected with discriminatory animus. Id. She did not know
who criticized her work, what the criticism was, or how she responded. Id. Expressing
concern over these missing details, the court held that the plaintiff’s claims were too
vague to be plausible under the Twombly/Iqbal standard. Id.
Although Mr. Rogers provides me with the “who” responsible for some of the
conduct he alleges, he leaves out the substance of the conduct. Similar to how the Khalik
plaintiff did not allege what the criticism she had received was, Mr. Rogers does not
allege what names he was called, what was yelled at him, or what racially insulting jokes
he was told. Further, while alleging that his facility Manager made his job
“discomforting, intimidating and very difficult,” he does not allege how or in what
manner his facility manager accomplished this.
Moreover, because Mr. Rogers is a member of a historically favored group
(Caucasian, white), he must meet a higher burden to establish his prima facie case of
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racial discrimination. Williams v. Donahoe, 2011 WL 2600968, at *2 (D. Colo. Mar. 14,
2011) report and recommendation adopted in part, rejected in part, on other grounds,
2011 WL 2600974 (D. Colo. June 29, 2011) (dismissing plaintiff’s retaliation claim in
addition to his discrimination claims) (citing Dubbs v. Head Start, Inc., 336 F.3d 1194,
1201 (10th Cir. 2003)). He must “‘establish background circumstances that support an
inference that the defendant is one of those unusual employers who discriminates against
the majority.’” Adamson, 514 F.3d at 1149. He has not done so.
Notably, a plaintiff alleging reverse discrimination cannot defeat a motion to
dismiss by merely alleging that he was a qualified individual who was treated differently
than a similarly situated minority. Notari v. Denver Water Dept., 971 F.2d 585, 590 (10th
Cir. 1992); Adamson v. Multi Cmty. Diversified Serv., 514 U.S. 1136, 1149 (10th Cir.
2008). See also Larson v. United Air Lines, 2012 WL 1959471, at *4 (10th Cir. June 1,
2012) (“finding that differential treatment is insufficient to state a claim for reverse
discrimination”) (internal citation and quotation omitted). As such, vague assertions that
those of “Hispanic origin” were given “advancement opportunities” that Mr. Rogers
“desired” are insufficient to state a claim for reverse discrimination. In his Complaint,
Mr. Rogers alleges no more than that the facility supervisor (race and identity not
specified) denied him advancement opportunities “while those with less tenure that were
of Hispanic origin, were given the same desired advancement opportunities by the
Supervisor.” Compl. ¶ 3. These allegations fall short of creating “background
circumstances’ sufficient to create an inference of reverse discrimination.”

7 

With respect to the retaliation claim, Mr. Rogers has provided much of the
information that the courts in Khalik and Shineski lacked and cited as reason to discount
their plaintiffs’ retaliation allegations, but he nevertheless shares their flaw of omitting
sufficient discussion of facts that would show causation. Shineski in particular is of
limited utility to my analysis because the claims involved were in large part not only
implausible, but temporally impossible. The plaintiff claimed he was retaliated against
on three separate occasions for filing an EEO Complaint, but his EEO Complaint’s filing
date post-dated two of his three alleged reprisals. Shineski, 2013 WL 2295433, at *6 His
third alleged event of retaliation, his termination, was not sufficiently alleged because the
plaintiff did not allege that the relevant decision makers (those who terminated him or
who played a part in his termination) knew of his protected activity or that his protected
activity caused him to be terminated. Id. Nor did the plaintiff allege a pattern of
retaliatory conduct beginning after he engaged in protected activity that culminated in his
termination that could give rise to the inference that his termination was retaliatory. Id.
Here, though Mr. Rogers suffers no chronological flaw like that exhibited in Shineski and
has explicitly alleged a causal nexus between his discharge and his protected activity, the
body of his alleged nexus is skeletal. Mr. Rogers claims that his discharge was because
of his protected activity, but he does not explain how or why his protected activity led to
his discharge—he simply asserts causation without giving details from which I may infer
that his protected activity did in fact cause his termination. Further, he does not allege
that the decision makers who fired him knew about his protected activity.

8 

As noted above, the allegations in Khalik omitted basic details and provided no
context. Regarding the Khalik plaintiff’s alleged protected activity of complaining, for
example, the court explained that it did not know “when Plaintiff complained, or to
whom. “ Khalik, 671 F.3d at 1194. By contrast, Mr. Rogers’s Complaint alleges both
when and to whom his complaints were made. The court also stated that the plaintiff
should know what the response to her criticism was. Id. Mr. Rogers’s Complaint
specifically alleges a response to his criticism, specifically that the human resources
Department was that “facility management as very angry.” The court suggested that the
plaintiff “should know details about how Defendant treated her compared to other [not of
her class] employees.” Mr. Rogers’s Complaint avers that his co-workers of Hispanic
origin were given advancement opportunities that he was denied. Even so, these
allegations remain nebulous. Mr. Rogers does not allege in what way facility
management’s anger manifested itself or what person(s) in facility management were
angry. Mr. Rogers does not, as noted above, specify what advancement opportunities he
was denied. There are no allegations about other similarly situated employees of Mr.
Rogers’s class being treated differently as he claims he was (that is, although Mr. Rogers
alleges that minorities were given differential treatment, he does not allege that other
members of the majority class were discriminated against as he claims he was). There is
no alleged nexus between the person(s) to whom Mr. Rogers complained and the
person(s) who fired him.
III.

Conclusion

9 

Because any inference of discrimination or retaliation would require me to
speculate beyond the pleaded allegations, I GRANT Varco’s Motion, Doc. 11.
However, the dismissal is WITHOUT PREJUDICE. Further, to avoid a second filing fee,
I GRANT Mr. Rogers leave to file an amended complaint within 14 days if he wishes to
do so. Any such amended complaint should clearly and specifically remedy the issues
addressed in this Order. If such an amended complaint is filed, it should additionally
make clear whether Mr. Rogers seeks to make a claim for unlawful harassment under a
hostile work environment theory as Varco suggests his current complaint might be read.
Mr. Rogers is advised that if I had read his current complaint as including an unlawful
harassment claim under a hostile work environment theory, than I would have dismissed
that claim as well for the reasons stated in Varco’s Motion. Accordingly, if an amended
complaint is filed and explicitly includes an unlawful harassment claim, it must remedy
the defects noted by Varco.
DATED:

August 19, 2014

BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge

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