Molina v. Wells Fargo Bank

Filing 22

MEMORANDUM DECISION AND ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim: leave not granted to amend complaint. Signed by Judge David Nuffer on 3/29/17 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MAYRA MOLINA,
Plaintiff,

v.

WELLS FARGO BANK, NATIONAL
ASSOCIATION,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM
Case No. 2:16-cv-207-DN
District Judge David Nuffer

Plaintiff Mayra Molina alleges that Defendant Wells Fargo Bank, National Association,
discriminated against her on the basis of race, sex, and disability in violation of Title VII of the
Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). 1 Because of the
discrimination, Molina alleges that Wells Fargo constructively terminated her and negligently
inflicted emotional distress on her. 2 Molina further alleges that Wells Fargo improperly refused
to give her leave under the Family Medical Leave Act (FMLA) for her serious medical
condition. 3 Molina also seeks punitive damages. 4
Wells Fargo moves to dismiss all of Molina’s causes of action under Rule 12(b)(6) of the
Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. 5

1

First Amended Complaint (Complaint) ¶¶ 73, 93, 103, 123, docket no. 4, filed May 4, 2016.

2

Id. ¶¶ 70, 130–33, 135–37.

3

Id. ¶¶ 139–46.

4

Id. ¶¶ 120–21.

Defendant Wells Fargo Bank, National Association’s Motion to Dismiss and Supporting Memorandum of Points
and Authorities (Motion to Dismiss) at 1–2, docket no. 8, filed June 14, 2016.

5

Molina opposes the motion. 6 In the event that Wells Fargo’s Motion to Dismiss is granted,
Molina requests that she be given leave to file an amended complaint to cure the deficiencies of
her Complaint. 7 Wells Fargo replied in support of the motion. 8
Because most of Molina’s causes of action do not state a claim for which relief may be
granted, are not separate causes of action, are duplicative, or are precluded by state law, Wells
Fargo’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART. In addition,
Molina’s request 9 to file an amended complaint is DENIED because she does not satisfy Federal
Rule of Civil Procedure 7(b)(1).

6

Response to Defendant’s Motion to Dismiss (Molina’s Response), docket no. 13-1, filed July 5, 2016.

7

Id. at 8.

Defendant Wells Fargo Bank, National Association’s Reply Memorandum in Support of Its Motion to Dismiss
(Wells Fargo Reply), docket no. 14, filed July 19, 2016.

8

9

Molina’s Response at 8.

2

Contents
Standard of Review ......................................................................................................................... 3
Factual Allegations ......................................................................................................................... 4
Discussion ....................................................................................................................................... 7
Molina’s First, Fourth, and Seventh Causes of Action are Dismissed ............................... 9
1.
Molina’s First Cause of Action Fails to State a Unique Claim................... 9
2.
Molina’s Fourth Cause of Action is Not a Separate Claim Because
Punitive Damages is a Remedy................................................................. 10
3.
Molina’s Seventh Cause of Action is Precluded by Utah Law ................. 11
Molina’s Second Cause of Action Pleads Sufficient Plausible Facts to Show That Molina
Suffered Discrimination Based on Her Disability ................................................ 12
Molina’s Third Cause of Action Pleads Sufficient Facts to Show That Molina Was
Subjected to Discrimination.................................................................................. 14
1.
Molina Adequately Pleads That She Was Denied Promotion Based on a
Protected Classification. ........................................................................... 15
2.
Molina Adequately Pleads That She Was Subjected to a Hostile Work
Environment. ............................................................................................. 17
Molina’s Fifth Cause of Action Does Not Allege Sufficient Facts to Demonstrate That
Sexual Conduct Was a Condition of Employment Benefits. ................................ 19
Molina’s Sixth Cause of Action is a Separate Claim ........................................................ 22
Molina’s Eighth Cause of Action Alleges Sufficient Facts to Show That Molina Was
Entitled to FMLA Leave. ...................................................................................... 23
Molina’s Request for Leave to Amend is Denied Because Her Request is Not a Motion.
............................................................................................................................... 25
Order ........................................................................................................................................... 27
STANDARD OF REVIEW
A defendant is entitled to dismissal under Rule 12(b)(6) of the Federal Rules of Civil
Procedure when the “complaint alone is legally [in]sufficient to state a claim for which relief
may be granted.” 10 The factual allegations in the complaint are viewed in the “light most
favorable to the plaintiff.” 11 But the basic pleading requirements “demand[] more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” 12 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” 13

10

Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

11 Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (citing Beedle v. Wilson, 422 F.3d
1059, 1063 (10th Cir. 2005)).
12

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

13

Id. (quoting Twombly, 550 U.S. at 555 (2007)).

3

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” 14
FACTUAL ALLEGATIONS 15
This case arises out of Wells Fargo’s alleged discrimination against Molina when she was
employed by Wells Fargo. Venezuelan by birth, Molina has an accent and suffers from
epilepsy. 16 Molina was successfully employed at Wells Fargo from 2008 to 2011 and 2012 to
2015. 17 Her success was evident in her promotions to Personal Banker, Service Manager 1, and
Service Manager 2, as well her awards for excellent job performance, sales, and customer
satisfaction. 18
After her promotion to Service Manager 2, and while she was working at a Wells Fargo
branch in Orem, Utah, Molina had a seizure at work. 19 Her seizure was caused from the added
stress of having to not only fulfill her own responsibilities but also the responsibilities belonging
to the vacant branch manager position. 20 Unfortunately, the same month the branch manager left,
Wells Fargo had its annual audit. 21 So on top of fulfilling additional duties, Molina had to work

14

Id. (citations omitted) (quoting Twombly, 550 U.S. at 570).

15

These facts are taken from Molina’s Complaint.

16

Complaint ¶ 12.

17

Id. ¶¶ 13–15, 52–68.

18

Id. ¶¶ 13, 16–17.

19

Id. ¶¶ 15–16, 24–25.

20

Id. ¶¶ 22–23.

21

Id. ¶¶ 22–24.

4

longer and harder. 22 All of these stresses culminated in Molina’s seizure, which required her to
take several days off to recuperate. 23
As a result of the seizure, Molina’s driving privileges were revoked for six months. 24
Even though she lost her driving privileges, Molina was transferred to a Wells Fargo branch in
American Fork, Utah, which was farther from her home. 25 Molina also received less pay when
she was transferred because her bonus level was reduced. 26 At this new branch, Molina’s
manager made racist jokes about Latinos, which embarrassed Molina and made her feel
uncomfortable. 27 Molina’s manager also made her work harder and longer than non-Latino
employees. 28 Because of this treatment, Molina requested that she return to the branch in
Orem. 29 Wells Fargo granted her request. 30
Upon her return to the Orem branch, Molina was demoted but she still kept the same
pay. 31 After her demotion, Molina applied at least nine times to be a manager. 32 Each time she
was denied promotion. 33 Molina’s American Fork manager, R.D., told another manager not to
promote Molina because she was a single mother. 34 During this time, Wells Fargo managers

22

Id. ¶ 24.

23

Id. ¶¶ 25–28.

24

Id. ¶ 30.

25

Id. ¶¶ 31, 35.

26

Id. ¶ 38.

27

Id. ¶ 39.

28

Id. ¶ 40–41.

29

Id. ¶ 42.

30

Id.

31

Id.

32

Id. ¶ 46.

33

Id.

34

Id. ¶¶ 39, 104, 124–25.

5

were holding parties that involved alcohol, nudity, sexual behavior, dare games, and
inappropriate videos. 35 Molina did not attend these parties. 36 Many of the employees who did
attend these parties were promoted, including at least one woman. 37 In addition, although some
women and Latino Americans were being promoted, most of those promoted were younger white
males. 38 None of those promoted were born outside of the United States or had an accent. 39
Molina again applied for a promotion in the summer of 2015 but was denied. 40 Once
again, Wells Fargo was giving her more work than non-Latino employees. 41 Because of the
stress associated with repeatedly being denied promotion and with having to perform additional
work, Molina knew she was at risk of having another seizure. 42 She also knew that she could
avoid the seizure by taking breaks or taking time off from work in order to reduce stress. 43 So, to
avoid the seizure, Molina asked Human Resources for time off under the FMLA. 44 Human
Resources responded by saying that Molina’s epilepsy was not a disability and that Molina did
not qualify for leave under the FMLA. 45 Although Molina’s request for time off for her epilepsy
was denied, Human Resources did offer to give Molina a new chair. 46

35

Id. ¶¶ 48, 126.

36

Id. ¶ 51.

37

Id. ¶¶ 49–50.

38

Id. ¶ 47.

39

Id.

40

Id. ¶ 52.

41

Id. ¶ 56.

42

Id. ¶¶ 56, 59.

43

Id. ¶ 58.

44

Id. ¶ 60.

45

Id. ¶ 61.

46

Id. ¶¶ 61–62, 66.

6

Molina then went to her manager and asked for time off to avoid the seizure. 47 Her
manager denied the request, saying Molina might be able to take time off in three months. 48 At
this point, Molina resigned because she felt hopeless. 49 She felt that her disability, gender, and
race prevented her from being promoted within the company. 50 Days after resigning, Molina had
another seizure, which once again resulted in the revocation of her driving privileges. 51
DISCUSSION
Molina’s complaint contains eight causes of action:
(1) racial, gender, and disability discrimination in violation of Title VII;
(2) disability discrimination in violation of the ADA;
(3) racial discrimination in violation of Title VII;
(4) punitive damages;
(5) gender discrimination in violation of Title VII;
(6) constructive termination;
(7) negligent infliction of emotional distress; and
(8) interference with FMLA rights. 52
Wells Fargo argues that the second, third, fifth, and eighth causes of action should be
dismissed because Molina fails to plead enough factual allegations to support plausible claims. 53
Wells Fargo also argues that the first cause of action should be dismissed because it duplicates

47

Id. ¶ 63.

48

Id. ¶¶ 64–65.

49

Id. ¶ 68.

50

Id.

51

Id. ¶ 67.

52

Id. ¶¶ 72–146.

53

Motion to Dismiss at 6, 8, 10–11.

7

the second, third and fifth causes of action. 54 Wells Fargo argues that the fourth and sixth causes
of action are not separate causes of action. 55 Finally, Wells Fargo seeks to dismiss the seventh
cause of action by arguing that it is precluded by the Utah Workers’ Compensation Act and Utah
Anti-Discrimination Act. 56
Molina responds that the second, third, fifth, and eighth causes of action are plausible on
their face. 57 In addition, Molina argues that the sixth cause of action is a separate claim. 58 Molina
fails to respond to Wells Fargo’s arguments that the first cause of action duplicates the second,
third, and fifth causes of action, that the fourth cause of action is not a separate claim, and that
the seventh cause of action is precluded by state law. 59
Her opposition memorandum requests: “[S]hould the Court disagree and decide that
dismissal of the Complaint is appropriate, Molina requests the opportunity to cure any
deficiencies that the Court may determine there to be by amending the Complaint within thirty
days of the Court’s order.” 60 Molina argues that “[a]llowing [her] to amend her complaint a
second time would not cause any prejudice to the Defendant.” 61
Molina’s first cause of action is unnecessarily duplicative of her second, third, and fifth
causes of action; her fourth cause of action is not a separate claim for which relief may be
granted; and her seventh cause of action is precluded by Utah law. Molina’s second, third, sixth,

54

Id. at 11.

55

Id. at 14.

56

Id. at 12.

57

Molina’s Response at 2–7.

58

Id. at 7–8.

59

See Molina’s Response.

60

Id. at 8.

61

Id.

8

and eighth causes of action do state claims for which relief may be granted. Molina’s fifth cause
of action, however, does not state a claim for which relief may be granted. Therefore, Wells
Fargo’s Motion to Dismiss is GRANTED IN PART and DENIED IN PART.
Molina’s First, Fourth, and Seventh Causes of Action are Dismissed
Wells Fargo argues that Molina’s first, fourth, and seventh causes of action may be
dismissed because she did not respond to Wells Fargo’s Motion to Dismiss as to these causes of
actions. 62 Wells Fargo mainly bases this failure-to-respond argument on Local Rule 7-1(d), 63
which states that “[f]ailure to respond timely to a motion may result in the court's granting the
motion without further notice.” 64 This argument is incorrect. When considering whether a district
court may grant a motion to dismiss based solely on Local Rule 7-1(d), the Tenth Circuit
explicitly held that “a district court may not grant a motion to dismiss for failure to state a claim
‘merely because [a party] failed to file a response.’” 65 “[T]he district court must still examine the
allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim
upon which relief can be granted.” 66
1. Molina’s First Cause of Action Fails to State a Unique Claim
Molina’s first cause of action states that “Wells Fargo has discriminated against Molina
in the terms and conditions of her employment because of her race, gender and her disabilities,
by the treatment of Molina in her employment and by terminating her employment, all in
violation of Title VII.” 67 Wells Fargo argues that this cause of action is duplicative because

62

Wells Fargo Reply at 8.

63

Id. at 8 n.31.

64

DUCivR 7-1(d).

65

Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003).

66

Id. at 1178.

67

Complaint ¶ 73.

9

Molina did not plead any “factual allegations or legal bases for relief in her First Cause of Action
independent from those raised in her Second, Third, and Fifth Causes of Action.” 68 Molina does
not oppose Wells Fargo’s argument. 69
At the outset, the portion of Molina’s first cause of action having to do with
discrimination based on disability in violation of Title VII is dismissed because the disabled are
not a protected class under Title VII. Title VII only protects an individual from being
discriminated against based on “race, color, religion, sex, or national origin.” 70
The remaining two claims—race and gender discrimination in violation of Title VII—in
Molina’s first cause of action are duplicative of her third and fifth causes of action. 71 When a
claim is duplicative, it may be dismissed. 72 Therefore, Wells Fargo’s Motion to Dismiss as to
Molina’s first cause of action is GRANTED.
2. Molina’s Fourth Cause of Action is Not a Separate Claim Because Punitive
Damages is a Remedy
Wells Fargo argues that punitive damages is not “a stand-alone claim,” and that
“[p]unitive damages are a form of damages that may or may not be available depending on the
statute at issue and the facts as they are proved in the action.” 73 Molina does not respond to this
argument. 74

68

Motion to Dismiss at 11–12.

69

See Molina’s Response.

70

42 U.S.C. § 2000e-2(a)(1) (2012).

71

Compare Complaint ¶¶ 72–81 with id. ¶¶ 102–118 and 122–28.

72 Stewart v. Stoller, No. 2:07-CV-552-DB-EJF, 2014 WL 4851861, at *1 (D. Utah Sept. 29, 2014); Warnick v.
Briggs, No. 2:04-CV-0360-DAK, 2005 WL 1566669, at *9 (D. Utah July 1, 2005).
73

Motion to Dismiss at 14.

74

See Molina’s Response.

10

Wells Fargo is correct that punitive damages is not a separate cause of action. Instead,
because it is a remedy, punitive damages is “an extension” of Molina’s other causes of action. 75
Therefore, Wells Fargo’s Motion to Dismiss as to Molina’s fourth cause of action is GRANTED.
3. Molina’s Seventh Cause of Action is Precluded by Utah Law
Molina alleges the common law tort of negligent infliction of emotional distress (NIED)
because “Wells Fargo . . . should have realized that its racial discrimination, gender
discrimination, and disability discrimination created an unreasonable risk of physical harm and
emotional distress.” 76 Wells Fargo argues that this tort is “barred by both the Utah Workers’
Compensation Act and the Utah Anti-Discrimination Act.” 77 Molina does not respond to this
argument. 78
Wells Fargo is correct. As explained in Giddings v. Utah Transit Authority, 79 Molina’s
NIED claim is precluded by both the Utah Workers’ Compensation Act and the Utah
Antidiscrimination Act. 80 In Giddings, the court explained that negligence claims in which
“physical or mental injury is an indispensable element” are precluded by the Utah Workers’
Compensation Act. 81 The court also explained that the Utah Anti-Discrimination Act
“[precludes] all common law causes of action for discrimination, retaliation, or harassment by an

75 Lambertsen v. Utah Dep't of Corr., 922 F. Supp. 533, 538 (D. Utah 1995), aff'd, 79 F.3d 1024 (10th Cir. 1996);
West v. Boeing Co., 851 F. Supp. 395, 400-01 (D. Kan. 1994).
76

Complaint ¶ 135.

77

Motion to Dismiss at 12.

78

See Molina’s Response.

79

107 F. Supp. 3d 1205 (D. Utah 2015).

80

Id. at 1209–12.

81

Id. at 1211.

11

employer on the basis of sex, race, color, pregnancy, age, religion, national origin, or
disability.” 82
Here, mental injury is an indispensable element of Molina’s NIED claim and thus, this
claim is precluded by the Utah Workers’ Compensation Act. 83 In addition, Molina’s NIED claim
may be precluded by the Utah Anti-Discrimination Act because it is “grounded on allegations
and injuries of discrimination and harassment based on gender,” 84 race, and disability. But
because Molina’s claim for negligent infliction of emotional distress is precluded by the Utah
Workers’ Compensation Act, the question of whether the Utah Anti-Discrimination Act
precludes this claim need not be considered further. Therefore, Wells Fargo’s Motion to Dismiss
as to Molina’s seventh cause of action is GRANTED.
Molina’s Second Cause of Action Pleads Sufficient Plausible Facts to Show That Molina
Suffered Discrimination Based on Her Disability
Wells Fargo argues that Molina did not plead any facts that show her requested
accommodation was reasonable or medically necessary. 85 Molina says that she adequately
pleaded discrimination because Wells Fargo did not make a reasonable accommodation by
granting her request for time off to avoid an epileptic seizure. 86
Contrary to Wells Fargo’s assertion regarding medical necessity, Molina does not need to
plead that her accommodation or request for leave was medically necessary. Instead, the

82

Id. at 1211–12 (quoting Gottling v. P.R. Inc., 61 P.3d 989, 997 (Utah 2002)).

Mounteer v. Utah Power & Light Co., 823 P.2d 1055, 1058–59 (Utah 1991); Retherford v. AT&T Commc'ns of
Mountain States, Inc., 844 P.2d 949, 964–65 (Utah 1992).

83

84 Giddings, 107 F. Supp. 3d at 1212. But see Retherford, 844 P.2d at 967 (holding that the Utah AntiDiscrimination Act “d[id] not preempt Retherford's claim[] for . . . intentional infliction of emotional distress”
because the injury of mental anguish was distinct from the injury of discriminatory retaliation).
85

Wells Fargo Reply at 3.

86

Molina’s Response at 2–3.

12

accommodation need only be reasonable. 87 Indeed, Wells Fargo does not point to any case that
suggests otherwise. 88
Under the ADA, an employer cannot “discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment.” 89 Molina may establish a claim under this provision if she shows that she “(1)
is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable
accommodation, to perform the essential functions of the job held or desired; and (3) suffered
discrimination by an employer or prospective employer because of that disability.” 90 As part of
the third element, the phrase “discriminate against a qualified individual on the basis of
disability” in the ADA includes situations in which the employer does “not mak[e] reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability.” 91 A “reasonable accommodation” can include “ modified work schedules . . .
and other similar accommodations for individuals with disabilities.” 92 In addition, “[a]n
allowance of time for medical care or treatment may constitute a reasonable accommodation.” 93
Here, Wells Fargo knew that Molina had epilepsy—a “physical or mental limitation[]”—
and that Molina was requesting time off for her disability. 94 Instead of considering whether a

89

42 U.S.C. § 12112(a) (2012).

89

42 U.S.C. § 12112(a) (2012).

89

42 U.S.C. § 12112(a) (2012).

90 Zwygart v. Bd. of Cty. Comm’rs of Jefferson Cty., 483 F.3d 1086, 1090 (10th Cir. 2007); see Siemon v. AT&T
Corp., 117 F.3d 1173, 1175 (10th Cir. 1997).
91

42 U.S.C. § 12112(b)(5)(A).

92

Id. § 12111(9)(B).

EEOC v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir. 2011) (quoting Rascon v. U S W. Commc'ns, Inc.,
143 F.3d 1324, 1333–34 (10th Cir. 1998)).

93

94

Complaint ¶¶ 60–66.

13

“modified work schedule[],” “time for medical care or treatment,” or other similar
accommodation would be a reasonable accommodation, Wells Fargo simply denied Molina’s
requested accommodation. 95 Specifically, Human Resources “told [Molina] that her epilepsy was
not a disability and that [Molina] could not take time off work because she did not qualify for
FMLA.” 96 Molina’s manager, after denying the request for leave, said that Molina “might be
able to take time off in three months.” 97 Construing these allegations in the light most favorable
to Molina, Human Resources and Molina’s manager did not attempt to reasonably accommodate
Molina’s disability. Therefore, Molina sufficiently pleaded that Wells Fargo discriminated
against her because of her disability by not making a reasonable accommodation in accordance
with the ADA. Consequently, Wells Fargo’s Motion to Dismiss Molina’s second cause of action
is DENIED.
Molina’s Third Cause of Action Pleads Sufficient Facts to Show That Molina Was
Subjected to Discrimination.
Title VII makes it unlawful “for an employer . . . to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual's race . . . or national origin.” 98 Molina makes two race-based discrimination
claims in her third cause of action: failure-to-promote and hostile work environment. 99

95

Id. ¶ 66.

96

Id. ¶ 61.

97

Id. ¶ 65.

98

42 U.S.C. § 2000e-2(a)(1).

99

Complaint ¶¶ 102–118; Molina’s Response at 5–7.

14

1. Molina Adequately Pleads That She Was Denied Promotion Based on a
Protected Classification.
Wells Fargo argues that Molina did not plead sufficient facts because she did not identify
the positions to which she applied or the circumstances surrounding each denial of promotion,
and that Molina admitted that other Latino Americans were promoted into the unidentified
positions.100 Beyond the lack of factual allegations, Wells Fargo also argues that Molina’s
failure-to-promote claim is actually based on national origin—not race—because Molina relies
on allegations that Wells Fargo did not promote individuals who were born outside of the United
States and who spoke with an accent. 101 Finally, Wells Fargo argues that Molina’s promotions in
the past show that she was not denied promotion because of her race. 102
Molina argues that Wells Fargo is asking for a level of specificity that is not required. 103
Molina also argues that her allegations about Wells Fargo promoting only employees who were
born in the United States and who did not have an accent, as well as her allegations that she
worked as a manager in the past and was denied at least nine times for managerial positions,
show that she applied and qualified for managerial positions and was discriminated against
because of her race. 104 Molina does not use the words “national origin” in her Complaint. 105
Molina is correct. To establish a failure-to-promote claim, Molina must “demonstrat[e]
that: (1) she was a member of a protected class; (2) she applied for and was qualified for the

100

Motion to Dismiss at 9; Wells Fargo Reply at 5, 10.

101

Wells Fargo Reply at 5.

102

Id. at 5–6.

103

Molina’s Response at 6.

104

Id. at 6–7.

105

See Complaint.

15

position; (3) despite being qualified she was rejected; and (4) after she was rejected, the position
was filled.” 106
First, Molina sufficiently pleaded that she was a member of a protected class. Wells
Fargo’s attempt to undermine Molina’s failure-to-promote claim because it rests on allegations
that relate to national origin is unpersuasive. “[P]leadings must be liberally construed.” 107
Although Molina’s third cause of action only refers to racial discrimination, 108 Molina pleads
that what distinguished her from those promoted is that those promoted, including the Latino
Americans, “were [not] born outside of the United States” and did not have accents. 109 As Wells
Fargo notes, 110 these allegations relate to national origin and not race. 111 But this does not matter
because national origin is a protected class under Title VII. 112
Second, contrary to Wells Fargo’s arguments, Molina has pleaded sufficient factual
allegations that suggest she applied and qualified for the managerial positions to which she
applied. Although not describing in detail the circumstances regarding each denial of promotion
and not giving the title for each position, Molina pleaded that sometime after she was demoted
she once again applied for managerial positions. 113 She also pleaded that she was promoted in

106

Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003).

107 Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008) (quoting Ruiz v. McDonnell, 299 F.3d 1173, 1181
(10th Cir. 2002)).
108

Complaint ¶¶ 102–03.

109

Id. ¶ 47.

110

Wells Fargo Reply at 5.

111 Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88–89 (1973) (stating that the term “national origin” in Title VII
“refers to the country where a person was born, or, more broadly, the country from which his or her ancestors
came,” is synonymous with the term “ancestry,” and does not include discrimination based on citizenship); Zokari v.
Gates, 561 F.3d 1076, 1090 (10th Cir. 2009).
112

42 U.S.C. § 2000e-2(a)(1).

113

Complaint ¶¶ 42, 46.

16

the past at least three times, and at least two of those promotions were to managerial positions. 114
In addition, she pleaded that she had been given awards for sales, customer satisfaction, and
excellent job performance, and, at the time she was applying for promotions, Molina pleaded that
she was “very successful at signing up new accounts.” 115 Construing the Complaint in Molina’s
favor, these allegations support the inference that Molina applied and qualified for the
managerial positions to which she applied.
Therefore, because these are the only prongs challenged, Wells Fargo’s Motion to
Dismiss Molina’s failure-to-promote claim in her third cause of action is DENIED.
2. Molina Adequately Pleads That She Was Subjected to a Hostile Work
Environment.
Wells Fargo argues that Molina did not plead factual allegations that show that the
discriminatory remarks against her were pervasive because “[she] does not allege what or how
many jokes were made, how they involved race, how she felt uncomfortable, or when any of
these vague incidents supposedly occurred.” 116 In addition, Wells Fargo argues that Molina did
not plead that she was treated differently than similarly situated persons—non-Latino
managers—when she says that she was required to work harder and longer than “non-Latino
employees.” 117 Molina responds that she is only required to plead sufficient factual allegations
that show a generally hostile work environment, and that Wells Fargo is thus asking her to plead
a level of specificity that is not required. 118

114

Id. ¶¶ 13, 16.

115

Id. ¶¶ 13, 17, 45.

116

Motion to Dismiss at 9.

117

Id.; Wells Fargo Reply at 4.

118

Molina’s Response at 5–6.

17

To establish a hostile work environment claim, Molina must satisfy two elements: (1) that
“‘the workplace 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,’ and [(2)] that the victim ‘was targeted for harassment because of
[her] race or national origin.’” 119 Although “the word ‘pervasive’ is not a counting measure,” 120
“the frequency, content, and context of the derogatory statements” are to be considered. 121
Molina “must show ‘more than a few isolated incidents of racial enmity.’” 122 Also, “run-of-themill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces is
not the stuff of a Title VII hostile work environment claim.” 123
At this stage of the litigation, Molina sufficiently pleads that she was subjected to a
racially hostile work environment. Molina pleaded that the jokes were “racist”; the jokes were
about Latinos; these jokes were said in front of other employees; Molina felt embarrassed and
uncomfortable because of these jokes; she was “made” to work harder and longer than nonLatino employees; and these events occurred after she was transferred to the Wells Fargo branch
in American Fork. 124 Without these factual allegations, an allegation that a work environment is
hostile would be “merely conclusory.” 125 Instead, Molina demonstrated that it is plausible her
work environment was racially hostile because she gave context about where, when, and to

Hernandez v. Valley View Hosp. Ass'n, 684 F.3d 950, 957 (10th Cir. 2012) (quoting Morris v. City of Colorado
Springs, 666 F.3d 654, 663–64 (10th Cir. 2012)).

119

120

Id. at 958–59 (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 n.3 (10th Cir. 2007)).

121

Id. at 959.

122 Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412
(10th Cir. 1987)).
123

Id.

124

Complaint ¶¶ 39–41.

125

Moya v. Schollenbarger, 465 F.3d 444, 457 (10th Cir. 2006).

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whom the jokes were told. Molina also sufficiently explained that the jokes’ content concerned
Latinos, and that the Latino jokes seemed to continue until she was transferred from the
American Fork branch. Although her pleading survives a motion to dismiss, 126 Molina must
meet any motion for summary judgment by more detail such as the actual jokes that were told to
her and other employees, and the number of hostile incidents, their context and timing. 127
Therefore, Wells Fargo’s Motion to Dismiss Molina’s hostile work environment claim in her
third cause of action is DENIED.
Molina’s Fifth Cause of Action Does Not Allege Sufficient Facts to Demonstrate That
Sexual Conduct Was a Condition of Employment Benefits.
Wells Fargo contends that “Molina does not allege that she (or any other woman) was
ever propositioned or pressured by management to attend the [raucous] parties,” or “allege that
any woman who attended the alleged parties did so as a condition of employment, or because
they would not have received a promotion otherwise.” 128 Wells Fargo argues that “a careful
reading of Molina’s allegations actually suggests that Wells Fargo denied Molina promotions
because of how she socialized with co-workers, not because she is female.” 129 In opposition,
Molina says that she sufficiently alleged quid pro quo sexual harassment because of her
allegations that “women who attended parties with nudity, inappropriate videos, and dare games
were promoted,” and that “unless women like herself were willing to participate in parties with
nudity they were not being promoted.” 130

126

Duran v. Ashcroft, 114 F. Appx. 368, 371–72 (10th Cir. 2004) (unpublished).

127

Hernandez, 684 F.3d at 958–59.

128

Wells Fargo Reply at 6–7.

129

Motion to Dismiss at 10.

130

Molina’s Response at 7.

19

Wells Fargo is correct. Under Title VII, it is “an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's . . . sex.” 131 This provision
entails “two distinct categories of sexual harassment claims: quid pro quo sexual harassment, and
hostile work environment sexual harassment.” 132 Molina did not allege that she was sexually
harassed because of a hostile work environment. 133 Instead, Molina argues that she alleged a
quid pro quo sexual harassment claim. 134 To establish a quid pro quo sexual harassment claim,
Molina must show that “submission to sexual conduct [was] made a condition of concrete
employment benefits.” 135
In Taken v. Oklahoma Corporation Commission,136 two female employees “claim[ed]
they were not selected for a promotion that was awarded to an unqualified black woman because
she was romantically involved with the person who made the promotion decision, a black
man.” 137 Because the female employees’ sexual harassment claim was “based on a voluntary
romantic affiliation, and not on any gender differences,” the court “conclude[d] that [the female
employees] d[id] not state a claim for relief under Title VII.” 138 “[Both employees] were in the
same position as all men and all other women would have been.” 139 In other words, the court

131

42 U.S.C. § 2000e-2(a)(1).

132

Hicks, 833 F.2d at 1413.

133

See Complaint; Molina’s Response at 7.

134

Molina’s Response at 7.

135

Hicks, 833 F.2d at 1413.

136

125 F.3d 1366 (10th Cir. 1997).

137

Id. at 1368.

138

Id. at 1370.

139

Id.

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“decline[d] to extend Title VII to include consensual romantic involvements” because “Title
VII's reference to ‘sex’ means a class delineated by gender, rather than sexual affiliations.” 140
Here, Molina did not show that her quid pro quo sexual harassment claim is plausible
because none of her factual allegations suggest that any kind of sexual conduct was a condition
of promotion. Molina instead states in her Complaint that “Wells Fargo managers were holding
raucous parties with Wells Fargo employees,” and that these parties involved alcohol, nudity,
sexual behavior, dare games, and inappropriate videos. 141 These parties had sexual overtones but
did not require sexual conduct on her part. She alleges that “[m]any of the employees who
attended these parties were the employees who were getting promoted over Molina,” including at
least one woman. 142 Nowhere in her Complaint does Molina allege that anyone was being
pressured to attend these parties or to submit to sexual conduct while at these parties. 143 Rather,
the operative distinction between those that were promoted and those that were not promoted is
that those promoted chose, without coercion or pressure, to socialize with co-workers and Wells
Fargo managers at the “raucous” parties. 144 Even if the promoted employees participated in
sexual conduct at these parties, and there is no indication in the Complaint that they did, the
Complaint does not suggest that such participation was involuntary or nonconsensual or that she
was subjected to any such demands. 145 In addition, Molina’s reference to a woman who was
promoted after attending the raucous parties does not demonstrate that men and women were

140

Id. at 1369–70.

141

Complaint ¶¶ 48, 126.

142

Id. ¶¶ 49–50.

143

See Complaint.

144

Id. ¶¶ 48–50.

145

See Complaint.

21

being treated differently, but demonstrates that they were treated the same. Molina “[was] in the
same position as all men and all other women would have been.” 146
While the raucous parties may not have been admirable conduct, and might have seemed
to have some relation to a hostile environment claim if one had been stated, Molina’s factual
allegations are the kind of “consensual . . . involvements” or “sexual affiliations” to which the
Tenth Circuit declined to extend Title VII protection in Taken. 147 Therefore, Wells Fargo’s
Motion to Dismiss as to Molina’s quid pro quo sexual harassment claim is GRANTED.
Molina’s Sixth Cause of Action is a Separate Claim
Wells Fargo argues that “constructive termination[, Molina’s sixth cause of action,]
cannot constitute a separate claim” because it is “encompassed within [Molina’s] race and sex
discrimination claims.” 148 Molina argues that her constructive termination claim is an
“alternative theory to employment discrimination.” 149
This issue was faced by the United States Supreme Court in Green v. Brennan. 150
Although not central to its holding, a majority of the Court, in responding to the dissent,
explained that constructive discharge is a separate claim. 151 Specifically, the Court said that
Pennsylvania State Police v. Suders 152 “expressly held that constructive discharge is a claim
distinct from the underlying discriminatory act.” 153 “[A] hostile-work-environment claim is a

146

Taken, 125 F.3d at 1370.

147 Clark v. Cache Valley Elec. Co., 573 F. Appx. 693, 697 (10th Cir. 2014) (unpublished) (“[O]ther motives such as
friendship, nepotism, or personal fondness or intimacy, rather than an actual sexual relationship, also suffice to
remove the case from Title VII's anti-discrimination provisions.”).
148

Motion to Dismiss at 14; Wells Fargo Reply at 7.

149

Molina’s Response at 7.

150

136 S. Ct. 1769 (2016).

151

Id. at 1779.

152

542 U.S. 129 (2004).

153

Green, 136 S. Ct. at 1779.

22

‘lesser included component’ of the ‘graver claim of hostile-environment constructive
discharge.’” 154 Therefore, Wells Fargo’s Motion to Dismiss as to Molina’s sixth cause of action
is DENIED.
Molina’s Eighth Cause of Action Alleges Sufficient Facts to Show That Molina Was
Entitled to FMLA Leave.
Wells Fargo asserts that Molina’s subjective belief, without medical certification, that she
needed an accommodation is inadequate to state a plausible claim under the FMLA. 155
Alternatively, if medical certification is not required, Wells Fargo argues that Molina did not
plead factual allegations that suggest her leave was medically necessary. 156 Molina responds that
she was not required to provide medical certification because Wells Fargo did not request it. 157
She also argues that her complaint is facially plausible because it may be inferred from Wells
Fargo’s responses—such as Human Resources saying Molina did not qualify for FMLA leave—
that Wells Fargo did not provide written notice of the certification requirement or the
consequences that follow from not providing certification. 158
Molina is correct. The FMLA makes it “unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise, any right” to FMLA leave. 159 To show
that Wells Fargo interfered with her right to FMLA leave, Molina must establish “(1) that [s]he
was entitled to FMLA leave, (2) that some adverse action by [Wells Fargo] interfered with h[er]
right to take FMLA leave, and (3) that [Wells Fargo’s] action was related to the exercise or

154

Id. (quoting Suders, 542 U.S. at 149).

155

Motion to Dismiss at 7.

156

Wells Fargo Reply at 3.

157

Molina’s Response at 3–4.

158

Id. at 4.

159

29 U.S.C. § 2615(a)(1) (2012).

23

attempted exercise of h[er] FMLA rights.” 160 Molina is entitled to leave under the FMLA for any
number of reasons, including “[b]ecause of a serious health condition that makes [her] unable to
perform the functions of the position.” 161 If Molina asks for FMLA leave because of a serious
health condition, Wells Fargo “may require” that the request “be supported by a certification
issued by the health care provider of [Molina].” 162 Each time Molina requests FMLA leave,
Wells Fargo is obligated to “notify [Molina] of [her] eligibility to take FMLA leave within five
business days.” 163 Wells Fargo must “detail[],” in writing, “the specific expectations and
obligations of [Molina] and explain[] any consequences of a failure to meet these obligations”
every time Wells Fargo notifies Molina of her eligibility to take FMLA leave. 164
All the cases that Wells Fargo cites to support the proposition that medical certification is
needed to state a plausible claim under the FMLA are misapplied. Each case either suggests or
states that an employee does not need to provide medical certification unless the employer
exercises its right or option to require certification. 165 Therefore, Molina did not need to plead
that she had shown Wells Fargo medical documentation proving that FMLA leave was medically

160

Jones v. Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005).

161

29 U.S.C. § 2612(a)(1)(D) (2012).

162

Id. § 2613(a).

163

29 C.F.R. § 825.300(b)(1) (2016).

164

Id. § 825.300(c)(1).

165 Jones, 427 F.3d at 1322 (pointing to 29 U.S.C. § 2613, which “entitl[es] an employer to require certification by a
health care provider,” as one of the “certification rights” that may be exercised under the FMLA); Robinson v.
Farmers Servs., L.L.C., No. 10-CV02244-JTM, 2010 WL 4067180, at *2 (D. Kan. Oct. 15, 2010) (“An employer
may require an employee to submit certification along with a request for FMLA leave.”) (emphasis added); Myers v.
Dolgencorp, Inc., No. 04-4137-JAR, 2006 WL 408242, at *3 (D. Kan. Feb. 15, 2006) (explaining that after the
employee requested FMLA leave the employer sent a letter telling the employee that the included medical
certification form was to be completed by the employee’s doctor in twenty calendar days); Allender v. Raytheon
Aircraft Co., 339 F. Supp. 2d 1196, 1205 (D. Kan. 2004), aff'd, 439 F.3d 1236 (10th Cir. 2006) (contrasting the case
before the court with Perry v. Jaguar of Troy, 353 F.3d 510 (6th Cir.2003), which had not required medical
certification because the plaintiff “had not been informed generally of the need for physician certification,” and
explaining that the employee had been “generally informed of [the employer’s] requirement by the flier distributed
to employees”).

24

necessary because, based solely on the pleadings, Wells Fargo did not require medical
certification. 166 In addition, there are no factual allegations that show Wells Fargo responded to
Molina’s request for FMLA leave by notifying Molina, in writing, of a requirement for medical
certification or of the consequences for not meeting such an obligation. 167
Molina thus sufficiently pleaded that she was entitled to FMLA leave because of her
serious health condition or disability. Because this is the only prong of Molina’s FMLA
interference claim that Wells Fargo challenged, Wells Fargo’s Motion to Dismiss as to Molina’s
eighth cause of action is DENIED.
Molina’s Request for Leave to Amend is Denied Because Her Request is Not a Motion.
At the end of Molina’s Response to Wells Fargo’s Motion to Dismiss, Molina requests
for leave to amend for the first time. She says,
[S]hould the Court . . . decide that dismissal of the Complaint is appropriate, Molina
requests the opportunity to cure any deficiencies that the Court may determine there
to be by amending the Complaint within thirty days of the Court’s order. . . .
Allowing Molina to amend her complaint a second time would not cause any
prejudice to the Defendant. 168
Wells Fargo argues that allowing Molina to amend would be futile, and that Molina’s
Response did not provide any grounds that justify allowing the amendment. 169 Wells Fargo’s
futility argument does not need to be reached because Molina did not state with particularity the
grounds for the amendment.

166

See Complaint.

167

See id.

168

Molina’s Response at 8.

169

Motion to Dismiss at 15; Wells Fargo Reply at 9.

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When a party requests leave from the court to file an amended complaint, “[t]he court
should freely give leave when justice so requires.” 170 Although liberal, “[t]his policy is not
limitless and must be balanced against Fed. R. Civ. P. 7(b)(1).” 171 Rule 7(b)(1) states that “[a]
request for a court order must be made by motion,” and that the “motion must . . . state with
particularity the grounds for seeking the order.” 172 “[A] request for leave to amend must give
adequate notice to the district court and to the opposing party of the basis of the proposed
amendment before the court is required to recognize that a motion for leave to amend is before
it.” 173 “Our requirement of notice merely assures that ‘[w]e do not require district courts to
engage in independent research or read the minds of litigants to determine if information
justifying an amendment exists.’” 174
In Calderon, the plaintiff requested,
[o]n the last page of her Memorandum in Opposition of Defendants' Motion to
Dismiss, . . . that “should the court determine the need for facts or [that] further
facts be stated with ‘. . . sufficient particularity to place the defendants in a position
of notice as to the nature of the action against them . . .’ grant leave and sufficient
time in which Calderon would be ‘. . . permitted to cure any specified defects within
the pleadings.’” 175
In considering this request against the “standard of adequate notice to the courts and the
opposing party,” the Tenth Circuit “h[e]ld that [the plaintiff’s] single sentence, lacking a
statement for the grounds for amendment and dangling at the end of her memorandum, did not
rise to the level of a motion for leave to amend.” 176 “Because a motion for leave to amend was

170

Fed. R. Civ. P. 15(a)(2).

171

Calderon v. Kansas Dep't of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999).

172

Fed. R. Civ. P. 7(b)(1).

173

Calderon, 181 F.3d at 1186–87.

174

Id. at 1187.

175

Id. at 1185.

176

Id. at 1187.

26

never properly before it, the district court did not abuse its discretion in failing to address [the
plaintiff’s] request for leave to cure deficiencies in her pleadings.” 177 Thus, the Tenth Circuit
affirmed the lower court’s dismissal with prejudice as to the plaintiff’s federal claims. 178
Similar to the plaintiff in Calderon, Molina simply tacks on at the end of her response a
request to cure any deficiencies found in her Complaint. Without more, Molina does not give
adequate notice as to the basis of her request for leave to file an amended complaint. Molina’s
request for leave to file an amended complaint is thus not properly before the court because it is
not sufficient as a motion made in accordance with Rule 7(b)(1). Consequently, Molina’s request
is DENIED.
ORDER
IT IS HEREBY ORDERED that Wells Fargo’s Motion to Dismiss 179 is GRANTED IN
PART and DENIED IN PART. Molina’s first, fourth, and seventh causes of action are dismissed
with prejudice. Molina’s fifth cause of action is dismissed without prejudice because the
Complaint may have alleged another sexual discrimination claim. 180 Molina’s second, third,
sixth, and eighth causes of action survive. Molina’s request to file an amended complaint is
DENIED without prejudice.

177

Id.

178

Id.; Calderon v. State of Kansas, 24 F. Supp. 2d 1138, 1142 (D. Kan. 1998).

179 Defendant Wells Fargo Bank, National Association’s Motion to Dismiss and Supporting Memorandum of Points
and Authorities, docket no. 8, filed June 14, 2016.
180

See Complaint ¶¶ 122–28.

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Signed March 29, 2017.
BY THE COURT
________________________________________
District Judge David Nuffer

28