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Carroll v. Gradient Financial Group, LLC

United States District Court, Tenth Circuit

July 2, 2013

LINDSEY CARROLL, Plaintiff,
v.
GRADIENT FINANCIAL GROUP, LLC, et al., Defendants.

MEMORANDUM AND ORDER

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

Plaintiff Lindsey Carroll filed an Amended Complaint (Doc. 16) against Defendants Gradient Financial Group, LLC (GFG), Gradient Insurance Brokerage, Inc. (GIB), Aprilly Oberkrom, and Kent Schoen, seeking damages relating to her termination from her position as a Contracting and Licensing Specialist for Defendants. She alleges claims under Title VII of the Civil Rights Act of 1964 (Title VII), the Family and Medical Leave Act (FMLA), and the Pregnancy Discrimination Act. Defendants filed a Motion to Dismiss the amended complaint (Doc. 22), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which is currently before the Court. The motion is fully briefed and the Court is prepared to rule. As described more fully below, the Court grants the motion in part and denies the motion in part.

I. Legal Standard

The Court evaluates Defendants’ jurisdictional claim under Rule 12(b)(1). Federal courts are courts of limited jurisdiction and, as such, must have a statutory or Constitutional basis to exercise jurisdiction.[1] A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.[2] The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper;[3]“[p]laintiff bears the burden of showing why the case should not be dismissed.”[4] Mere conclusory allegations of jurisdiction are not enough.[5]

Generally, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction takes one of two forms: a facial attack or a factual attack. “First, a facial attack on the complaint’s allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.”[6]

“Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).”[7]

The Court evaluates Defendants’ non-jurisdictional arguments under Rule 12(b)(6), which provides a vehicle for a party to challenge the legal sufficiency of a claim. The requirements underlying the legal sufficiency of a claim stem from Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.”[8] To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level, ” and must contain “enough facts to state a claim to relief that is plausible on its face.”[9] “[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”[10] The plausibility standard does not require a showing of probability that a defendant has acted unlawfully, but requires more than “a sheer possibility.”[11] “[M]ere ‘labels and conclusions, ’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a plaintiff must offer specific factual allegations to support each claim.”[12] Finally, the Court must accept the nonmoving party’s factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.[13]

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but] we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”[14] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.[15] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”[16] “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.”[17]

II. Factual Allegations

Defendants hired Plaintiff as a Contracting and Licensing Specialist on June 7, 2010. Plaintiff notified her supervisor, Aprilly Oberkrom, of her pregnancy in November 2010. After notifying Oberkrom that she was pregnant, Plaintiff alleges Defendants “subjected [her] to negative and unjustified treatment . . . . that she had not experienced before.”[18] On March 2, 2011, Plaintiff met with Tony Compton (President of GIB), Oberkrom, and Sara Caster (a co- worker) to discuss “her work situation.”[19] Plaintiff fails to provide more details about this meeting. Also in March 2011, Plaintiff sent a letter to Tami Lucius (President of GFG and CEO of GIB), detailing her belief that she was being discriminated against by Oberkrom. She included an evaluation form for Oberkrom. Over the next several months, Plaintiff took occasional paid leave for medical care. On April 27, 2011, Plaintiff received a “Verbal Warning”for alleged excessive absences and was informed by her supervisors it was their belief Plaintiff was using her paid time off too quickly considering how little of the year had transpired. The warning included a new requirement that her paid leave time be pre-approved; Defendants dispute this requirement was new. On May 17, 2011, Plaintiff received a “Written Warning, ” which included a notice that further absences would result in her termination. On June 13, 2011, Plaintiff left work for the day due to pregnancy complications at the request of her doctor. Before leaving, Plaintiff told Director of Operations Jeremy Swedlund about her condition and the written warnings she had received. Additionally, she asked him to look into the availability of FMLA or temporary disability leave to protect her job. Swedlund told Plaintiff he would look into the availability of the leave. On June 14, 2011, Plaintiff informed Gretchen Beatty (a management employee) that her doctor wanted her on bed rest. Later that day, Kent Schoen (general counsel for GIB and GFG) called Plaintiff to tell her she had been terminated. Around June 28, 2011, Plaintiff filed an administrative charge with the Kansas Human Rights Commission (KHRC) and the Equal Employment Opportunity Commission (EEOC), alleging harassment and disparate treatment in her employment. The charge alleged similar facts to those stated in Plaintiff’s First Amended Complaint, but the charge states the discrimination started in January 2011 while the Complaint indicates the discrimination began in November. On July 12, 2012, Plaintiff received a Right to Sue letter from the EEOC.

III. Discussion

A. 12(b)(1) Motion:

Defendants argue that because: (1) GFG was not named in the charge, (2) the claims in Plaintiff’s Complaint materially differ from those in the charge she filed with the EEOC, and (3) GFG is not an employer under Title VII, this Court is ...


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