United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Defendant Linda McMahon's Motion to Dismiss. [#7, filed
October 10, 2017]. The Motion to Dismiss is before the court
pursuant to 28 U.S.C. § 636(c) and the Order of
Reference dated November 21, 2017 [#19]. The court has
carefully considered the Motion and related briefing, the
entire case file, and the applicable case law, and, for the
reasons stated below, GRANTS the Motion to Dismiss.
AND PROCEDURAL HISTORY
Sue Cirocco (“Plaintiff” or “Ms.
Cirocco”) initiated this lawsuit through counsel on
June 29, 2017, by filing a Complaint asserting unlawful sex
discrimination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §
2000e-2(a)(1), and for retaliation. [#1]. The court draws
the following facts from Ms. Cirocco's Complaint, and
accepts them as true for the purposes of considering the
Motion to Dismiss. Ms. Cirocco began working at the United
States Small Business Administration (“SBA”) in
August 2009 as a Finance Division Manager. [#1 at ¶ 9].
In December 2012, she was promoted to Finance Director over
two male colleagues, Mr. Bates and Mr. Berges, who
“vocally expressed” their displeasure, suggested
the promotion was on account of gender, and “went as
far to file an EEO complaint regarding Mr. Cirocco's
selection.” [Id. at ¶¶ 10-13]. In
October 2013, Mr. Gribben was hired as the Deputy Chief
Financial Officer and he became Ms. Cirocco's manager.
[Id. at ¶¶ 15-16]. Ms. Cirocco alleges
that Mr. Gribben and Mr. Bates began working together to her
exclusion and “outside the normal chain of
command.” [Id. at ¶ 17]. At one point,
Mr. Gribbon reversed Ms. Cirocco's performance review of
Mr. Bates, [id. at ¶¶ 20-22]; he also
instructed Ms. Cirocco not to issue written discipline to Mr.
Bates after Mr. Bates had been insubordinate to her and
verbally abusive toward one of his female co-workers.
[Id. at ¶¶ 26, 27-28, 31-32]. Mr. Gribben
also instructed Ms. Cirocco against further communicating
with Mr. Bates, an employee whom she managed. [Id.
at ¶¶ 33-34].
Cirocco alleges that not only was Mr. Gribben
“complicit in supporting Mr. Bates' discriminatory
behavior, ” he reprimanded her for retaliating against
Mr. Berges for his filing of an EEO complaint, when in fact
Mr. Berges “routinely confided in Ms. Cirocco about the
stress he experienced in filing his complaint.” [#1 at
¶¶ 35, 37-38, 40]. Ms. Cirocco asserts that Mr.
Gribben gave her a poor annual review (“FY14”)
that was lower than any review she had ever received at the
SBA, and in stark contrast to her mid-year performance review
that she was “doing a fabulous job.”
[Id. at ¶¶ 42-43, 49]. When Plaintiff
asked Mr. Gribben about the FY14, he said he “based his
decision on ‘complaints about [her] professional
conduct, '” which Plaintiff alleges referred to her
“efforts to discipline Mr. Bates for verbally berating
a female employee.” [Id. at ¶¶ 45,
47]. Ms. Cirocco lost the opportunity for a raise as a result
of the FY14. [Id. at ¶ 52].
filed her own EEO complaint in February 2015, and alleges the
retaliation continued thereafter. She was moved to a less
desirable office away from her team; she received a written
reprimand for failing to treat Mr. Bates “with
respect”; and she was placed under investigation in
February and March 2015. [Id. at ¶¶
60-62]. In March, the chief financial officer of the SBA
visited the Denver office and announced that Ms.
Cirocco's staff would be reduced by approximately 50
percent so as to comply with “best practices.”
[Id. at ¶ 65]. Ms. Cirocco alleges that,
without adequate staffing and no change in the description of
her position, it was impossible to perform her job.
[Id. at ¶ 72]. Ms. Cirocco thereafter took a
medical leave of absence and ultimately sought employment
filed the instant Motion to Dismiss on October 10, 2017,
[#7], and, three days later, counsel for Plaintiff moved to
withdraw his representation. See [#8, #9]. Plaintiff
has proceeded pro se since that time. The Parties
then consented to the exercise of jurisdiction by a United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c),
[#18]. On November 28, 2017, the court held a telephonic
Status Conference at which the undersigned discussed with the
Parties the Motion to Dismiss, and Ms. Cirocco represented
that she had intended for certain email correspondence, which
she had sent to counsel for Defendant, to serve as her
response to the Motion. See [#22]. Accordingly, the
court docketed the correspondence as Plaintiff's
Response, see [#23], and Defendant thereafter filed
a Reply, [#25]. The Motion to Dismiss is now ripe, and the
court has determined that oral argument would not materially
assist in its disposition.
moves to dismiss the Complaint for lack of subject matter
jurisdiction, arguing that Plaintiff failed to exhaust her
administrative remedies because she failed to participate in
the SBA's investigation of her claims and the underlying
administrative proceeding. See [#7]. Federal courts,
as courts of limited jurisdiction, must have a statutory
basis for their jurisdiction. See Morris v. City of
Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing
Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994)). “A court lacking jurisdiction cannot render
judgment but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974) (emphasis added). As the
party seeking to invoke the jurisdiction of this court,
Plaintiff bears the burden of alleging facts that support
jurisdiction. See Dutcher v. Matheson, 733 F.3d 980,
985 (10th Cir. 2013) (“Since federal courts are courts
of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal
party's Rule 12(b)(1) motion challenges the facts upon
which subject matter is based, “a district court may
not presume the truthfulness of the complaint's factual
allegations.” Sizova v. Nat'l Inst. of
Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.
2002) (citation and quotations omitted). Instead, the court
has “wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve
disputed jurisdictional facts under Rule 12(b)(1).”
Holt v. U.S., 46 F.3d 1000, 1003 (10th Cir. 1995).
The court's reliance on evidence outside the pleadings in
addressing such a motion does not, as a general rule, require
conversion of the motion to one for summary judgment under
Rule 56. Id. (citation omitted).
also moves to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6), which authorizes a court to dismiss
a pleading for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), the court must
“accept as true all well-pleaded factual allegations
… and view these allegations in the light most
favorable to the plaintiff.” Casanova v.
Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting
Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). However, a plaintiff may not rely on mere labels
or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility
refers “to the scope of the 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.'” Robbins v. Oklahoma, 519 F.3d
1242, 1247 (10th Cir. 2008) (citation omitted). “The
burden is on the plaintiff to frame ‘a complaint with
enough factual matter (taken as true) to suggest' that he
or she is entitled to relief.” Id. The
ultimate duty of the court is to “determine whether the
complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief
under the legal theory proposed.” Forest Guardians
v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).