Opinion
Civil Action No. 18-cv-03358-PAB-KLM
07-22-2019
LARRY BRANCH, Plaintiff, v. UNITED PARCEL SERVICE, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion to Dismiss Portions of Amended Complaint [#11] (the "Motion"). Plaintiff, who proceeds in this matter pro se, filed a Response [#19] in opposition to the Motion, Defendant filed a Reply [#20], and Plaintiff filed a Surreply [#21]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motion [#11] has been referred to the undersigned for recommendation. See [#17]. The Court has reviewed the Motion, Response, Reply, Surreply, the entire case file, and the applicable law, and is fully advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#11] be GRANTED in part and DENIED in part.
"[#11]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). The Court uses this convention throughout this Recommendation.
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff filed the Surreply [#21] without properly seeking leave of the Court by filing a motion asking permission to do so. Surreplies are not contemplated by the Federal Rules of Civil Procedure or the Local Rules of Practice. However, "[g]enerally, the nonmoving party should be given an opportunity to respond to new material raised for the first time in the movant's reply." Green v. New Mexico, 420 F.3d 1189, 1196 (10th Cir. 2005). "Materials, for purposes of this framework, include both new evidence and new legal arguments." Id. (internal quotation marks and citation omitted). Here, Defendants have not moved to strike the Surreply, and the Court has considered the Surreply along with the other briefs.
I. Background
For the purposes of this Motion [#11], the Court takes all allegations in the Amended Complaint [#21] in the light most favorable to Plaintiff as the nonmovant. Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994).
At the outset, the Court notes that the factual allegations in Plaintiff's Amended Complaint [#7] are sparse. Plaintiff is a former employee of Defendant United Parcel Service ("UPS"). Am. Compl. [#7] at 8. Plaintiff worked as a driver throughout the course of his employment with Defendant. Id. at 9. The conditions of Plaintiff's employment and subsequent termination form the basis of his claims.
While employed by Defendant, Plaintiff alleges that on September 21, 2011, he was the "victim of an assault while on the job that was swept under the rug." Id. at 6. Plaintiff alleges that because of the assault, his "health and mental status to [sic] a serious dive within six months of accident [sic]." Id. at 12. Following this, Plaintiff avers that he was confronted with "constant retaliation" from a month after the assault until November 28, 2018. Id. at 6.
Plaintiff does not provide any additional information about the alleged assault.
In the wake of the alleged assault, Plaintiff alleges that he contacted several members of management personnel at UPS. Id. at 14. However, Plaintiff avers that their investigations into the incident were "bogus" and that "[t]heir agenda was to try to exhaust his time to file a claim." Id.
Plaintiff also alleges that his rights under the Americans with Disabilities Act ("ADA") were violated when Defendant assigned him a natural gas tractor, which he alleges violated a doctor's order. Id. Plaintiff avers that Defendant "constantly tried to place him in combative scenarios" as a way to trigger his PTSD. Id. at 9. Finally, Plaintiff alleges that his "lung and skin disabilities" were "ignored and at times disciplined for." Id. at 10.
In June 2017, Plaintiff was approved for a "no shave profile," in order to conceal a "highly inflamatory [sic] skin condition." Id. at 7. As a result of this accommodation, Plaintiff avers that he was "discriminated against, harassed[,] and humiliated" and that "the harassment reached its peak" during this time. Id. Plaintiff alleges that Defendant's management sought to terminate him by attempting to goad him into anger with "belligerent" remarks. Id.
The circumstances of Plaintiff's progress through the grievance process are far from clear. Plaintiff avers that retaliation against him "intensified" as Defendant received his "[first] formal complaint in May of 2017." Id. at 6. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on June 20, 2017. See id. at 13; Compl. [#1] at 18. Plaintiff alleges that he was terminated shortly after his thirty-year anniversary of working for Defendant. Am. Compl. [#7] at 7.
Liberally construed, Plaintiff incorporates the exhibits from the Complaint by reference in the Amended Complaint. See [#7] at 13.
Plaintiff does not allege precisely when the termination occurred.
Plaintiff filed this lawsuit on December 31, 2018, see Compl. [#1], and filed an Amended Complaint [#7] on February 14, 2019. Plaintiff asserts he was subjected to an assault and unlawful employment practices in violation of Title VII of the 1964 Civil Rights Act and the ADA. See generally Am. Compl. [#7] at 2. As relief, Plaintiff asks the Court to: (1) "[h]old U.P.S. criminally liable"; (2) "[k]eep [his] employment whole"; and (3) "[a]ward [his] family [and himself] punitive damages that exceed for [sic] the harm, distress, and damage that [Defendant] has caused." Am. Compl. [#7] at 15. Plaintiff seeks a total of twenty million dollars in damages. Id. at 2. In the present Motion [#11], Defendant seeks to dismiss these claims to the extent that they are time-barred and legally deficient pursuant to Fed. R. Civ. P. 12(b)(6). Motion [#11] at 6; Reply [#20] at 2-3.
II. Legal Standard
Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
Similarly, "[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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "[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). That said, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik, 671 F.3d at 1192 (citation omitted).
Further, "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "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.'" Iqbal, 556 U.S. at 678 (citation omitted).
To determine if a complaint survives a motion to dismiss, courts utilize Rule 8, instructing that "[a] plaintiff must provide a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Tuttamore v. Lappin, 429 F. App'x 687, 689 (10th Cir. 2011) (quoting Fed. R. Civ. P. 8(a)(2)). As with Rule 12(b)(6), "to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible." Id. Indeed, "Rule 8(a)'s mandate . . . has been incorporated into the 12(b)(6) inquiry." United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables "the court and the defendants to know what claims are being asserted and to determine how to respond to those claims." Tuttamore, 429 F. App'x at 689.
III. Analysis
Liberally construing the Amended Complaint, Plaintiff seeks to bring claims against Defendant for: (1) the alleged assault in 2011, (2) "constant retaliation" from October 11, 2011, until November 28, 2018, and (3) alleged discrimination on the basis of a disability. See Am. Compl. [#7] at 5-10. Further, Plaintiff asserts that Defendant's employees had an "agenda" to "try and exhaust [his] time to file a claim." Am. Compl. [#7] at 14. In the present Motion, Defendant raises two defenses: (1) any claim under Title VII or the ADA stemming from events that occurred prior to August 24, 2016, is barred by the statute of limitations, and (2) any assault claim is barred by the applicable Colorado statute of limitations. Motion [#11] at 8. Additionally, Defendant argues that Plaintiff's retaliation claim is "fatally flawed" because he could not have been retaliated against before he filed his EEOC charge on June 20, 2017, and generally asserts that any claim for retaliation arising before that date is untimely. Reply [#20] at 2-3.
Defendant does not specifically define which claims it believes should be dismissed for untimeliness, but rather generally asserts that "any" claim after the statute had run is barred. Motion [#11] at 5.
A. Statute of Limitations
"Dismissing a claim under Rule 12(b)(6) on the basis of an affirmative defense is only proper where that defense is clear from the face of the complaint." Martinez v. City & Cty. of Denver, No. 08-cv-01503-PAB-MJW, 2010 WL 1380529, at *3 (D. Colo. Mar. 31, 2010). "[R]ule 12(b)(6) is a proper vehicle for dismissing a complaint that, on its face, indicates the existence of an affirmative defense such as noncompliance with the limitations period." See Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 n.3 (10th Cir. 1999), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also Cosgrove v. Kansas Dept. of Soc. & Rehab. Serv., 332 F. App'x 463, 467 (10th Cir. 2009) ("[T]he statute of limitations is an affirmative defense, and to dismiss a claim pursuant to Rule 12(b)(6) on this basis it must be clear from the face of the complaint that the claims are time-barred.").
1. Claims under Title VII and the ADA
Plaintiff identifies the ADA and Title VII as the legal bases for his claims. Am. Compl. [#7] at 5. The ADA has adopted the Title VII statute of limitations under 42 U.S.C. § 2000e-5(e)(1) (2009), and thus the statute of limitations for these claims is analyzed under the same standard. See 42 U.S.C. § 12117(a) (1990).
A charge [filed] under [Title VII] shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a state or local agency . . . such charge shall be filed within three hundred days . . . .42 U.S.C. § 2000e-5(e)(1). A claim not filed within these statutory limits is time-barred. Daniels v. United Parcel Serv., 701 F.3d 620, 628 (10th Cir. 2012) (citing Nat'l R.R., 536 U.S. at 109; see also Daniels, 701 F.3d at 631 (stating that Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), did not overturn the general applicability of Morgan). "Each discrete discriminatory act starts a new clock for filing charges alleging that act." Daniels, 701 F.3d at 628 (quoting Nat'l R.R., 536 U.S. at 113). The limitations period begins on "the date the employee is notified of an adverse employment decision by the employer." Daniels, 701 F.3d at 628 (quoting Davidson v. Am. Online, Inc., 337 F.3d 1179, 1187 (10th Cir. 2003)). "An employee need not have notice of discriminatory motivation for the limitations period to begin, merely notice of the adverse decision." Daniels, 701 F.3d at 628 (citing Davidson, 337 F.3d at 1187). "When a complaint alleges multiple discrete acts, the limitations period runs separately for each act." Daniels, 701 F.3d at 628 (citing Davidson, 337 F.3d at 1185).
The Court briefly addresses the critical dates at issue. Plaintiff filed his charge of discrimination with the EEOC on June 20, 2017, and August 24, 2016, is exactly three hundred days prior to the filing of the charge. See Compl. [#1] at 18. The filing of the EEOC charge preserves a right to sue for unlawful employment practices three hundred days prior, at most. See § 2000-e-5(e)(1). Both the ADA and Title VII have adopted the same three hundred day statute of limitations. See §12117(a). Thus, if it is clear on the face of the complaint that Plaintiff's claims under Title VII or the ADA arise from discriminatory acts that occurred before August 24, 2016, those claims will be time barred. Id.; Cosgrove, 332 F. App'x at 467.
Defendant notes that Plaintiff's claims are sparse in context, factual allegations, and temporal details, and despite this moves to dismiss on the basis of an affirmative defense. Motion [#11] at 5-8. The Court may only grant a motion to dismiss on the basis of untimeliness if it is "clear from the face of the complaint that the claims are time-barred." Cosgrove, 332 F. App'x at 467. Plaintiff's Amended Complaint [#7] is mostly silent regarding the timing of the alleged retaliatory and/or discriminatory events that may give rise to his claims. Defendant notes this insufficiency and attempts to use information from the Response [#19] to make further argument. Reply [#20] at 1-2 ("[Plaintiff's] opposition to UPS's Motion to Dismiss provides much-needed context to the timeliness (or lack thereof) of his claims . . . ."; "The response makes clear that the remark was made on June 15, 2016 . . . ."). When deciding a Rule 12(b)(6) motion, however, the Court cannot consider new allegations contained in a Plaintiff's response. See, e.g., Warad West, LLC v. Sorin CRM USA, 119 F. Supp. 3d 1249, 1305 (D. Colo. 2015). In light of the dates explained above, it appears possible from the allegations that some parts of Plaintiff's claims may well be barred by the statute of limitations. However, while the Court agrees that any Title VII or ADA claim that arises out of an event prior to August 24, 2016, is barred by the statute of limitations, the Court cannot say that it is clear on the face of the Amended Complaint [#7] that any of Plaintiff's Title VII or ADA claims arose prior to that date. See Cosgrove, 332 F. App'x at 467. Thus, the Court cannot find at this time that Plaintiff's Title VII or ADA claims are barred by the statute of limitations.
In the Reply [#20], Defendant beseeches the Court to dismiss any claims "based upon" the alleged assault. However, while discrimination may be based on the facts of an event that occurred outside the statute of limitations, the Court cannot here determine from the face of the Amended Complaint whether the alleged discrimination itself occurred outside the statute of limitations. See Nat'l R.R., 536 U.S. at 107; Cosgrove, 332 F. App'x at 467. Because the statute of limitations runs separately for each new discrete act, the Court finds that it would be improper to dismiss any specific claims in this instance at this time. See Daniels, 701 F.3d at 628.
Accordingly, the Court respectfully recommends that the Motion [#11] be denied with respect to Defendant's argument that portions of Plaintiff's Title VII and ADA claims are time-barred.
2. Assault Claim
Liberally construing the Amended Complaint [#7], Plaintiff also asserts a state law tort claim for assault. Am. Compl. [#7] at 6. Plaintiff alleges that on September 21, 2011, he was the "victim of an assault while on the job" that was "swept under the rug." Id. Plaintiff fails to allege any additional facts regarding this incident. Defendant asserts that a tort claim for assault against UPS is barred by the statute of limitations. Motion [#11] at 7. The Court agrees.
Generally, the Court may exercise jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(a). Price v. Wolford, 608 F.3d 698, 702-3 (10th Cir. 2010). Any assault claim is subject to the general personal injury limitation of the state in which the action arose. Hunt v. Bennett, 17 F.3d 1263, 1265 (10th Cir. 1994). In Colorado, assault claims accrue on the "the date both the injury and its cause are known or should have been known by the exercise of reasonable diligence." Colo. Rev. Stat. § 13-80-108. Under Colorado law, assault claims are subject to a one-year statute of limitations. Colo. Rev. Stat. § 13-80-103(1)(a). Assault claims arising out of the use of a motor vehicle are subject to a three-year statute of limitations. See Colo. Rev. Stat. § 13-80-101(n)(1).
Plaintiff filed this lawsuit on December 31, 2018. Compl. Accordingly, at the latest, any claims that accrued before December 31, 2015 are barred by the statute of limitations. See § 13-80-101(n)(1). Plaintiff alleges that the assault occurred on September 21, 2011, and thus he should have had "knowledge of facts which would put a reasonable person on notice of the nature and extent of [the] injury and that the injury was caused by the wrongful conduct of another" on or about this date. Am. Compl. [#7] at 6; Mastro v. Brodie, 682 P.2d 1162, 1168 (Colo. 1984). Accordingly, the assault claim is time barred unless a defense to the statute of limitations applies. See § 13-80-101(n)(1).
Plaintiff alleges that as he "exhausted the corporate chain of command," he was introduced to "other management personal [sic] that claimed they would help [him]" and that "[their] agenda was to try to exhaust my time to file a claim." Am. Compl. [#7] at 14. Further, Plaintiff avers that he "was not mentally fit or physically fit at the time to make legal decisions as [his] health and mental status to [sic] a serious dive within [six] months of accident [sic]." Id. at 12. The Court liberally construes these allegations as Plaintiff invoking the defenses of statutory and equitable tolling.
Mental incompetency is a statutorily recognized basis for tolling of the statute of limitations in Colorado. See Colo. Rev. Stat. § 13-81-101(3); Tenney v. Flaxer, 727 P.2d 1079, 1085 (Colo. 1986). However, Plaintiff only alleges that he was "unable to make legal decisions." Am. Compl. [#7] at 12. General health concerns are not sufficient to satisfy the requirements of statutory tolling in Colorado. See Graham, 632 F. App'x at 646 (holding that the plaintiff who alleged that he was "unable to make legal decisions" failed to establish equitable tolling despite general mental health concerns); Veren v. United States, 575 F. App'x 841, 842 (10th Cir. 2014) (holding that the plaintiff's clinical depression was insufficient to invoke statutory tolling). Accordingly, Plaintiff cannot toll the statute of limitations using § 13-81-101(3).
In Colorado, an individual may be mentally incompetent if he or she is statutorily insane pursuant to Colo. Rev. Stat. § 16-6-101, or "a person with an intellectual and developmental disability, as defined in § 25.5-10-202." Colo. Rev. Stat. § 25.5-10-237; Graham v. Teller Cty., 632 F. App'x 461, 646 (10th Cir. 2015). A determination of whether an individual has an intellectual or developmental disability requires a determination by a community-centered board before the individual turns twenty-two years old. Colo. Rev. Stat. § 25.5-10-202(26)(b); Graham, 632 F. App'x at 646. There is no indication that Plaintiff falls into either category.
"Equitable tolling may save a plaintiff's claims from a statute of limitations defense, but, under Colorado law, courts rarely apply the doctrine." Escobar v. Reid, 668 F. Supp. 2d 1260, 1272 (D. Colo. 2009) (citing Noel v. Hoover, 12 P.3d 328, 330 (Colo. App. 2000)). When the dates provided in a complaint clearly demonstrate that the right to sue has been extinguished, "the plaintiff has the burden of establishing a factual basis for tolling the statute." Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980) (citations omitted). Colorado law only allows equitable tolling of a statute of limitations where "either the defendant has wrongfully impeded the plaintiff's ability to bring the claim or truly extraordinary circumstances prevented the plaintiff from filing his or her claim despite diligent efforts." Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094, 1099 (Colo. 1996). The application of equitable tolling calls for the Court to make "an inquiry into the circumstances of the delay that prompted the statute of limitations to be invoked." Shell W. E & P, Inc. v. Dolores Cty. Bd. of Comm'rs, 948 P.2d 1002, 1010 (Colo. 1997). Moreover, once the statute of limitations is raised as an affirmative defense, the burden shifts to the plaintiff to show that the statute has been tolled, as "[t]his accords with the rule that the person asserting a claim in equity bears the burden of furnishing satisfactory proof." Garrett v. Arrowhead Improvement Ass'n, 826 P.2d 850, 855 (Colo. 1992) (citations omitted).
In the first instance, where the plaintiff alleges that the defendant has wrongfully prevented the plaintiff from bringing a claim, the plaintiff "must assert facts sufficient to establish that the defendant's actions prevented the filing of a timely claim." Olson v. State Farm Mut. Auto. Ins. Co.,174 P.3d 849, 858 (Colo. App. 2007) (citing Shell W. E & P, 948 P.2d at 1008). Thus, "[i]f there is no evidence to demonstrate that defendant engaged in any conduct which adversely affected the filing of the plaintiff's claim, a court may not apply the doctrine of equitable tolling." Samples-Ehrlich v. Simon, 876 P.2d 108, 110 (Colo. App. 1994) (citation omitted). In the second instance, where the plaintiff has invoked the "extraordinary circumstances" basis for equitable tolling, he must show that he made good faith efforts to pursue his claim. Dean Witter Reynolds, Inc., 911 P.2d at 1098. That is, "[w]here a plaintiff has options on which he does not act, he has failed to act in good faith and equitable tolling cannot apply." Id. The doctrine of tolling is "not favored." Olson, 174 P.3d at 858; Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 150 (Colo. 2007).
Plaintiff fails to provide any factual allegations that Defendant's conduct wrongfully impeded him from filing his assault claim within the statute of limitations. Am. Compl. [#7] at 14; Dean Witter, 911 P.2d at 1096. Plaintiff alleges that the Defendant "led bogus investigations and introduced Plaintiff to other management personal [sic] that claimed they would help me" and that the intention of these investigations was to exhaust Plaintiff's time to file his claim. Am. Compl. [#7] at 14. However, these allegations are conclusory in nature. Plaintiff fails to allege, or even argue, how he was impeded from bringing his claim for assault as a result of these investigations. See Neuromonitoring Assoc. v. Centura Health Corp., 351 P.3d 486, 490 (Colo. App. 2012). For example, Plaintiff fails to allege whether Defendant withheld information regarding his claim, whether Defendant told or implied to him that he should wait to file a claim until its investigations were over, or any basis for wrongful conduct aside from a conclusory allegation of Defendant's intent. See id. Accordingly, the Court finds that Plaintiff has failed to meet his burden of establishing equitable tolling regarding Defendant's alleged attempt to impede his claims.
Plaintiff's only remaining avenue for tolling the statute of limitations is the "exceptional circumstances" doctrine. The Colorado Supreme Court has yet to find a case that qualifies as an "extraordinary circumstance" that would justify tolling. However, that court has relied on cases from other jurisdictions to illustrate that tolling may apply when a plaintiff is truly precluded from filing suit. See Dean Witter, 911 P.2d at 1097 (citing Hanger v. Abbott, 73 U.S. (6 Wall.) 532 (1867) (allowing tolling because courts in southern states were closed during the Civil War); Osbourne v. United States, 164 F.2d 767 (2d Cir. 1947) (allowing tolling because plaintiff held by Japan during World War II); Seattle Audubon Soc'y. v. Robertson, 931 F.2d 590 (9th Cir. 1991) (holding district court's erroneous enforcement of an unconstitutional statute barred plaintiff from filing), rev'd on other grounds, 503 U.S. 429 (1992)). Plaintiff's argument that he was unable to make legal decisions does not rise to an exceptional circumstance under the law. Graham, 632 F. App'x at 465; Veren, 575 F. App'x 841. The Court finds that Plaintiff has not carried his burden of alleging that "truly extraordinary circumstances" precluded his suit, as with the examples enumerated by the Colorado Supreme Court. Id.
Because, at most, the statute of limitations expired on December 31, 2015, any claim for assault that Plaintiff alleges is barred by Colorado law. See Colo. Rev. Stat. § 13-80-101(n)(1). Accordingly, the Court respectfully recommends that the Motion [#11] be granted to the extent that Plaintiff's assault claim be dismissed with prejudice. Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (stating that a "pro se complaint can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief").
B. Title VII Retaliation
Defendant further argues that Plaintiff cannot state a Title VII claim for retaliation pursuant to 42 U.S.C. § 2000e-3(a) because Plaintiff failed to engage in protected activity before filing his EEOC complaint on June 20, 2017, and thus his allegations of adverse action lack a causal connection to protected activity. Reply [#20] at 2-3. Notably, Defendant first raised this argument in the Reply brief. Id. However, because Plaintiff had an opportunity to respond to this claim by filing the Surreply [#21], the Court addresses the argument.
To establish a prima facie case of retaliation pursuant to Title VII, a plaintiff must show that "(1) he engaged in protected opposition to discrimination; (2) he suffered an adverse action that a reasonable employee would have found material; and (3) a causal nexus exists between his opposition and the employer's adverse action." Durant v. MillerCoors, LLC, 415 F. App'x 927, 932 (10th Cir. 2011) (quoting Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)).
Defendant's argument attacks only the third element of a Title VII retaliation claim: the causal connection between the protected act of filing the EEOC charge and the adverse employment action. Reply [#20] at 3. Defendant argues that Plaintiff's claims for retaliation arising before the EEOC charge must necessarily lack a causal connection, because they occurred before Plaintiff undertook a protected act. Id. Even if Defendant is correct that Plaintiff did not undertake any protected activity prior to filing his EEOC charge on June 20, 2017, the Court cannot grant the relief requested. Plaintiff fails to make any temporal allegations regarding the potential instances of retaliation identified in his Amended Complaint [#7]. In other words, based on the facts alleged in the Amended Complaint [#7], the Court cannot find that Plaintiff's allegations of retaliation occurred prior to the EEOC charge. Cosgrove, 332 F. App'x at 467. Accordingly, the Court recommends that the Motion [#11] be denied with respect to this argument.
IV. Conclusion
The Court respectfully RECOMMENDS that the Motion [#11] be GRANTED in part and DENIED in part as follows:
(1) With respect to the assault claim against Defendant, the Court recommends that the Motion be granted and that this claim be dismissed with prejudice.
(2) The Court respectfully recommends that the Motion be denied in all other respects.
The Court has determined that Plaintiff's Title VII and ADA claims are not time-barred based solely on the limited information provided in the Amended Complaint. However, the Court forewarns Plaintiff that, to the extent that the continuing violation doctrine does not apply, any alleged retaliatory or discriminatory acts that occurred before August 24, 2016, are time-barred, and Plaintiff will not be permitted to use evidence of those acts in support of his claims. See Toure v. United Natural Foods, No. 12-cv-02790-RM-KLM, 2014 WL 2442962, at *8 (D. Colo. May 30, 2014) (holding that absent a continuing violation, Title VII discrete acts occurring outside the statute of limitations are barred); Davidson, 337 F.3d at 1184 (holding that "discrete discriminatory acts are not actionable if time-barred") (quoting Nat'l R.R., 536 U.S. at 115).
IT IS HEREBY ORDERED that, pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (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). A party's objections to this 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., 73 F.3d 1057, 1060 (10th Cir. 1996).
DATED: July 22, 2019
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge