Larson v. Hansen Construction Inc

Filing 38

ORDER adopting 33 Report and Recommendation, granting 29 Motion to Dismiss, overruling 34 Objection to Report and Recommendation, and denying as moot 37 Motion for Reconsideration. Entered by Judge Raymond P. Moore on 8/28/2020. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:19-cv-02750-RM-GPG
JODI LARSON,
Plaintiff,
v.
HANSEN CONSTRUCTION INC.,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This employment discrimination case is before the Court on the recommendation of
United States Magistrate Gordon P. Gallagher (ECF No. 33) to grant Defendant’s motion to
dismiss (ECF No. 29). Plaintiff objects to the recommendation (ECF No. 34), and Defendant has
filed a response to her objection (ECF No. 36). The Court overrules the objection and accepts
and adopts the recommendation, which is incorporated herein by reference, see 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).
I.

LEGAL STANDARDS
Pursuant to Fed. R. Civ. P. 72(b)(3), this Court reviews de novo any part of the

magistrate judge’s recommendation that is properly objected to. An objection is proper only if it
is sufficiently specific “to focus the district court’s attention on the factual and legal issues that
are truly in dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). “In the absence of a timely objection, the district may review a magistrate’s report under

any standard it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.
1991).
In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must accept as
true all well-pleaded factual allegations in the complaint, view those allegations in the light most
favorable to the plaintiff, and draw all reasonable inferences in the plaintiff’s favor. Brokers’
Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v. Knox,
613 F.3d 995, 1000 (10th Cir. 2010). The complaint must allege a “plausible” right to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007); see also id. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”). Conclusory
allegations are insufficient, Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009), and
courts “are not bound to accept as true a legal conclusion couched as a factual allegation,”
Twombly, 550 U.S. at 555 (quotation omitted).
Plaintiff proceeds pro se; thus, the Court construes her pleadings liberally. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, the Court cannot act as Plaintiff’s advocate.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
II.

BACKGROUND
Plaintiff was fired from her job with Defendant on July 9, 2018. She did not file a charge

of discrimination with the Equal Employment Opportunity Commission until May 30, 2019.
Based on these undisputed facts, the magistrate judge determined that her filing was untimely.
The magistrate further determined that there was no basis to apply equitable tolling, for which
Plaintiff did not even argue.

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III.

ANALYSIS
An employee such as Plaintiff who wishes to challenge her termination under Title VII of

the Civil Rights Act of 1964 must file a charge of discrimination with the EEOC within 300 days
after the allegedly unlawful termination. See McDonald v. Sch. Dist. No. 1, 83 F. Supp. 3d 1134,
1140 (D. Colo. 2015). “If the alleged unlawful incident occurs outside the 300-day window, a
plaintiff will ‘lose the ability to recover for it.’” Id. at 1141 (quoting Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 110 (2002)). That is precisely what happened here. Nothing in
Plaintiff’s objection states otherwise. Nor does Plaintiff meaningfully address the magistrate
judge’s determination that equitable tolling does not apply here. Under these circumstances,
Defendant is entitled to prevail on its motion to dismiss.
IV.

CONCLUSION
Therefore, the Court OVERRULES Plaintiff's objection (ECF No. 34), ACCEPTS and

ADOPTS the recommendation (ECF No. 33), and GRANTS the motion to dismiss (ECF
No. 29). The Court DENIES AS MOOT Plaintiff’s pending motion for reconsideration of the
Court’s denial of her motion to appoint a free attorney (ECF No. 37). The Clerk is directed to
CLOSE this case.
DATED this 28th day of August, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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