United States District Court, D. Colorado
GEOFFERY L. HEWLETT, JR., Plaintiff,
MCCAULEY CONSTRUCTIONS INC, Defendant.
MEMORANDUM OPINION AND ORDER TO SHOW CAUSE
Y. Wang United States Magistrate Judge.
matter comes before the court on Defendant McCauley
Constructions, Inc.'s (“McCauley” or
“Defendant”) Motion to Dismiss Plaintiff's
Amended Complaint (“the Motion to Dismiss” or
“the Motion”) [#19, filed February 21,
2019]. The undersigned magistrate judge fully
presides over this case pursuant to 28 U.S.C. § 636(c),
the Parties' consent, and the Orders of Reference dated
February 12, 2019 [#12; #13]. Because Plaintiff Geoffrey L.
Hewlett, Jr. (“Plaintiff” or “Mr.
Hewlett”) is proceeding pro se, the court set
an extended deadline of March 22, 2019 to respond to the
Motion to Dismiss. [#21]. Mr. Hewlett has neither responded
to the Motion to Dismiss nor sought a timely extension of
time, and so the court proceeds solely upon the Motion to
Dismiss. D.C.COLO.LCivR 7.1(d) (“Nothing in this rule
precludes a judicial officer from ruling on a motion at any
time after it is filed.”). For the reasons set forth in
this Order, the Motion to Dismiss is
following factual allegations are taken from Plaintiff's
Amended Complaint and taken as true for the purposes of this
instant Motion. Plaintiff alleges that he was discriminated
against, harassed, and eventually terminated from his
position as a day laborer for McCauley Construction
“through Express Professionals.” [#17 at 3].
Plaintiff began work at Buckley Air Force Base in January
2014 when his supervisor, Dave Vershal (“Mr.
Vershal”), began a sustained pattern of making racist
jokes and hurling racist invective against Mr. Hewlett.
[Id.]. Mr. Hewlett alleges that Mr. Vershal would
intentionally sabotage his performance by giving him
inadequate tools and then would make racist comments
following his preordained failure. [Id. at 4]. Over
time, Mr. Vershal's behavior worsened, and he began to
make menacing references to his firearm collection to
intimidate Plaintiff and others. [Id.]. Mr. Hewlett
complained to Express Professionals and it stated they would
look into the matter. [Id.]. Eventually, Mr. Vershal
fired Mr. Hewlett after a heated argument. [Id. at
moved to dismiss on February 14, 2019. [#14]. At the initial
status conference, the court set a deadline to respond to the
Motion to Dismiss: March 15, 2019. [#15]. Shortly thereafter,
Plaintiff filed an Amended Complaint which mooted the initial
Motion to Dismiss. [#17; #18]. Defendants then renewed the
Motion to Dismiss, [#19], and the court set a new deadline to
respond of March 22, 2019. [#21]. The operative Motion to
Dismiss argues for dismissal because Plaintiff's charge
was untimely, because he does not allege that McCauley is
either his employer or a covered employer under Title VII,
because he did not exhaust his administrative remedies for
all claims, and because service of process was insufficient.
[#19]. The court does not address each argument because it
finds the first argument to be dispositive of the instant
motion, but does not preclude Defendant from re-raising its
additional arguments should Plaintiff be able to successfully
discharge the Order to Show Cause and further amend to avoid
dismissal based on the statute of limitations.
Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations . . . and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). A
plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Rather, “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, 677
(2009); see also Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (explaining that plausibility refers
“to the scope of the allegations in a complaint,
” and that the allegations must be sufficient to nudge
a plaintiff's claim(s) “across the line from
conceivable to plausible.”). To state a claim that is
plausible on its face, a complaint must “sufficiently
alleges facts supporting all the elements necessary to
establish an entitlement to relief under the legal theory
proposed.” Forest Guardians v. Forsgren, 478
F.3d 1149, 1160 (10th Cir. 2007). Even if a Rule 12(b)(6)
motion is unopposed, the court must still determine whether
the movant has met his burden to demonstrate that the
Complaint fails to state a claim. Issa v. Comp USA,
354 F.3d 1174, 1177 (10th Cir. 2003).
statute of limitations argument ordinarily is presented as an
affirmative defense; however, the issue may be resolved on a
Rule 12(b)(6) motion where the application of the limitations
period “is apparent on the face of the
complaint.” Dummar v. Lummis, 543 F.3d 614,
619 (10th Cir. 2008) (citing Aldrich v. McCulloch
Properties., Inc. 627 F.2d 1036, 1041 & n.4 (10th
The Motion to Dismiss
individual who seeks to bring a claim against an employer
for, relevant here, racial discrimination in the workplace in
violation of Title VII, must exhaust their administrative
remedies. Smith v. Cheyenne Ret. Inv'rs L.P.,
904 F.3d 1159, 1164 (10th Cir. 2018). Once a plaintiff has
exhausted her administrative remedies and received a right to
sue letter, she must file suit within ninety days by statute.
42 U.S.C. § 2000e-5(f)(1); Baldwin Cty. Welcome Ctr.
v. Brown, 466 U.S. 147, 149 (1984); Kaiser v.
Colorado Dep't of Corr., No. 10-CV-01837-RBJ-CBS,
2012 WL 762227, at *7 (D. Colo. Jan. 4, 2012). This
provision, equivalent to a statute of limitations, is
“strictly enforced” absent equitable tolling,
waiver, or other affirmative defense to enforcement, and even
a relatively trivial delay will justify dismissal. Mosley
v. Pena, 100 F.3d 1515, 1518 (10th Cir. 1996) (affirming
summary judgment on four-day-late complaint);
Stapleton v. Saint Francis Hosp., Inc., No.
10-CV-0806-CVE-FHM, 2011 WL 4608329, at *3 (N.D. Okla. Sept.
30, 2011) (granting summary judgment on seven-day-late
Hewlett has failed to attach his Right to Sue letter to the
operative Amended Complaint, but he did attach it to his
original Complaint. [#1 at 8]. While outside the four corners
of the Amended Complaint, the court considers the Right to
Sue Notice because it is referenced in the Amended Complaint
and central to Plaintiff's claim. [#17 at 7]; Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). The Right
to Sue letter is dated July 25, 2018. [#1 at 8]. There is no
indication, either in Plaintiff's pleadings or on the
face of the Right to Sue Notice itself, when Plaintiff
received the letter. However, courts have held that if there
is evidence that the Right to Sue letter was mailed, then
there is a rebuttable presumption of receipt. Issa,
354 F.3d at 1178; Witt v. Roadway Exp., 136 F.3d
1424, 1429-30 (10th Cir. 1998).
Rule of Civil Procedure 6(d) provides a presumptive mailing
time of three days, and so the court must presume that
Plaintiff received the letter and began the ninety-day period
three days after mailing on July 28, 2018. Morrison v.
Equity Residential Properties Woodridge Apts., No.
CIVA-05-CV-01787-PSF-MJW, 2006 WL 1517734, at *3 (D. Colo.
May 31, 2006). Ninety days from July 28 is Friday, October
26, 2018. Defendant argues that because Plaintiff filed his
Complaint the next business day, Monday, October 29, 2018,
the Complaint is untimely. [#19 at 5].
Plaintiff has not responded to the Motion to Dismiss, the
court has no basis to reject the presumption that Mr. Hewlett
received the EEOC's Right to Sue Notice no later than
July 28, 2018, and failed to initiate this action within 90
days. Accordingly, the court GRANTS Motion
to Dismiss, but will do so without prejudice. Given Mr.
Hewlett's pro se status and his failure to file
a response to the Motion to Dismiss, this court does not have
a sufficient ...