United States District Court, D. Colorado
ARTHUR R. WATSON, Plaintiff,
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
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.
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
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).
May 28, 2015 EEO complaint (Docket No. 18-1) revolves around
an incident that occurred on February 20, 2015. 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.)
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.)
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.
STANDARDS OF REVIEW
Pro Se 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).
Lack of Subject Matter Jurisdiction
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.
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 ...