Nagim v. Walker et al

Filing 45

ORDER Affirming in Part and Rejecting in Part Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 37 , is AFFIRMED IN PART AND REJECTED IN PART as set forth in this Order. ORDERED that Defendants Rule 12(b)(6) Motion to Dismiss Plaintiffs Amended Complaint 25 is GRANTED IN PART AND DENIED IN PART as set forth in this Order. ORDERED that Plaintiffs Objections in his Motion to Object 38 , are SUSTAINED IN PART AND OVERRULED IN PAR T as set forth in this Order. ORDERED that Plaintiffs Amended Motion to Object 40 and Motion to Object 31 are DENIED. ORDERED that Defendants Objection to the Recommendation of United States Magistrate Judge - Request for Attorney Fees 39 is OVERRULED by Chief Judge Wiley Y. Daniel on 05/06/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02973-WYD-KLM
RONALD J. NAGIM,
Plaintiff,
v.
RAY WALKER,
UNIVERSAL PERSONNEL,
and ROD OLIVER,
Defendants.

ORDER AFFIRMING IN PART AND REJECTING IN PART
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with Defendants’ Rule 12(b)(6)
Motion to Dismiss Plaintiff’s Amended Complaint filed February 28, 2011. The motion
was referred to Magistrate Judge Mix pursuant to an Order of Reference of December
10, 2010, and Memorandum dated March 1, 2011. A “Recommendation of United
States Magistrate Judge” was filed on April 7, 2011, and is incorporated herein by
reference.
By way of background, Plaintiff is proceeding pro se. As set forth in the
Recommendation, Plaintiff’s Amended Complaint alleges that he was employed by
Global Management at the time of the events at issue. (Recommendation at 3.) On or
about September 1, 2010, Global Management contracted with Suncor Refinery to
supply Plaintiff to work at the Refinery. (Id.) At that time, Suncor Refinery also had a

labor supply contract with Universal Personnel. (Id.) Pursuant to this contract,
Universal Personnel supplied Defendant Walker to work at the Refinery. (Id.)
Defendant Oliver was employed directly by Suncor as a manager. (Id.) Plaintiff alleges
that Walker antagonized him and created a hostile work environment in an effort “to rid
the Suncor Refinery of Plaintiff” and other Global Management employees. On
November 9, 2010, Plaintiff submitted a formal written complaint to Oliver regarding
Walker’s behavior. (Id.) Shortly thereafter, Plaintiff’s employment at Suncor Refinery
ended. (Id.) It is unclear from the Amended Complaint whether Plaintiff voluntarily left
the job, Suncor asked Plaintiff to leave, or Plaintiff’s employer [Global Management],
terminated him. (Id.) Plaintiff states in his response to the motion to dismiss that he
“was not terminated by Global Management, he was asked to leave the Refinery on
grounds of there being a physical altercation stated [sic] by Rod Oliver . . . .” (Mot. to
Object to Dismissal, ECF No. 29, at 2.)
Magistrate Judge Mix recommends that Defendants’ motion to dismiss be
granted in part and denied in part. Specifically, she finds that Plaintiff has not stated a
cognizable claim against Defendant Walker for harassment, unlawful retaliation, or
violations of the state constitution or specified state statutes. (Recommendation at 6-7,
12-15.) Thus, she recommends that the motion to dismiss be granted as to such
claims. She recommends that the motion to dismiss be denied, however, as to the
defamation claim against Walker. That claim alleges that Walker told his supervisor
Defendant Oliver that Plaintiff “was a safety threat to the [Refinery], [and] his
performance and capability [were] unprofessional.” (Id. at 7-12.)
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Magistrate Judge Mix also recommends that Plaintiff’s employer liability claim
against Universal Personnel, alleging that it is liable for Walker’s antagonism and
creation of a hostile work environment, be dismissed with prejudice pursuant to Rule
12(b)(6). (Recommendation at 15-16.) Finally, she recommends that the retaliation
claim against Defendant Oliver be dismissed. (Id. 16.)
The Recommendation advised the parties that written objections were due within
fourteen (14) days after service thereof, and that the failure to serve and file specific,
written objections waives de novo review of the Recommendation by the District Judge.
(Recommendation at 17.) Plaintiff filed a Motion to Object on April 12, 2011, which I will
construe as an objection even though it is not styled as such.1 Defendants objected to
the Recommendation only to the extent that it does not address their request for
attorneys’ fees.
After Plaintiff’s initial “Motion to Object” was filed, he then filed an “Amended
Motion to Object” on April 21, 2011 and another “Motion to Object” on April 22, 2011.
These two motions are denied as improper. The “Amended Motion to Object” does not
assert objections to the Recommendation. Instead, it seeks to add a new claim for relief
in the case. This is improper, as new claims or allegations can only be added through
the filing of a motion to amend the complaint which must be granted by the Court. The
second “Motion to Object” appears to be a response to Defendants’ Objection seeking

1

Henceforth, I will strike any document entitled a “Motion to Object”, as this type of motion is not
proper. If a recommendation or order is issued by Magistrate Judge Mix to which Plaintiff is entitled to
object, Plaintiff must file a document styled as an “Objection” within the time limits stated in the
recommendation or order. Supplemental or amended objections will not be considered without leave of
Court.

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attorneys’ fees. Such a response is not properly filed in the form of a motion. Further,
responses to objections to recommendations are not permitted absent leave of court.
I now turn to Plaintiff’s objections. Plaintiff objects to the dismissal of the claims
against Defendants Universal Personnel and Oliver. He asserts “that the Company or
Employer of Ray Walker is directly responsible for the acts of its employees” and that
Universal Personnel and Oliver were aware of the internal issues with Suncor
employees, including Mr. Walker, and did not conduct any investigation or take any
action. (Mot. to Object, ECF No., 41, at 1.) He also asserts that he was retaliated
against by Universal Personnel and Oliver after he complained to Oliver about Walker’s
conduct, and that they should be accountable for actions that violate the rules and
regulations of Suncor. (Id. at 1-8.) Further, he argues that Universal Personnel should
be liable for the defamation of its employee Walker. I sustain in part and overrule in part
these objections.
I first address the employer liability claims against Universal Personnel. Plaintiff’s
arguments in his objections are not relevant to the dismissal of these claims. That is
because Magistrate Judge Mix recommended dismissing the employer liability claims
against Universal Personnel on the basis that the underlying employment claims against
its employee, Defendant Walker, were not actionable. (Recommendation at 15.) If the
underlying employment claims are not viable, there can be no employer liability.
Plaintiff has not shown how the findings on this issue in the Recommendation were
erroneous. Moreover, it does not appear that Plaintiff even objected to the dismissal of
the underlying employment claims. I find that the recommendation to deny the
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underlying employment claims against Walker and the employer liability claims against
Universal Personnel is thorough and well reasoned, and agree with Magistrate Judge
Mix that Plaintiff failed to establish the elements of these claims. Accordingly, I overrule
Plaintiff’s objections regarding these claims.
I also overrule Plaintiffs’ objections to the dismissal of Defendant Oliver, finding
no merit to them. I agree with Magistrate Judge Mix that Plaintiff failed to show that the
elements of a retaliation claim were met. As she notes in the Recommendation, Plaintiff
alleges that Walker made a statement to Oliver concerning his job performance.
(Recommendation at 14). This statement is not the equivalent of initiating or
administering a disciplinary action. (Id.) Further, Plaintiff does not allege that his
employment was terminated or that any specific disciplinary action was taken against
him as a result of Walker’s statement to Oliver. (Id.) Indeed, he stated that he was
asked to leave the Refinery on grounds of there being a physical altercation, not
because of the statement made to Oliver. (Id.) Finally, Plaintiff has failed to establish
liability under the state statutes he cites in support of his retaliation claim. (Id. at 13-14).
However, I sustain Plaintiff’s objection to the extent it relates to the dismissal of
the defamation claim against Universal Personnel, as employer of Walker. Since
defamation is a state law claim, I must look to state law to determine whether a
defamation claim against an employer for an alleged defamatory statement made by an
employee is actionable. It appears that such a claim may be actionable under Colorado
law under either a theory of vicarious liability (respondeat superior) or negligent training.
See Gordon v. Boyles, 99 P.3d 75, 81-82 (Colo. Ct. App. 2004); Gallagher v. Bd. of
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Trustees, 18 P.3d 837, 843 (Colo. Ct. App. 2000), aff’d in part and rev’d in part on other
grounds, 54 P.3d 386 (Colo. 2002); Williams v. Continental Airlines, Inc., 943 P.2d 10,
16 (Colo. Ct. App. 1996); see also Wright v. University of Utah, 876 P.2d 380, 391 (Utah
App. 1994) (noting that common rules of agency and respondeat superior should be
applied to determine the employer’s liability, if any, for an alleged defamatory statement
made by an employee); Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1556 (10th Cir.
1995).
The record is not adequately developed in this case as to whether either these
theories of liability apply to Universal Personnel, and it was not briefed by the parties. It
also was not specifically addressed in the Recommendation. Accordingly, I reject the
Recommendation to the extent it recommends dismissal of the defamation claim against
Universal Personnel. I also find that the motion to dismiss should be denied as to this
claim.
I now turn to Defendants’ Objection to the Recommendation. As noted
previously, Defendants object to the Recommendation only to the extent it does not
address their request for attorney’s fees. Defendants did not object to the
recommendation to deny the motion to dismiss as to the defamation claim. No
objections having been filed as to that portion of the Recommendation, am vested with
discretion to review the Recommendation “under any standard [I] deem[] appropriate.”
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474
U.S. 140, 150 (1985). Though not required to do so, I review the Recommendation to

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"satisfy [my]self that there is no clear error on the face of the record."2 See Fed. R. Civ.
P. 72(b) Advisory Committee Notes. I am satisfied that there is no clear error on the
face of the record in regard to the defamation claim. Magistrate Judge Mix’s analysis of
the claim was thorough and well reasoned and I agree with her findings.
The substance of Defendants’ objection is that Magistrate Judge Mix failed to
consider their request for attorney fees. They argue that the Court should accept the
recommendation that the majority of claims be dismissed and award Defendants their
reasonable attorney’s fees under Title VII and Colo. Rev. Stat § 13-17-102, excluding
any fees and costs specifically related to Plaintiff’s defamation claim against Walker.
Defendants assert that fees should be awarded since they had to defend against the
frivolously filed and vexatiously maintained employment claims.
I overrule this objection. Unlike the portion of Defendants’ motion seeking to
dismiss the case, the request for attorneys’ fees and costs made within the motion is not
a dispositive matter. Accordingly, I must review Magistrate Judge Mix’s
Recommendation on this issue to determine whether it is “clearly erroneous or contrary
to law”. Fed. R. Civ. P. 72(a). “The clearly erroneous standard . . . requires that the
reviewing court affirm unless it ‘on the entire evidence is left with the firm and definite
conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1464 (10th Cir. 1996) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)).

2

Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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Magistrate Judge Mix noted in the Recommendation that she reviewed “the
pleadings, the entire case file, and the applicable law” in connection with her analysis of
Defendants’ motion. From this, it is apparent that she considered the request for
attorneys’ fees in the motion and did not find Defendants’ request for attorneys’ fees to
be meritorious since she did not award, or even consider awarding, fees. I find that this
is not clearly erroneous or contrary to law. Magistrate Judge Mix properly exercised her
discretion in choosing not to award fees, and I see no error or violation of law in
connection with same.
Based upon the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
April 7, 2011, is AFFIRMED IN PART AND REJECTED IN PART. It is REJECTED
only to the extent it recommends dismissal of the defamation claim against Defendant
Universal Personnel and is AFFIRMED in all other respects. In accordance with this
finding, it is
ORDERED that Defendants’ Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended
Complaint filed February 28, 2011 (ECF No. 25) is GRANTED IN PART AND DENIED
IN PART. It is GRANTED as to the employer liability claims against Defendant
Universal Personnel and as to the claim(s) against Rod Oliver. Mr. Oliver is dismissed
from the case and his name shall hereafter be taken off the caption. The Motion to
Dismiss is also GRANTED as to the claims against Defendant Ray Walker with the
exception of the defamation claim, and those claims are DISMISSED WITH

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PREJUDICE. The Motion to Dismiss is DENIED as to the defamation claim against
Defendant Walker and Universal Personnel. It is
FURTHER ORDERED that Plaintiff’s Objections in his “Motion to Object” filed
April 12, 2011 (ECF No. 38) are SUSTAINED IN PART AND OVERRULED IN PART
as set forth in this Order. It is
FURTHER ORDERED that Plaintiff’s “Amended Motion to Object” filed April 21,
2011 (ECF No. 40) and “Motion to Object” filed April 22, 2011 (ECF No. 41) are
DENIED. Finally, it is
ORDERED that “Defendants’ Objection to the Recommendation of United States
Magistrate Judge - Request for Attorney Fees” filed April 21, 2011 (ECF No. 39) is
OVERRULED.
Dated: May 6, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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