Kahler v. Leggitt

          ORDER ADOPTING MAY 3, 2019 RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION TO AMEND

          William J. Martinez, United States District Judge.

         This matter is before the Court on United States Magistrate Judge Kathleen M. Tafoya's Recommendation dated May 3, 2019 (the “Recommendation”; ECF No. 46), which recommended that this Court (1) grant Defendants Walmart Inc. (“Walmart”) and Jonna Leggitt's (“Leggitt”) (collectively, the “Defendants”) Motion to Dismiss (ECF No. 13); (2) deny Plaintiff Mary Lee Kahler's (“Plaintiff”) Request for Amended Employment Discrimination Complaint (“Motion to Amend”; ECF No. 27); and (3) dismiss this action in its entirety. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         Plaintiff filed an Objection to the Recommendation (“Objection”; ECF No. 49), to which the Defendants responded (ECF No. 50). After the Recommendation was docketed, Plaintiff filed a Motion for Extension of Time for First Set of Discovery (“Motion for Time Extension”; ECF No. 48), which is currently pending before the Court.

         For the reasons set forth below, the Recommendation is adopted in its entirety, Plaintiff's Objection is overruled, Defendants' Motion to Dismiss is granted, Plaintiff's Motion to Amend is denied, and Plaintiff's Motion for Time Extension is denied as moot.

         I. LEGAL STANDARD

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. 2121 East 30th St., 73 F.3d 1057, 1059-60 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. at 1059. In conducting its review, “[t]he district judge may accept, reject, or modify the [recommendation]; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Here, Plaintiff filed an objection to the Recommendation.^[1] (ECF No. 49.) Therefore, the Court reviews the issues before it de novo, except where otherwise noted.

         In considering the Recommendation, the Court is also mindful of Plaintiff's pro se status, and accordingly, reads her pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003).

         II. FACTUAL & PROCEDURAL BACKGROUND

         The following factual summary is drawn from Plaintiff's currently operative complaint-the First Amended Complaint (ECF No. 4)-except where otherwise noted. The Court assumes the allegations contained in the First Amended Complaint to be true for the purpose of deciding the Motion to Dismiss. Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).

         In this action, Plaintiff brings claims against the Defendants for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.^[2] (ECF No. 4 at 2.)

         Plaintiff was an employee at a Walmart store located in La Junta, Colorado, until April 3, 2016, when she was discharged and placed on “rehire status.” (Id. at 10.) At the date of her discharge, Plaintiff was 62 years old. (Id.; ECF No. 49 at 13.) On March 20, 2017-351 days after she was discharged-Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging age and disability discrimination against Walmart (the “Charge”; ECF No. 4 at 10). (See also ECF No. 13-1.) The Charge included the following allegations:

On April 3, 2016, I was discharged from my position, but was placed on rehire status. On May 4, 2016, and every 60 days since then, I have applied to be considered for a position in the shoe, cashier, toy, jewelry, fabric, greeter and apparel department without response. I know of a younger female in her 20's who was rehired in the fabric department after she was discharged from her position.

I believe I have been discriminated against because of my age (63), in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended; and because of a disability, within the meaning of the Americans with Disability Act of 1990 (ADA), as amended, in violation of the ADA.

(ECF No. 4 at 10.)

         On September 19, 2018, the EEOC mailed Plaintiff a letter, informing her that it had dismissed the Charge. (Id. at 9.) Attached to the letter was a Dismissal and Notice of Rights, wherein the EEOC apprised Plaintiff of her right to file a lawsuit based on the Charge. (Id. at 8.) On December 10, 2018, Plaintiff filed the instant civil lawsuit against Walmart and Leggitt, the General Manager of the Walmart store where Plaintiff had worked. (ECF No. 1; ECF No. 49 at 6.)

         Plaintiff first alleges “wrongful termination” based upon her age. (ECF No. 4 at 3.) When asked which of the following “the conduct complained of in this claim involves, ” Plaintiff checked the boxes for “termination of employment” and “different terms and conditions of employment, ” and wrote in the “other” box: “family leave absence denied.” (Id. at 3.) In support of this claim, Plaintiff makes the following factual allegations:

Wrongful termination/family leave absence denied[.]

Failure of defendant to rehire after wrongful termination. . . .

Wrongful termination is based on defendant's refusal to authorize a family leave absence which led to what they considered “excessive absences[.]” Plaintiff had exemplary attendance and work ethic. Walmart's change in policies at that time led to wrongful termination of many excellent employees, according to Human Resources staff.

(Id. at 4.)

         Plaintiff then alleges “failure to rehire” based upon her age and disabilities. (Id. at 5.) When asked which of the following “the conduct complained of in this claim involves, ” Plaintiff checked the boxes for “failure to hire, ” “failure to promote, ” “failure to accommodate disability, ” and “retaliation, ” and wrote in the “other” box: “hired less qualified.” (Id. at 5.) As Judge Tafoya did in the Recommendation, the Court construes these to be separate claims-namely, a failure to promote claim, a failure to accommodate disability claim, a retaliation claim, and a failure to rehire claim (which the Court construes to incorporate the conduct regarding “hired less qualified” and “failed to hire”). (See ECF No. 46 at 7, 9-11.) In support of these claims, Plaintiff makes the following factual allegations:

Failure to rehire/hired less qualified[.]

After wrongful termination, defendant hired three employees in plaintiff's department who were all younger and less experienced/less qualified than the plaintiff. Defendant has continued to deny employment at every open hiring and every application opportunity. Plaintiff was passed over for promotion to Assistant Department Manager, a much younger less experienced man was hired. After age- and work-related knee surgery, plaintiff was not allowed to use carts for greater mobility and load carrying. Employees were required to park past the third light-post, much further from store, which led to longer walk to clock in. Defendant failed to recognize any disability.

(Id. at 4.) That is the extent of Plaintiff's support for these claims. (See id. at 4-5.)

         On February 14, 2019, the Defendants filed their Motion to Dismiss, requesting that the Court “(1) dismiss the claims for which Plaintiff failed to file a timely Charge of Discrimination with the Equal Employment Opportunity Commission; (2) dismiss all of Plaintiff's claims for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); and (3) dismiss Plaintiff's claims against Ms. Leggitt in her individual capacity.” (ECF No. 13 at 1.)

         On March 18, 2019, Plaintiff filed the Motion to Amend. (ECF No. 27.) Judge Tafoya reviewed Defendants' Motion to Dismiss and Plaintiff's Motion to Amend, and issued her Recommendation on May 3, 2019. (ECF No. 46.) On May 13, 2019, Plaintiff filed her Motion for Time Extension. (ECF No. 48.) On May 22, 2019, Plaintiff filed an Objection to the Recommendation. (ECF No. 49.)

         III. MOTION TO DISMISS

         In the Recommendation, Judge Tafoya recommended that Defendants' Motion to Dismiss be granted. (ECF No. 46 at 16.) In her Objection, Plaintiff disputes various portions of the Recommendation. (ECF No. 49.) The Court will address Judge Tafoya's findings and Plaintiff's specific objections in turn.

         A. Claims Against Leggitt

         In the First Amended Complaint, Plaintiff brings claims against Leggitt for violations of the ADA, the ADEA, and Title VII. (ECF No. 4 at 2.) While it appears that Plaintiff is bringing claims against Leggitt in her individual capacity, this is not explicitly set forth in Plaintiff's First Amended Complaint (or elsewhere in the record). (See ECF No. 4.) In the Recommendation, Judge Tafoya construed Plaintiff's claims against Leggitt as being asserted against her in her individual capacity, and not her official capacity. (ECF No. 46 at 6-7.) Plaintiff did not object to this finding. (ECF No. 49 at 6-7.) Therefore, the Court construes Plaintiff's claims against Leggitt as individual capacity claims.

         In the Recommendation, Judge Tafoya discussed how the ADA, the ADEA, and Title VII “do not provide for individual liability.” (ECF No. 46 at 6-7.) As a result, Judge Tafoya recommended that Plaintiff's claims against Leggitt in her individual capacity be dismissed. (Id.)

         In the Objection, Plaintiff states that she “understands that Walmart, Inc[.] is in fact the ultimate liable entity, ” but argues that “[a]ny discussion regarding dismissal of claim[s] against Jonna Leggitt in her individual ...