Tenth Circuit Reminds Employees That Not All Claims Are Viable
Last week, the Tenth Circuit upheld a dismissal of an employee’s age discrimination, disability discrimination, and retaliation claims. This decision reminds employers that courts will not allow every claim filed by an employee to proceed.
An employee’s complaint must “state a claim that is plausible on its face,” meaning the complaint must state enough facts “to draw the reasonable inference that the [employer] is liable.” In Johnston v. Hunter Douglas Window Fashions, Inc., the employee made vague and conclusory assertions in his complaint and failed to plead facts which would support a showing of age discrimination, disability discrimination, and retaliation. Specifically, the employee claimed that he “satisfactorily performed his job” throughout his employment; that over time, he noticed “that older workers were not welcomed or maintained;” that the employer had a “pattern or practice of terminating older employees” and “employees with disabilities;” that he suffered a “disabling work injury;” and that he suffered a hostile work environment,” which led him to file “an internal sexual harassment charge” that “became a point of retaliation against him.”  The Complaint failed to include fact allegations meeting the required elements for each of his claims, and the district court dismissed the case with prejudice (meaning the plaintiff is barred from filing suit on the same action) because the plaintiff had previously amended the complaint and was represented by an attorney. The Tenth Circuit affirmed the dismissal.
Employees must do more than make bare assertions that they have been discriminated and/or retaliated against by their employers. Employers should work with their employment counsel to review any claim filed by an employee so that their counsel can evaluate the claim and determine if a request for dismissal is appropriate. Having a claim dismissed at the outset because the employee failed to make sufficient assertions is one of the quickest ways in which to resolve an employee’s filed claim. Often, a court will permit a plaintiff to amend the complaint to fix procedural defects. However, as in Johnston, a plaintiff’s continued failure to plead facts in support of a claim may lead in a dismissal of the case, with prejudice.
 Johnston v. Hunter Douglas Window Fashions, Inc., et. al., No. 17-1099, 2017 WL 4994307 (10th Cir. November 2, 2017).
 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
 Johnston, 2017 WL 4994307 at *1.
 For an employee to establish a prima facie case of age discrimination, he must show that “(1) he is within the protected age group; (2) he was doing satisfactory work; (3) he was discharged; and (4) his position was filled by a younger person.” Rivera v. City and County of Denver, 365 F.3d 912, 920 (10th Cir. 2004). To establish a claim of retaliation, an employee must demonstrate that (1) he engaged in a protected activity, (2) suffered an adverse action, and (3) there was a causal connection between the two. Thomas v. Berry Plastics Corp., 803 F.3d 510, 514 (10th Cir. 2015). To establish a claim of disability discrimination, an employee must show (1) he is disabled within the meaning of the ADA; (2) he is qualified for his job with or without reasonable accommodation; and (3) his employer discriminated against him because of his disability. Johnson v. Weld Cty., 594 F.3d 1202, 1217 (10th Cir. 2010).
 Johnston, 2017 WL 4994307 at *1.