United States District Court, D. Colorado
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.
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.
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.
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.
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. (ECF No. 49.) Therefore, the Court reviews
the issues before it de novo, except where otherwise
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).
FACTUAL & PROCEDURAL BACKGROUND
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).
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. (ECF No. 4 at 2.)
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.)
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.)
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.)
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.)
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.)
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.)
MOTION TO DISMISS
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
Claims Against Leggitt
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.
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.
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