Noflin v. Board of County Commissioners of the County of Garfield, The
ORDER granting in part and denying in part #11 Defendants Motion for Partial Dismissal. The motion is DENIED as to Plaintiffs Third Claim for Relief for hostile work environment; and the motion is GRANTED as to Plaintiffs Second Claim for Relief for defamation, which is dismissed without prejudice for lack of subject matter jurisdiction, by Magistrate Judge Kathleen M. Tafoya on 5/12/2017. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–00337–KMT
GARFIELD COUNTY (COLORADO) GOVERNMENT,
This matter is before the court on “Defendant’s Motion for Partial Dismissal” (Doc. No.
11 [Mot.], filed April 13, 2017). Plaintiff filed his response on May 8, 2017 (Doc. No. 16
STATEMENT OF THE CASE
Plaintiff, proceeding pro se, filed his Complaint pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e–5 (“Title VII”) on February 6, 2017, asserting the defendant
discriminated against him because of his race and age. (See Doc. No. 1 [Compl.].) Plaintiff
states he was “talking to a person that was pretending to be 19 years old” during a drug sting
operation. (Id. at 4.) Plaintiff states he was never charged with anything, but the information
about the sting operation was conveyed to his employer, and Plaintiff was terminated on August
3, 2015. (Id. at 3-4) Plaintiff believes his involvement in the sting operation and subsequent
Though Defendant has not filed a reply, the court may rule on a motion at any time after it is
filed. D.C.COLO.LCivR 7.1(d).
termination was “racial profiling, harassment, and entrapment” (Id. at 4.) Plaintiff asserts
claims for discrimination on the bases of race and age in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e–5 (“Title VII”) and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. § 621 et. seq. (“ADEA”)2. (See id. at 2, 4–6.) Plaintiff also asserts claims for
“defamation and questioning the County’s Conflict of Interest stance” and “hostile environment
and verbal abuse by [his] supervisor.” (See id. at 7–9.) Plaintiff seeks compensatory damages,
punitive damages, and costs and fees. (Id. at 10.)
Defendant moves to dismiss Plaintiff’s common law claims for lack of jurisdiction. (See
STANDARDS OF REVIEW
Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also
Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding allegations of a pro se complaint “to
less stringent standards than formal pleadings drafted by lawyers”). However, a pro se litigant’s
“conclusory allegations without supporting factual averments are insufficient to state a claim
upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A
court may not assume that a plaintiff can prove facts that have not been alleged, or that a
defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors
of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v.
Plaintiff’s Complaint does not reference the ADEA, but he alleges age discrimination in
violation of federal law.
New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional factual
allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927 F.2d 1156,
1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the
absence of any discussion of those issues”). The plaintiff’s pro se status does not entitle him to
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is
not a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that the
court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than
the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)
(recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction
when specifically authorized to do so). The burden of establishing subject matter jurisdiction is
on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th
Cir. 1974). A court lacking jurisdiction “must dismiss the cause at any stage of the proceedings
in which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir.
2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that
dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice
is a disposition on the merits which a court lacking jurisdiction may not render).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.” Groundhog v.
Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however,
the Court may consider matters outside the pleadings without transforming the motion into one
for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a
party challenges the facts upon which subject matter jurisdiction depends, a district court may
not presume the truthfulness of the complaint=s “factual allegations . . . [and] has wide discretion
to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
Defendant moves to dismiss Plaintiff’s state law claims for lack of subject matter
jurisdiction, arguing Plaintiff failed to comply with the notice requirement mandated by the
Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. § 24–10–109. (Mot. at 3–5.)
Defendant states that Plaintiff’s Second Claim for Relief for “defamation and questioning
the County’s Conflict of Interest stance3” and Third Claim for Relief for “hostile work
environment and verbal abuse by [his] supervisor” are claims sounding in tort that must be
dismissed.4 (Mot. at 3.) The “court must consider the nature of the relief sought to determine
whether a particular action ‘lies in tort or could lie in tort’ within the meaning of the CGIA.”
In a memorandum to Plaintiff advising him that his termination had been upheld, the Acting
County Manager noted that “[Plaintiff’s] actions could reasonably have resulted in an actual or
apparent conflict of interest between [Plaintiff] and the Garfield County Department of Human
Services.” (Compl. at 68-69.) Even construing Plaintiff’s Complaint liberally, as this court
must, Trackwell, 472 F.3d at 1243, Plaintiff does not appear to claim that the Acting County
Manager defamed him by issuing this memorandum. However, Plaintiff also does not state a
clear claim, and the court is unable to discern one, related to his “questioning” of the County’s
conflict of interest stance. It is not a proper function of the court to assume the role of advocate
for a pro se litigant. Hall, 935 F.2d at 1110.
To the extent Plaintiff asserts a hostile work environment claim under Title VII, Defendant
does not seek to dismiss the claim.
City of Colo. Springs v. Conners, 993 P.2d 1167, 1176 (Colo. 2000). The court “should
determine whether an action is one for ‘injury which lies in tort or could lie in tort’ under the
[Colorado Civil Rights Act (“CCRA”)] by assessing whether the plaintiff seeks compensation for
personal harms.” Id. Relief provided by the CCRA does not recompense a plaintiff for tort-like
“personal injury, such as pain and suffering, emotional distress, harm to reputation, or other
consequential damages.” Id. at 1175 (quoting United States v. Burke, 504 U.S. 229–239 (1992),
modified on other grounds by The Small Business Protection Act of 1996, Pub. L. No. 104–188,
§ 1605, 110 Stat. 1838). Rather, the CCRA provides remedy for victims of prohibited
discrimination for “claims [that] are non-compensatory and equitable in nature, designed only to
make the claimant whole in a particular setting. Hence, these claims are not for injuries which
lie in tort for the purposes of the CGIA.” Id. at 1176.
Regarding the hostile work environment claim, Plaintiff seeks non-compensatory
equitable relief in the form of lost past income, lost future income5, and “measures to overcome”
the alleged discriminatory behavior. (Compl. at 10) The relief is properly based on the general
remedial purposes of the CCRA, which “discourage[s] workplace discrimination and place[s]
victims of discrimination in the employment and wage positions they would have been in but for
the discriminatory conduct.” Id. at 1177. Claims seeking this type of relief do not lie in tort
within the meaning of the CGIA, and the CGIA does not provide government immunity from
those claims. Id. Thus, Plaintiff was not required to comply with the notice provisions of the
CGIA as to his hostile work environment claim.
Front and back pay are equitable remedies. McCue v. Kansas, 165 F.3d 784 (10th Cir. 1999).
Plaintiff’s claim for defamation is a claim for “personal harm.” See id. at 1176. Thus,
the defamation claim lies in tort. However, under the CGIA, a public entity is immune from
liability that lies in tort or that could lie in tort unless the tort is one of six exceptions enumerated
in section Colo. Rev. Stat. § 24–10–106. Gallagher v. Bd. of Trustees for the Univ. of N. Colo.,
54 P.3d 386, 394 (Colo. 2002), overruled on other grounds by Martinez v. Estate of Bleck, 379
P.3d 315, 322 (Colo. 2016). The Colorado Supreme Court has held that defamation is a state
claim that is not one of the enumerated exceptions to tort immunity set forth in the CGIA. Id. at
395. Thus, the court lacks subject matter jurisdiction over Plaintiff’s Second Claim for Relief for
WHEREFORE, for the foregoing reasons, it is
ORDERED that “Defendant’s Motion for Partial Dismissal” (Doc. No. 11) is
GRANTED in part and DENIED in part as follows:
1. The motion is DENIED as to Plaintiff’s Third Claim for Relief for hostile work
2. The motion is GRANTED as to Plaintiff’s Second Claim for Relief for defamation,
which is dismissed without prejudice for lack of subject matter jurisdiction.
Dated this 12th day of May, 2017.
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