Davis v. BAE Systems Information Solutions, Inc.

Filing 50

ORDER granting 27 Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted. This case is dismissed with prejudice. Costs are awarded in favor of Defendant and against Plaintiff, by Judge Lewis T. Babcock on 10/12/2017. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 17-cv-00322-LTB-STV
ANDREW DAVIS, a Colorado resident,
v.

Plaintiff,

BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES, INC., a foreign
corporation,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on a Motion to Dismiss filed by Defendant BAE
Technology Solutions & Services, Inc. (“BAE”), seeking dismissal of the
discriminatory retaliation claims filed against it by Plaintiff, Andrew Davis, on the
basis that he failed to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6). [Doc #27] Oral arguments would not materially assist me
in my determination. After consideration of the parties’ arguments, I GRANT the
motion and I DISMISS this case.
I. BACKGROUND
BAE provides services to the Department of Defense. In June 2011, Plaintiff
was hired by BAE as a Field Service Representative and a Senior Desk Side
Support Analyst to provide IT support. [Doc #26 ¶8] In February of 2013,
Plaintiff’s co-worker complained to him that she was being sexually harassed by her
supervisor. Plaintiff reported the harassment allegation to BAE’s human resources

department. Plaintiff asserts that the victim was subsequently “pressured to
recant” and then left BAE. “When one of BAE’s supervisory personnel learned that
[Plaintiff] had been the one to report the harassment, she stated that she was going
to make his life a ‘living hell.’” [Doc #26 ¶12] Plaintiff further asserts that despite
the fact that he was in a “vital leadership role” and was “excelling at his position,”
he was laid off a year later in February of 2014. The reason given for the layoff
was budgetary cuts. [Doc #26 ¶13]
Then, in November of 2015, Plaintiff was recruited for another position
working for BAE or a BAE subcontractor. Plaintiff alleges that he was a perfect
match for the position. [Doc #26 ¶14] He was given an offer letter, which he signed
and returned. Before he started work, however, the recruiter informed him that the
offer had been rescinded due to a “personality conflict.” [Doc #26 ¶14] He was
subsequently told that the manager at BAE in charge of hiring asked if “he should
‘cringe’ upon hearing [Plaintiff’s] name.” [Doc #26 ¶14] Plaintiff then filed a charge
of discrimination with the EEOC on March 28, 2016. [Doc #26 ¶16] BAE, in
response to the charge, claimed that the job offer was rescinded not because of a
personality conflict, but because Plaintiff lacked experience with computer servers.
Plaintiff alleges that this reason is “patently false” because he actually has
extensive experience with servers, including “significant amounts of server work for
BAE.” [Doc #26 ¶16] Plaintiff’s First Amended Complaint concludes, in summary,
that “BAE’s demonstrably false justifications for not re-hiring [him], coupled with
its explicit threat to make his life ‘a living hell’ for reporting sexual harassment,
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demonstrates that it refused to rehire him in order to retaliate for his reporting of
sexual harassment.” [Doc #26 ¶17]
Plaintiff brings two claims against BAE. He claims that BAE retaliated
against him for reporting, opposing and for participating in activities designed to
remedy sexual harassment in violation of: 1) Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e et seq.; and 2) the Colorado Anti-Discrimination Act, Colo.
Rev. Stat. §24-34-301 et seq. [Doc #26]
II. APPLICABLE LAW
In this motion, BAE asserts that Plaintiff’s retaliation claims must be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) allows a court to
dismiss a cause of action for “failure to state a claim upon which relief can be
granted.” When deciding a motion to dismiss under Rule 12(b)(6), the court must
assume the truth of all well-pleaded facts in the complaint, and draw all reasonable
inferences therefrom in the light most favorable to the plaintiff. Teigen v. Renfrow,
511 F.3d 1072, 1078 (10th Cir. 2007); David v. City & County of Denver, 101 F.3d
1344, 1352 (10th Cir. 1996).
A complaint will survive dismissal under Rule 12(b)(6) if it alleges a plausible
claim for relief – that is, if the “[f]actual allegations [are] enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This standard is “a middle ground between
heightened fact pleading, which is expressly rejected, and allowing complaints that
are no more than labels and conclusions or a formulaic recitation of the elements of
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a cause of action, which the Court stated will not do.” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012)(quoting Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008)). The concept of “plausibility” at the dismissal stage refers
not to whether the allegations are likely to be true; the court must assume them to
be true. Rather, “[t]he question is whether, if the allegations are true, it is plausible
and not merely possible that the plaintiff is entitled to relief under the relevant
law.” Christy Sports, L.L.C. v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192
(10th Cir. 2009)(citing Robbins v. Oklahoma, supra, 519 F.3d at 1247).
While the Rule 12(b)(6) standard does not require that the plaintiff establish
a prima facie case in his or her complaint, the elements of each alleged cause of
action help to determine whether the plaintiff has set forth a plausible claim under
the applicable law. Khalik v. United, supra, 671 F.3d at 1192 (citing Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 515, 122 S. Ct. 992, 152 L.Ed.2d 1 (2002); Bell
Atlantic v. Twombly, supra, 550 U.S. at 570). A prima facie case of retaliation
requires a plaintiff to show that: (1) he or she engaged in protected activity; (2) the
defendant took an adverse employment action against him or her; and (3) there
exists a causal connection between the protected activity and the adverse action.

Annett v. Univ. of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004); see also Molla v.
Colorado Serum Co., 929 P.2d 1, 3 (Colo. App. 1996).
III. MOTION TO DISMISS
A claim of retaliation must be grounded in a distinct allegation of a specific
unlawful employment practice. “Discrete acts such as termination, failure to
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promote, denial of transfer, or refusal to hire are easy to identify. Each incident of
discrimination and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice.’ ” National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061,153 L.Ed.2d 106 (2002).
A. February 2014 Lay-Off
In this motion, BAE first asserts that to the extent that Plaintiff contends
that the act of laying him off in February of 2013 was an adverse employment
action, such claim is untimely – in that Plaintiff failed to file an EEOC charge
within 300 days of the lay off, as required by 42 U.S.C. §2000e-5(e)(1), or six months
for the Colorado claim, as required by Colo. Rev. Stat. §24-34-403 – and, thus,
Plaintiff has failed to exhaust his administrative remedies on such claim. See

Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003)(ruling that a plaintiff must
“exhaust administrative remedies for each individual discriminatory or retaliatory
act.”) In his response to the motion, Plaintiff concedes that he is not bringing a
claim of retaliation based on BAE’s act of laying him off in February of 2014.
Rather, his claim for retaliation is solely based on BAE’s (or its subcontractor’s)
failure to rehire him. Therefore, it is undisputed that Plaintiff’s claim for
retaliation by BAE is based solely on its act of rescinding its offer of employment in
November of 2016.
B. November 2016 Rescinded Offer of Employment
With regard to BAE’s act in rescinding its offer of employment to Plaintiff,
BAE contends even when his facts are viewed in the light most favorable to him,
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they are insufficient to support an inference of causation in order to state a
plausible claim for retaliation. To establish case of retaliation, a plaintiff must
show, among other things, that there exists a causal connection between the
protected activity and the adverse employment action. Ward v. Jewell, 772 F.3d
1199, 1203 (10th Cir. 2014). And in order to establish a causal connection, a
plaintiff must present evidence of circumstances that justify an inference of
retaliatory motive. Id.
A causal connection may be established by proffering evidence of protected
conduct closely followed in time by adverse action. Id. (noting that if the protected
conduct is closely followed by the adverse action, courts have often inferred a causal
connection). When the temporal proximity is too long for a fact-finder to infer
causation, a plaintiff may use additional evidence to establish causation. Id. (citing

Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). The
Supreme Court has likened this burden to a showing of “but-for causation.” Foster

v. Mountain Coal Co., LLC, 830 F.3d 1178, 1191 (10th Cir. 2016)(citing Univ. of
Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503
(2013)). The evidence of but-for causation “must be based on more than mere
speculation, conjecture, or surmise.” Ward v. Jewell, supra, 772 F.3d at 1203
(quoting Bones v. Honeywell Int’l Inc., 366 F.3d 869, 875 (10th Cir. 2004)).
Both parties agree that the 33-month/three-year time period between the
protected activity (when Plaintiff reported the alleged sexual harassment to BAE in
February 2013) and the adverse employment action (when Plaintiff’s offer of
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employment was rescinded in November 2016) is clearly too attenuated to infer
causation and to state a plausible claim for retaliation based on temporal proximity
alone. See generally Burrus v. United Tel. Co. of Kansas, 683 F.2d 339, 343 (10th
Cir. 1982)(ruling that the plaintiff’s termination, almost three years after she filed
her initial charge of gender discrimination, when her whole department was
justifiably terminated, failed to establish causation); Proctor v. United Parcel Serv.,
502 F.3d 1200, 1208 (10th Cir. 2007)(“[f]our months is too large a time gap to
establish a causal connection”); Anderson v. Coors, supra, 181 F.3d at 1179 (stating
that a three-month period, standing alone, was too long for a fact-finder to infer
causation).
Plaintiff argues, however, that he has alleged additional evidence that, when
accepted as true, is sufficient to infer causation and state a plausible claim of
retaliation. Plaintiff points to the following evidence: 1) after he reported the
sexual harassment of his co-worker, “supervisory personnel” learned that he had
been the one to report and stated that she was going to make his life a “living hell”
[Doc #26 ¶12]; 2) a year later, in February of 2014, Plaintiff was laid off despite the
fact that he was in a “vital leadership role” and was “excelling at his position;” and
3) in November of 2016, after BAE’s subcontractor rescinded his offer of
employment, Plaintiff learned that the BAE manager in charge of hiring asked if
“he should ‘cringe’ upon hearing [Plaintiff's] name” and he was told, by the
recruiter, that the offer was rescinded due to a “personality conflict.” [Doc #26 ¶14]
Plaintiff also argues that he has alleged facts that BAE’s reason for rescinding the
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offer is pretextual. Specifically, he argues that BAE’s claim that he could not be
rehired due to a “personality conflict” was false – as he had no other such conflicts
at BAE (except the supervisor’s claim that she would make his life a “living hell”)
and he received three letters of recommendation from separate supervisors – and
BAE changed its reason for rescinding the offer from a “personality conflict,” to the
false claim that he had no experience working with servers. [Doc #37]
I agree with BAE, however, that Plaintiff has failed to state a plausible claim
of retaliation for BAE’s action in rescinding the job offer, in that his complaint fails
to state factual allegations sufficient to support a plausible inference that this act
was casually connected to his report of sexual harassment. As an initial matter, I
note that the law is clear that a time period of over three years cuts against an
inference of causation. Such a long lapse of time between the protected activity
and the adverse employment action does not support, and in fact negates, an
inference of causation. See Conroy v. Vilsack, 707 F.3d 1163, 1182 (10th Cir.
2013)(noting that a causal inference “diminishes over time because we may
reasonably expect, as a matter of common sense, that the embers of anger or
resentment that may have been inflamed by the employee’s protected activity –
emotions that would underlie any retaliatory adverse action – would cool over
time”). Furthermore, this is not a case that presents unique circumstances that
would explain the passage of time without continuing friction or animus. See e.g.

Wells v. Colorado Department of Transportation, 325 F.3d 1205, 1217 (10th Cir.
2003)(ruling that a five-month gap between a protected activity and an adverse
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action would ordinarily be too great a time lapse to support an inference of
causation based on timing alone, but the “unique circumstances . . . of the case
warranted a divergence from the general rule of close temporal proximity” in where
the plaintiff: (1) filed a charge; (2) went on leave; (3) returned five months later; and
(4) was promptly transferred to a demeaning job); Bowers v. Bethany Med. Ctr., 959
F.Supp. 1385, 1393 (D. Kan. 1997)(finding temporal causation when adverse action
taken at first available opportunity following protected activity after the plaintiff
returned from seventeen-month disability leave).
Plaintiff’s “additional evidence” is likewise insufficient to state a claim of
causal connection. Plaintiff’s only allegation that evidences a retaliatory motive is
his claim that a BAE supervisor, in response to learning that he reported the
alleged sexual harassment, vowed at the time to make his life a “living hell.” This
statement was made near the time of the report, but then is followed by no
allegations of continuing friction or retaliatory follow-up. See Hinds v.

Sprint/United Mgmt. Co., 523 F.3d 1187, 1202-3 (10th Cir. 2008)(ruling that acts
beginning pattern of retaliation must share close temporal proximity with protected
activity). And although Plaintiff contends that his layoff a year later was “under
suspicious circumstances,” his only factual allegation supporting this conclusion is
that although he was told it was for budgetary reasons, he was performing well at
the time. Such assertion is conclusory, speculative, and does not lead to any
inference of retaliatory motive. These two actions, even when taken as true, do not
constitute sufficient factual allegations to raise or infer a plausible claim of
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retaliation because they do not reveal a causal connection when viewed alone,
together in context, or as a pattern of retaliation. See Meiners v. Univ. of Kansas,
239 F. Supp. 2d 1175, 1194 (D. Kan. 2002), aff’d, 359 F.3d 1222 (10th Cir.
2004)(ruling that an isolated decision does not evidence a pattern of retaliatory
conduct); Steele v. Kroenke Sports Enters., L.L.C., 264 F. App’x 735, 746 (10th Cir.
2008)(unpublished)(ruling that “a pattern of adverse personnel actions over a period

of weeks or months may demonstrate an employer’s retaliatory animus”)(emphasis
added); Dunn v. Shinseki, 71 F.Supp.3d 1188, 1193 (D. Colo. 2014)(indicating that a
pattern of retaliation analysis “considers the facts collectively to determine whether
a pattern exists . . . [and] considering the timeline as a whole is precisely what
would establish a pattern.”)
Finally, I address Plaintiff’s claim of additional evidence related to his
allegation that BAE’s proffered reason for rescinding his offer of employment is
pretextual. Specifically, Plaintiff has alleged he was informed that the job offer
from BAE (or its subcontractor) was rescinded due to a “personality conflict” and
was told that the manager at BAE in charge of hiring asked if “he should ‘cringe’
upon hearing [Plaintiff’s] name.” However, after Plaintiff filed his EEOC charge,
BAE claimed that the job offer was rescinded because he lacked experience with
computer servers. He alleges that this reason is “patently false” because he
actually has extensive experience with servers, including “significant amounts of
server work for BAE.” [Doc #26]

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The Tenth Circuit has considered evidence of pretext when analyzing the
causation element of a prima facie case of retaliation under Title VII. See Proctor v.

United Parcel, supra, 502 F.3d at 1209 (citing Wells v. Colo. Dep’t of Transp., supra,
325 F.3d at 1218). Evidence of pretext is relevant in that “once the employer’s
justification has been eliminated, discrimination may well be the most likely
alternative explanation, especially since the employer is in the best position to put
forth the actual reason for its decision.” Wells v. Colorado Dep’t of Transp., supra,
325 F.3d at 1218 (quoting Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 147,
120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)(ADA case)).
Plaintiff’s allegations of pretext, even when assumed to be true and viewed in
his favor, also do not sufficiently support an inference of causal connection revealing
BAE’s desire to retaliate against him for reporting sexual harassment. When
stripped of conclusory statements, Plaintiff’s facts of pretext are that a BAE
manager apparently asked others about his personality and the recruiter told him
the offer was rescinded because of a personality conflict. BAE’s reason for
rescinding offer, as opposed to that given by the recruiter, was that Plaintiff lacked
experience with servers, which Plaintiff contests. I conclude that such evidence is
only minimally probative of pretext, and does not support a inference of retaliatory
motive behind Plaintiff’s act in reporting his co-worker’s allegation of sexual
harassment several years earlier. The factual allegations supporting a claim of
pretext here are insufficient to infer a casual connection, even when assumed to be

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true, based on BAE’s false reason for its actions in order to “conceal its retaliatory
motive.” Wells v. Colorado Dep’t of Transp., supra, 325 F.3d at 1218.
Therefore, I conclude that Plaintiff’s factual allegations are not enough to
raise a right to relief above the speculative level in that they are insufficient to
support an inference of retaliatory motive or of causation. Plaintiff’s Amended
Complaint, even when the facts alleged are viewed in his favor, fails to draw a
plausible requisite causal link between the protected activity and the adverse
action. See Semsroth v. City of Wichita, 548 F.Supp.2d 1203, 1211 (D. Kan. 2008),

aff’d 555 F.3d 1182 (10th Cir. 2009)(noting that in order “[t]o establish a sufficient
causal connection, [the] plaintiff must show that [the] defendant was motivated to
commit the challenged conduct by a desire to retaliate against her protected
activity”).
Finally, I note that because Colorado and federal law apply the same
standards to discrimination claims, they rise or fall together. Therefore, Plaintiff’s
claim of retaliation under the Colorado Anti-Discrimination Act, Colo. Rev. Stat.
§24-34-301 et seq., likewise fails to state a claim upon which relief can be granted.

Johnson v. Weld Cty., 594 F.3d 1202, 1219 (10th Cir. 2010)(citing Colo. Civil Rights
Comm’n v. Big O Tires, Inc., 940 P.2d 397, 400 (Colo. 1997)); see also Agassounon v.
Jeppesen Sanderson, Inc., 688 F. App’x 507, 509 (10th Cir. 2017)(unpublished).
IV. CONVERSION TO SUMMARY JUDGMENT
As a final matter, Plaintiff contends that BAE is seeking to have this motion
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converted to a motion for summary judgment because it asks that I consider
matters outside of his Amended Complaint when ruling on this motion.
Specifically, Plaintiff contends that BAE improperly relies on documents outside of
the pleadings, most notably Plaintiff’s Charge of Discrimination.
First, I note that Plaintiff’s EEOC Charge is, in fact, referenced in the
Amended Complaint and is clearly “central” to the allegations raised here. See

County of Santa Fe v. Pub. Serv. Co. of New Mexico, 311 F.3d 1031, 1035 (10th Cir.
2002)(ruling that a court may review documents referred to in a complaint on a
Rule 12(b)(6) motion, without converting the motion to one for summery judgment,
if the document is central to the plaintiff's claim and the parties do not dispute the
authenticity of the documents.)
Nonetheless, I have not considered the substance of Plaintiff’s Charge of
Discrimination or BAE’s responsive position statement – beyond what is alleged in
Plaintiff’s Amended Complaint – when ruling on this motion. I likewise have not
considered or relied upon the outside documents provided by Plaintiff and attached
to his Response. [Doc #37] Instead, I have considered and ruled upon this motion
under the Motion to Dismiss standard, pursuant to Rule 12(b)(6). Jacobsen v.

Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)(ruling that 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”); see also

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Ellison v. Roosevelt Cty. Bd. of Cty. Commissioners, 2017 WL 2963382 (10th Cir.
July 12, 2017)(unpublished).

ACCORDINGLY, for the reasons stated, I GRANT the Defendant’s Motion to
Dismiss for failure to state a claim upon which relief can be granted, pursuant to
Fed. R. Civ. P. 12(b)(6), and I DISMISS WITH PREJUDICE this case. Costs are
AWARDED in favor of Defendant and against Plaintiff.

Dated: October

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, 2017, in Denver, Colorado.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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