Kahler v. Leggitt

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kathleen M. Tafoya United States Magistrate Judge.

         This case comes before the court on Defendant's “Motion to Dismiss” (Doc. No. 13 [“Mot. to Dismiss”], 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 “Request for Amended Employment Discrimination Complaint” (Doc. No. 27 [“Mot. to Amend”] 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).

         STATEMENT OF THE CASE

         The 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”)^[1], 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.)

         Plaintiff's 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 “james@justfreestuff.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.)

         In 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.)

         STANDARDS OF REVIEW

         A. Pro Se Plaintiff

         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).

         B. Failure to State a Claim Upon Which Relief Can Be Granted

         Federal 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).

         “A 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.

         Notwithstanding, 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).

         In 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).

         C. Amendment of Pleadings

         The 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. ...