Opinion
Civil Action No. 19-cv-00229-LTB-GPG
05-06-2019
CASANDRA PALMER, Plaintiff, v. 210 HBW, dba 210 Home Buyers Warranty, Defendant.
RECOMMENDATION TO DISMISS IN PART AND TO DRAW CASE
This matter comes before the Court on the Amended Employment Discrimination Complaint (ECF No. 5). The matter has been referred to this Magistrate Judge for recommendation (ECF No. 10).
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
The Court must construe Plaintiff's filings liberally because she is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520- 21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Employment Discrimination Complaint (ECF No. 5) be dismissed in part and the remaining claims be drawn to a presiding judge.
I. Factual and Procedural Background
Plaintiff Casandra Palmer resides in Las Vegas, Nevada. On January 28, 2019, she commenced this action pro se by filing a Complaint for a Civil Case (ECF No. 1). At the Court's direction (ECF No. 4), she filed an Amended Employment Discrimination Complaint (ECF No. 5) ("Amended Complaint"), which is the operative pleading. The Court granted her leave to proceed in forma pauperis (ECF No. 7).
Due to legal deficiencies in the Amended Complaint (ECF No. 5), on February 26, 2019, the Court entered an Order Directing Plaintiff to File Second Amended Employment Discrimination Complaint (ECF No. 8). In the Order, the Court explained to Plaintiff that her pleading did not comply with Rule 8 of the Federal Rules of Civil Procedure. The Court directed her to file a second amended pleading and provided thirty days to comply. The Court warned Plaintiff that her failure to comply with the Order could result in the dismissal of this action without further notice. The Court further warned Plaintiff that the dismissal of this action, even if without prejudice, could result in an effective dismissal with prejudice due to the statute of limitations.
To date, Plaintiff has not filed a Second Amended Employment Discrimination Complaint, despite the Court's direction to do so. Thus, the Amended Complaint (ECF No. 5) remains as the operative pleading.
In the Amended Employment Discrimination Complaint, Plaintiff alleges Defendant discriminated against her in violation of Title VII, the Americans with Disabilities Act ("ADA"), and Age Discrimination in Employment Act ("ADEA"), as well as violated her rights under "HIPPA." (ECF No. 5 at 2). In the Statement of Claims, Plaintiff alleges she was "placed on disciplinary warning for doing base duties of position," and "had less time to work than peers due to daily meeting with supervision in retaliation to complaint of harassment." (Id. at 3). She further alleges her supervisor "learned of disability and would intentionally create stressful work environment." (Id. at 4). As her request for relief, Plaintiff states "file a complaint." (Id. at 5). She attached her EEOC Charge of Discrimination and resulting Dismissal and Notice of Rights dated October 30, 2018. (Id. at 8-9).
II. Title VII and ADEA
To assert a claim under Title VII, Plaintiff must allege facts that demonstrate she was discriminated against in the terms or conditions of her employment on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1).
Title VII also prohibits employers from retaliating against employees for engaging in protected activity. See 42 U.S.C. § 2000e-3(a) ("it shall be an unlawful employment practice for an employer to discriminate against any of his [or her] employees . . . because he [or she] has opposed any practice made an unlawful employment practice by this subchapter . . . ." ). To state a prima facie claim of unlawful retaliation, Plaintiff must allege facts to demonstrate that (1) she was engaged in a protected employee action; (2) the employer took an adverse action either after or contemporaneous with her protected action; and (3) a causal connection existed between Plaintiff's action and the employer's adverse action. See Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1267 (10th Cir. 2005).
"Under the ADEA, plaintiff must prove that age was a determining factor in defendant's treatment of the complaining employee. Plaintiff need not prove that age was the sole reason for the employer's acts, but must show that age 'made the difference' in the employer's decision." E.E.O.C. v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988) (citations omitted). The ADEA extends to "individuals who are at least 40 years of age." 29 U.S.C. § 631(a).
"[I]f the court can reasonably read the pleadings to state a valid claim on which the [pro se litigant] could prevail, it should do so despite the . . . failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110.
Although the allegations in the Amended Complaint are minimal, the EEOC Charge of Discrimination attached to the pleading states Plaintiff is "black" and "age (44)", and "was treated differently than my peers, receiving less training and a higher sales quota" than her "white coworkers." (ECF No. 5 at 9-10). She alleges that she was retaliated against for reporting the alleged discrimination. (Id.). In the original Complaint, which the Court construes as a supplemental pleading, Plaintiff requested "$400,000 for violation of Title VII." (ECF No. 1 at 4). Based on these allegations, the Court determines that the Title VII, Title VII retaliation, and ADEA claims, as alleged for money damages, are inappropriate for summary dismissal at this time. Thus, I recommend that these claims be drawn to a presiding judge.
III. Americans with Disabilities Act
Regarding Plaintiff's alleged claim of employment discrimination based on a disability, the ADA prohibits covered employers from discriminating against "a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). ADA discrimination claims follow the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of discrimination, Plaintiff must show: (1) she was disabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential functions of the job; and (3) her employer discriminated against her because of the disability. Robert v. Bd. of Cnty. Comm'rs, 691 F.3d 1211, 1216 (10th Cir. 2012). Under the ADA, a person is disabled if she or he (1) has a physical or mental impairment that substantially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded by the employer as having such an impairment. 42 U.S.C. § 12102(1). Supervisors and other employees may not be held personally liable under the ADA. See Butler v. City of Prairie Village, 172 F.3d 736 (10th Cir. 1999) (holding that the ADA, like Title VII and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., "precludes personal capacity suits against individuals who do not otherwise qualify as employers under the statutory definition.").
Plaintiff must "exhaust [her] claims before the EEOC as a prerequisite to federal court jurisdiction over [her] ADA claims." MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (citations omitted). "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 submitted to the EEOC." Id.
As the Court previously informed Plaintiff, Rule 8(a) of the Federal Rules of Civil Procedure provides that a complaint "must contain (1) a short and plain statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that "[e]ach allegation must be simple, concise, and direct."
Plaintiff fails to provide a short and plain statement of her ADA claim showing she is entitled to relief. Although Plaintiff alleges discrimination based on a disability, she does not identify what her disability is or how the required elements to allege an ADA claim are met. Thus, I recommend that the ADA claim be dismissed without prejudice for failure to comply with Rule 8 of the Federal Rules of Civil Procedure.
IV. HIPAA
As noted above, the Court granted Plaintiff leave to proceed in forma pauperis. (ECF No. 7). Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss the action if the claims are frivolous or malicious, inter alia. See Judy v. Obama, 601 F. App'x 620, 621 (10th Cir. 2015) (28 U.S.C. § 1915(e)(2) applies to actions filed by nonprisoners). "[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A legally frivolous claim is one based on an indisputably meritless legal theory, such as the alleged infringement of a legal interest that clearly does not exist. Neitzke, 490 U.S. at 327. There is considerable overlap between the standards for frivolousness and failure to state a claim, and a claim that lacks an arguable basis in law is dismissible under both standards. Id. at 326, 328.
To the extent Plaintiff alleges a claim under the Health Insurance Portability and Accountability Act ("HIPAA"), "[a]ny HIPAA claim fails as HIPAA does not create a private right of action for alleged disclosures of confidential medical information." Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010). Thus, I recommend dismissing the HIPAA claim with prejudice as legally frivolous, because it lacks an arguable basis in law.
V. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the ADA claim be DISMISSED WITHOUT PREJUDICE for failure to comply with Fed. R. Civ. P. 8. It is
FURTHER RECOMMENDED that the HIPAA claim be DISMISSED WITH PREJUDICE as legally frivolous. It is
FURTHER RECOMMENDED that the Title VII, Title VII retaliation, and ADEA claims be drawn to a presiding judge. See D.C.COLO.LCivR 8.1(c).
DATED at Grand Junction, Colorado, this 6th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge