United States District Court, D. Colorado
ROBERT W. SANCHEZ, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service, Defendant.
ORDER ON DEFENDANT’S MOTION TO DISMISS (DOCKET NO. 24) & MOTION TO INTERVENE (DOCKET NO. 32)
Michael J. Watanabe United States Magistrate Judge.
Plaintiff has been pursuing an employment-discrimination complaint through an administrative maze for over a decade. At this point, he has filed suit in this Court (Docket Nos. 1 & 8), and Defendant has moved to dismiss (1) for failure to state a claim as to discrimination based on national origin or retaliation, and (2) for failure to exhaust administrative remedies as to discrimination based on disability (Docket No. 24). The decade-long odyssey is attributable in part to an administrative class action pending before the EEOC, which the Court will refer to as the “Pittman Class Action.” The settlement of the Pittman Class Action is on hold pending this Court’s resolution of Plaintiff’s claim, and class counsel seeks to intervene. (Docket No. 32.)
The parties have consented to magistrate jurisdiction for all purposes under 28 U.S.C. § 636(c). (Docket Nos. 28 & 30.) The Court has reviewed the parties’ filings (Docket Nos. 24, 31, 32, and 33), taken judicial notice of the Court’s entire file in this case, and considered the applicable Federal Rules of Civil Procedure, statutes, regulations, and case law. Now being fully informed the Court denies in part and grants in part the motion to dismiss, and grants the motion to intervene.
Defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As stated by then-Chief Judge Babcock in 2001:
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of jurisdiction over the subject matter. As courts of limited jurisdiction, federal courts may only adjudicate cases that the Constitution and Congress have granted them authority to hear. Statutes conferring jurisdiction on federal courts are to be strictly construed. 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. The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.
Motions to dismiss pursuant to Rule 12(b)(1) may take two forms. First, if a party attacks the facial sufficiency of the complaint, the court must accept the allegations of the complaint as true. Second, if a party attacks the factual assertions regarding subject matter jurisdiction through affidavits and other documents, the court may make its own findings of fact. A court’s consideration of evidence outside the pleadings will not convert the motion to dismiss to a motion for summary judgment under Rule 56.
Cherry Creek Card & Party Shop, Inc. v. Hallmark Mktg. Corp., 176 F.Supp.2d 1091, 1094-95 (D. Colo. 2001) (internal citations, quotation marks, and alterations omitted).
The Tenth Circuit has recently explained the standards under Rule 12(b)(6):
. . . To withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, to state a claim to relief that is plausible on its face. Disregarding conclusory statements, the remaining factual allegations must plausibly suggest the defendant is liable. A claim for relief is plausible when the plaintiff pleads facts adequate to draw a reasonable inference that the defendant is liable for the alleged misconduct. Such facts must raise a right to relief above the speculative level.
McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014) (internal citations, quotation marks, and alterations omitted).
Facts as Alleged in the Complaint
Plaintiff is disabled for purposes of the Rehabilitation Act. (Docket No. 1, pp.47- 62 & Docket No. 1-1, pp.1-24.) He has filed two discrimination charges with the EEOC: one in July 1994, and one in October 2005. (Docket No. 1, p.2.) Both charges asserted discrimination based on Plaintiff’s race/national origin (Hispanic, and of Native American heritage) as well as his disability. (Docket No. 1, p.2; Docket No. 1, p.15; Docket No. 1-1, pp. 25-27).
Plaintiff won on the 1994 charge. That charge concerned Defendant’s overtime practices-specifically, Defendant’s failure to make various forms of overtime available to employees classified as disabled on equal terms with those not so classified. (See Docket No. 1, pp.15-18, 22-38.) Although the Administrative Judge in the case found no evidence whatsoever of discrimination based on race/national origin (id. at pp.39- 40), the judge did find direct and indirect evidence of disability discrimination and ordered the full panoply of compensatory and injunctive relief (id. at pp.40-43).
Plaintiff’s 2005 charge alleges both that Defendant has not complied with the EEOC’s order from the earlier charge (id. at p.2), and that Defendant has created a “continuous and constant hostile work environment” for him in retaliation for that earlier charge (Docket No. 1-1, p.26). Defendant’s EEO office initially dismissed the 2005 charge for failure to state a claim, believing it to be a challenge to Defendant’s then-recent union settlement regarding overtime practices. (Id. at p.28-29.) The EEOC overturned the dismissal on administrative appeal, finding that the claim concerned denial of overtime as retaliation for the 1994 charge rather than denial of overtime related to the union settlement. (Id. & Docket No. 1-2.)
Plaintiff’s 2005 charge was then subsumed into a pending administrative class action challenging Defendant’s overtime practices with regard to disabled employees. (Docket No. 1, p.3.) At the conclusion of that administrative class action, Plaintiff attempted to appeal the result, but was told by the EEOC that his appeal would not be considered. (Docket No. 8, p.3.) Plaintiff alleges that the EEOC’s refusal to hear his appeal is in error, and that the notices he was given regarding the administrative class action failed to advise him fully of the binding nature of the class action. (Id.)
Other Administrative Records
Defendant’s Rule 12(b)(1) argument rests on Plaintiff’s alleged failure to exhaust administrative remedies. In support of this argument, Defendant offers administrative records establishing the following.
On May 17, 2007, Administrative Judge David Simonton subsumed Plaintiff’s disability-based charge into a pending administrative class action, the Pittman Class Action. (Docket No. 24-1.) The portions of Plaintiff’s charge based on national origin and on retaliation were held in abeyance, pending resolution of the disability-based claims. (Id.) According to the order, Plaintiff had no choice as to the subsumed portion of his charge; as to the rest of it, he had a choice whether to hold those matters in abeyance or to proceed, and he elected abeyance. (Id.)
In October 2013, the Pittman Class Action settled for a class settlement fund of $17.25 million. (Docket No. 24-2.) The settlement agreement, as ...