Kane v. Honeywell Hommed, LLC et al

Filing 43

ORDER granting 13 motion to dismiss plaintiff's Colorado Anti-Discrimination Act Claims. Plaintiff's Colorado Anti-Discrimination Act claims are dismissed without prejudice. If plaintiff has since received, or seeks and receives, a notice of right to sue, she may seek leave to amend her complaint to reassert these claims. By Judge Philip A. Brimmer on 9/26/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-03352-PAB-KLM
MARY KANE, an individual,
Plaintiff,
v.
HONEYWELL HOMMED, LLC, and
TERRY DUESTERHOEFT,
Defendants.

ORDER

This matter is before the Court on the motion to dismiss plaintiff’s Colorado AntiDiscrimination Act Claims [Docket No. 13] filed by defendant Honeywell Hommed, LLC
(“Honeywell”). The motion is fully briefed and ripe for disposition.
Plaintiff asserts discrimination and retaliation claims against defendant
Honeywell pursuant to both Title VII of the Civil Rights Act (“Title VII”), see 42 U.S.C.
§ 2000e et seq., and the Colorado Anti-Discrimination Act (“CADA”), see Colo. Rev.
Stat. § 24-34-301 et seq. Honeywell requests that the Court dismiss plaintiff’s CADA
claims pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction due to plaintiff’s failure
to exhaust administrative remedies.
CADA’s exhaustion requirements can be found in Colo. Rev. Stat. § 24-34-306,
and they must be exhausted prior to filing suit. See Colo. Rev. Stat. § 24-34-306(14).
Honeywell does not dispute that plaintiff filed a charge of discrimination complying with
§ 24-34-306. Upon filing such a charge, the director of the Colorado Civil Rights

Division (“CCRD”) must “make a prompt investigation of the charge.” Colo. Rev. Stat.
§ 24-34-306(2)(a). The CCRD then “shall determine as promptly as possible whether
probable cause exists for crediting the allegations of the charge.” Colo. Rev. Stat. § 2434-306(2)(b). If the CCRD concludes that there is no probable cause, the CCRD must
dismiss the charge and notify the parties, thus triggering time limits to both appeal the
dismissal and potentially file a civil suit. Colo. Rev. Stat. § 24-34-306(2)(b)(I). If the
CCRD finds that probable cause exists, the parties are required to engage in mediation.
See Colo. Rev. Stat. § 24-34-306(2)(b)(II). In the event the CCRD determines that
mediation will not be successful, the Colorado Civil Rights Commission (“CCRC”) may
provide notice of a formal hearing, which must be held within one hundred and twenty
days of such notice. See Colo. Rev. Stat. § 24-34-306(4).
In this case, plaintiff has never received notice from the CCRC that her charge
was dismissed for lack of probable cause. Conversely, plaintiff has never received
notice that probable cause has been found, thus triggering mediation or the formal
hearing process. Plaintiff contends, therefore, that pursuant to § 24-34-306(11), she
had a right to file her claims after 270 days passed from the date of her charge of
discrimination. See Colo. Rev. Stat. § 24-34-306(11) (“If written notice that a formal
hearing will be held is not served within two hundred seventy days after the filing of the
charge . . . the jurisdiction of the commission over the complaint shall cease.”).
Although the reference in subsection (11) to the 270-day period is not entirely
clear, plaintiff’s proposed interpretation of this subsection is not persuasive. Notice of a
hearing would only take place if the CCRC had found probable cause. See Colo. Rev.
Stat. § 24-34-306(4). The statutory language in both subsections (11) and (15) is given
2

proper effect by interpreting subsection (15) as providing a mechanism for a plaintiff
who wishes to file in a district court before the probable cause determination has been
made. The mechanism to do so is to request the CCRC to issue a written right to sue
notice. See Colo. Rev. Stat. § 24-34-306(15). The statute refers to 180 days as the
time period within which the CCRC’s investigation should be completed for purposes of
determining whether the CCRC should grant a request for a right to sue notice. See id.
Subsection (15) states that “[a] notice of right to sue shall constitute final agency action
and exhaustion of administrative remedies and proceedings[.]” Id. The Court therefore
finds that subsection (15)’s mechanism for a plaintiff to seek a right to sue letter in the
absence of action by the CCRC requires the statute to be interpreted to implicate
subsection (11) only where probable cause has been found. See Carrero v. Arapahoe
County Sheriff’s Office, No. 05-cv-02414-MSK-CBS, 2006 WL 2594472, at *16 (D.
Colo. Sep. 11, 2006) (“A right-to-sue notice is required to show ‘final agency action and
exhaustion of administrative remedies and proceedings. . . .’”) (quoting Colo. Rev. Stat.
§ 24-34-306(15)); City of Colorado Springs v. Conners, 993 P.2d 1167, 1169 n.3 (Colo.
2000) (“As a condition precedent to bringing an action in district court, a party must
exhaust her administrative remedies available under the [CADA], and a right-to-sue
letter will often serve as evidence that a party complied with this requirement.”)
(citations omitted). It is
ORDERED that the motion to dismiss plaintiff’s Colorado Anti-Discrimination Act
Claims [Docket No. 13] is GRANTED. Plaintiff’s Colorado Anti-Discrimination Act
claims are dismissed without prejudice. If plaintiff has since received, or seeks and

3

receives, a notice of right to sue, she may seek leave to amend her complaint to
reassert these claims.

DATED September 26, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

4