Opinion
Civil Action 20-cv-01208-WJM-KLM
01-07-2021
CHERIANN DELEON, Plaintiff, v. HEALTHONE OF DENVER, INC., a Colorado Corporation C/O - CT Corporation System -Registered Agent, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix, United States Magistrate Judge
This matter is before the Court on Defendant's Partial Motion to Dismiss Plaintiff's Amended Complaint [#11] (the “Motion”). Plaintiff, who proceeds as a pro se litigant, filed a Response [#17] in opposition to the Motion [#11], and Defendants filed a Reply [#18]. The Motion [#11] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1. See [#14]. The Court has reviewed the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motion [#11] be GRANTED.
“[#11]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). This convention is used 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).
I. Background
Plaintiff is a former employee of Defendant. Am. Compl. [#5] at 3. She asserts two claims in her Amended Complaint [#5]. Id. at 3, 5. Claim One is labeled as “Anxiety/Cancer” and involves Defendant's alleged discriminatory failure to accommodate Plaintiff's disability and termination of employment on the basis of her disability. Id. at 3. Claim Two is also labeled “Anxiety/Cancer” and involves retaliation on the basis of disability. Id. at 5. Defendants seek dismissal of only Claim Two at this time, see Motion [#11] at 1.
Plaintiff alleges that she was terminated from her position with Defendant by letter dated August 14, 2018, on the basis of Defendant's Attendance and Tardiness policy. Am. Compl. [#5] at 4. In Claim Two, Plaintiff asserts that she was offered an unspecified “permanent position with a higher pay rate and then later denied professional advancement after having completed the on-boarding process.” Id. at 5. Although not entirely clear, it appears that the job offer came from a separate company she names as CBCI. Id. In support, she states that, on August 10, 2018, she “accepted and remitted the employment offer with completion of on-boarding.” Id. Her “[e]ligibility was verified by Shawna Recker with a tentative start date set for August 27, 2018.” Id. Plaintiff alleges that, on August 24, 2018, she “received [a] phone call from CBCI HR informing her that start date would be delayed due to a pending background check.” Id. Apparently, “[t]he background check returned citing an inability to verify employment and misrepresentation of job title with HCA.” On September 5, 2018, Plaintiff “[r]eceived [an] Adverse Action Letter informing that [she was] no longer eligible for employment.” Id.
All well-pled facts from the Amended Complaint [#5] are accepted as true and viewed in the light most favorable to Plaintiff. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
Plaintiff does not appear to define “CBCI” anywhere in the Amended Complaint [#5], but there is no indication that this is an alternative identification for Defendant HealthOne of Denver, Inc.
Similarly, Plaintiff does not appear to define “HCA” anywhere in the Amended Complaint [#5]. However, this is the name used by Plaintiff for her employer in the EEOC Charge. See [#11-1] at 1 (referencing “HCA Management Services, L.P.” as the respondent). There is no indication in Plaintiff's Amended Complaint [#5] or Defendant's Motion [#11] that Defendant is a different entity than HCA.
II. Standard of Review
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, 1190 (10th Cir. 2012) (internal quotations and citations 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.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (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.
“The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully.” Id. (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).
III. Analysis
Plaintiff's Claim Two appears to arise under the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Am. Compl. [#5] at 2, 5. In response to an ADA claim, an employer may raise an affirmative defense of failure to exhaust administrative remedies with the EEOC. Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (overruling Tenth Circuit precedent to hold that exhaustion of administrative remedies through the EEOC is not jurisdictional). Here, Defendant argues that Plaintiff failed to exhaust her administrative remedies with respect to Claim Two. See generally Motion [#11].
Normally, a plaintiff may not bring an ADA action “based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue-letter.” Lincoln, 900 F.3d at 1181. “That requirement, known as the exhaustion rule, derives from two principal purposes: 1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance.” Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1170 (10th Cir. 2020) (internal quotation marks omitted). Thus, “[t]o advance these purposes a plaintiff's claim in court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Id. (internal quotation marks, brackets, and ellipsis omitted). “A claim is considered ‘reasonably related' when ‘the conduct complained of would fall within the scope of the [administrative] investigation which can reasonably be expected to grow out of the charge that was made.'” Mitchell v. City & Cnty. of Denver, 112 Fed.Appx. 662, 667 (10th Cir. 2004).
In the Charge [#11-1], Plaintiff states under the section titled “Personal Harm”:
In or about August, 2018, prior thereto and continuing, I was harassed based on my disabilities (anxiety, cancer) and/or in retaliation for engaging in protected activity. On or around August 7, 2018, I was disciplined based on my protected class. On or about August 24, 2018, I was discharged based on my protected class and/or in retaliation for engaging in protected activity.Charge [#11-1] at 1. In the section of the Charge [#11-1] titled “Discrimination Statement”, Plaintiff states:
Plaintiff did not attach a copy of the Charge to her Amended Complaint [#5], but she did attach it to her original Complaint and to her Response. See Compl. [#1] at 68; Response [#17] at 3. Defendant attaches a copy of the Charge [#11-1] to its Motion [#11]. The Court may take judicial notice of the Charge without converting the Motion [#11] to one for summary judgment, even if not attached to the Amended Complaint [#5]. See, e.g., Ingle v. Ieros, LLC, No. 1:18-cv-02759-LTB, 2019 WL 2471152, at *2-4 (D. Colo. June 13, 2019).
The Court notes that the termination date in the Charge (August 24) differs from the termination date in the Amended Complaint (August 14), but this discrepancy does not impact resolution of the Motion [#11].
I believe I was harassed and discharged because of my mental disability (anxiety; cancer) in violation of the Colorado Anti-Discrimination Act (CADA).
1) I began employment with the Respondent in or around January 2014 as a Front Office Coordinator. I performed by job duties satisfactorily at all times. 2) In or around February 2017, I took intermittent FMLA for anxiety-related issues because I am a cancer survivor. 3) On or around July 25, 2017, I returned to work and since then have been subjected to a hostile work environment. 4) On or around August 24, 2018 and prior thereto, I was constantly called to meet with Human Resources (“HR”) and told to discuss why I felt I was improving at work or to reprimand me. For example, on or around August 7, 2018, I received a warning for missing a shift even though the event was pre-approved. I told HR that I felt I was being targeted due to my mental disability. 3) [sic] On or around August 24, 2018, I was discharged. 4) [sic] I believe I was discriminated against based on my protected classes and/or in retaliation for engaging in protected activity.Id.
None of the allegations provided in the Charge reflect or allude to the facts Plaintiff alleged in her Amended Complaint [#5] in connection with Claim Two. Am. Compl. [#5] at 5. For example, the Charge does not mention any employment offer, CBCI (whether by name or by reference), a background check, or an adverse action letter. Charge [#11-1] at 1. Rather, all of the allegations in the Charge pertain to Plaintiff's employment with Defendant and actions Defendant allegedly took against her, including termination of her job, all of which are related to Plaintiff's Claim One. Am. Compl. [#5] at 3-4.
According to the Amended Complaint [#5], the basis for Claim Two is “retaliation, ” a word that Plaintiff does use in the Charge [#11-1]. However, the Court cannot construe this word as covering Plaintiff's allegations in Claim Two, because “[t]he EEOC charge must contain facts concerning the discriminatory and retaliatory actions underlying each claim.” Sanderson, 976 F.3d at 1170 (internal quotation marks omitted) (emphasis added). Thus, even if Plaintiff intended to assert that Defendant retaliated against her in connection with the events alleged in Claim Two, this intent is insufficient without showing that some of the facts supporting that claim were asserted in the Charge. See, e.g., Reveles v. Catholic Health Initiatives, No. 16-cv-2561-WJM-CBS, 2017 WL 2672112, at *6-7 (D. Colo. June 21, 2017) (holding that a charge alleging retaliation without any factual support failed to inform the reader of the scope of the investigation which could reasonably be expected to follow, and noting that “[t]he Court has yet to locate a case in this context applying the liberal-construction canon to infer facts in support of a legal theory”) (emphasis omitted)).
Plaintiff argues in her Response [#17] that she submitted documents to the EEOC/Colorado Civil Rights Division which support Claim Two. However, “the reasonable and likely scope of the investigation is determined by the allegations contained in the Charge itself, rather than in the Charge and any responsive documents.” Sanderson, 976 F.3d at 1170 (emphasis in original) (internal quotation marks omitted). In other words, for purposes of determining whether Plaintiff administratively exhausted Claim Two, the Court may only consider the allegations made by Plaintiff in the Charge. See id. The Court cannot consider any other documents provided by Plaintiff to the EEOC. See id.
Thus, the Court does not consider the supporting documents attached by Plaintiff to her Response [#17].
Accordingly, the Court recommends that Plaintiff's Claim Two be dismissed without prejudice. See, e.g., Sanderson, 976 F.3d at 1170-72 (affirming district court's dismissal without prejudice of a retaliation claim based on a failure to exhaust administrative remedies).
IV. Conclusion
For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Motion [#11] be GRANTED and that Plaintiff's Claim Two be DISMISSED without prejudice.
IT IS FURTHER 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).