Opinion
Civil Action No. 18-cv-03162-WJM-KMT
05-03-2019
MARY LEE KAHLER, Plaintiff, v. JONNA LEGGITT, GM #1384, WALMART, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the court on Defendant's "Motion to Dismiss" (Doc. No. 13 ["Mot. to Dismiss"], filed February 14, 2019, to which Plaintiff filed a Response (Doc. No. 16, filed February 19, 2019) and to which Defendants filed a Reply (Doc. No. 23, filed March 5, 2019). Also before the court is Plaintiff's "Request for Amended Employment Discrimination Complaint" (Doc. No. 27 ["Mot. to Amend"] filed March 18, 2019), to which Defendant filed a Response (Doc. No. 37, filed April 8, 2019) and to which Plaintiff filed a Reply (Doc. No. 41, filed April 30, 2019).
STATEMENT OF THE CASE
The following facts are taken from the Amended Complaint and the parties' submissions. Plaintiff filed suit against Walmart and General Manager Jonna Leggitt, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA") and the Age Discrimination in Employment Act ("ADEA"). (Doc. No. 4 [Amend. Compl.] at 2.) Plaintiff first claims she was wrongfully terminated after Walmart denied her request for family leave and accused her of having "excessive absences." (Id. at 4.) Plaintiff contends this employment action constituted age-based discrimination. (Id. at 3.) Plaintiff also alleges Walmart continuously refused to rehire because of her age and disability and instead hired younger, less experienced and less qualified individuals than Plaintiff. (Id.) In support of her disability-based failure-to-rehire claim, Plaintiff points to occurrences from when she was still employed at Walmart, including a refusal to allow Plaintiff to use a cart following knee surgery and a mandate that all employees must park in a specific area that required a longer walk to the store. (Id. at 4.)
Plaintiff actually does not bring any claims under 42 U.S.C. § 2000e-1(a)(1) ("discrimination against any individual . . . because of such individual's race, color, religion, sex, or national origin") even though she does check the Title VII box on the Amended Complaint form.
Plaintiff's Proposed Second Amended Complaint, attached to her Mot. to Amend, is a copy of Plaintiff's Amended Complaint to which she added annotations and attached two new documents. (Doc. No. 27-1.) More specifically, Plaintiff added that her allegedly wrongful termination resulted from a policy change, and added a hand-written note that details would be provided with further investigation and discovery. (Id. at 3.) Next to her original signature date of January 2, 2019, Plaintiff added a new signature dated March 13, 2019. (Id. at 5.) The newly-attached documents include emails Plaintiff sent to "james@justfreestuff.com" about setting up a Rule 26(f) conference and a copy of the last page of Plaintiff's original complaint. (Id. at 27-2.)
In moving for dismissal, Defendants first argue that Plaintiff failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") regarding all but her failure-to-rehire claims. (Mot. to Dismiss at 4.) Defendants also argue that Plaintiff failed to allege facts sufficient to support age or disability-based failure-to-rehire claims. (Id. at 6.) Finally, Defendants contend that Plaintiff's claims against Defendant Jonna Leggitt must be dismissed because the ADEA does not provide for individual liability. (Id. at 7-8.) In opposing Plaintiff's Motion to Amend, Defendants argue that Plaintiff's Motion should be denied for failing to attach a proposed Second Amended Complaint that complies with D.C.COLO.LCivR 15(a), for failing to confer per D.C.OLO.LCivR 7.1(a), and also because Plaintiff's proposed Second Amended Complaint would be futile. (Doc. No. 37 at 3-6.)
STANDARDS OF REVIEW
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, "review[s] 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). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint "to less stringent standards than formal pleadings drafted by lawyers"). 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) (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"). The plaintiff's pro se status does not entitle her to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Failure to State a Claim Upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 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) (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 v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). "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 Atlantic 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 conclusion, 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.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th 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, courts may consider not only the complaint itself, but also attached exhibits and documents incorporated into the complaint by reference. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citations omitted). "[T]he district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity." Id. (quotations omitted).
C. Amendment of Pleadings
The Federal Rules of Civil Procedure provide that a party may amend a pleading by leave of court, and that leave shall be given freely when justice so requires. Fed. R. Civ. P. 15(a). Although the federal rules permit and require liberal construction and amendment of pleadings, the rules do not grant the parties unlimited rights of amendment. A motion to amend may be denied on the grounds of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." United States ex rel. Barrick v. Parker-Migliorini Int'l, LLC, 878 F.3d 1224, 1230 (10th Cir. 2017). When seeking leave of the court to amend a complaint, the motion to amend must detail the proposed amendments and the reasons why such amendments are necessary.
ANALYSIS
A. Dismissal Pursuant to 12(b)(6)
Plaintiff proffers claims pursuant to three federal employment statutes. The ADEA bars an employer from discharging any individual because of such a person's age. 29 U.S.C. § 623 (a)(1). Title VII prohibits an employer from failing or refusing to hire any individual because of that person's sex, among other protected classes. 42 U.S.C.A. § 2000e-2(a)(1). The ADA prohibits an employer from discriminating against an individual on the basis of his or her disability. 42 U.S.C.A. § 12101 et seq. For the reasons stated below, Plaintiff fails to state a claim pursuant to any of these statutes.
1. Individual Claims against Jonna Leggitt
Plaintiff alleges violations of Title VII, the ADA and ADEA against both Walmart and Ms. Leggitt. However, these statutes do not provide for individual liability. See Haynes v. Williams, 88 F.3d 898, 899 (10th Cir. 1996) ("Under Title VII ... individual capacity suits are inappropriate. The relief granted under Title VII is against the employer, not individual employees whose action would constitute a violation of the Act."); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999) (holding that ADA precludes individual liability and recognizing that majority of federal circuit and district courts have held same regarding ADEA); see also Pinkard v. Lozano, No. CIV.A. 06-CV-02523-P, 2007 WL 4116019, at *2 (D. Colo. Nov. 16, 2007) ("The Court agrees that the claims against the individual defendants must be dismissed insofar as they are alleged under Title VII, the ADEA and the ADA, based on established Tenth Circuit law holding that supervisors are not "employers" for purpose of the application of those statutes."). Accordingly, the court recommends that the claims against Ms. Leggitt in her individual capacity be dismissed.
2. Plaintiff's Failure to Exhaust Administrative Remedies
Defendants argue Plaintiff's age-based termination claim must be dismissed because Plaintiff failed to file a charge of discrimination with the EEOC within 300 days of her termination. (Doc. No. 13 at 5.) Defendants also contend that while Plaintiff checked boxes for failure to promote, failure to accommodate disability and retaliation in the failure-to-rehire claim section of her Amended Complaint, these claims must also be dismissed because Plaintiff failed to include them in her EEOC charge. (Doc. No. 13 at 5.)
Not to be confused with the boxes on the EEOC charge of discrimination form, the pro se employment discrimination complaint form includes boxes for "failure to hire," "failure to promote," "termination of employment," "different terms and conditions of employment," "failure to accommodate disability," "retaliation," and "other." (See, e.g. Doc. No. 4.)
Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII, the ADEA and the ADA. Jones v. Needham, 856 F.3d 1284, 1289 (10th Cir. 2017) (Title VII); Martinez v. Target Corp., 384 F. App'x 840, 845 (10th Cir. 2010) (ADEA); Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007) (ADA). A plaintiff must file a charge of discrimination with the EEOC "within 300 days after the alleged unlawful practice occurred." 29 U.S.C. § 626(d)(1)(B); Bullington v. United Airlines, 186 F.3d 1301, 1310 (10th Cir. 1999) ("In Colorado, [plaintiffs] must file a charge of discrimination within 300 days after the alleged unlawful discriminatory practice occurred.") overruled on other grounds by Nat'l. R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). If the alleged unlawful incident occurs outside the 300-day window, a plaintiff will "lose the ability to recover for it." R.R. Passenger Corp, 536 U.S. at 110. The EEOC charging period begins to run when the discriminatory decision is made and communicated to the plaintiff. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 629 (2007) (internal punctuation omitted), superceded by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2 (Jan. 29, 2009) (amending 42 U.S.C. § 2000e-5(e)).
To determine whether a plaintiff has exhausted her administrative remedies, courts identify the scope of the allegations raised in a plaintiff's EEOC charge because a "plaintiff's claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Jones, 502 F.3d at 1186; Smith v. Cheyenne Ret. Inv'rs L.P., 904 F.3d 1159, 1164 (10th Cir. 2018). Thus, to have exhausted administrative remedies with respect to a particular claim, "[a]n EEOC charge must contain facts that would prompt an investigation into the claim at issue." Perkins v. Fed. Fruit & Produce Co., 945 F.Supp. 2d 1225, 1245 (D.Colo.2013) (citing Jones, 502 F.3d at 1183-86). The court "liberally construe[s] charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim" but "the charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim[.]" Jones, 502 F.3d at 1186.
a. Plaintiff's Age-Based Termination Claim
Plaintiff premises her age-based termination claim on her April 3, 2016 termination from Walmart. (Amend. Compl. at 3-4, 10.) Plaintiff filed her EEOC Charge on March 20, 2017, which was 351 days after her termination. (Doc. Nos. 16 at 4, 13-1.) Because Plaintiff filed her charge over 300 days after the adverse employment action, Plaintiff's ADEA termination claim is time-barred and, moreover, Plaintiff has not presented any reason why she waited so long to file her charge. Because Plaintiff did not file a timely charge, her age-based termination claim should be dismissed. See R.R. Passenger Corp., 536 U.S. at 110.
In her original complaint, Plaintiff alleged that she filed her EEOC charge on February 17, 2017. (Doc. No. 1 at 5.) In her Amended Complaint, Plaintiff referenced an attached EEOC charge, although the date is missing from her attached copy. (Doc. No. 4 at 10.) Defendants attached a copy of the filed EEOC charge to their Motion to Dismiss, from which the court was able to ascertain the filing date of March 20, 2017. (Doc. No. 13-1.) In her Response briefing, Plaintiff acknowledged the correct filing date was "on or about March 16, 2017." (Doc. No. 16 at 4.) Whether Plaintiff filed her charge on March 16, 2017 or March 20, 2017, Plaintiff's EEOC charge would still be untimely as to her termination claim.
b. Plaintiff's Disability, Retaliation and Failure to Promote Claims
In her Amended Complaint, Plaintiff checked the "failure to accommodate disability" box and alleged that following knee surgery, she was not allowed to use a mobility cart and was required to park further from the store than she preferred. (Doc. No. 4 at 4.) While Plaintiff also checked the box for disability discrimination on her EEOC charge, she alleged no facts whatsoever that relate to a disability-based claim in her charge. (See Doc. No. 4 at 10.) Indeed, the text of the charge does not mention any disability or any facts related to requesting and being denied a reasonable accommodation pursuant to the ADA. Instead, Plaintiff's charge only asserts facts relating to an age-based claim, specifically that she was discharged and not rehired in contrast to a younger individual who was discharged and rehired. Even liberally construing Plaintiff's charge of discrimination, the court finds Plaintiff's allegations would not prompt an investigation into a disability-related claim (see Perkins, 945 F.Supp.2d at 1245) and, therefore, that Plaintiff has failed to exhaust administrative remedies with respect to her ADA claim. Accordingly, the court recommends that this claim be dismissed.
Additionally, while Plaintiff's Amended Complaint indicates her intent to bring a retaliation claim (Doc. No. 4 at 5), Plaintiff did not check the box on her EEOC charge indicating that she experienced any kind of retaliation. (See Doc. No. 4 at 10.) "The failure to mark a particular box creates a presumption that the charging party is not asserting claims represented by that box." Jones, 502 F.3d at 1186 (citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10th Cir. 1998)). This presumption "may be rebutted, however, if the text of the charge clearly sets forth the basis of the claim." Id. Here, the text of Plaintiff's charge does not include any factual basis for Plaintiff's retaliation claim. Accordingly, Plaintiff failed to exhaust administrative remedies with respect to her retaliation claim and the court recommends that this claim be dismissed.
Plaintiff also did not exhaust her failure to promote claim. In her Amended Complaint, Plaintiff contends she was passed over for promotion to Assistant Department Manager, and that a much younger male was hired. (Amend. Compl. at 4.) However, Plaintiff includes no allegations in her EEOC charge related to a discriminatory failure to promote. (See Doc. No. 4 at 10.) Instead, Plaintiff's charge focuses on her termination and reapplications to Walmart. Additionally, Plaintiff did not amend her charge or file a second charge to include allegations that she was denied a promotion. See 29 C.F.R. 1601.12(b) (permitting the charging party to amend the charge to cure defects or omissions, including to clarify or amplify allegations made therein); Bexley v. Dillon Co., Inc., No. 04-cv-01661-MEH-MJW, 2006 WL 650236, at *2 (D. Colo. Mar. 13, 2006) (plaintiff was required to either amend her EEOC charge or file a second charge to exhaust administrative remedies with respect to a previously-undisclosed claim). Accordingly, the court recommends dismissing Plaintiff's failure to promote claim as well for failure to exhaust administrative remedies.
Finally, on Plaintiff's failure to rehire claim, Plaintiff claimed in her EEOC charge that beginning on May 4, 2016 and recurring every 60 days after May 4, 2016, Plaintiff applied to be rehired at Walmart. (Doc. No. 4 at 10.) The EEOC claim was filed as an attachment and became a part of her Amended Complaint. With the most liberal construction possible, this means Plaintiff applied for rehire on or about the following dates: May 4, 2016, July 3, 2016, September 1, 2016, October 31, 2016, December 30, 2016 and February 18, 2017. Plaintiff filed her EEOC charge on March 20, 2017, which was over 300 days after her first application for rehire on May 4, 2016. However her charge was timely as to her July 3, 2016 and subsequent applications for rehire and the court therefore finds that Plaintiff properly exhausted her failure-to-rehire claims beginning on July 3, 2016.
3. Plaintiff's Failure to Properly Plead Failure to Rehire Claims
Plaintiff contends Walmart rehired a female former employee who was in her twenties following that employee's discharge, but refused to rehire Plaintiff. (Amended Complaint, Doc. No. 4 at 10) Plaintiff contends that after her termination, Walmart hired three employees who were younger and less experienced/less qualified than Plaintiff. (Id. at 4.) Defendant also argues Plaintiff failed to allege facts to support age or disability discrimination claims with respect to her failure-to-rehire claims against either defendant. (Doc. No. 13 at 6.) In opposing dismissal, Plaintiff does not address these arguments. (See Doc. No. 16.)
a. Age-based Failure-to-Rehire Claims
In order to establish age discrimination under the ADEA, 29 U.S.C. § 621 et seq., a plaintiff must prove that age was a determining factor in the defendant's treatment of her. Perrell v. FinanceAmerica Corp., 726 F.2d 654, 656 (10th Cir. 1984); Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1181 (6th Cir.1983). Plaintiff need not prove that age was the sole reason for the employer's acts, but she must demonstrate that age "made the difference" in the employer's decision. E.E.O.C. v. Prudential Fed. Sav. & Loan Ass'n, 763 F.2d 1166, 1170 (10th Cir. 1985). The ADEA creates a protected class for individuals "who are at least 40 years of age." 29 U.S.C. § 631(a); Adamson v. Multi-Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008). To establish a prima facie case of age discrimination under a "failure to hire" theory, as Plaintiff asserts, a plaintiff must establish that: (1) she belongs to a protected class, (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) despite being qualified, she was rejected; and (4) the employer filled the position with someone sufficiently younger or continued to seek applicants from persons of plaintiff's qualifications. Lewis v. McDonnell Douglas Corp., 77 F.3d 492 (10th Cir. 1996); Garrison v. Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005).
Even construing the Amended Complaint liberally, Plaintiff does not allege facts that would allow her failure-to-rehire claim to survive the present motion to dismiss. In her EEOC charge, attached to the Amended Complaint, Plaintiff does allege that she belongs to a protected class by alleging she is over the age of 40. However, Plaintiff asserts no facts to show she was qualified for any job for which she applied, or that Walmart was even seeking applicants for the positions for which she applied. Although Plaintiff alleges Walmart hired "less experienced/less qualified" individuals, these assertions are conclusory and provide no basis for the court to ascertain Plaintiff's own qualifications as compared to the referenced individuals. Moreover, Plaintiff does not allege facts to show Walmart hired younger individuals for the specific positions for which she applied, or continued to seek applications from equally-qualified persons following Plaintiff's rejections. Overall, Plaintiff alleges no facts to show that age was a determinative factor — or any factor — in Walmart's decision not to rehire her. For all of these reasons, Plaintiff fails to state a claim as to her age-based failure-to-rehire claims, and the court recommends dismissal of these claims.
b. Disability-Based Failure-to-Rehire Claims
Even if the court were to hold that Plaintiff exhausted her disability-based failure-to-rehire claim merely by checking the "disability" box on her EEOC charge of discrimination, Plaintiff fails to plead adequate facts in her Amended Complaint to show entitlement to relief under the ADA.
The analysis of whether a job applicant or employee is "disabled" under the ADA requires three steps: 1) determination of whether the applicant has an impairment; 2) identification of life activities upon which the plaintiff relies; and 3) determination of whether the impairment "substantially limits" the life activities. Thalos v. Dillon Co., Inc., 86 F. Supp. 2d 1079 (D. Colo. 2000). "As a threshold matter, any plaintiff asserting a claim under the ADA must establish he or she is a 'qualified individual with a disability.'" 42 U.S.C. § 12112(a); Lanman v. Johnson Cty., Kansas, 393 F.3d 1151, 1156 (10th Cir. 2004). "Disability" is defined by the ADA as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Plaintiff seems to allege her knee surgery and recovery period to be a disability under the ADA. (Amend. Compl. at 4.) However, the law is clear that temporary physical limitations and work restrictions following surgery do not constitute impairments under the ADA. Morgan v. Goodwill Indus. of Denver, Inc., No. 12-CV-00274-WYD-CBS, 2013 WL 6728777, at *5 (D. Colo. Dec. 20, 2013) ("Courts have determined that an employee is not disabled where the impairment was temporary or short-term."); Prathan v. Autoliv ASP, Inc., No. 03-4255, 117 F. App'x 650, 651 (10th Cir. Nov. 15, 2004) ("It is clear that a temporary disability does not meet the standards of the ADA; rather, [t]he impairment's impact must ... be permanent or long term."); Peoples v. Langley/Empire Candle Co., 2012 WL 171340, *2 (D.Kan. Jan. 20, 2012) ("[t]emporary disability while recuperating from surgery is generally not considered a disability under the ADA"). Not only does Plaintiff fail to allege she has a permanent or long-term impairment, she does not allege facts to show a substantial limitation in any major life activity. Accordingly, Plaintiff fails to satisfy the threshold ADA inquiry, and the court recommends dismissal of her disability-based failure-to-rehire claim for this reason as well.
B. The Motion to Amend
In her Proposed Second Amended Complaint, Plaintiff adds minor changes to her First Amended Complaint. (See Infra 2.) Defendants argue that Plaintiff's amendments would not cure the deficiencies in the First Amended Complaint and therefore the Motion to Amend should be denied as futile. (Doc. No. 37.) In opposition, Plaintiff does not address Defendants' futility argument. (See Doc. No. 40.) The court agrees with Defendants for the following reasons. First, neither Plaintiff's addition that her termination resulted from a policy change nor her promise that details would be provided with further investigation and discovery cures the untimeliness of her age-based termination claim. (Infra 8-9.) Moreover, the newly attached documents (i.e., emails sent to "james@justfreestuff.com" and the last page of Plaintiff's original complaint) do not cure the issues plaguing Plaintiff's Amended Complaint, including her untimeliness, failure to exhaust, or failure to adequately plead claims. Despite being pro se, Plaintiff is subject to the federal pleading rules that require plausibility. See Montoya, 296 F.3d at 957. Because Plaintiff's Proposed Second Amended Complaint would be subject to dismissal even with the proposed amendments, the court recommends denying Plaintiff's Motion for Leave to Amend.
The court agrees with Defendants that Plaintiff failed to confer per D.C.COLO.LCivR 7.1(a) and failed to comply with D.C.COLO.LCivR 15.1, which requires any party other than an unrepresented prisoner to file a separate exhibit to an amended complaint which strikes through text to be deleted and underlines the text to be added. However, in light of this Recommendation, the issue is moot.
WHEREFORE, for the foregoing reasons, this court respectfully RECOMMENDS that Defendants' Motion to Dismiss (Doc. No. 13) be GRANTED and the action be DISMISSED IN ITS ENTIRETY. The court further RECOMMENDS that Plaintiff's Motion to Amend (Doc. No. 27) be DENIED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 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 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (stating that a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (stating that 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); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those portions of the ruling by failing to object to certain portions of the magistrate judge's order); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that plaintiffs waived their right to appeal the magistrate judge's ruling by their failure to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not apply when the interests of justice require review).
Dated this 3rd day of May, 2019.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge