Opinion
Civil Action 19-cv-03665-PAB-KMT
05-12-2020
ROSE A. HOLLOWAY, Plaintiff, v. FREMONT COUNTY RE-1, CANON CITY HIGH SCHOOL, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M Tafoya, United States Magistrate Judge
This case comes before the court on “Defendant's Partial Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(1)” (Doc. No. 15 [Mot.], filed March 23, 2020), to which Plaintiff filed a response (Doc. No. 22 [Resp.], filed April 6, 2020), and Defendant filed a reply (Doc No. 23, filed April 10, 2020).
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed her Employment Discrimination Complaint on December 23, 2019. (Doc. No. 1 [Compl].) Plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (Id. at 2.) Plaintiff alleges she was discriminated against because of her race and national origin, Hispanic/Mexican American. (Id. at 3-5; 10, ¶ 19.)
Plaintiff states she was employed beginning August 2018 as a teacher at Canon City High School in Freemont County RE-1. (Id. at 7, ¶ 6.) Plaintiff states that her race/national origin/ethnicity was not known by the Canon City High School staff initially, and there were no problems other than with “Ms. Schott, who recognized the Plaintiff['s] race/national origin/ethnicity immediately, and began to mount a campaign against the Plaintiff.” (Id., ¶ 9.) By October 2018, “the Administration joined in the campaign, ” at which time Plaintiff was called into a meeting with the principal and informed that she was being placed on a Performance Improvement Plan (“PIP”). (Id., ¶ 9, 11.) Plaintiff alleges the “areas of concern were exaggerated, or were clearly false” and that, from October to February, Plaintiff “complied with the improvement goals, but this was not acknowledged, and several of the ‘charges,' were proved false, but not removed.” (Id., ¶ 11.) Plaintiff contends that “several humiliating and intimidating actions were perpetrated against [her] by the Defendant that were blatant statements and acts of discrimination.” (Id.)
Plaintiff states on February 15, 2019, she was asked to resign by February 20, 2019, “or be non-renewed, which, was explained at the meeting, to mean fired with bad reviews and bad references.” (Id., ¶ 15.) Plaintiff alleges she “was promised full pay and benefits through the contract year, and that the resignation date would be -effective 24 May 2019” and that “there would be no negative reviews or negative references.” (Id.) Plaintiff alleges, however, that upon receipt of Plaintiff's letter of resignation,
the Administration retaliated because of the charge of bias/discrimination cited in the Letter of Resignation. The defendant did this by refusing to accept the Letter of Resignation, and instead decided to terminate employment, confiscated keys and badges from the Plaintiff, loaded most of the Plaintiff['s] property onto carts, and humiliated the Plaintiff by force marching the Plaintiff out of the building, stuffing the Plaintiff['s] property into the Plaintiff['s] car, and locking the Plaintiff out of the Building.(Id.) Plaintiff alleges later that day, the superintendent offered Plaintiff “an opportunity to rewrite the Letter of Resignation in a ‘dignified manner' ” and “guaranteed a good review and good references.” (Id., ¶ 16.) Plaintiff contends the superintendent “made similar insinuations and humiliating and intimidating comments as had been made by the Administration at the High School” and concluded the meeting by Plaintiff “that she just didn't fit into their ‘culture.' ” (Id.)
Plaintiff asserts claims for discrimination, retaliation, and wrongful discharge. (See Compl.) Plaintiff seeks money damages. (Id. at 18.)
STANDARDS OF REVIEW
A. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] [her] 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 on 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 him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's “factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
ANALYSIS
Defendant moves to dismiss Plaintiff's wrongful discharge claim for lack of subject matter jurisdiction because she failed to file the notice of claim as required by the Colorado Governmental Immunity Act (“CGIA”). (See Mot.)
The notice requirements of the CGIA provide in pertinent part:
Any person claiming to have suffered an injury by a public entity . . . while in the course of such employment, whether or not by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty-two days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.Colo. Rev. Stat. § 24-10-109(1). The notice must contain
(a) The name and address of the claimant and the name and address of [her] attorney, if any; (b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of; (c) The name and address of any public employee involved, if known; (d) A concise statement of the nature and the extent of the injury claimed to have been suffered; [and] (e) A statement of the amount of monetary damages that is being requested.§ 24-10-109(2). “Colorado courts strictly construe section 24-10-109(1) and consistently hold that ‘[c]omplying with the notice of claim [as set forth in section 24-10-109(1)] is a jurisdictional prerequisite to suit.' ” Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 839 (10th Cir. 2003) (quoting Gallagher v. Bd. of Trs. for Univ. of N. Colo., 54 P.3d 386, 391 (Colo. 2002)). Courts also hold that a plaintiff must plead compliance with the CGIA's notice provisions in the complaint to avoid dismissal. See Kratzer v. Colorado Intergovernmental Risk Share Agency, 18 P.3d 766, 769 (Colo.App. 2000) (“[A] claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.”) (citations omitted). “When a plaintiff fails to plead compliance with the CGIA, and a court addresses the case in the context of a motion to dismiss, the court must accept as a matter of ‘fact' that the plaintiff failed to comply with the notice provisions.” Aspen Orthopaedics & Sports Med., LLC, 353 F.3d at 840. “This lack of compliance, then, is a jurisdictional issue.” Id.
Although the court reads the Complaint in the light most favorable to Plaintiff, Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999), Plaintiff failed to plead that she complied with the CGIA's notice provisions, and the Complaint is devoid of any allegation that could be liberally construed as alleging such compliance. Accordingly, Plaintiff's wrongful discharge claim should be dismissed for lack of subject matter jurisdiction.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that “Defendant's Partial Motion to Dismiss Plaintiff's Complaint Pursuant to Fed.R.Civ.P. 12(b)(1)” be GRANTED and that Plaintiff's wrongful discharge claim be dismissed for lack of subject matter jurisdiction.
ADVISEMENT TO THE PARTIES
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).