United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kathleen M. Tafoya United States Magistrate Judge.
case comes before the court on Defendant's âMotion to
Dismissâ (Doc. No. 13 [âMot. to Dismissâ], filed February 14,
2019, to which Plaintiff filed a Response (Doc. No. 16, filed
February 19, 2019) and to which Defendants filed a Reply
(Doc. No. 23, filed March 5, 2019). Also before the court is
Plaintiff's âRequest for Amended Employment
Discrimination Complaintâ (Doc. No. 27 [âMot. to Amendâ]
filed March 18, 2019), to which Defendant filed a Response
(Doc. No. 37, filed April 8, 2019) and to which Plaintiff
filed a Reply (Doc. No. 41, filed April 30, 2019).
OF THE CASE
following facts are taken from the Amended Complaint and the
parties' submissions. Plaintiff filed suit against
Walmart and General Manager Jonna Leggitt, alleging
violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), the Americans with Disabilities Act
(“ADA”) and the Age Discrimination in Employment
Act (“ADEA”). (Doc. No. 4 [Amend. Compl.] at 2.)
Plaintiff first claims she was wrongfully terminated after
Walmart denied her request for family leave and accused her
of having “excessive absences.” (Id. at
4.) Plaintiff contends this employment action constituted
age-based discrimination. (Id. at 3.) Plaintiff also
alleges Walmart continuously refused to rehire because of her
age and disability and instead hired younger, less
experienced and less qualified individuals than Plaintiff.
(Id.) In support of her disability-based
failure-to-rehire claim, Plaintiff points to occurrences from
when she was still employed at Walmart, including a refusal
to allow Plaintiff to use a cart following knee surgery and a
mandate that all employees must park in a specific area that
required a longer walk to the store. (Id. at 4.)
Proposed Second Amended Complaint, attached to her Mot. to
Amend, is a copy of Plaintiff's Amended Complaint to
which she added annotations and attached two new documents.
(Doc. No. 27-1.) More specifically, Plaintiff added that her
allegedly wrongful termination resulted from a policy change,
and added a hand-written note that details would be provided
with further investigation and discovery. (Id. at
3.) Next to her original signature date of January 2, 2019,
Plaintiff added a new signature dated March 13, 2019.
(Id. at 5.) The newly-attached documents include
emails Plaintiff sent to
“email@example.com” about setting up a Rule
26(f) conference and a copy of the last page of
Plaintiff's original complaint. (Id. at 27-2.)
moving for dismissal, Defendants first argue that Plaintiff
failed to file a timely charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”)
regarding all but her failure-to-rehire claims. (Mot. to
Dismiss at 4.) Defendants also argue that Plaintiff failed to
allege facts sufficient to support age or disability-based
failure-to-rehire claims. (Id. at 6.) Finally,
Defendants contend that Plaintiff's claims against
Defendant Jonna Leggitt must be dismissed because the ADEA
does not provide for individual liability. (Id. at
7-8.) In opposing Plaintiff's Motion to Amend, Defendants
argue that Plaintiff's Motion should be denied for
failing to attach a proposed Second Amended Complaint that
complies with D.C.COLO.LCivR 15(a), for failing to confer per
D.C.OLO.LCivR 7.1(a), and also because Plaintiff's
proposed Second Amended Complaint would be futile. (Doc. No.
37 at 3-6.)
Pro Se Plaintiff
is proceeding pro se. The court, therefore,
“review[s] 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). See
also Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by
lawyers”). 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 her
to application of different rules. See Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Failure to State a Claim Upon Which Relief Can Be
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). “The court's function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties
might present at trial, but to assess whether the
plaintiff's complaint alone is legally sufficient to
state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th
Cir. 2003) (quotation marks omitted).
court reviewing the sufficiency of a complaint presumes all
of plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff.”
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
1991). “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) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plausibility, in the context of a
motion to dismiss, means that the plaintiff pleaded facts
which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. The Iqbal evaluation
requires two prongs of analysis. First, the court identifies
“the allegations in the complaint that are not entitled
to the assumption of truth, ” that is, those
allegations which are legal conclusion, bare assertions, or
merely conclusory. Id. at 679-81. Second, the Court
considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.”
Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss.
Id. at 679.
the court need not accept conclusory allegations without
supporting factual averments. S. Disposal, Inc., v. Texas
Waste, 161 F.3d 1259, 1262 (10th Cir. 1998).
“[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S at 678. Moreover,
“[a] pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does the
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
“Where a complaint pleads facts that are ‘merely
consistent with' a defendant's liability, it
‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (citation omitted).
evaluating a Rule 12(b)(6) motion to dismiss, courts may
consider not only the complaint itself, but also attached
exhibits and documents incorporated into the complaint by
reference. Smith v. United States, 561 F.3d 1090,
1098 (10th Cir. 2009) (citations omitted). “[T]he
district court may consider documents referred to in the
complaint if the documents are central to the plaintiff's
claim and the parties do not dispute the documents'
authenticity.” Id. (quotations omitted).
Amendment of Pleadings
Federal Rules of Civil Procedure provide that a party may
amend a pleading by leave of court, and that leave shall be
given freely when justice so requires. Fed.R.Civ.P. 15(a).
Although the federal rules permit and require liberal
construction and amendment of pleadings, the rules do not
grant the parties unlimited rights of amendment. A motion to
amend may be denied on the grounds of undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, or futility of amendment.
Foman v. Davis, 371 U.S. 178, 182 (1962). “A
proposed amendment is futile if the complaint, as amended,
would be subject to dismissal.” United States ex
rel. Barrick v. ...