Padilla v. Mnuchin

          RECOMMENDATION REGARDING AMENDED COMPLAINT

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the Amended Employment Discrimination Complaint (ECF No. 7)^[1] filed pro se by Plaintiff, Abigail Gail Padilla, on April 5, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 9.)^[2]

         The Court must construe the Amended Employment Discrimination Complaint and other papers filed by Ms. Padilla liberally because she is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Employment Discrimination Complaint be dismissed.

         I. DISCUSSION

         Ms. Padilla initiated this action by filing pro se an Employment Discrimination Complaint (ECF No. 1) asserting claims pursuant to Title VII, the Americans with Disabilities Act (“ADA”), the Whistleblower Protection Act (“WPA”), and the Family and Medical Leave Act (“FMLA”). On March 15, 2019, the Court directed Ms. Padilla to file an amended complaint that clarifies her claims. The Court determined the Employment Discrimination Complaint did not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure because Ms. Padilla failed to provide a short and plain statement of her claims showing she is entitled to relief. As noted above, the Amended Employment Discrimination Complaint was filed on April 5, 2019.

         The Amended Employment Discrimination Complaint does not provide a clear statement of the claims Ms. Padilla is asserting and does not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a pleading are to give the opposing parties fair notice of the basis for the claims against them so that they may respond and to allow the Court to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass'n of Kansas, 891 F.2d 1473, 1480 (10^thCir. 1989); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10^th Cir. 2007) (stating that a complaint “must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated.”).

         The requirements of Rule 8 are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964 F.2d 1022 (10^th Cir. 1992). Specifically, Rule 8(a) provides that a complaint “must contain (1) a short and plain statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” Furthermore, the philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that “[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. As a result, prolix, vague, or unintelligible pleadings violate the requirements of Rule 8.

         Ms. Padilla asserts three claims in the amended Employment Discrimination Complaint pursuant to Title VII, the ADA, and the WPA, although she also refers to violations of other statutes and constitutional provisions within each of her claims. Ms. Padilla indicates in the amended Employment Discrimination Complaint that she filed an administrative charge of discrimination and that she received a notice of right to sue, but she has not attached copies of those documents to the amended Employment Discrimination Complaint as directed on the complaint form. (See ECF No. 7 at p.19.) However, the Court notes that Plaintiff did submit documents with the original Employment Discrimination Complaint relevant to her efforts to exhaust administrative remedies, including a Decision on Request for Reconsideration dated February 6, 2019, that advises Ms. Padilla of her right to sue. (See ECF No. 1-1 at pp.5-7.) The Decision on Request for Reconsideration relates to “a formal EEO complaint in which [Ms. Padilla] alleged that the Agency discriminated against her based on race (mixed), national origin (Hispanic), sex (female), religion (Jewish), color (mixed), disability, [and] age (over 40) when she was issued a harmful mid-year performance review on July 31, 2014.” (ECF No. 1-1 at 5.)

         As the Court noted in the order directing Ms. Padilla to file an amended complaint, she did not include in the original complaint specific factual allegations in support of her claims that relate to a harmful mid-year performance review in July 2014. The Court's review of the amended Employment Discrimination Complaint reveals that Ms. Padilla still fails to provide a short and plain statement of any claims that relate to a harmful mid-year performance review in July 2014. In addition, even if Ms. Padilla's claims in this action relate to employment discrimination unrelated to a harmful mid-year performance review in July 2014, she still fails to provide a short and plain statement of any claims that demonstrate she is entitled to relief. Instead, the amended Employment Discrimination Complaint consists of vague, conclusory, disjointed, and confusing factual allegations that do not provide a clear and concise statement of each claim Ms. Padilla is asserting. For example, Ms. Padilla fails to link her factual allegations to the specific claims she indicates she is asserting. In other words, whatever Title VII claim Ms. Padilla may be asserting is not supported by specific factual allegations based on race, color, religion, sex, or national origin, see 42 U.S.C. § 2000e-2(a)(1), and she similarly fails to provide specific factual allegations regarding disability-based discrimination in her ADA claim or specific factual allegations that would support a claim under the WPA. Confusing the issues in this action further, Ms. Padilla repeats allegations from a separate employment discrimination case she recently filed that remains pending in the District of Colorado. See Padilla v. Mnuchin, No. 18-cv-02302-NRN (D. Colo. filed Sept. 7, 2018). In short, despite the Court's specific instructions, the amended Employment Discrimination Complaint does not provide a short and plain statement of any federal claims showing Ms. Padilla is entitled to relief.

         The general rule that pro se pleadings must be construed liberally has limits and “the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10^th Cir. 2005); see also United States v. Dunkel, 927 F.2d 955, 956 (7^th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory allegations that his rights have been violated does not entitle a pro se pleader to a day in court regardless of how liberally the pleadings are construed), aff'd, 961 F.2d 916 (10^th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.” Hall, 935 F.2d at 1110.

         Ms. Padilla fails to provide Defendants fair notice of the specific claims being asserted against them and the specific factual allegations that support each claim. Therefore, the Amended Employment Discrimination Complaint does not comply with the pleading requirements of Rule 8.

         II. RECOMMENDATION

         For the reasons set forth herein, this Magistrate Judge respectfully RECOMMENDS that the Amended Employment Discrimination Complaint (ECF No. 7) and the action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil ...