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Palmer v. 210 HBW

United States District Court, D. Colorado

May 6, 2019

CASANDRA PALMER, Plaintiff,
v.
210 HBW, dba 210 Home Buyers Warranty, Defendant.

          RECOMMENDATION TO DISMISS IN PART AND TO DRAW CASE

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Amended Employment Discrimination Complaint (ECF No. 5)[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 10)[2].

         The Court must construe Plaintiff's filings 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 (10th Cir. 1991). However, the Court should not act as 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 case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Employment Discrimination Complaint (ECF No. 5) be dismissed in part and the remaining claims be drawn to a presiding judge.

         I. Factual and Procedural Background

          Plaintiff Casandra Palmer resides in Las Vegas, Nevada. On January 28, 2019, she commenced this action pro se by filing a Complaint for a Civil Case (ECF No. 1). At the Court's direction (ECF No. 4), she filed an Amended Employment Discrimination Complaint (ECF No. 5) (“Amended Complaint”), which is the operative pleading. The Court granted her leave to proceed in forma pauperis (ECF No. 7).

         Due to legal deficiencies in the Amended Complaint (ECF No. 5), on February 26, 2019, the Court entered an Order Directing Plaintiff to File Second Amended Employment Discrimination Complaint (ECF No. 8). In the Order, the Court explained to Plaintiff that her pleading did not comply with Rule 8 of the Federal Rules of Civil Procedure. The Court directed her to file a second amended pleading and provided thirty days to comply. The Court warned Plaintiff that her failure to comply with the Order could result in the dismissal of this action without further notice. The Court further warned Plaintiff that the dismissal of this action, even if without prejudice, could result in an effective dismissal with prejudice due to the statute of limitations.

         To date, Plaintiff has not filed a Second Amended Employment Discrimination Complaint, despite the Court's direction to do so. Thus, the Amended Complaint (ECF No. 5) remains as the operative pleading.

         In the Amended Employment Discrimination Complaint, Plaintiff alleges Defendant discriminated against her in violation of Title VII, the Americans with Disabilities Act (“ADA”), and Age Discrimination in Employment Act (“ADEA”), as well as violated her rights under “HIPPA.” (ECF No. 5 at 2). In the Statement of Claims, Plaintiff alleges she was “placed on disciplinary warning for doing base duties of position, ” and “had less time to work than peers due to daily meeting with supervision in retaliation to complaint of harassment.” (Id. at 3). She further alleges her supervisor “learned of disability and would intentionally create stressful work environment.” (Id. at 4). As her request for relief, Plaintiff states “file a complaint.” (Id. at 5). She attached her EEOC Charge of Discrimination and resulting Dismissal and Notice of Rights dated October 30, 2018. (Id. at 8-9).

         II. Title VII and ADEA

          To assert a claim under Title VII, Plaintiff must allege facts that demonstrate she was discriminated against in the terms or conditions of her employment on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1).

         Title VII also prohibits employers from retaliating against employees for engaging in protected activity. See 42 U.S.C. § 2000e-3(a) (“it shall be an unlawful employment practice for an employer to discriminate against any of his [or her] employees . . . because he [or she] has opposed any practice made an unlawful employment practice by this subchapter . . . .”). To state a prima facie claim of unlawful retaliation, Plaintiff must allege facts to demonstrate that (1) she was engaged in a protected employee action; (2) the employer took an adverse action either after or contemporaneous with her protected action; and (3) a causal connection existed between Plaintiff's action and the employer's adverse action. See Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1267 (10th Cir. 2005).

         “Under the ADEA, plaintiff must prove that age was a determining factor in defendant's treatment of the complaining employee. Plaintiff need not prove that age was the sole reason for the employer's acts, but must show that age ‘made the difference' in the employer's decision.” E.E.O.C. v. Sperry Corp., 852 F.2d 503, 507 (10th Cir. 1988) (citations omitted). The ADEA extends to “individuals who are at least 40 years of age.” 29 U.S.C. § 631(a).

         “[I]f the court can reasonably read the pleadings to state a valid claim on which the [pro se litigant] could prevail, it should do so despite the . . . failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or ...


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