Catchai v. JBS Swift Greeley & CO

Filing 26

ORDER granting in part and denying in part 20 Motion to Dismiss, by Magistrate Judge Michael J. Watanabe on 3/10/2016.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01606-MJW
SIMAO PEDRO CATCHAI,
Plaintiff,
v.
JBS SWIFT GREELEY & CO,
Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS (Docket No. 20)

MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this Court for all purposes pursuant to the Court’s Pilot
Program and 28 U.S.C. § 636(c) upon consent of the parties and the Order of Reference
Upon Consent to Jurisdiction of Magistrate Judge issued by Chief Judge Marcia S.
Krieger on September 15, 2015 (Docket Nos. 15 & 16).
Now before the Court is the Defendant’s Motion to Dismiss (Docket No. 20).
Plaintiff filed a response (Docket No. 24) and defendant filed a reply (Docket No. 25).

The Court has reviewed the parties’ filings. The Court has further taken judicial notice
of the Court’s entire file in this case and considered the applicable Federal Rules of Civil
Procedure, statutes, and case law. Now being fully informed, the Court grants the
motion in part and denies the motion in part.
Jurisdiction
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
1

Allegations1
Plaintiff, who proceeds in this matter pro se2, brings claims against Defendant, his
former employer, pursuant to 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964,
and the Equal Pay Act. (Docket No. 1 at 1-2, 8-11.) He is an immigrant from Angola, a
lawful resident, and authorized to work in the United States. (Id.) Plaintiff was hired by
Defendant on October 7, 2013, and left his employment just over four months later on
February 10, 2014. (Id. at 1, 7.) He was hired for the position of “drop wings” in the
production area of the beef plant. (Id. at 3.) As a new hire, he wore a “gold hat” as a
symbol of a “non qualified” employee. (Id. at 3-4.) He satisfactorily performed his job
duties, and within thirty days, on or about November 6, 2014, he became a “qualified
employee” because he had previous work experience from another beef plant as a
Quality Assurance Technician. (Id. at 4.) Plaintiff was thus given a “white hat” as a

1

For the purposes of considering the motion, the Court takes the following facts from
the Complaint [#1]. The factual allegations in Plaintiff’s Complaint are presumed true unless
they are conclusory or contradicted by other, more specific allegations. See Khalik v. United Air
Lines, 671 F.3d 1188, 1193 (10th Cir. 2012) (“conclusory and formulaic recitations” of the
elements “are insufficient to survive a motion to dismiss”); DPWN Holdings (USA), Inc. v. United
Air Lines, Inc., 747 F.3d 145, 152 (2d Cir. 2014) (holding that “general allegations that are
contradicted by more specific allegations in the Complaint” need not be accepted as true
(quotation omitted)).
2

A federal court must construe a pro se plaintiff’s “pleadings liberally, applying a less
stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court
can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it
should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various
legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this
interpretation is qualified in that it is not “the proper function of the district court to assume the
role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143
(10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

2

symbol of a “qualified employee,” and his pay was raised from $13.95 per hour to
$14.04 per hour. (Id.)
Employees with a “gold hat” can be switched and tried in different positions to see
in which position they best perform. (Id.) In addition, a new hire with a gold hat must
take orders from “seniors” at any time. (Id.) If there is a new opening, the new hire does
not have a right to bid for it. (Id.) The senior workers respect the qualified employees.
(Id.) As a qualified employee, Plaintiff had the opportunity to bid for any preferable
position. (Id.) He bid for a quality assurance position and was told to wait until there
would be an opening in the quality assurance department. (Id.)
Plaintiff was harassed by an Hispanic co-worker, Emilio Garcia, who was “backed
by a Hispanic supervisor Javier Villanova.” (Docket No. 1 at 2, 4.) On or about
November 18, 2013, Plaintiff filed a complaint with the union representative. (Docket
No. 1 at 4; Docket No. 1-3.) About a week later, “defendant recklessly and intentionally
retaliated against the plaintiff for having filed a complaint with the Union Representative
against the employer” at the “Union’s office located in the facility of the beef plant.”
(Docket No. 1 at 2.) On or about November 24, 2013, “the supervisor backed by the
floor manager Mirna, another Hispanic lady . . . recklessly and intentionally inflicted
emotional distress on the plaintiff in [a] humiliating manner.” (Id. at 4-5.) More
specifically, “[t]hey stripped [Plaintiff] of his white hat as a retaliation because of the
complaint . . . . They cut his working hours [and] . . . . They exposed him to public
humiliation[,] mockery and subject[ed Plaintiff] to taking order[s] from seniors. He was
humiliated by wearing [a] gold hat agin [sic].” (Id. at 5.) As a result of emotional
distress, the next day Plaintiff did not go to work and was treated at Centennial Mental

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Health. (Id. at 5.)
Plaintiff was removed from “Drop Wing to Tender Loin” and assigned a new
position, “Tender pullers,” the hardest in the production area. (Id.) He was given thirty
days to qualify and was told failure to do so would result in termination of his
employment. (Id.) “The employer knowingly [sic] it was the toughest job, the plaintiff
would not be able to qualify or he would voluntarily quit[.] However, he surprisingly beat
all the odds and performed very well in less than three weeks.” (Id. at 5.) At that time,
the pay rate for that position was $16.15 per hour, but the “drop wing” rate of pay was
$14.05 per hour. (Id.) “The employer had realized that they made a mistake to put the
guy they didn’t want to see around in a position to make good money.” (Id.) Plaintiff
was sent back to the “drop wing” position on December 17, 2013. (Id. at 6.) Plaintiff
“was harassed in exchanged with the restitution of white hat [sic].” (Id. at 6.) On or
about December 17, 2013, Plaintiff “filed a complaint with Human Resources of the
company” which “addressed ‘Discrimination treatment, Retaliation, and Hostile work
environment.’” (Docket No. 1 at 5-6.) “As a condition the the [sic] plaintiff was removed
and sent back again to drop wings where he was harassed in exchange with the
restitution of white hat.” (Docket No. 1 at 6.) Brendan, the Human Resource delegate
told plaintiff he had no choice.
On December 23, 2013, plaintiff decided to file a grievance with the union.
(Docket No. 1 at 4, 6 & Docket No. 1-4). After doing so, the manager “implemented new
strategies,” namely, assigning another employee to be involved with part of plaintiff’s job
duties. (Docket No. 1 at 6-7.) That co-worker was not performing the job correctly and
Plaintiff was being blamed for it. (Id. at 7.) Plaintiff asked his supervisor to intervene,

4

but nothing happened. (Id.) After Plaintiff complained, the co-worker threw a large
piece of fat at Plaintiff, causing pain when it struck on the side of Plaintiff’s head. (Id.)
When Plaintiff complained about the fat-throwing incident, the manager admitted it was
her fault because she did not include Plaintiff in a meeting about a change she made.
(Id.) Nothing was done in response to Plaintiff’s complaint to his manager. (Id.) The
co-worker was not punished and the policy of zero tolerance for violence in the
workplace was not enforced. (Id.) As a result, Plaintiff tendered his resignation on
February 10, 2014. (Id.) Plaintiff “had no other choice.” (Id.)
Prior to his resignation, on or about January 3, 2014, Plaintiff applied for a quality
assurance position. Plaintiff had an interview with quality assurance manager Justin
and was called for a second interview with Justin and Lucy, another quality assurance
manager, in the presence of Irene, a Human Resources hiring manager. They were all
“without a shadow of doubt impressed by his experience.” (Id. at 6.) Plaintiff was told
“he would be placed on January 28, 2014.” (Id.) A Hispanic female from outside the
company was placed in that job. (Id.)
Plaintiff alleges that Defendant’s treatment of him constitutes discrimination
based on race and national origin, and retaliation in violation of Title VII, Section 1981,
and the Colorado Anti Discrimination Act. Plaintiff filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on April 29, 2014. (Id. at 2.)
Plaintiff received a right to sue letter, dated June 8, 2015, from the EEOC. (Docket No.
1-2.) Plaintiff raises the following claims for relief: (1) a Title VII violation based upon
defendant recklessly and intentionally discriminating against plaintiff who is black and
from Angola, Africa; (2) a claim that Defendant retaliated “against plaintiff for having filed

5

a complaint with the Union representative of the employees” by stripping him of his white
hat, violating the Union contract, exposing plaintiff to public humiliation, mockery, and
subject to taking orders from seniors, cutting plaintiff’s hours, denying plaintiff’s
promotion, and urging another co-worker to assault plaintiff, in violation of Title VII; (3) a
Title VII claim alleging that Plaintiff was subject to a hostile work environment and
denied a promotion; (4) a claim brought under the Equal Pay Act (“EPA”), 29 U.S.C. §
206, and 42 U.S.C. § 1981 because Plaintiff was paid $14.05 per hour when he worked
in the position “tender loin” from November 24 to December 17, 2013, and should have
been paid $16.15 per hour; and (5) a claim that Plaintiff was demoted, harassed, and
subject to unfair terms and conditions of employment due to his national origin (he would
not have received such different treatment if he was Hispanic or American).
The Motion
In the motion, Defendant argues that each of Plaintiff’s claims is subject to
dismissal pursuant to Fed. R. Civ. P. 12.3 Defendant avers that the Court lacks
jurisdiction over Plaintiff’s retaliation claim because the National Labor Relations Board
has primary jurisdiction over the claim. Defendant further argues that Plaintiff’s Title VII
and Section 1981 claims fail because Plaintiff did not suffer an adverse employment
action. Specifically, Defendant maintains that neither wearing a gold hard hat nor being
temporarily assigned to a new position constitute adverse employment actions. With

3

In support of the motion, filed under Rule 12, Defendant submits a variety of exhibits,
including a collective bargaining agreement (Docket Nos. 20-1, 20-2 & 20-3), the Declaration of
Kelly Johnson (Docket No. 20-4), and Plaintiff’s earnings vouchers (Docket No. 20-5).
However, the Court cannot consider these documents without converting the motion into a Rule
56 motion. The Court did not convert this motion into a Rule 56 motion, as a result, the Court
does not consider these exhibits.

6

regard to Plaintiff’s allegation that he was not selected for a quality assurance position,
Defendant argues that Plaintiff was not qualified for the position. Defendant also argues
that Plaintiff’s hours were not reduced in retaliation for his complaint to his union.
Defendant further argues that Plaintiff was not constructively discharged from his job.
Regarding Plaintiff’s hostile work environment claim, Defendant maintains that the
alleged harassment was not so severe or pervasive as to alter the terms and conditions
of his employment. Finally, Defendant argues that Plaintiff’s EPA claim fails because he
does not allege that he suffered any discrimination based on his sex or gender.
Notably, Plaintiff’s response includes additional factual allegations. However, the
Court cannot consider these additional factual allegations when determining whether the
motion should be granted because the Court is limited to the allegations in the
Complaint. This is because the purpose of a motion to dismiss brought pursuant to Rule
12(b)(6) is to test “the sufficiency of the allegations within the four corners of the
complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337,
340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead
sufficient facts, taken as true, to provide ‘plausible grounds' that discovery will reveal
evidence to support the plaintiff's allegations.” Shero v. City of Grove, Okla., 510 F.3d
1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
“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.” Sutton v. Utah State
Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

7

Standard of Review

Defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). As stated by then-Chief Judge Babcock in 2001:
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of
jurisdiction over the subject matter. As courts of limited jurisdiction,
federal courts may only adjudicate cases that the Constitution and
Congress have granted them authority to hear. Statutes conferring
jurisdiction on federal courts are to be strictly construed. A Rule 12(b)(1)
motion to dismiss must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.
The burden of establishing subject matter jurisdiction is on the party
asserting jurisdiction.
. . . [I]f a party attacks the facial sufficiency of the complaint, the court
must accept the allegations of the complaint as true.
Cherry Creek Card & Party Shop, Inc. v. Hallmark Mktg. Corp., 176 F. Supp. 2d 1091,
1094-95 (D. Colo. 2001) (internal citations, quotation marks, and alterations omitted).
The Tenth Circuit has recently explained the standard under Rule 12(b)(6):
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. Disregarding conclusory statements, the remaining
factual allegations must plausibly suggest the defendant is liable. A claim
for relief is plausible when the plaintiff pleads facts adequate to draw a
reasonable inference that the defendant is liable for the alleged
misconduct. Such facts must raise a right to relief above the speculative
level.
McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014) (internal citations, quotation
marks, and alterations omitted).
Analysis
Retaliation Claim
Plaintiff alleges that Defendant retaliated against him after he filed a grievance
with his union. (Docket No. 1 at 2.) Filing a grievance under a collective bargaining
8

agreement constitutes protected union activity under § 7 of the National Labor Relations
Act (“NLRA”). 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 NLRA. Rather, the courts must defer to the National Labor
Relations Board (“NLRB”). San Diego Bldg. Trades Council, Millme’s Union, Local 2020
v. Garmon, 359 U.S. 236, 244-245 (1959). Preemption by the NLRA occurs, inter alia,
where “the conduct at issue is subject to the unfair labor practice jurisdiction of the
[NLRB].” Peabody Galion v. Dollar, 666 F.2d 1309, 1314 (10th Cir. 1981) (citations
omitted). Activities that are arguably protected by section 7 or prohibited by section 8 of
the NLRA must be determined “in the first instance [by] the [NLRB].” Garmon, 359 U.S.
at 244-245. This preemption doctrine is premised on Congress’ desire to avoid
conflicting rules of substantive law and remedy, thereby ensuring a consistent national
labor policy. Id. at 242. Therefore, to the extent Plaintiff’s second claim for relief
alleges retaliation in response to a grievance filed with Plaintiff’s union, this claim must
be dismissed for lack of subject matter jurisdiction. See Silchia v. MCI Telecomms.
Corp., 942 F.Supp. 1369, 1377 (D. Colo. 1996).
Plaintiff also alleges that he complained to a manager about another worker
“throwing a large piece of fat at” him. (Docket No. 1 at 7.) Plaintiff maintains that as a
result of nothing being done about this complaint, he quit his job. (Id.) However,
Plaintiff does not allege that he was retialated against in anyway relating to this
complaint about his co-worker. As a result, the Court does not read into the Complaint
a retaliation claim brought against Defendant that is distinguishable from the retalaition
claim that is governed by the NLRB. See, e.g., Perkins v. Fed. Fruit & Produce Co.,
9

Inc., 861 F.Supp.2d 1285, 1290-91 (D. Colo. 2012). Therefore, no retaliation claim
alleged by Plaintiff can proceed in this case because the Court does not have subject
matter jurisdiction over any such claim.
Title VII and Section 1981
Plaintiff brings a claim under Title VII and Section 1981 for racial discrimination,
alleging that he was discriminated against because he is black and from Angola.
(Docket No. 1 at 1, 8.) Plaintiff also brings a hostile work environment claim under Title
VII and states that he was denied a “job promotion in a position [for which] he was fully
skilled and qualified.” (Id. at 9.) Under Title VII, an employer may not discriminate on
the basis of race, color, religion, sex, or national origin, or take adverse action against
an employee who has engaged in protected conduct. Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012); Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998
(10th Cir. 2011). Section 1981 “declares that all persons ‘shall have the same right . . .
to make and enforce contracts . . . as is enjoyed by white citizens’ [and] prohibits not
only racial discrimination but also retaliation against those who oppose it.” Univ. of
Texas Southwestern Med. Cntr. v. Nassar, 133 S.Ct. 2517, 2530 (2013) (quoting
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445 (2008)).
Racial Discrimination
Because Plaintiff does not allege any direct evidence of discrimination, his Title
VII and § 1981 claims are analyzed under the burden-shifting framework enumerated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Bird v. Regents of New
Mexico State Univ., 619 F.App’x 733, 741 (10th Cir. 2015); Baca v. Sklar, 398 F.3d
1210, 1218 n.3 (10th Cir. 2005). A plaintiff bears the initial burden to establish a prima
10

facie case for discrimination. Id. Once a prima facie case is established, the burden
shifts to the defendant to provide a legitimate, nondiscriminatory reason for the adverse
employment action. Id. If the defendant does so, the burden returns to the plaintiff to
demonstrate that the defendant’s proffered reason is pretextual. Id. In the motion,
Defendant argues that Plaintiff fails to establish a prima facie case under Title VII as to
each claim. Accordingly, the burden does not shift to Defendant in the context of the
Court’s analysis herein because Defendant does not offer a legitimate,
nondiscriminatory reason for the alleged adverse employment action.
As the Tenth Circuit recently summarized:
“[T]he articulation of a plaintiff’s prima facie case may well vary, depending
on the context of the claim and the nature of the adverse employment
action alleged.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005).
Generally, to make out a prima facie case of discrimination, a plaintiff must
demonstrate “that (1) the victim belongs to a protected class; (2) the victim
suffered an adverse employment action; and (3) the challenged action
took place under circumstances giving rise to an inference of
discrimination.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.
2007). “The critical prima facie inquiry in all cases is whether the plaintiff
has demonstrated that the adverse employment action occurred ‘under
circumstances which give rise to an inference of unlawful discrimination.’”
Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir.
2000) (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).
Bird, 619 F.App’x at 741-42.
To determine if Plaintiff suffered an adverse employment action, the Court must
look at the facts of the individual case. Heno v. Sprint/United Mgmt. Co., 208 F.3d 847,
857 (10th Cir. 2000). “An adverse employment action includes acts that constitute a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
11

significant change in benefits.” Dick v. Phone Directories Co., 397 F.3d 1256, 1268
(10th Cir. 2005) (internal quotation marks omitted). Although “an adverse employment
action is not limited to such acts . . . we will not consider a mere inconvenience or an
alteration of job responsibilities to be an adverse employment action.” Id.; Sanchez,
164 F.3d at 532 (citation omitted). “[A] plaintiff must [always] show that the alleged
adverse action caused more than de minimis harm to or a de minimis impact upon an
employee’s job opportunities or status.” EEOC v. C.R. England, Inc., 644 F.3d 1028,
1040 (10th Cir. 2011). “Acts that carry a significant risk of humiliation, damage to
reputation, and a concomitant harm to future employment prospects may be considered
adverse actions . . . .” Annett v. Univ. of Kan., 371 F.3d 1233, 1239 (10th Cir. 2004).
Reassignment From “Tender Loin” to “Drop Wings”
Plaintiff alleges that he “was humiliated by wearing [a] gold hat agin [sic].” (Id. at
5.) This change of hard hat color, according to Plaintiff’s allegations, was related to his
reassignment from the “tender loin” position to the “drop wings” position on the meat
processing line. (Docket No. 1 at 5-6.) Plaintiff’s allegations relating to this change of
assignment show that this involved the processing of different portions of the carcass
and that this change resulted in lower pay. (Id. at 5.) Specifically, Plaintiff alleges that
the “tender loin” position paid $16.15 per hour and the “drop wing” position paid $14.05
per hour. (Id.) This factual allegation is sufficient for Plaintiff to meet the second
element—showing that he suffered an adverse employment action. Duvall v. Putnam
Cnty. Sch. Dist., Ind. Sch. Dist. No. 1 of Okla. Cnty., 530 F.App’x 804, 811 (10th Cir.
2013) (finding that reassignment to a teaching position that resulted in a five percent
decrease in pay constituted an adverse employment action).
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Therefore, the Court next considers whether Plaintiff has sufficiently alleged that
this adverse employment action “took place under circumstances giving rise to an
inference of discrimination.” PVNF, L.L.C., 487 F.3d at 800. Plaintiff’s factual
allegations relating to this reassignment do not tie the reassignment to any issues
relating to his race or national origin. While Plaintiff does allege that a Hispanic coworker harassed him on or about November 24, 2013, he does not allege that this
harassment related to his race. (Docket No. 1 at 4-5.) In fact, Plaintiff does not provide
any detailed allegations relating to the alleged harassment. Plaintiff does state that he
sought mental health treatment on November 25, 2013. (Id. at 5.) Plaintiff’s next
allegation is that he was reassigned to the “drop wing” position. (Id.) However, none of
these allegations are tied in any way to Plaintiff’s race. As a result, Plaintiff fails to state
a claim of racial discrimination under either Title VII or Section 1981 relating to the
reassignment from “tender loin” to “drop wing.”
Constructive Discharge
Next, the Court turns to Plaintiff’s resignation. In this case, Plaintiff voluntarily quit
his job. (Docket No. 1 at 7.) He alleges that he “had no other choice . . . .” (Id.) In
short, Plaintiff’s argument is that he was forced to quit his job. The Court refers to this
as constructive discharge. In order to establish a claim for constructive discharge on the
basis of discrimination or hostile work environment, a plaintiff must show that “the
employer by its illegal discriminatory acts has made working conditions so difficult that a
reasonable person in the employee’s position would feel compelled to resign.” Sanchez
v. Denver Pub. Schools, 164 F.3d 527, 534 (citing Derr v. Gulf Oil Corp., 796 F.2d 340,
344 (10th Cir. 1986)); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 147

13

(2004). “There is no mathematically precise test of what is intolerable.” Hogue v. MQS
Inspection, Inc., 875 F.Supp. 714, 723 (D.Colo. 1995). Courts must examine all of the
circumstances, including: (1) frequency of the conduct; (2) severity; (3) whether it is
physically threatening or humiliating; and (4) whether it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
A plaintiff must show that discrimination or harassment made the job so unbearable that
his only reasonable option was to resign. See Sanchez, 164 F.3d at 534; see also
Sandoval v. City of Boulder, 388 F.3d 1312, 1325 (10th Cir. 2004). Furthermore, the
standard for constructive discharge is objective, “an employee’s subjective feelings or
beliefs are not relevant in a constructive discharge claim.” Heno v. Sprint/United Mgmt.
Co., 208 F.3d 847, 858 (10th Cir. 2000).
In this case, Plaintiff alleges that he was forced to wear a different colored hard
hat that resulted in “mockery and subject[ed him] to taking order[s] from seniors.”
(Docket No. 1 at 5.) Plaintiff further alleges that when he was “sent again to drop wings
. . . he was harassed in exchange with the restitution of white hat.” (Id. at 6.) Co-worker
hostility or retaliatory harassment may be an “adverse employment action” if it is
sufficiently severe. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.
1998). However, the mocking Plaintiff alleges in this case does not amount to
harassment or discrimination that left him no choice but to resign. While the mocking
and lack of respect may have offended Plaintiff, these “working conditions [were not] so
difficult that a reasonable person in the employee’s position would feel compelled to
resign.” Sanchez, 164 F.3d at 534; see also Tran v. Trustees of State Colls. in Colo.,
355 F.3d 1263, 1270 (10th Cir. 2004) (“The question is not whether the employee's

14

resignation resulted from the employer's actions, but whether the employee had any
other reasonable choice but to resign in light of those actions.”); Garrett v. HewlettPackard Co., 305 F.3d 1210, 1221 (10th Cir. 2002) (“The bar is quite high in such cases:
a plaintiff must show he had no other choice but to quit.” (citing Sanchez, 164 F.3d at
534)). As a result, the Court concludes that Plaintiff fails to state a claim of racial

discrimination under either Title VII or Section 1981 based on a theory of constructive
discharge.
Fat Throwing Incident
Further, the incident in which a co-worker threw a piece of fat at Plaintiff is not
linked to harassment or discrimination. Plaintiff’s allegations surrounding this incident
establish that this co-worker was angry because Plaintiff “asked the supervisor to stop”
the co-worker, the supervisor did nothing, and Plaintiff tried to stop the co-worker from
improperly doing his job. (Docket No. 1 at 7.) This incident is not tied in any way to
Plaintiff’s race and is a one-off incident. While co-worker hostility or retaliatory
harassment may be an “adverse employment action” if it is sufficiently severe, this
incident does not meet the threshold of severity. Gunnell, 152 F.3d at 1264. This
incident is more akin to the type of “petty slights” the Supreme Court discussed in
Burlington Northern that do not constitute the type of retaliation that can support a Title
VII claim. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). As a
result, Plaintiff fails to state a claim of racial discrimination under either Title VII or
Section 1981 based on this incident.

15

Failure to Promote
Plaintiff also alleges that he applied for a quality assurance position on January
3, 2014, and was told that “he would be placed on January 28, 2014, [b]ut he was never
placed in the position.” (Docket No. 1 at 6.) Plaintiff further alleges that “a Hispanic
female was placed in the position . . . .” (Id.) To prevail on a Title VII failure to promote
claim, a plaintiff must first establish a prima facie case by showing that “(1) he is a
member of a protected class; (2) he applied for and was qualified for the particular
position; (3) he was not promoted despite his qualifications; and (4) the position was
filled or remained open after he was rejected.” Cross v. The Home Depot, 390 F.3d
1283, 1286 (10th Cir. 2004).
Plaintiff alleges that he “is a black immigrant from Angola,” he “applied for a
quality assurance position,” the people interviewing him for the position “were without a
shadow of doubt impressed by his experience,” “[h]e was told that he would be placed
on January 28, 2014,” Plaintiff “was never placed in the position,” and “a Hispanic
female was placed in the position . . . .” (Docket No. 1 at 1, 6.) These allegations are
sufficient to allege the first, third, and fourth elements of a prima facie failure to promote
claim. The question is whether Plaintiff has sufficiently alleged that he was qualified for
the quality assurance position.4 “The relevant inquiry at the prima facie stage is not
whether an employee or potential employee is able to meet all the objective criteria
adopted by the employer, but whether the employee has introduced some evidence that

4

Defendant attacks this claim be submitting a declaration of an employee discussing
the qualifications necessary for this position. However, the Court has not converted this motion
into a Rule 56 motion and, therefore, does not consider the declaration.

16

[he] possesses the objective qualifications necessary to perform the job sought.”
E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1194 (10th Cir. 2000).
Plaintiff alleges that he worked at a Cargill meat processing plant in Fort Morgan,
Colorado “where he worked in the past as a Quality Assurance Technician.” (Docket
No. 1 at 4.) While Plaintiff does not allege that the qualifications for the same job at the
two different meat processing plants were identical, construing Plaintiff’s allegations in
the light most favorable to Plaintiff, as the Court must, the Court concludes that Plaintiff
has carried his de minimis burden to show that he was qualified for the position at this
early stage in the proceeding. Gibson v. Mabrey Bank, No. 14-cv-0770-CVE-FHM,
2015 WL 5098698, at *6 (N.D. Okla. Aug. 31, 2015). As a result, the Court concludes
that Plaintiff’s failure to promote claim is sufficiently alleged and does not dismiss this
claim. However, the Court also notes that, to the extent Defendant would like to renew
its arguments based on the declaration submitted to the Court or any other evidence the
Court did not consider when deciding this motion brought under Rule 12, Defendant
may file a Rule 56 motion.
Hostile Work Environment
Plaintiff’s hostile work environment claim fails for the same reason as his racial
discrimination claim. However, the Court also notes that the minor and sporadic
incidents alleged by Plaintiff—even with all reasonable inferences drawn in Plaintiff’s
favor—do not rise to the level of harassment necessary to state a claim. Tademy v.
Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008) (claim requires “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”);
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MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). “[A] plaintiff
must show that the environment was both objectively and subjectively hostile or
abusive.” Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir. 2012) (citation
omitted). As the Tenth Circuit summarized, the Court must
assess “the objective severity of the harassment from the perspective of a
reasonable person in the plaintiff's position, considering all the
circumstances.” Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir.
2007) (emphasis added). In other words, we must look to a “totality of the
circumstances,” and “consider[ ] such factors as ‘the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Chavez v. New Mexico,
397 F.3d 826, 832-33 (10th Cir. 2005) (quoting O'Shea v. Yellow Tech.
Servs., Inc., 185 F.3d 1093, 1098 (10th Cir. 1999)); accord Billings v.
Town of Grafton, 515 F.3d 39, 48 (1st Cir. 2008). “[T]hat [objective] inquiry
requires careful consideration of the social context in which particular
behavior occurs and is experienced by its target.” Oncale, 523 U.S. at 81,
118 S.Ct. 998. “Conduct which is considered normal and appropriate in
one setting may be deemed abusive or hostile in another.” EEOC v.
Fairbrook Med. Clinic, PA, 609 F.3d 320, 328 (4th Cir. 2010).
Morris, 666 F.3d at 664. The specific factual conduct alleged by Plaintiff shows nothing
more than mocking by co-workers, a co-worker who was difficult to work with, and one
incident when a co-worker threw a piece of fat at Plaintiff. These incidents do not rise to
the level of a hostile work environment.
Equal Pay Act
Plaintiff’s fourth cause of action purports to be brought under the Equal Pay Act
(“EPA”). (Docket No. 1 at 10.) The EPA prohibits wage discrimination “between
employees on the basis of sex . . . for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar
working conditions.” 29 U.S.C. § 206(d)(1). To establish a prima facie case of pay
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discrimination under the EPA, a plaintiff must demonstrate that: “(1) she was performing
work which was substantially equal to that of the male employees considering the skills,
duties, supervision, effort and responsibilities of the jobs; (2) the conditions where the
work was performed were basically the same; (3) the male employees were paid more
under such circumstances.” Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1364 (10th
Cir. 1997) (citation omitted). In this case, Plaintiff is male and offers no factual
allegations of any gender-based discrimination in pay. As a result, Plaintiff fails to state
a claim under the EPA.
Conclusion
For the foregoing reasons, it is hereby ORDERED that Defendant’s Motion to
Dismiss (Docket No. 20) is GRANTED in part and DENIED in part. It is further
ORDERED that Plaintiff’s claims are dismissed as follows: Plaintiff’s retaliation claim is
dismissed for lack of subject matter jurisdiction; Plaintiff’s Title VII and 42 U.S.C. § 1981
claims of racial discrimination and hostile work environment are DISMISSED without
prejudice;5 and Plaintiff’s Equal Pay Act claim is DISMISSED with prejudice. Plaintiff’s
only remaining claim is his Title VII failure to promote claim.
Date: March 10, 2016
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

5

See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“[O]rdinarily the dismissal
of a pro se claim under Rule 12(b)(6) should be without prejudice . . . .”) (citations omitted);
Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that prejudice should not
attach to a dismissal when a plaintiff has made allegations “which, upon further investigation
and development, could raise substantial issues”).

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