Owens v. Potter

Filing 53

ORDER granting in part and denying in part 26 Defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) by Judge William J. Martinez on 12/12/2011.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-01886-WJM-KMT
FRANCES M. OWENS,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General,
Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISS

This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6) (ECF No. 26), which seeks
dismissal of Plaintiff’s Second Amended Complaint (ECF No. 17). Plaintiff has filed a
Response to the Motion (ECF No. 46), and Defendant has filed a Reply (ECF No. 47).
The Motion is ripe for adjudication. For the following reasons, Defendant’s Motion to
Dismiss is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Plaintiff Frances M. Owens brings this Title VII action alleging employment
discrimination against Patrick R. Donahoe, the Postmaster General for the United
States Postal Service (“USPS”). (ECF No. 17, ¶¶ 1, 2, 6.)1 At all relevant times,
Plaintiff, an African-American, was an employee of the USPS.
Plaintiff’s Second Amended Complaint (“operative complaint”) details numerous
1

The action was originally brought against John E. Potter, the former Postmaster
General, who has since been replaced by Patrick Donahoe.

alleged adverse actions that she suffered between mid-1994 and September 2009
during her employment with the USPS (Id. ¶¶ 30-88.) The majority of these adverse
actions were failures to promote Plaintiff to more advanced positions within USPS. The
operative complaint also details several reorganizations within USPS, the last of which
occurred in 2009, at which time Plaintiff was demoted to a lower-level position. Plaintiff
alleges that she was passed over for these job opportunities, despite winning numerous
commendations and awards throughout her employment with the USPS. Plaintiff points
out that the individuals ultimately selected for these positions that she sought either
were white, were men, and/or were younger than her.
Plaintiff filed this action on August 6, 2010, bringing three Title VII claims based
on alleged disparate treatment, harassment, and retaliation. (ECF No. 1.) On February
3, 2011, U.S. Magistrate Judge Kathleen M. Tafoya issued an Order to Show Cause
why the action should not be dismissed for lack of service and failure to prosecute.
(ECF No. 8.) On February 17, 2011, Plaintiff voluntarily filed a First Amended
Complaint (ECF No. 15), and then on February 22, 2011, she voluntarily filed a Second
Amended Complaint (ECF No. 17). At the hearing on the Order to Show Cause, held
on February 23, 2011, Plaintiff informed Magistrate Judge Tafoya that she had served
the Second Amended Complaint on Defendant. (ECF No. 20.) Magistrate Judge
Tafoya discharged the Order to Show Cause, accepting the Second Amended
Complaint as the operative complaint going forward. (Id.)
On April 25, 2011, Defendant filed his Motion to Dismiss. (ECF No. 26.) In the
Motion, Defendant argues that Plaintiff administratively exhausted only a narrow set of
claims contained within the operative complaint (those pertaining to three discrete
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employment decisions, and therefore the unexhausted claims should be dismissed
under Federal Rule of Civil Procedure 12(b)(1). (Id. at 3-5.) Defendant also argues
that, as to both Plaintiff’s exhausted and unexhausted claims, the claims are not
plausible and are therefore subject to dismissal under Federal Rule of Civil Procedure
12(b)(6). (Id. at 5-14.)
On June 14, 2011, Plaintiff filed a Response to the Motion to Dismiss. (ECF No.
46.) In the Response, Plaintiff argues that all of her claims should be deemed
exhausted under the continuing violation doctrine. (Id. at 2-7.) She also argues that her
claims are plausible and therefore should not be dismissed for failure to state a claim.
(Id. at 7-9.)
On June 30, 2011, Defendant filed a Reply. (ECF No. 47.)
II. LEGAL STANDARDS AND APPLICABLE LAW
Under Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a
claim for lack of subject matter jurisdiction. Rule 12(b)(1) challenges are generally
presented in one of two forms: “[t]he moving party may (1) facially attack the
complaint’s allegations as to the existence of subject matter jurisdiction, or (2) go
beyond allegations contained in the complaint by presenting evidence to challenge the
factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin.
Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (citation and quotation
marks omitted). When, as here, “a party attacks the factual basis for subject matter
jurisdiction, the court may not presume the truthfulness of the factual allegations in the
complaint, but may consider evidence to resolve disputed jurisdictional facts.” SK
Finance SA v. La Plata Cnty., Bd. of Cnty. Comm’rs, 126 F.3d 1272, 1275 (10th Cir.
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1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. “The burden
of establishing subject matter jurisdiction is on the party asserting jurisdiction.” Port City
Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
“Exhaustion of administrative remedies is a jurisdictional prerequisite to instituting
a Title VII action in federal court.” Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir.
1997) (quotation marks and brackets omitted); see also Sizova v. Nat’l Inst. of
Standards & Tech., 282 F.3d 1320, 1325 (10th Cir. 2005); 42 U.S.C. § 2000e-16(c).
“[B]ecause failure to exhaust administrative remedies is a bar to subject matter
jurisdiction, the burden is on the plaintiff as the party seeking federal jurisdiction to
show, by competent evidence, that she did exhaust.” McBride v. CITGO Petroleum
Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.” In
evaluating such a motion, a court must “assume the truth of the plaintiff’s well-pleaded
factual allegations and view them in the light most favorable to the plaintiff.” Ridge at
Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such
a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy
which must be cautiously studied, not only to effectuate the spirit of the liberal rules of
pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567
F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). “Thus, ‘a well-pleaded
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complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and unlikely.’” Id. (quoting Twombly,
550 U.S. at 556).
III. ANALYSIS
A.

Harassment Claim
Plaintiff, under her Title VII harassment claim, alleges that Defendant “created an

environment within the USPS [in which Plaintiff] was and is treated less favorably than
her counterparts of other races with respect to . . . job assignments, duties,
opportunities, days off, hours, and other job requirements,” and that Defendant allowed
Plaintiff “to be treated without respect and in a demeaning manner.” (ECF No. 17, ¶
95.) She alleges that this repeated disparate treatment “subjected her to a hostile work
environment due to her race.” (Id. ¶ 96.)
As argued by Defendant, Plaintiff has failed to carry her burden of showing that
she administratively exhausted her harassment claim. The record indicates that Plaintiff
filed a single administrative grievance to the USPS regarding the claims at issue in this
action. Plaintiff’s operative complaint states,
Before filing this action, Plaintiff filed . . . an EEO Complaint of
Discrimination with USPS . . . . Plaintiff’s Charge alleged that Defendant
discriminated against her during her employment with the Defendant(s) on
the basis of: ‘Race’; ‘Color’; ‘Sex’; ‘National Origin’; ‘age’; and ‘Retaliation’
for Plaintiff engaging in prior, ‘protected’ EEO activity, in violation of Title
VII . . . . On May 8, 2010, Plaintiff received, from the USPS . . . her Final
Agency Decision (“FAD”) on (Agency Case No. 6U-000-0019-09) . . . .
(ECF No. 17, ¶¶ 8-10.) Plaintiff did not attach the applicable administrative grievance to
any of her complaints in this action. Attached to Defendant’s Motion to Dismiss is the
USPS’s Acceptance of Complaint, identifying Plaintiff’s case number of 6U-000-00195

09, in which an EEO Services Analysis states,
Receipt of your formal complaint of discrimination filed on December 01,
2009, is herein acknowledged. . . . Your complaint has been accepted for
investigation . . . Specific Issue(s): You alleged discrimination based on
Race (African American), Color (Black), Sex (Female), National Origin
(African American), Age 66 (DOB:
/43) and Retaliation (Prior EEO
Activity) when: (1) on August 24, 2009, you were not selected for the
position of Strategic Account Manager, EAS-23, (2) on October 06, 2009,
you were not recommend[ed] or selected for the position of Shipping
Solutions Specialist, EAS-23, and ([3]) effective October 10, 2009, you
were downgraded to a Business Solutions Specialist.
(ECF No. 26, Ex. 2, at 1.) See also SK Finance SA, 126 F.3d at 1275 (when a party
attacks the factual basis for subject matter jurisdiction, the court may consider evidence
to resolve the disputed jurisdictional facts). In her Response to the Motion to Dismiss,
Plaintiff again did not submit her administrative grievance to the Court.
Thus, the only evidence before the Court as to whether Plaintiff exhausted her
administrative remedies as to any of her claims (including her harassment claim) is the
Acceptance of Complaint filed by Defendant, along with Plaintiff’s own allegations in the
operative complaint. Both of these sources of information confirm that Plaintiff’s
administrative grievance only complained about instances of discrimination and
retaliation, and not about harassment and/or hostile work environment. Further, the
Acceptance of Complaint indicates that Plaintiff only grieved about three isolated
instances of discrimination/retaliation. Thus, Plaintiff has not carried her burden of
showing that she administratively exhausted her harassment claim. See Montes v. Vail
Clinic, Inc., 497 F.3d 1160, 1166 (10th Cir. 2007) (“Title VII requires each discrete act of
discrimination (such as termination, failure to promote, denial of transfer, or refusal to
hire) to be described in and the subject of a timely filed charge. That is, a plaintiff can
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bring a lawsuit for only those ‘unlawful employment practices’ described in his or her
administrative charge.”) (citations omitted); McGarr v. Peters, No. CIV-07-1373, 2009
WL 3855938, at *5-*6 (W.D. Okla. Nov. 17, 2009) (where the plaintiff’s EEO complaint
only identified an age-based hostile work environment claim, court held that the plaintiff
had failed to exhaust his age-based failure to promote claim). Therefore, this Court
lacks subject matter jurisdiction over Plaintiff’s harassment claim under Rule 12(b)(1).
Woodman, 132 F.3d at 1341. The claim is properly dismissed without prejudice. See
McDonald-Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096, 1101 (10th Cir.
2011).
B.

Retaliation Claim
Plaintiff, under her Title VII retaliation claim, alleges that she “engaged in

protected Title VII activity, including but not limited to, filing and processing of her formal
Charge of Discrimination (Agency Case No. 6U-000-0019-09). . . . As a direct result of
Plaintiff’s protected activity, Defendant retaliated against Plaintiff, as described above [in
her operative complaint], treated Plaintiff differently than similarly situated employees
who had not engaged in protected activity, and created a hostile work environment for
her.” (ECF No. 17, ¶¶ 99, 101.)
In the Motion to Dismiss, Defendant argues, inter alia, that Plaintiff’s retaliation
claim is not plausible because the only protected activity alleged in the operative
complaint occurred on December 1, 2009 (when Plaintiff filed her administrative
grievance to the USPS, in case 6U-000-0019-09), but all of the alleged adverse actions
against Plaintiff occurred before that date. Therefore, Defendant argues, Plaintiff does

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not allege that she was retaliated against because of (and following) her protected
conduct. In her Response, Plaintiff entirely fails to respond to this argument.
The elements of a retaliation claim are: (1) the plaintiff engaged in protected
opposition to discrimination; (2) the defendant took an adverse employment action
against the plaintiff; and (3) a causal connection exists between the protected activity
and the adverse employment action. See Fischer v. Forestwood Co., Inc., 525 F.3d
972, 979 (10th Cir. 2008). In terms of the timing of the protected activity and the
adverse action, the Tenth Circuit has made clear that the “adverse action by an
employer [must occur] either after or contemporaneous with the employee’s protected
action . . . .” Jarvis v. Potter, 500 F.3d 1113, 1125 (10th Cir. 2007); see also Anderson
v. United Parcel Service, Inc., No. 09-2526, 2011 WL 4048795, at *17 n.27 (D. Kan.
Sept. 13, 2011) (“By definition, a retaliatory adverse employment action must occur after
plaintiff’s protected activity [for a plaintiff’s retaliation claim to be plausible].”).
The only protected activity that Plaintiff engaged in, as identified in her operative
complaint, is the filing of her administrative grievance in case number 6U-000-0019-09.2
The Court takes judicial notice of the Acceptance of Complaint attached to Defendant’s
Motion to Dismiss, Fed. R. Evid. 201(b), which makes clear that her administrative
grievance was filed on December 1, 2009. However, all of the alleged adverse actions
identified in Plaintiff’s operative complaint occurred between 1994 and “around

2

Plaintiff’s allegation in her operative complaint that she “engaged in protected Title VII
activity, including but not limited to, filing and processing of her formal Charge of
Discrimination (Agency Case No. 6U-000-0019-09)” is entirely insufficient to somehow assume
that she engaged in other protected activity other than the filing of the single administrative
grievance identified in her operative complaint (emphasis added). The operative complaint
does not specifically identify any other protected activity in which she allegedly engaged.

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09/2009.” (ECF No. 17, ¶¶ 32-88.) In her original complaint (filed on August 6, 2010,
more than eight months after the protected activity), and in her First and Second
Amended Complaints (filed in February 2011, more than 14 months after her protected
activity), she had three opportunities to identify adverse employment actions that
occurred on or after December 1, 2009, which were allegedly made in retaliation for her
protected conduct on December 1, 2009. She did not do so.3 Therefore, Plaintiff has
failed to state a plausible claim that she engaged in protected conduct and was
retaliated against as a result of that protected conduct. Because Plaintiff’s Response to
the Motion to Dismiss entirely failed to respond to Defendant’s argument on this point,
the Court dismisses this claim with prejudice. See Sheldon v. Vermonty, 269 F.3d
1202, 1207 n.5 (10th Cir. 2001) (stating that dismissal with prejudice is appropriate
where the plaintiff’s amended pleadings had failed to cure the deficiencies in his claims,
and where the plaintiff “has made no showing, beyond his conclusory allegations, that
he could have stated viable causes of action . . . if he had been granted yet another
opportunity to amend his claims”).
C.

Discrimination Claim
1.

Exhaustion

Plaintiff’s discrimination claim is based on an alleged long history, from 1994 to

3

As to her allegation that the last discriminatory act took place “[a]round 09/2009,” the
Court notes that immediately before this allegation in her operative complaint, Plaintiff detailed
nine alleged acts of discrimination that took place “[a]round 07/2009 or 08/2009" and two
alleged acts of discrimination that took place “[a]round 08/2009 or 09/2009.” The Court finds it
inappropriate to somehow construe her allegation that the last discriminatory act took place
“[a]round 09/2009" to mean that the act took place on or after December 1, 2009.

9

2009, of being denied job opportunities and promotions within USPS. (ECF No. 17, ¶¶
32-93.)
Defendant argues that Plaintiff failed to exhaust administrative remedies as to
most of these alleged acts of discrimination. Again, the evidence submitted by
Defendant regarding Plaintiff’s administrative grievance (which Plaintiff has failed to
rebut by submitting the administrative grievance itself) indicates that the administrative
grievance
alleged discrimination based on Race (African American), Color (Black),
Sex (Female), National Origin (African American), Age 66 (DOB:
/43) .
. . when: (1) on August 24, 2009, you were not selected for the position of
Strategic Account Manager, EAS-23, (2) on October 06, 2009, you were
not recommend[ed] or selected for the position of Shipping Solutions
Specialist, EAS-23, and ([3]) effective October 10, 2009, you were
downgraded to a Business Solutions Specialist.
(ECF No. 26, Ex. 2, at 1.) Thus, it appears clear that those three specific and discrete
alleged incidents of discrimination are the only ones for which Plaintiff exhausted
administrative remedies. See Montes, 497 F.3d at 1166; McGarr, 2009 WL 3855938, at
*5-*6.
Plaintiff’s only argument in response is that the other alleged acts of
discrimination (other than the three listed in the administrative grievance) should be
deemed exhausted under the continuing violation doctrine. However, as Defendant
points out, the Supreme Court has ruled that the continuing violation doctrine does not
apply to discrete acts of discrimination or retaliation, as opposed to continuing acts
constituting a hostile work environment. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002); see also Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003)
(“Morgan abrogates the continuing violation doctrine as previously applied to claims of
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discriminatory or retaliatory actions by employers, and replaces it with the teaching that
each discrete incident of such treatment constitutes its own ‘unlawful employment
practice’ for which administrative remedies must be exhausted.”). Therefore, any
alleged acts of discrimination other than the three discrete alleged acts identified in
Plaintiff’s administrative grievance needed to be separately exhausted. Plaintiff has not
met her burden of showing that any administrative grievance was filed as to those other
acts. Therefore, the Court holds that only the three specific alleged acts of
discrimination identified in the Acceptance of Complaint were properly exhausted.
2.

Plausibility of Allegations

At the outset, the Court notes that it is not entirely clear which paragraphs of the
operative complaint relate to the three exhausted alleged instances of discrimination.
For example, her operative complaint alleges that there were four instances in which
she was not selected for a position as Shipping Solutions Specialist EAS-23, and those
four paragraphs of the operative complaint are vague as to the date of those
employment decisions. (ECF 17, ¶¶ 76-78, 82.) But the Acceptance of Complaint only
identifies a single instance (or possibly multiple instances) of discrimination occurring
on October 06, 2009 in not being selected for the position of Shipping Solutions
Specialist, EAS-23. Going forward, Plaintiff will only be allowed to proceed on her
discrimination claim based on the specific acts of discrimination identified in the
Acceptance of Complaint, namely: (1) the single, or multiple, employment decision(s)
occurring on August 24, 2009 in which Plaintiff was not selected for the position of
Strategic Account Manager, EAS-23; (2) the single, or multiple, employment decision(s)

11

occurring on October 6, 2009 in which Plaintiff was not selected for the position of
Shipping Solutions Specialist, EAS-23; and (3) the single, or multiple, employment
decision(s), made effective on October 10, 2009, in which Plaintiff was downgraded to a
Business Solutions Specialist.4
As to these three discrete employment decisions, the Court holds that Plaintiff
has sufficiently (albeit not clearly) stated a plausible claim for discrimination based on
race.5 The paragraphs of the operative complaint that can be read as potentially
pertaining to those employment decisions generally just identify the adverse
employment decisions, and then state, “Others, with less service time, qualifications and
experience were promoted over her.” (ECF No. 17, ¶¶ 76-79, 82, 84.) However, the
final paragraph of the factual allegations, which refers to all of the 2009 employment
decisions, states,
Out of the . . . positions that the Plaintiff applied for, the best that could be
offered to her was an EAS Level-17, 4-levels below the current sale
position she held for 17 years, in spite of numerous monetary awards,
letters of certificates, [and] letters of appreciation [she had been given
during her tenure with the USPS]. It was implied that Plaintiff was still not

4

If discovery in this matter reveals that the Acceptance of Complaint states the wrong
date for any of the employment decisions for which Plaintiff exhausted her administrative
remedies, the Court may revisit this decision limiting her exhausted discrimination claims to
actions occurring on the three dates identified in the Acceptance of Complaint.
5

The Court notes that Plaintiff’s operative complaint also makes mention of the fact that
certain people selected for positions she sought were, for example, younger than her and/or
were males. However, the heading for Plaintiff’s discrimination claim in her operative complaint
states, “Violation of Title VII, Disparate Treatment Based on Race.” (ECF No. 17, at 15.) Also,
the second paragraph under that claim states only that “Plaintiff is a member of protected class
based on race (Black).” (Id. ¶ 90.) Further, the operative complaint only brings claims under
Title VII, and not the Age Discrimination in Employment Act. Finally, in Plaintiff’s Response to
the Motion to Dismiss, in arguing that her claims are plausible, she only identifies race as the
basis for her Title VII claim. (ECF No. 46, at 8.) Therefore, it is clear that Plaintiff is only
pursuing a discrimination claim based on race.

12

qualified to be interviewed or offer a higher-level position, while others in
the sales office were given and offered the higher-level positions based on
their . . . National Origin, and the complexion of their skin. The denial of
opportunity directed toward the Plaintiff was all based on . . . the color of
her skin [and] her national origin.
(Id. ¶ 88.) In addition, her operative complaint details a long history of allegedly
receiving accolades for her work at the USPS, while repeatedly being turned down for
promotions within the USPS. While most of these alleged acts of discrimination remain
unexhausted, these allegations buttress the plausibility of her exhausted claims. See
Morgan, 536 U.S. at 113 (stating that the requirement of exhaustion of administrative
remedies “does [not] bar an employee from using the prior [unexhausted] acts as
background evidence in support of a timely claim”). Given these allegations as a whole,
the Court holds that Plaintiff has stated a plausible claim of race discrimination as to the
three discrete employment actions identified supra.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
1.

Defendant’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and
Fed. R. Civ. P. 12(b)(6) (ECF No. 26) is GRANTED IN PART AND
DENIED IN PART;

2.

Plaintiff’s Title VII harassment claim is DISMISSED WITHOUT
PREJUDICE under Fed. R. Civ. P. 12(b)(1) for failure to exhaust
administrative remedies;

3.

Plaintiff’s Title VII retaliation claim is DISMISSED WITH PREJUDICE
under Fed. R. Civ. P. 12(b)(6) for failure to state a plausible claim;

4.

Plaintiff’s Title VII discrimination claim is properly construed as only
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alleging discrimination based on race. This Title VII race discrimination
claim shall only proceed based on three discrete alleged adverse
employment actions: (1) the single, or multiple, employment decision(s)
occurring on August 24, 2009 in which Plaintiff was not selected for the
position of Strategic Account Manager, EAS-23; (2) the single, or multiple,
employment decision(s) occurring on October 6, 2009 in which Plaintiff
was not selected for the position of Shipping Solutions Specialist, EAS-23;
and (3) the single, or multiple, employment decision(s), made effective on
October 10, 2009, in which Plaintiff was downgraded to a Business
Solutions Specialist;
5.

To the extent Plaintiff intended to bring a Title VII race discrimination
claims based on any other alleged adverse employment actions, those
claims are DISMISSED WITHOUT PREJUDICE under Fed. R. Civ. P.
12(b)(1) for failure to exhaust administrative remedies; and

6.

To the extent Plaintiff intended to bring discrimination claims on any
ground other than race, those claims are DISMISSED WITH PREJUDICE
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim.

Dated this 12th day of December, 2011.
BY THE COURT:

William J. Martínez
United States District Judge
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