Wriston v. Monarch Casino

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01949-SKC-NRN
MARIO WRISTON,
Plaintiff,
v.
MONARCH CASINO,
Defendant.
REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED
COMPLAINT (ECF No. 53)
N. REID NEUREITER
United States Magistrate Judge
This case is before the Court pursuant to an Order, ECF No. 54, issued by Judge
S. Kato Crews referring Defendant Monarch Casino’s (“Monarch” or “Defendant”)
Motion to Dismiss Pursuant to Rule 12(b)(6) (“Motion to Dismiss”), ECF No. 53. Plaintiff
Mario Wriston filed a response, ECF No. 57, and Monarch filed a reply, ECF No. 59.
The Court heard argument from the parties on June 25, 2024, and has taken judicial
notice of the docket and considered the applicable Federal Rules of Civil Procedure and
case law. As set forth below, the Court RECOMMENDS that Monarch’s Motion to
Dismiss, ECF No. 53, be GRANTED.
I. PROCEDURAL HISTORY
Mr. Wriston, proceeding pro se, filed an Employment Discrimination Complaint in
the United States District Court for the District Colorado on July 28, 2023. ECF No. 1.
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Mr. Wriston attached three exhibits to his initial complaint: a “Continuation of Main
Document,” which provided supporting allegations; an “Amended Charge of
Discrimination”; and a Notice of Right to Sue issued by the Equal Employment
Opportunity Commission (“EEOC”). Id. A summons was served on Monarch on October
5, 2023, with the exhibits attached to Mr. Wriston’s complaint but not the complaint
itself. Id. On October 23, 2023, Monarch moved to dismiss pursuant to Rules 12(b)(4)
and 12(b)(6) of the Federal Rules of Civil Procedure arguing, in part, that it was not
properly served with a complaint. ECF No. 13. The motion to dismiss was then briefed.
See ECF Nos. 15, 16.
Contemporaneous with Mr. Wriston’s response to the motion to dismiss, he
moved for default judgment against Monarch. See ECF No. 14. Monarch responded on
November 11, 2023. ECF No. 18. Mr. Wriston did not file a reply but rather filed an
Amended Complaint (“FAC”) on November 27, 2023. ECF No. 21. The FAC contained
the same Employment Discrimination Complaint as the original pleading, but Mr.
Wriston neglected to file the supporting exhibits he had previously attached. See id.
Monarch again moved to dismiss on December 11, 2023, presenting the same
arguments contained in their previous motion. ECF No. 26. This motion was also fully
briefed. See ECF Nos. 27, 30.
On January 18, 2024, Judge Crews issued an order denying Monarch’s first
motion to dismiss as moot. ECF No. 32. Judge Crews noted that, by moving to dismiss
the FAC, Monarch tacitly consented to Mr. Wriston’s filing the FAC, and the Court
therefore allowed Mr. Wriston to do so, making the FAC the operative pleading. Id.
Judge Crews also denied Mr. Wriston’s motion for default judgement, noting that
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Monarch had timely filed its initial motion to dismiss, and that Mr. Wriston abandoned
the arguments contained in his motion for default judgement by filing the FAC. Id.
The Court held an in-person Motion Hearing on Monarch’s motion to dismiss the
FAC for failure to properly serve on March 13, 2024. See ECF No. 40. After discussions
with the parties, the Court issued a Recommendation on March 18, 2024, that
Monarch’s motion to dismiss be denied, but also recognized that it would be pointless
for Mr. Wriston to serve Monarch with the operative pleading at that time, as it did not
contain a statement of his claims and would be subject to a Rule 12 dismissal. Id.
Therefore, the Court ordered Mr. Wriston to file and serve a Second Amended
Complaint containing all his claims for relief and supporting allegations on or before
March 29, 2024. Id.
On March 29, 2024, Mr. Wriston re-filed the same three exhibits previously
attached to his original complaint, ECF No. 42, and on April 2, 2024, Mr. Wriston filed
the same Employment Discrimination Complaint he had twice previously submitted,
ECF No 43.
On April 3, 2024, Judge Crews issued an Order adopting the Court’s March 18,
2024 Recommendation and denying Monarch’s motion to dismiss. ECF No. 44. As part
of this order, Judge Crews also noted formatting issues with Mr. Wriston’s most recent
filings but, in the interest of efficiency, accepted them and ordered they be combined
into a single docket entry that would serve as the Second Amended Complaint (“SAC”),
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ECF No. 45. Service of the SAC was completed on April 15, 2024. ECF No. 51.
Monarch then filed the subject Motion to Dismiss on April 25, 2024. ECF No. 53.
II. MONARCH CASINO’S MOTION TO DISMISS (ECF No. 53)
a. Background1
Mr. Wriston was employed by Monarch for roughly six months in 2022 before
being terminated on November 10, 2022. ECF No. 45-1 at 5. Mr. Wriston alleges that he
was unlawfully terminated because of his race. ECF No. 45 at 3.
Mr. Wriston began working at Monarch around May 2022. ECF No. 45-1 at 5.
During his interview, Mr. Wriston wore a hat that covered his hair, and given his first
name (Mario), he believes that his interviewer assumed he was Italian rather than
African American. Id. at 8. Following the interview, Mr. Wriston was hired as a Cage
Cashier. Id. Mr. Wriston alleges that prior to his hiring, no other Black individuals were
employed in the Cage, and that the few minorities that were employed were of Hispanic
or Asian descent and, like Mr. Wriston, had light complexions. Id. He further alleges
that, despite being told of the possibility of becoming a Cage Banker during his
interview, he was passed over three times in favor of three different white women. Id.
While his initial interactions with coworkers and supervisors were cordial, Mr.
Wriston alleges several employees and supervisors started treating him differently after
seeing his “mannerisms, colloquialisms, the way I walk and talk.” Id. Mr. Wriston points
to interactions with three separate employees to illustrate this discriminatory treatment.
1 The following allegations are taken from the SAC, ECF No. 45, and all non-
conclusory allegations are presumed true for the purposes of the motions to dismiss. All
citations to docketed materials are to the page number in the CM/ECF header, which
sometimes differs from a document’s internal pagination.
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Id. First, he cites a conversation with Megan Hixon, who referenced several unspecified
rumors that others had reportedly been spreading about him. Id. Second, he described
an interaction with the individual who trained him, Frank Woods, who “seemed to be
having a bad day” and “very angrily, rudely and disrespectfully” threw documents at Mr.
Wriston while both were working at the printer. Id. Finally, Mr. Wriston describes several
interactions with a Cage Department Supervisor, “Tarna,” that he feels reflected racial
bias and the disparate treatment he experienced. Id. Despite initially seeming happy to
have Mr. Wriston “as part of the team,” after about a week “she seemed to always be so
frustrated with the fact that [Mr. Wriston], Victor Velasco (Cage Banker), and Samuel
Dore (Cage Banker) were become good friends, telling jokes, and building rapport.” Id.
at 9. Mr. Wriston notes that Mr. Velasco is Hispanic, Mr. Core is Caucasian, and that
their friendship formed in part because they enjoyed the same “type of music, movies,
jokes etc. which is more ‘urban’ or ‘black/african american’ [sic] stylized.” Id. Tarna
would allegedly yell at them “fairly loudly for innocuous things and yet if another white
female cage employee did the same thing, she would never yell at them.” Id. Mr.
Wriston lastly describes an incident where Tarna refused to allow him to remedy a
discrepancy with his paperwork that resulted in him receiving disciplinary points. See id.
He further claims such discrepancies sometimes happened, but cashiers were normally
given the opportunity to fix them, and that he never previously witnessed a supervisor
similarly prevent other employees from fixing the issue. Id.
On October 27, 2022, Tara, an employee in Monarch’s human resources
department, informed Mr. Wriston that he was the subject of a random surveillance
audit, and told him not to come in to work that day. Id. at 7. He further claims that no
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other employees he has talked with since were told not to come to work during such an
investigation. Id. at 10. Mr. Wriston was then terminated on November 10, 2022, for
policy violations including tucking in the back of his shirt too much and not “clearing” his
hands enough. Id. at 7. Mr. Wriston claims he was given no previous warnings, write-
ups, or counseling for these violations, which was contrary to Monarch policy. Id. He
further states that, after his termination, he requested transfer to a different position in
the casino but was denied. Id.
b. Pro se Plaintiff
Mr. Wriston proceeds pro se. Accordingly, the Court “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (the court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
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c. Legal Standard
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff ’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1109. “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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are not
entitled to the assumption of truth,” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the court
considers the factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives
the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste Mgmt., 161 F.3d 1259, 1262 (10th
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Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider
documents incorporated by reference, documents referred to in the complaint that are
central to the claims, and matters of which a court may take judicial notice. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
d. Analysis
Mr. Wriston alleges Monarch discriminated against him based on his race in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et
seq. Under Title VII, employers are prohibited from discriminating against individuals in
the “terms” and “conditions” of employment because of the individual’s membership in a
protected class, including race. See 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful
employment practice for an employer . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin . . . .”).
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“A plaintiff alleging discrimination on the basis of race may prove intentional
discrimination through either direct evidence of discrimination (e.g., oral or written
statements on the part of a defendant showing a discriminatory motivation) or indirect
(i.e., circumstantial) evidence of discrimination.” Kendrick v. Penske Transp. Servs.,
Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). When, as is the case here, the plaintiff
provides only circumstantial evidence of discrimination, the Tenth Circuit employs a
three-step balancing test outlined by the Supreme Court. Id. (citing McDonnell Douglas
v. Green, 411 U.S. 792 (1973)). Under McDonnell Douglas, the plaintiff first carries the
burden of “establishing a prima facie case of racial discrimination.” McDonnell Douglas,
411 U.S. at 802. “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, 220 F.3d at 1227 (citing
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253–54 (1981)). The burden then
falls on the defendant “to articulate some legitimate, nondiscriminatory reason for an
adverse employment action” (step two), after which the plaintiff must then demonstrate
that the defendant’s justification is pretextual (step three). Id. It is only necessary to
analyze the last two steps of the McDonnell Douglas framework if the plaintiff succeeds
in establishing a prima facie case. See Kendrick, 220 F.3d at 1226.
“In order to establish a prima facie case of discrimination based on race, a
plaintiff must show (1) membership in a protected class, (2) an adverse employment
action, and (3) disparate treatment amongst similarly situated employees.” Campell v.
Eaton Corp., No. 17-cv-02661-RM-SKC, 2019 WL 5458816, at *3 (D. Colo. Sep. 30,
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2019) (citing Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005), report
and recommendation adopted, 2019 WL 5457711 (D. Colo. Oct. 24, 2019).
Here, Monarch concedes that Mr. Wriston is a member of a protected class and
that his termination constitutes an adverse employment action. As such, the Court will
focus only on the third element of the prima facie test.
The Court concludes that Mr. Wriston fails to establish a prima facie case of
discrimination. Specifically, Mr. Wriston has not “present[ed] sufficient evidence from
which a jury could reasonably infer that [Monarch] took the challenged actions, at least
in part, because of [Plaintiff’s] protected trait(s).” Rodriguez v. Brown, No. 21-1124,
2022 WL 3453401 at *5 (10th Cir. 2022). The factual allegations presented in the SAC
that explicitly relate to his race are meager and none support an inference of
discrimination based on his race. Mr. Wriston’s first allegation is that no other Black
people worked at the cashier station . ECF No. 45-1 at 8. However, he fails to provide
any evidence indicating this was due to discrimination by Monarch. Mr. Wriston provides
no evidence that any other Black people even applied for cashier positions, let alone
that any were denied positions because of their race. See id. Rather, he concedes that
Monarch employs African American men an d women, though does not state what
positions they have. Id. at 10. Second, he states that because of his light complexion,
name, and the fact that he wore a hat during his interview, he believes his interviewer
assumed he was Italian. Id. at 8. However, while he believes Ms. Catalano
misapprehended his race, he presents no evidence indicating he would not have been
hired otherwise, or that Ms. Catalano played any part in his termination . Lastly, he notes
that he and two friends enjoyed “music, movies, jokes etc. which is more ‘urban’ or
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‘black/African american’ [sic] stylized.” Id. at 9. However, Mr. Wriston does not allege
any discrimination tied to these interests. Mr. Wriston describes contentious interactions
he and his friends had with their supervisor, Tarna, but states she “seemed to always be
so frustrated with the fact that [they] were becoming good friends, telling jokes, and
building rapport.” Id. He does not allege this frustration was a result of either his race or
he and his coworkers’ interest in Black culture. While Mr. Wriston clearly believes he
was discriminated against, none of the allegations in the SAC are sufficient to infer such
discrimination and “[n]o matter how earnest [his] subjective and otherwise unsupported
belief is . . . [that belief] alone is not sufficient” to establish a Title VII claim. See
Rodriguez, 2022 WL 3453401, at *7.
Furthermore, there are no plausible allegations that Mr. Wriston was treated
differently from other similarly situated employees. “Similarly situated employees are
those who deal with the same supervisor and are subject to the same standards
governing performance evaluation and discipline.” Aramburu v. Boeing Co.,112 F.3d
1398, 1404 (10th Cir. 1997). To demonstrate disparate treatment, Mr. Wriston first
states he was passed over for the Cage Banker in favor of several white, female
employees. See ECF No. 45-1 at 8. However, he provides no information about when
these individuals were hired, who was responsible for their hiring, what job they had
before or whether they were more senior employees, or anything about their work
performance that would indicate these employees were promoted over him because of
his race.
Mr. Wriston also suggests his co-workers and supervisors began treating him
differently in response to his “mannerisms, colloquialisms, the way I walk and talk.” Id.
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However, none of Mr. Wriston’s descriptions of these interactions bear any direct
connection to his race. Id. at 8–9. Rather, he describes coworkers spreading vague,
unspecified rumors about him, and attributes one contentious interaction to the fact the
co-worker “seemed to be having a bad day.” Id. at 8. Mr. Wriston’s SAC describes only
a single negative interaction with co-workers that directly references his race. Id. at 9.
Specifically, Mr. Wriston describes his supervisor, Tarna, becoming frustrated with him
and his friends for “becoming good friends, telling jokes, and building rapport,” and
yelling at all three of them for innocuous things, but not doing so when white female
employees did the same. Id. However, Mr. Wriston’s assertions in this regard undercut
his argument of disparate treatment based on race. As Mr. Wriston states, he was not
the only one yelled at by Tarna; rather, Tarna’s reprimands were directed equally at Mr.
Wriston and his friends, each of whom is a different race or ethnicity. Id. Mr. Wriston
also describes Tarna preventing him from correcting a discrepancy in his cashier’s
paperwork at the end of a shift, something he never witnessed happening to another
employee. Id. But Mr. Wriston’s SAC also states the incident occurred while he was still
new to the job and that Tarna was initially “very happy to meet me and have me as a
part of the team,” which undercuts any suggestion of discriminatory animus on this
person’s part. Id.
“Although the Tenth Circuit ‘do[es] not mandate the pleading of any specific facts
in particular, a plaintiff must include enough context and detail to link the allegedly
adverse . . . action to a discriminatory or retaliatory motive with something besides
sheer speculation.’” Al Ghareeb v. Bd. of Trs. at Univ. of N. Colo., 849 F. App’x 746, 749
(10th Cir. 2021). Without specific allegations connecting any disparate treatment Mr.
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Wriston experienced to his race, the SAC “fails to plausibly allege disparate treatment
necessary to maintain a race discrimination claim.” Campbell, 2019 WL 5458819, at *4.
Accordingly, his Title VII race discrimination claim should be dismissed.
III. RECOMMENDATION
Accordingly, it is hereby RECOMMENDED that Defendant Monarch Casino’s
Motion to Dismiss Plaintiff’s Second Amended Complaint, ECF No. 53, be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: July 9, 2024
Denver, Colorado N. Reid. Neureiter
United States Magistrate Judge
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