United States District Court, D. Colorado
RECOMMENDATION TO DISMISS IN PART AND TO DRAW
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Amended Employment
Discrimination Complaint (ECF No. 5). The matter has been
referred to this Magistrate Judge for recommendation (ECF No.
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.
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.
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).
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.
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.
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).
Title VII and ADEA
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.
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.
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).
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 ...