United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CRAIG B. SHAFFER, Magistrate Judge.
This civil action comes before the court on: (1) Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, (2) Defendant's Second Motion to Dismiss, and (3) Plaintiff's Motion for Change of Venue. Pursuant to the Order of Reference dated September 18, 2013 (Doc. # 9) and the memoranda dated October 2, 2013 (Doc. # 14), January 2, 2014 (Doc. # 25), and February 10, 2014 (Doc. # 30), these matters were referred to the Magistrate Judge. The court has reviewed the Motions, Mr. Smith's Objection to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment ("Response") (filed October 10, 2013) (Doc. # 20), Defendant United Parcel Service's ("UPS") Reply (filed October 21, 2013) (Doc. # 21), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.
I. Statement of the Case
Mr. Smith was employed by UPS from April 2006 through November 2012. ( See Title VII Complaint (Doc. # 1) at 4 of 29). Proceeding in his pro se capacity, he sues UPS for discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq., for discrimination based on his race and gender and for retaliation. ( See Doc. # 1 at 2 of 29). In his Charge of Discrimination filed with the Equal Employment Opportunity Commission ("EEOC") and included in his Complaint, he also lists discrimination on the basis of his disability under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. ( See Doc. # 1 at 4 of 29).
II. Standard of Review
On October 1, 2013, UPS moved to dismiss or alternatively for summary judgment on the Complaint. ( See Doc. # 10). Mr. Smith filed his Response on October 10, 2013. (See Doc. # 20). On December 31, 2013, UPS filed its Second Motion to Dismiss. ( See Doc. # 23). Mr. Smith has not filed any response to UPS's Second Motion.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Plausibility in this context refer[s] to the scope of allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible. As a corollary, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rather, the [f]actual allegations must be enough to raise a right to relief above the speculative level. When deciding a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all well-pleaded facts in the complaint and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Legal conclusions, however, do not receive this treatment.
Adler v. American Home Mortg. Servicing, Inc., 882 F.Supp.2d 1237, 1239-40 (D. Colo. 2012) (internal quotation marks and citations omitted).
Because Mr. Smith appears pro se, the court reviews his "pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, "the generous construction" that is afforded pro se pleadings has limits, and the court "must avoid becoming the plaintiff's advocate." Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1024 (10th Cir. 2012) (citation omitted). While the court must "accept the facts as the plaintiff alleges them, ... a plaintiff's version of the facts must find support in the record." Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (10th Cir. 2009).
A. Exhaustion of Administrative Remedies
"Under both Title VII and the ADA, exhaustion of administrative remedies is a prerequisite to suit." Apsley v. Boeing Co., 691 F.3d 1184, 1210 (10th Cir. 2012). In the Tenth Circuit, exhaustion of administrative remedies is a "jurisdictional prerequisite to suit...- not merely a condition precedent to suit." Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (citation omitted).
Title VII provides a 180-day filing period after the occurrence of an unlawful discriminatory practice. 42 U.S.C. § 2000e-5(e). See also McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir.2002) (provisions of ADA governing employment discrimination incorporate the procedural rules of Title VII, including the time limits). This 180-day period is extended to three-hundred (300) days in "deferral states" such as Colorado, where the "EEOC defers to the enforcement efforts of a state agency empowered to undertake employment discrimination investigations." Mascheroni v. Bd. of Regents of the University of California, 28 F.3d 1554, 1557 n. 3 (10th Cir. 1994), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Therefore, in order to commence a civil action under either Title VII or the ADA in Colorado, a plaintiff must file a charge alleging unlawful discrimination with the EEOC "within three hundred days after the alleged unlawful practice occurred, ..." 42 U.S.C. § 2000e-5. Any acts of alleged discrimination or retaliation occurring prior to the 300-day statutory time-period are time-barred. Daniels v. United Parcel Service, Inc., 701 F.3d 620, 628 (10th Cir. 2012). Mr. Smith alleges he filed his Charge on June 3, 2013. ( See Doc. # 1 at 4 of 29). Three hundred days prior to the date of his Charge is August 7, 2012.
The administrative time limits created by the EEOC are "subject to waiver, estoppel, and equitable tolling." Martinez v. Orr, 738 F.2d 1107, 1109 (10th Cir. 1984). The issue of tolling is governed by state law. Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). In Colorado, "equitable tolling of a statute of limitations is limited to situations in which 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 Tenth Circuit Court of Appeals has held that the time limits in Title VII "will be tolled only if there has been active deception' of the claimant regarding procedural prerequisites." Scheerer v. Rose State College, 950 F.2d 661, 665 (10th Cir.1991). If the defendant meets its burden of showing that the plaintiff failed to exhaust administrative remedies, the plaintiff must demonstrate that his claims should be equitably tolled. Harms v. IRS, 146 F.Supp.2d 1128, 1135 (D.Kan. 2001). See also McBride, 281 F.3d at 1105 (plaintiff has ...