Herrera v. Asphalt Specialties, Inc

Filing 21

ORDER On Motions re 12 and 16 : defendants motion for partial dismissal of the first amended complaint is granted, motion for leave to file the second amended complaint is denied because of the deficiencies noted, and plaintiff shall have to and including August 27, 2014, within which to file a second amended complaint, by Judge Richard P. Matsch on 8/11/2014.(jsmit)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 13-cv-03192-RPM
DAVID HERRERA,
Plaintiff,
v.
ASPHALT SPECIALTIES, INC.,
Defendant.
_____________________________________________________________________
ORDER ON MOTIONS
_____________________________________________________________________
On June 23, 2014, the defendant filed a partial motion to dismiss the first and
second claims for relief in the plaintiff’s first amended complaint to the extent that such
claims are based on plaintiff’s termination and an alleged hostile work environment.
The basis for the motion is the failure of the plaintiff to file a charge of discrimination
with the Equal Employment Opportunity Commission within 300 days of his termination.
The plaintiff filed a response on July 15, 2014, together with a motion for leave to file an
amended complaint, tendered as Exhibit A to the motion. The defendant filed a reply
and a response to the motion for leave to file an amended complaint. The response to
the motion for leave to file an amended complaint asserts that paragraphs 18, 28, 29
and 44 appear still to relate to the claims which the plaintiff has conceded are time
barred.
The tendered second amended complaint is confusing. It alleges that David
Herrera is a “member of a protected class based upon his national origin-Hispanic.” It

also alleges that he is over 40 years old. It does appear that the plaintiff is claiming
discrimination in the failure to rehire him, but he also has alleged demeaning and hostile
behavior by his superiors.
In the first claim for relief, alleging age discrimination, the plaintiff asserts a
violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 and the
Colorado Unfair Employment Practices Act, C.R.S. § § 24-34-401, et seq. These are
separate claims for relief and the claims must be stated separately because the laws
are different.
The second claim for relief alleges race discrimination, also in violation of both
state and federal laws and alleges harassment as well as the failure to rehire the
plaintiff. These claims must be stated separately and it is not apparent that the plaintiff
is no longer claiming a hostile work environment. It is not clear whether the plaintiff is
claiming race or national origin discrimination. The second amended complaint is
deficient and does not comply with Fed. R. Civ. P. 8. It is now
ORDERED that the defendant’s motion for partial dismissal of the first amended
complaint is granted and it is
FURTHER ORDERED that the motion for leave to file the second amended
complaint is denied because of the deficiencies noted and it is
FURTHER ORDERED that the plaintiff shall have to and including August 27,
2014, within which to file a second amended complaint.
DATED: August 11th , 2014
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge