Opinion
Civil Action No. 20-cv-00176-PAB-NYW
09-08-2020
MARINA ANDREWS, Plaintiff, v. EATON METAL PRODUCTS, LLC, and TIM TRAVIS, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Defendants' Motion to Dismiss (the "Motion" or "Motion to Dismiss") [#18, filed March 4, 2020]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b) and the Memorandum dated March 4, 2020 [#20]. This court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, having carefully reviewed the Motion and associated briefing, the docket, and applicable law, this court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED.
BACKGROUND
The court draws the following facts from the Complaint, and presumes they are true for purposes of the instant Motion.
Included in the Complaint is Ms. Andrews's Complaint of Discrimination filed with the Colorado Civil Rights Division and Equal Employment Opportunity Commission on August 28, 2020. [#1 at 8]. In the context of a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court "may consider in addition to the complaint, documents incorporated by reference into the complaint . . . and documents plaintiff[] relied upon in bringing suit." Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190, 1196 (10th Cir. 2013). But while a complaint may incorporate attachments, the attachments themselves do not constitute a party's pleading. See Fed. R. Civ. P. 7 (defining "pleading" to include a complaint); Smith v. Alliance Data, No. 14-cv-01721-KLM, 2014 WL 2938365, at *1 (D. Colo. June 30, 2014) ("Plaintiff may not avoid Rule 8's requirement that he state his claims for relief in a pleading by attaching various documents to the form complaint provided by the Court"). Because Ms. Andrews proceeds pro se, this court affords her papers and filings a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In doing so, it considers the factual allegations included in her attached EEO charge..
Ms. Andrews began employment at Defendants Eaton Metal Products, LLC ("Eaton Metal") in or around March 2018. [#1 at 8]. In or around April or May of 2018, "an agent" of Eaton Metal asked Ms. Andrews if she was pregnant, to which she answered in the affirmative. [Id.]. Between April 2018 and July 2018, she asked to be moved closer to the restroom, but was denied. [Id.]. Between July 2018 and January 2018 Ms. Andrews took time off for doctor's visits and "maternity leave type situations," which she alleges were always approved. [Id.]. On or about January 13, 2019, Ms. Andrews was discharged from her employment at Eaton Metal. [Id.].
Proceeding pro se, Ms. Andrews initiated this case on January 21, 2020, by filing a form Employment Discrimination Complaint against Eaton Metal and Tim Travis ("Mr. Travis"; collectively with Eaton Metal, "Defendants") alleging discrimination based on sex and disability related to her employment with Eaton Metal and subsequent termination. See generally Plaintiff invokes Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), and the Pregnancy Discrimination Act of 1979 ("PDA") as the bases for her two claims. [Id. at 2]. Her first claim, in its entirety, states:
I was fired after I did not disclose my pregnancy in the interview. They did not make accommodations for me [and] fired me due to 'accessive [sic] absences' related to pregnancy [and] car accident. I was not given paid time off or FMLA. I was given a b[a]d review and can not find work because of it.[Id. at 3]. The second claim states, in its entirety: "retaliated against my sons dad [sic] who also worked for company [and] fired him because of me." [Id. at 4].
On January 22, 2020, the Honorable Gordon P. Gallagher granted Ms. Andrews leave to proceed pursuant to 28 U.S.C. § 1915, and ordered the case drawn to a presiding judge. [#4]. Upon the filing of a Consent/Non-consent Form indicating all parties did not consent to magistrate judge jurisdiction, this case was reassigned to the Honorable Philip A. Brimmer, [#8], who referred the case to the undersigned Magistrate Judge. [#9]. On March 4, 2020, Defendants filed an Answer and the instant Motion to Dismiss. [#15; #18]. The court held a Telephonic Status Conference in this matter on April 16, 2020, at which it set May 15, 2020 as the deadline for Plaintiff to respond to the pending Motion to Dismiss. [#28].
On May 8, 2020, Plaintiff sent the court an unsolicited e-mail message with the subject "Fwd: PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS." [#30-1]. The court advised Ms. Andrews that ex parte communications with the court are strictly prohibited, unless otherwise ordered, and directed the Clerk of the Court docket the email as Plaintiff's Response to the Motion to Dismiss. [#30]. On May 22, 2020, Defendants filed a Reply, [#43], and thus the Motion is ripe for Recommendation.
On May 26, 2020, after engaging in further unsolicited ex parte communications with the court, see [#45], Ms. Andrews filed a "Petition to amend claim due to excusable negligence" ("Motion to Amend"). [#48]. At a Status/Discovery Conference held the following day, the Parties agreed to stay discovery pending a Recommendation on Defendants' Motion to Dismiss and ordered Defendants respond to Ms. Andrews's Motion to Amend on a normal briefing schedule. [#50]. On June 10, 2020, unrelated to her pending Motion to Amend, Ms. Andrews filed an Amended Complaint. [#52]. On June 24, 2020, in an Order addressing several pending discovery motions, the court struck the Amended Complaint from the docket because Ms. Andrews could not amend her Complaint without written consent of Defendants or leave from the court, neither of which had she obtained. [#58]. On July 10, 2020, after a Response from Defendants, the undersigned Magistrate Judge issued a Recommendation that Plaintiff's "Petition to amend claim due to excusable negligence" be denied. [#59]. Judge Brimmer accepted the Recommendation on July 27, 2020, and denied Plaintiff's "Petition to amend claim due to excusable negligence." Therefore, Plaintiff's Complaint [#1], remains the operative pleading in this case.
LEGAL STANDARD
I. Rule 12(b)(1)
Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain "cases" and "controversies." Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). As such, courts "are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction." The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)).
Standing is an essential component of subject matter jurisdiction. See Chrisman v. C.I.R., 82 F.3d 371, 373 (10th Cir. 1996). To establish standing to invoke this court's subject matter jurisdiction, a plaintiff is required to demonstrate "(1) an 'injury in fact,' (2) sufficient 'causal connection between the injury and the conduct complained of,' and (3) a 'likel[ihood]' that the injury 'will be redressed by a favorable decision.' " Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). The elements of standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case." Lujan, 504 U.S. at 561. "[A] federal court can't 'assume' a plaintiff has demonstrated Article III standing in order to proceed to the merits of the underlying claim, regardless of the claim's significance." See Colo. Outfitters Ass'n v. Hickenlooper ("Colorado Outfitters II"), 823 F.3d 537, 543 (10th Cir. 2016). Plaintiff must establish standing to bring each of the two proposed claims separately. See Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).
II. Rule 12(b)(6)
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a pleading 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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560 (2007)); Walker v. Mohiuddin, 947 F.3d 1244, 1248-49 (10th Cir. 2020) ("To survive a [Rule 12(b)(6)] 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." (internal quotation marks omitted)). "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." Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019) (internal quotation marks omitted). Allegations that are "so general that they encompass a wide swath of conduct, much of it innocent," will not be sufficient. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (citation and quotation omitted). In making it analysis, the "court accepts as true all well-pleaded factual allegations in [the] complaint and views those allegations in the light most favorable to the plaintiff." Straub v. BNSF Ry. Co., 909 F.3d 1280, 1287 (10th Cir. 2018). But, even so, a plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Hall, 935 F.2d at 1110 (holding that even pro se litigants cannot rely on conclusory, unsubstantiated allegations to survive a 12(b)(6) motion). The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
In applying these legal principles, this court is mindful that Ms. Andrews proceeds pro se and is entitled to a liberal construction of her papers. Smith v. Allbaugh, 921 F.3d 1261, 1268 (10th Cir. 2019). But the court cannot and does not act as an advocate for a pro se party. United States v. Griffith, 928 F.3d 855, 864 n.1 (10th Cir. 2019). Nor does a party's pro se status exempt her from complying with the procedural rules that govern all civil actions filed in this District, namely, the Federal Rules of Civil Procedure and the Local Rules of Practice for the District of Colorado. See Requena v. Roberts, 893 F.3d 1195, 1205 (10th Cir. 2018); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).
ANALYSIS
Upon review of the Complaint, the court understands Ms. Andrews to assert two claims, each under three federal statutes: Title VII, the ADA, and the PDA. The court considers each in turn.
I. Plaintiff's First Claim
Plaintiff's first claim alleges:
I was fired after I did not disclose my pregnancy in the interview. They did not make accommodations for me [and] fired me due to 'accessive [sic] absences' related to pregnancy [and] car accident. I was not given paid time off or FMLA. I was given a b[a]d review and can not find work because of it.[#1 at 3]. She indicates that Defendants' conduct was discriminatory on the basis of sex and disability and the complained-of conduct includes: different terms and conditions of employment, failure to promote, failure to accommodate disability, termination of employment, retaliation, and "lost my employee filed write up [and] term letter." [Id.].
Defendants make six arguments for dismissal. First, they argue Plaintiff's claims against Mr. Travis fail as a matter of law because there is no individual liability under Title VII, the PDA, or the ADA. [#18 at 5-6]. Next, they argue the claims against Mr. Travis must be dismissed because he was not named or alluded to in Plaintiff's Charges with the Colorado Civil Rights Division ("CCRD") or the Equal Employment Opportunity Commission ("EEOC") and thus the court lacks subject matter jurisdiction over him. [Id. at 6-7]. Third, Defendants contend that Plaintiff's ADA claims against them fail because Plaintiff failed to exhaust her administrative remedies. [Id. at 7-9]. Defendants final three arguments are that Plaintiff fails to state plausible claims for discrimination and retaliation under Title VII, the PDA, and ADA and that her Title VII, PDA, and ADA claims are without support. [Id. at 9-14].
A. Individual Liability under Title VII, the PDA, and the ADA
Defendants also argue that the claims against Mr. Travis must be dismissed because he was not named as a Respondent in Plaintiff's Charges filed with the EEOC or the CCRD, and thus "this Court lacks jurisdiction to hear Plaintiff's claims against Mr. Travis." [#13 at 6-7]. As discussed above, federal courts "are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction." The Wilderness Soc, 632 F.3d at 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). But despite Defendants' argument to the contrary, the failure to name Mr. Travis does not appear to implicate an issue of subject matter jurisdiction. Defendants rely on Rubidoux v. Johnson, 954 F. Supp. 1477 (D. Colo. 1997) for such proposition. [#18 at 7]. The continued viability of Rubidoux is suspect. The United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") has clearly held that a plaintiff's failure to exhaust administrative remedies is not a jurisdictional defect but rather an affirmative defense. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1181-86 (10th Cir. 2018) ("For nearly forty years, this court has steadfastly held that exhaustion of administrative remedies is a 'jurisdictional prerequisite to suit,'" however, "the full court now holds that a plaintiff's failure to file an EEOC charge . . . merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim.").
Defendants first argue that Plaintiff's claims against Mr. Travis fail because there is no individual liability under Title VII, the PDA, or the ADA. [Id. at 5-6]. Plaintiff responds to this point, stating "Judge Gallagher denied any motion for summary dismissal as this case does not appear to be appropriate for summary dismissal." [#32 at 1]. She continues that "[a]mending the Colorado Anti-Discrimination Act, the bi-partisan bill (House Bill 16-1438) provides greater protections for pregnant employees than those provided under federal law. All Colorado employers must comply with the new law, which goes into effect on August 10, 2016." [Id.]. After listing the reasonable accommodations an employer must provide "[u]nder the new law," [id. at 1-2], Ms. Andrews contends that "Tim Travis appealed my unemployment case after I was awarded unemployment due to absences being out of my control. He was aware of the issue and refused to go to mediation with the EEOC. He is the only person that can implement new policies to ensure that future discrimination does not occur again." [Id. at 2]. Defendants reply that Judge Gallagher's decision regarding summary dismissal under Local Rule of Civil Practice 8.1 does not pertain to the merits of Plaintiff's claims, and the requirements of the Colorado Anti-Discrimination Act does not address individual liability at issue in the Motion. [#43 at 3-4]. Defendants continue that because Plaintiff has not argued individual liability is available under Title VII, the ADA, and the PDA, her allegations against Mr. Travis should be dismissed. [Id.].
The PDA amended Title VII to "prohibit sex discrimination on the basis of pregnancy." Pub. L. No. 95-555, 92 Stat. 2076 (1978), codified as 42 U.S.C. § 2000e(k). See also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-79 & nn. 15-17, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983) (discussing the legislative history of the PDA). Thus, "[c]laims brought under the PDA are analyzed in the same way as other Title VII claims of disparate treatment." E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000).
It is well established that neither Title VII nor the ADA imposes individual liability on supervisors. See Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996) ("[W]e agree with the majority view that, taken as a whole, the language and structure of amended Title VII continues to reflect the legislative judgment that statutory liability is appropriately borne by employers, not individual supervisors."); Butler v. City of Prairie Vill., Kan, 172 F.3d 736, 744 (10th Cir.1999) (noting reasons for precluding individual supervisor liability under Title VII apply equally to ADA and recognizing that Title VII, ADA and the ADEA all prohibit "employer" discrimination, and do not authorize personal capacity suits against individuals who do not otherwise qualify as employers under the statutory definitions); Rolland v. Carnation Bldg. Servs., Inc., No. 16-cv-00057-CMA-NYW, 2016 WL 1618142, at *2 (D. Colo. Feb. 29, 2016), report and recommendation adopted, No. 16-Ccv-00057-CMA-NYW, 2016 WL 1586558 (D. Colo. Apr. 20, 2016) ("The ADA, ADEA, and Title VII are all statutes under which an employer may be held liable; however, these statutes do not also include statutory liability for individual supervisors."); Johnson v. A.P. Prod., Ltd., 934 F. Supp. 625, 627 (S.D.N.Y. 1996) ("Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., an employer's agent may not be held individually liable. The PDA is a part of Title VII. Thus, Osborn is not subject to individual liability under the PDA." (citation omitted)).
While Eaton Metal may be vicariously liable for the conduct of its supervisors in certain instances, see Ward v. Jewell, 772 F.3d 1199, 1205 (10th Cir. 2014) (stating that "the biased motive of a subordinate can be imputed to the final decision-maker" in some Title VII cases), Ms. Andrews cannot maintain any Title VII claim against Mr. Travis in his individual capacities, and any Title VII claim against him in his official capacities is merely a claim against Eaton Metal. See Hopkins v. Bacone Coll., No. CIV-16-166-SPS, 2016 WL 6603191, at *1 (E.D. Okla. Nov. 8, 2016) ("But where, as here, the employer has also been named, such official-capacity claims [under Title VII] are duplicative and should be dismissed."). Because Mr. Travis cannot be held personally liable under Title VII, the ADA, or the PDA, the court respectfully RECOMMENDS that Plaintiff's claims as asserted against him be DISMISSED with prejudice .
A dismissal with prejudice of a complaint that fails to state a claim under Rule 12(b)(6) is appropriate only when "granting leave to amend would be futile." Due to heightened concerns when a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate "where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006); Oxendine v. Kaplan, 241 F.3d, 1272, 1275 (10th Cir. 2001); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (citations omitted) ("[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint."). Here, however, because Ms. Andrews's claims for individual liability under Title VII, the ADA, and the PDA are not viable as a matter of law and no additional or different pleading would change that analysis, the court recommends these claims be dismissed with prejudice.
In light of this Recommendation, the court does not pass on Defendants' second argument that Plaintiff's claims against Mr. Travis should be dismissed because he was not named or alluded to in Plaintiff's Charge of Discrimination filed with the CCRD and EEOC.
B. Sufficiency of Plaintiff's Pleading
Defendants' third argument for dismissal is that Plaintiff's ADA claims should be dismissed because she did not allege ADA violations in her EEOC or CCRD filings and her ADA claims are beyond the scope of her allegations contained therein. [#18 at 7-9]. Although Defendants again argue Plaintiff's failure to exhaust her administrative remedies with respect to her ADA claims deprives this court of subject matter jurisdiction, see [id. at 9], as explained in note 2, supra, such a failure merely creates an affirmative defense and does not deny the court jurisdiction to hear the claim. Lincoln, 900 F.3d at 1181-86, 1199. Thus, the court addresses this argument pursuant to Rule 12(b)(6).
Although argued last, the court next considers Defendants' contention that Plaintiff's Complaint fails to state plausible claims of discrimination and retaliation under the ADA, Title VII, or the PDA. On her form Complaint Plaintiff checked off that the complained-of conduct in this case was "failure to promote, termination of employment, different terms and conditions of employment, failure to accommodate disability, retaliation, and 'other: lost my employee file write up and term letter.'" [#1 at 3]. She also indicated that the conduct was discriminatory on the bases of sex and disability. The court considers if her factual allegations state an actionable claim under either the ADA, Title VII, or the PDA as to such conduct and bases.
1. The ADA
Defendants contend that Plaintiff fails to allege a plausible claim for discrimination under the ADA because she fails to allege she was disabled or that she was terminated because she was disabled. [Id.]. Plaintiff appears to supply a single response to the general contention that she "has not alleged sufficient facts to constituted plausible claims for relief." See [#32 at 3- 4]. Plaintiff provides three "examples," which the court understands as examples of allegedly discriminatory conduct. See [#32 at 3- 4]. She alleges (1) a list of examples of disparate treatment (however the court notes it is not entirely clear which are exemplary and which she alleges to have experiences personally); (2) that "absences were beyond [her] control" as they were pregnancy-related, and (3) "pregnancy complications" that put her at a high-risk during her pregnancy and necessitated an early inducement of labor. [Id.]. Plaintiff's Response also includes mention of the Colorado Anti-Discrimination Act, citation to three federal district court cases with no explanation, and general information regarding the PDA. See [id. at 4-6]. Defendants reply that the Plaintiff's Response is the first instance in which she alleges she suffered from pregnancy-related medical complications, and such allegations cannot supplement her inadequate Complaint. [#43 at 10].
The court agrees that any new factual allegations contained in Plaintiff's Response cannot amend the allegations contained in her Complaint. Although Ms. Andrews proceeds in this matter pro se, she is obligated to comply with the same procedural rules and substantive law as represented parties. See Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1235 (D. Colo. 2012) ("Pro se status does not relieve Plaintiff of the duty to comply with various rules and procedures governing litigants and counsel, or the requirements of the substantive law and, in these regards, the Court will treat Plaintiff according to the same standard as counsel licensed to practice law before the bar of this Court."). And it is "axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Car Carriers, Inc. v. Ford Motor Co.,745 F.2d 1101, 1107 (7th Cir.1984); Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227, 1230 (D. Colo. 2010). Therefore, the court looks to the Complaint to determine the sufficiency of Plaintiff's allegations under Federal Rule of Civil Procedure 12(b)(6).
Even if this court considered Ms. Andrews's assertion in her Response that she had pregnancy-related medical complications [#36 at 4], she still does not provide sufficient facts for a factfinder to conclude that such medical complications constitute a disability under the ADA. [#36 at 4].
Discrimination. The ADA prohibits covered employers from discriminating against "a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). "In the absence of direct evidence of discrimination, a court uses the McDonnell Douglas burden-shifting framework to evaluate an ADA discrimination claim premised on disparate treatment." Lincoln, 900 F.3d at 1192. The first step of the McDonnell Douglas burden-shifting framework requires a plaintiff to establish a prima facie case of discrimination by showing: (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) she suffered discrimination on the basis of her disability. Fryer v. Coil Tubing Servs., LLC, 415 F. App'x 37, 43 (10th Cir. 2011).
If a plaintiff offers no direct evidence of discrimination, the court applies the burden-shifting analysis articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This analysis has three steps. "First, the plaintiff must make out a prima facie case of discrimination . . . Then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant proffers such a reason, the burden then shifts back to the plaintiff to show that the defendant's stated reasons are merely pretextual." Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 995 (10th Cir. 2019) (internal citations and quotations omitted).
The first two elements of prima facie claims for wrongful termination and failure to promote are the same. To present a claim of wrongful termination, a plaintiff must show: (1) she is disabled within the meaning of the ADA; (2) she can perform, either with or without reasonable accommodation, the essential functions of the desired job; and (3) that defendant terminated her because of her disability. Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 912 n.4 (10th Cir. 2004). "To establish a prima facie failure-to-promote claim under the ADA, a plaintiff must show: (1) [she] has a 'disability' within the meaning of the ADA; (2) [she] was qualified, with or without reasonable accommodation, to perform the essential job functions of the position [she] sought; and (3) [her] employer refused the promotion under circumstances giving rise to an inference that the decision was based on [her] disability." N'Gouan v. AB Car Rental Servs., Inc., No. 17-CV-01912-CMA-NRN, 2018 WL 6172351, at *9 (D. Colo. Nov. 26, 2018).
Although a "failure-to-accommodate claim" is a "discrimination" claim under the ADA, Exby-Stolley v. Bd. of Cty. Commissioners, Weld Cty., Colorado, 906 F.3d 900, 907-08 (10th Cir. 2018), the Tenth Circuit has adopted a modified burden-shifting framework to access such claims. See Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017). "Under this modified framework, the employee must make an initial showing that '(1) she is disabled; (2) she is "otherwise qualified"; and (3) she requested a plausibly reasonable accommodation.'" Id. (quoting Sanchez v. Vilsack, 695 F.3d 1174, 1177 (10th Cir. 2012)). Thus, to state a claim for discrimination, wrongful termination, failure to promote, or failure to accommodate under the ADA, Ms. Andrews must initially allege sufficient facts to allow a factfinder to conclude that she is disabled under the statute.
Under the ADA, a person is disabled if she has a physical or mental impairment that substantially limits one or more of her major life activities, has a record of such an impairment, or is regarded by her employer as having such an impairment. 42 U.S.C. § 12102(1). To establish that she has a disability, Plaintiff "must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show the impairment substantially limits one or more of those activities." Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011) (internal quotation marks omitted). Plaintiff fails to make allegations as to any of these elements.
Plaintiff alleges she "was fired after I did not disclose my pregnancy" and "they . . . fired me due to 'accessive [sic] absences' related to pregnancy [and] car accident." [#1 at 3]. Beyond "pregnancy [and] car accident," the Complaint contains no additional allegations relating to possible impairment or impairments. See generally [id.]. While complications resulting from pregnancy may be classified as impairments under the ADA, pregnancy without more is not. Navarro v. Pfizer Corp., 261 F.3d 90, 97 (1st Cir. 2001). See also Wenzlaff v. NationsBank, 940 F. Supp. 889, 890 (D. Md. 1996) ("With near unanimity, federal courts have held that pregnancy is not a 'disability' under the ADA"); Gabriel v. City of Chicago, 9 F. Supp. 2d 974, 980-81 (N.D. Ill. 1998) (holding that "pregnancy, absent abnormal or unusual circumstances, is not a disability"); Darian v. Univ. of Mass. Boston, 980 F. Supp. 77, 85 (D. Mass. 1997) (advising that "pregnancy per se is not covered by the ADA"); Hernandez v. City of Hartford, 959 F. Supp. 125, 130 (D. Conn. 1997) (distinguishing between pregnancy itself and complications caused by pregnancy and holding that the latter can constitute a disability); Lehmuller v. Inc. Village of Sag Harbor, 944 F. Supp. 1087, 1093 (E.D.N.Y. 1996) (holding that "absent any medical conditions related to pregnancy that impairs [sic] a major life activity, pregnancy is not a disability within the meaning of the ADA"). And while Plaintiff indicates she was in a car accident, she makes no allegations that that accident resulted in any injury, let alone a recognized impairment.
"Although a plaintiff is not required to set forth a prima facie case of discrimination in the complaint, 'she is required to set forth plausible claims.'" Federspill v. Denver Pub. Sch., No. 17-cv-01480-WJM-STV, 2018 WL 6051335, at *7 (D. Colo. Sept. 12, 2018), report and recommendation adopted, No. 17-cv-1480-WJM-STV, 2018 WL 4846507 (D. Colo. Oct. 4, 2018) (quoting Khalik, 671 F.3d at 1193). "While specific facts are not necessary, . . . some facts are," and a Plaintiff may not rely upon "conclusory and formulaic recitations." Id.; see Iqbal, 556 U.S. at 677 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice"). In this case, Plaintiff has supplied no facts or allegations that she is "disabled" as term is defined by the ADA, nor allegations from which the court could reasonably infer she is disabled. The limited statements she supplies, rather, are conclusory allegations that "[she] believe[s] [she] unlawfully discriminated against because of [her] protected classes." [#1 at 8]. As pregnancy and a non-descript car accident, standing alone, do not fall under the scope of the ADA Plaintiff has failed to plausibly allege she is "disabled" as term is defined by the statute; thus, Plaintiff's allegations are insufficient to state a claim under the ADA for discrimination, failure to accommodate, or failure to promote.
Retaliation. The McDonnell Douglas burden-shifting analysis also applies to a retaliation claim under the ADA. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir. 2006). "To establish a prima facie case of retaliation, a plaintiff must show: (1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action." Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1265 (10th Cir. 2009) (internal quotation omitted). Protected opposition can range from filing formal charges to voicing informal complaints to superiors. Cf. Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (discussing "protected opposition to discrimination" in the context of a retaliation claim under Title VII). "Although no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by" the statute. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008) (discussing "protected opposition to discrimination" in the context of a retaliation claim under the Age Discrimination in Employment Act).
Plaintiff fails to identify any protected activity that caused Defendants to retaliate and has failed to allege any causal nexus between such activity and any adverse actions. Plaintiff proffers only general and conclusory allegations of discrimination. She states, "I believe I was unlawfully discriminated against . . . in retaliation for engaging in protected activity," [#1 at 8]. She fails to identify, however, what that protected activity might be. At no point does she allege she complained, formally or informally, that Defendants' conduct violated the ADA prior to any "materially adverse action." The only indication or allegation that Plaintiff complained of Defendants' actions is her Complaint of Discrimination, which was filed August 28, 2019, seven months after she was terminated from her employment with Eaton Metal.
If she did make a complaint prior to any adverse action by Defendant, Plaintiff gives no indication that Defendants knew about such a complaint, or that such a complaint motivated Defendants' adverse actions. [#1]. "An employer must be aware that the employee has engaged in protected opposition in order to engage in retaliation." Sunderman v. Westar Energy, Inc., 520 F. Supp. 2d 1269, 1278 (D. Kan. 2007), aff'd, 307 F. App'x 224 (10th Cir. 2009). Rather than allege she was subject to adverse actions for opposing or complaining of Defendants' discriminatory behavior, Plaintiff implies she was subject to adverse actions for the mere fact of being pregnant or due to the number of her pregnancy-related absences. See [#1 at 3 ("I was fired after I did not disclose my pregnancy in the interview")]. Because Plaintiff fails to allege she was engaged in protected opposition to discrimination or that there was a causal connection between any protected activity and materially adverse actions from Defendant, her allegations are insufficient to state a claim under the ADA for retaliation.
Accordingly, the court respectfully RECOMMENDS that Plaintiff's ADA claims against Eaton Metal be DISMISSED without prejudice.
As explained by the United States Supreme Court in Young v. United Parcel Service, Inc.,
in 1978, Congress enacted the Pregnancy Discrimination Act, 92 Stat. 2076, which added new language to Title VII's definitions subsection. The first clause of the 1978 Act specifies that Title VII's "ter[m] 'because of sex' . . . include[s] . . . because of or on the basis of pregnancy, childbirth, or related medical conditions." § 2000e(k). The second clause says that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work. . . ."575 U.S. 206, 135 S. Ct. 1338, 1344-45, 191 L. Ed. 2d 279 (2015). "Claims brought under the PDA are analyzed in the same way as other Title VII claims of disparate treatment." E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000)
Title VII prohibits an employer from discharging or otherwise discriminating against any individual "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. Title VII also makes it unlawful to subject an employee to a hostile work environment, see Harsco Corp. v. Renner, 475 F.3d 1179, 1186 (10th Cir. 2007), or to retaliate against an employee for opposing practices made unlawful by the statute, see Hansen v. SkyWest Airlines, 844 F.3d 914, 924-25 (10th Cir. 2016).
Title VII does not cover disability discrimination claims. See 42 U.S.C. § 2000e-2; see also, e.g., Clark v. City of Dublin, Ohio, 178 F. App'x 522, 524 (6th Cir. 2006); Omogbehin v. Cino, 485 F. App'x 606, 609 (3d Cir. 2012) ("As the District Court noted, Title VII does not prohibit disability discrimination and related retaliation."); Snay v. United States Postal Serv., 31 F.Supp.2d 92, 100 (N.D.N.Y.1998)(holding that "Title VII does not cover disability discrimination"). Thus, to the extent Ms. Andrews seeks to assert a claim for disability discrimination pursuant to Title VII, the court respectfully RECOMMENDS any such claim be DISMISSED with prejudice.
Defendants contend that "Plaintiff's Title VII and PDA claims are wholly speculative and conclusory and fail to pass muster under the Twombly standard." [#18 at 11]. They continue that her "perfunctory, boilerplate pleadings" lack objective facts supporting either a claim for discrimination or retaliation. [Id. at 11-13].
Discrimination. "A prima facie case of gender discrimination in a Title VII case requires a plaintiff to show that she is a member of a protected class, she suffered an adverse employment action, and the challenged action occurred under circumstances giving rise to an inference of discrimination." Ross v. Prof'l Bureau of Collections of Maryland, Inc., No. 16-cv-01550-KLM, 2017 WL 1242997, at *10 (D. Colo. Mar. 17, 2017) (internal quotation omitted). Plaintiff alleges "I was fired after I did not disclose my pregnancy in the interview", and "they fired me due to 'accessive absences.'" [#1 at 3]. She also states that when she confirmed her pregnant to an "agent" of Eaton Metals, she "was told that the company had not had a pregnant employee in a long time," a comment she felt was discriminatory. [Id. at 8].
While the court presumes Mr. Andrews placed the term "accessive absences" in quotation marks to imply that this reason was pretextual, she makes no actual allegations that the circumstances surrounding any complained of action by Eaton Metal give rise to an inference of discrimination. The scant allegations of the Complaint provide the court with nothing than Plaintiff's conclusory beliefs she was discriminated against, which alone are not enough to state a claim for relief.
Plaintiff also alleges that "[b]etween April 2018 and July 2018, I asked for accommodation to be closer to the bathroom but was denied. Instead I was placed far away from the bathroom." [#1 at 8]. Plaintiff does not allege that she informed Eaton that she needed to be close to the bathroom due to her pregnancy, or any pregnancy-related medical condition. [#1]. For the reasons explained above Plaintiff fails to state a claim for failure to accommodate under the ADA. Pursuant to the PDA, "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, . . . as other persons not so affected but similar in their ability or inability to work." E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1191 (10th Cir. 2000) (quoting 42 U.S.C. § 2000e(k)). "A plaintiff alleging that the denial of an accommodation constituted disparate treatment under the [PDA] may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others "similar in their ability or inability to work." Young, 135 S. Ct. at 1354. Plaintiff makes no mention of any similar others or that Eaton Metal accommodated such individuals when they did not accommodate her. Therefore, Plaintiff's allegations regarding her lack of accommodation fails to state a claim under the PDA.
Retaliation. Title VII makes it unlawful to retaliate against an employee for opposing employment practices made unlawful by the statute. 42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas framework, "the plaintiff must first establish a prima facie case of retaliation by showing (1) that she engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection exists between the protected activity and the materially adverse action." Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016) (quotations omitted).
For the same reason Plaintiff fails to state a claim for retaliation under the ADA as noted above, Plaintiff fails to state a claim for retaliation under Title VII or the PDA. Ms. Andrews fails to identify any protected opposition to discrimination she engaged in that caused Defendants to retaliate against her or allege any causal nexus between such activity and any adverse actions she experienced. Plaintiff's general belief that she "was unlawfully discriminated against . . . in retaliation for engaging in protected activity," [#1 at 8], is a threadbare, conclusory statement that does not suffice to state a claim.
Accordingly, the court respectfully RECOMMENDS that Plaintiff's claims against Eaton Metal under Title VII and the PDA be DISMISSED without prejudice.
II. Plaintiff's Second Claim
Plaintiff's second claim alleges, in its entirety, that Defendants "retaliated against my sons [sic] dad who also worked for company [and] fired him because of me." [#1 at 4]. The court, sua sponte, considers whether Plaintiff has standing to assert this claim. See Rector v. City & Cnty of Denver, 348 F.3d 935, 942 (10th Cir. 2003) ( "Standing . . . raises jurisdictional questions and we are required to consider the issue sua sponte to ensure that there is an Article III case or controversy before us.")
"For federal courts to have jurisdiction over an action, the party bringing the suit must establish standing." The Wilderness Soc, 632 F.3d at 1168 (10th Cir. 2011) (internal quotation omitted). "The Supreme Court's standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case-or-controversy requirement, . . . and prudential standing which embodies judicially self-imposed limits on the exercise of federal jurisdiction." Id. (internal quotations omitted) (alteration in original). The prudential standing doctrine encompasses various limitations, including the general prohibition on a litigant's raising another person's legal rights. Id.
The Supreme Court has held that "the plaintiff generally must assert [her] own legal rights and interests, and cannot rest [her] claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Flast v. Cohen, 392 U.S. 83, 99 n.20, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) ("[A] general standing limitation imposed by federal courts is that a litigant will ordinarily not be permitted to assert the rights of absent third parties."). This rule, however, is not absolute, and under the doctrine of "third-party" standing, plaintiffs may assert the rights of others not before the court if they show that "the party asserting the right has a 'close' relationship with the person who possesses the right" and that "there is a 'hindrance' to the possessor's ability to protect his own interests." Aid for Women v. Foulston, 441 F.3d 1101, 1111-12 (10th Cir. 2006); see also Terrell v. INS, 157 F.3d 806, 809 (10th Cir. 1998) ("Third-party standing requires not only an injury in fact and a close relation to the third party, but also a hindrance or inability of the third party to pursue his or her own claims.").
Setting aside the close relationship requirement, Plaintiff has made no allegations that her "son[']s dad" is hindered or otherwise unable to pursue his own claims and presented no obstacles to that individual's pursuit of his own litigation vindicating his rights she alleges were violated. Plaintiff is not the "best available proponent," Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), of her son's father's statuary employment rights.
Accordingly, this court finds that Plaintiff lacks standing to assert an employment discrimination claim on behalf of her "son[']s dad" and respectfully RECOMMENDS that Plaintiff's second claim be DISMISSED without prejudice.
Though any attempt by Ms. Andrews to amend this claim would likely be futile, "[s]ince standing is a jurisdictional mandate, a dismissal with prejudice for lack of standing is inappropriate, and should be corrected to a dismissal without prejudice." Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216 (10th Cir. 2006).
CONCLUSION
For the reasons set forth herein, this court respectfully RECOMMENDS that:
(1) Defendants' Motion to Dismiss [#18] be GRANTED. DATED: September 8, 2020
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
BY THE COURT:
/s/_________
Nina Y. Wang
United States Magistrate Judge