Sisneros v. Denver

          ORDER

          Scott T. Varholak United States Magistrate Judge.

         This matter comes before the Court on the Renewed Motion to Dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (the “Motion”) [#21], filed by Defendant Manheim Remarketing, Inc., d/b/a Manheim Denver. [#21] Both parties have consented to proceed before this Court for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. [##10, 15, 16] This Court has carefully considered the Motion and related briefing, the case file and the applicable case law, and has determined that oral argument would not materially assist the Court. For the following reasons, the Court GRANTS the Motion to the extent it seeks dismissal of Plaintiff's Amended Complaint, but DENIES the Motion to the extent it seeks dismissal with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In January 2005, after serving 25 years with the United States Navy, Plaintiff was hired by Defendant as a vehicle inspector.^[1] [#20 at ¶¶ 1, 3] ¶ 2007, Plaintiff was promoted to Vehicle Entry Manager. [Id. at ¶ 4] As a result of the promotion, Defendant promised Plaintiff that his pay would be increased, but did not provide documents detailing the increase. [Id. at ¶¶ 4, 6] To the best of Plaintiff's knowledge, he was the only Hispanic manager while he worked for Defendant. [Id. at ¶ 5]

         Plaintiff's responsibilities grew and it became normal for him to work 12-14 hours per day, including holidays. [Id. at ¶ 7] ¶ 2016, because Plaintiff was required to work on Thanksgiving, he contacted his supervisor and told him that his salary did not justify the long hours and holidays, and that he no longer wanted to work such hours. [Id. at ¶¶ 8-9] Plaintiff's supervisor responded that Plaintiff should not be upset because he had a Navy pension and did not need the money. [Id. at ¶ 10]

         Following that conversation, Plaintiff spoke with another supervisor, who informed Plaintiff that his compensation was below the company minimum for his position. [Id. at ¶ 11] Plaintiff spoke to the human resources department, which confirmed that Plaintiff was being paid below the position minimum, and raised Plaintiff's pay. [Id. at ¶ 12] Plaintiff claims that the new pay amount still fell below the company minimum for his position. [Id.]

         On March 1, 2018, Plaintiff filed an Employment Discrimination Complaint alleging that he was discriminated against based on race and age.^[2] [#1] That Complaint did not contain any factual content supporting Plaintiff's claims. [Id.] On May 9, 2018, Defendant moved to dismiss the Complaint. [#13] At a status conference held on May 23, 2018, this Court granted Plaintiff leave to amend his Complaint and denied the original Motion to Dismiss. [#19] The Court specifically instructed Plaintiff to attach to an amended complaint all of the materials that he had filed with the Equal Employment Opportunity Commission (“EEOC”). [May 23, 2018 hearing, 11:02:21-11:02:55]

         Plaintiff filed his Amended Complaint on June 15, 2018. [#20] On July 2, 2018, Defendant filed the instant Motion. [#21] Plaintiff did not timely respond, yet this Court sua sponte granted Plaintiff an extension. [#22] Eventually, Plaintiff filed a Response, which simply copied an earlier stricken amendment to the Amended Complaint. [#29; see also #26] Defendant replied to this Response. [#31]

         II. STANDARD OF REVIEW

         Defendant seeks to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [See generally #21] Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. 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). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a 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)). Nonetheless, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To 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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 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) (quoting Twombly, 550 U.S. at 570). “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. (quoting Twombly, 550 U.S. at 556). 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).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

         III. ...