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Watson v. McDonald

United States District Court, D. Colorado

August 24, 2017

ARTHUR R. WATSON, Plaintiff,
v.
ROBERT MCDONALD, Secretary, Department of Veteran Affairs, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 18)

          MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE

         This case is before this Court pursuant to an Order of Reference to Magistrate Judge issued by Judge Raymond P. Moore on October 4, 2016. (Docket No. 4.) Now before the Court is Defendant Robert McDonald's Motion to Dismiss. (Docket No. 18.) The Court has carefully considered the motion, Plaintiff's response (Docket No. 28), and Defendant's reply. (Docket No. 29.) The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.

         I. BACKGROUND

         This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff has been employed for 17 years at the Eastern Colorado Health Care System at the Veterans Administration Medical Center. He was working as a Senior Supply Tech in the Total Supply Support department when the events giving rise to this lawsuit took place. He alleges that he was discriminated against because of his race, color, sex, and age.

         Plaintiff's Complaint (Docket No. 1) consists of five documents: (1) his appeal of the Department of Veterans Affairs' (“VA”) final agency decision dismissing his equal employment Opportunity (“EEO”) complaint (id. at 5-9); (2) a letter from co-worker Michael Hunt that supports Plaintiff's allegations (id. at 10-13); (3) Plaintiff's request for reconsideration of the Equal Employment Opportunity Commission's (“EEOC”) denial of his appeal (id. at 16-19); and (5) the EEOC's denial of the request for reconsideration (id. at 20-22).

         Plaintiff's May 28, 2015 EEO complaint (Docket No. 18-1) revolves around an incident that occurred on February 20, 2015.[1] Plaintiff alleges that his immediate supervisor, Todd Archuleta, told Plaintiff he was not moving fast enough and that he was acting like a “sissy.” (Docket No. 18-1 at 3.) Plaintiff and Archuleta went and spoke with the department supervisor, Darlene Snowball, where the “incident escalated.” (Id.) Plaintiff was granted permission to leave early that day, but afterwards, he was “subjected to a very hostile work environment and fear for my safety both physically and mentally.” (Id.)

         Plaintiff's complaint for unlawful discrimination was dismissed on July 24, 2015. (Docket No. 1 at 16.) Plaintiff appealed this decision (id. at 5), and his appeal documented other incidents of discrimination he and other black employees endured. Specifically, Plaintiff alleged that only black employees were assigned to work in the “Breakdown Room, ” where hospital supplies were broken down and shelved. (Id. at 6.) This work was arduous and the assignment was understaffed, so Plaintiff had to work through lunches and breaks. (Id. at 6.) Snowball, Plaintiff's supervisor, used assignment to the Breakdown Room to punish staff, and Plaintiff did not appreciate her style of micro-management. (Id.) Plaintiff was always being told to move faster, and other employees began to treat him disrespectfully. (Id. at 8.)

         Plaintiff's appeal was denied on February 3, 2016. (Id. at 18.) Plaintiff's request for reconsideration documented still other incidents of harassment. (Id. at 14-15.) In the decision denying this request, the EEOC noted that “[i]n his request, [Plaintiff] reiterates his arguments he previously made and raises the matters [sic] that are not related to the alleged incident.” (Id. at 20.) Plaintiff then filed this lawsuit.

         II. STANDARDS OF REVIEW

         a. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The Court, therefore, “review[s] his 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). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon 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).

         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 ...


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