United States District Court, D. Colorado
ORDER ON DEFENDANT'S PARTIAL MOTION TO DISMISS
STATE LAW CLAIM UNDER FED. R. CIV. P. 12(B)(1)
William J. Martínez United States District Judge.
Lenwood Robinson (“Robinson”) brings this lawsuit
against his former employer Defendant Regional Transportation
District, a political subdivision of the State of Colorado
(“RTD”). Robinson alleges that RTD discriminated
against him on the basis of race by disciplining him and not
promoting him, and retaliated against him for engaging in
protected activities. Robinson brings his claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (“Title VII”), the
Colorado AntiDiscrimination Act, Colo. Rev. Stat.
§§ 24-34-401 et. seq.
(“CADA”), and 42 U.S.C. § 1981. (ECF No. 5.)
pending before the Court is RTD's Partial Motion to
Dismiss State Law Claim Under Fed.R.Civ.P. 12(b)(1)
(“Partial Motion to Dismiss”). (ECF No. 69.) RTD
argues that the Court lacks jurisdiction over CADA state
claims arising out of Robinson's charge of employment
discrimination filed August 3, 2015 with the Colorado Civil
Rights Division (“CCRD”) and Equal Employment
Opportunity Commission (“EEOC”). For the reasons
explained below, this Court agrees and grants the Partial
Motion to Dismiss. Robinson's other claims under state
and federal law remain pending before this Court.
adjudicate a dispute, the Court must have jurisdiction over
the subject matter; absent subject matter jurisdiction, a
court must dismiss the action. Fed.R.Civ.P. 12(h)(3)
(“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.”). Motions to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1) generally take one of
two forms: a facial or factual attack. A facial attack
questions the sufficiency of the complaint as to its subject
matter jurisdiction allegations. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). In
reviewing a facial attack, the court accepts all well-pled
allegations as true. Id. A factual attack, on the
other hand, goes beyond the allegations in the complaint and
challenges the facts on which subject matter jurisdiction is
based. Id. at 1003. A factual attack does not permit
the court to presume that the complaint's factual
allegations are true, although the court does have
“wide discretion to allow affidavits, other documents,
and a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
In such circumstances, the court's reference to evidence
beyond the pleadings will not convert the motion to one under
Rules 12(b)(6) or 56, unless the jurisdictional question is
intertwined with the merits of the case. Id.
“The jurisdictional question is intertwined with the
merits of the case if subject matter jurisdiction is
dependent on the same statute which provides the substantive
claim in the case.” Id.
August 3, 2015, Robinson filed a charge of employment
discrimination against his then-employer RTD with CCRD and
EEOC, which was docketed as CCRD Charge No. D20160009 and
EEOC Charge No. 541-2015-01743, respectively (“First
Charge”). (ECF No. 5 ¶ 5.) On May 10, 2016,
CCRD issued its findings of “no probable cause”
on the First Charge. Id. ¶ 7.
not alleged in the Complaint, Robinson appealed CCRD's
finding of no probable cause to the Colorado Civil Rights
Commission (“the Commission”). (ECF Nos. 69
¶ 5; 69-1 at 2.) On June 27, 2016, CCRD issued a letter
to Robinson inf orming him that the Commission affirmed
CCRD's finding of no probable cause. (ECF No. 69-1 at 2.)
The letter notified Robinson that, if his matter was also
filed with EEOC, he could request a substantial weight
review. Id. In addition, the letter advised Robinson
that, if he wanted to file a civil action based on the
charges reviewed by the Commission, he would need to file the
action within ninety days or his action would be barred.
Id. Ninety days from the date of CCRD's
letter was Sunday, September 25, 2016, and the next business
day on which Robinson could file his lawsuit was Monday,
September 26, 2016.
after the initial May 2016 CCRD finding on the First Charge,
Robinson filed a timely request with EEOC for a substantial
weight review. (ECF No. 5 ¶ 8.) In August 2016, EEOC
completed its substantial weight review and, on August 17,
2016, sent Robinson a letter and official notice explaining
that EEOC adopted the findings of the state agency. (ECF No.
5 ¶ 9 & Ex. 1.) The notice informed Robinson of his
right to file a civil action on his federal claims within
ninety days of receipt of the notice. (ECF No. 5 at Ex. 1.)
Specifically, the enclosed “Dismissal and Notice of
Rights” stated that Robinson could “file a
lawsuit against [RTD] under federal law . .
. within 90 days.” (ECF No. 5 at Ex. 1 (emphasis
added).) The accompanying letter stated that there was no
evidence to “substantiate a violation of the
statutes enforced by the
EEOC” and no indication that further
investigation would “disclose a violation of the
statutes enforced by the EEOC.” (ECF
No. 73-2 at 2 (emphasis added).) Also enclosed with the
notice and letter was a document titled “Information
Related to Filing Suit Under the Laws Enforced by the
EEOC.” (ECF No. 73-3 at 2.) That document contained the
following statement about federal and state law:
This information relates to filing a suit in Federal or State
court under Federal law. If you also plan to sue
claiming violations of State law, please be aware that time
limits and other provisions of State law may be shorter or
more limited than those described below.
(ECF No. 73-3 at 2 (emphasis in original).) Ninety days from
the date of the EEOC letter was November 15, 2016.
filed his Complaint alleging violations of state and federal
law in state court on November 10, 2016, and RTD removed the
action to this Court on November 23, 2016. (ECF Nos. 1 &