Hankishiyev v. ARUP Laboratories et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS IN PART: The Report and Recommendation 115 is ADOPTED IN PART. Plaintiff's Age Discrimination Claim is DISMISSED FOR LACK OF SUBJECT-MATTER JURISDICTION. Defendants' 89 Motion fo r Summary Judgment is GRANTED as to Plaintiffs remaining claims. Plaintiff's 90 Motion for Judgment on the Pleadings (considered as a Cross Motion for Summary Judgment) is DENIED. Plaintiff's 92 Motion to Compel Defendants to Deposit Money is DENIED AS MOOT. The Clerk of Court is directed to close the case. Signed by Judge Jill N. Parrish on 9/7/17. (dla)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
RAFAEL G. HANKISHIYEV,
ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART
Case No. 2:15-cv-00651-JNP-DBP
ARUP LABORATORIES, TOM TOPIK,
DAVID RODGERS, and BEA LAYTON,
District Judge Jill N. Parrish
Magistrate Judge Dustin B. Pead
Before the court is Magistrate Judge Dustin B. Pead’s Report and Recommendation.
(ECF No. 115). On September 10, 2015, Plaintiff Rafael G. Hankishiyev filed a complaint
alleging age discrimination and retaliation against Defendants ARUP Laboratories, Tom Topik,
David Rodgers, and Bea Layton. (ECF No. 1). The Court referred this matter to Magistrate Judge
Dustin B. Pead pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 2).
On February 3, 2017, Defendants moved for summary judgment. (ECF No. 89). In
response, Plaintiff, who proceeds pro se, opposed the motion (ECF No. 91) and filed motions for
judgment on the pleadings (ECF No. 90) and to compel Defendants to deposit checks from
Plaintiff (ECF No. 92). Judge Pead treated Plaintiff’s filings as a cross motion for summary
Judge Pead filed his Report and Recommendation on August 16, 2017. At the outset,
Judge Pead recommends dismissal of Plaintiff’s claims because Plaintiff repeatedly failed to
answer questions and meaningfully participate in the discovery process. In the alternative, Judge
Pead recommends dismissing Plaintiff’s age discrimination claim for lack of subject-matter
jurisdiction and granting summary judgment in favor of Defendants on the remaining claims.
Plaintiff filed an objection to the Report and Recommendation on August 25, 2017, and
Defendants filed a response one week later.
AGE DISCRIMINATION CLAIM
This Court has an independent obligation to address its subject-matter jurisdiction and
can dismiss actions sua sponte for lack of subject-matter jurisdiction. City of Albuquerque v. Soto
Enterprises, Inc., 864 F.3d 1089, 1093 (10th Cir. 2017).
The Age Discrimination Employment act (“ADEA”) provides that “no civil action may
be commenced” in federal court unless the would-be plaintiff first files a grievance with the
Equal Employment Opportunity Commission (“EEOC”). 29 U.S.C. § 626(d)(1)(B). And that
grievance must be filed “within 300 days after the alleged unlawful practice occurred” where a
state administrative agency process exists to remedy the alleged discrimination, as is the case
here. Id. Compliance with the administrative exhaustion requirement and its accompanying
limitations period is mandatory. Almond v. Unified School Dist. No. 501, 665 F.3d 1174, 1176
(10th Cir. 2011); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167-68 (10th Cir. 2007). Federal
courts “do not have subject-matter jurisdiction to review . . . ADEA claims not exhausted
administratively.” Smith v. Potter, 252 F. App’x 224, 227 (10th Cir. 2007).
Because would-be ADEA plaintiffs must first exhaust administrative remedies, their
claims in federal court are “generally limited by the scope of the administrative investigation that
can reasonably be expected to follow the charge of discrimination submitted to the EEOC.”
MacKenzie v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005). Consequently, “the
facts alleged in the charge must be sufficiently related to the claim such that those facts would
prompt any investigation of the claim.” Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir.
As Judge Pead explains in the Report and Recommendation, Plaintiff failed to exhaust his
administrative remedies as to his age discrimination claim. Consequently, the Court lacks
subject-matter jurisdiction and must dismiss the claim. Lacking jurisdiction, the Court therefore
declines to adopt the Report and Recommendation to the extent that it recommends disposal of
the age discrimination claim on summary judgment or by dismissal for violations of court orders.
To establish a prima facie case of retaliation, “a plaintiff must demonstrate (1) that he
engaged in protected opposition to discrimination, (2) that a reasonable employee would have
found the challenged action materially adverse, and (3) that a causal connection existed between
the protected activity and the materially adverse action.” Argo v. Blue Cross & Blue Shield of
Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006). Once a plaintiff makes out a prima facie case of
retaliation, the analysis proceeds under the familiar McDonnell Douglas burden-shifting
framework. See Stover v. Martinez, 382 F.3d 1064, 1071 (10th Cir. 2004); see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
As Judge Pead explains in the Report and Recommendation, Plaintiff has failed to
demonstrate that he engaged in protected opposition to discrimination. Even if he had, he has not
established a causal connection between the protected activity and a materially adverse action.
Consequently, Plaintiff has failed to make out a prima facie case for retaliation, and thus
Plaintiff’s retaliation claim fails as a matter of law.
As Judge Pead notes, Plaintiff made repeated allegations regarding Defendants’ conduct.
However, Plaintiff has not construed these allegations as claims sufficient to give “fair notice of
what the claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 555 (2007). Consequently, these claims are barred pursuant to Rule 8.
Judge Pead recommends as an alternative that the Court dismiss all Plaintiff’s claims as a
sanction pursuant to Rule 37. ECF No. 115 at 6. The Court notes that if it had jurisdiction to hear
Plaintiff’s Age Discrimination claim, and if it did not dismiss Plaintiff’s remaining claims on
other grounds, the Court would adopt Judge Pead’s recommendation that the Court dismiss
Plaintiff’s claims in their entirety as sanction for Plaintiff’s repeated violations of court orders.
While dismissal is an extreme sanction, Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.
1992), Plaintiff has thrice contravened the Court’s discovery orders. See ECF No. 115 at 6.
Consequently, as an alternative, the Court would dismiss Plaintiff’s claims as an appropriate
sanction. See FED. R. CIV. P. 37(b)(2)(A)(v).
Based on the court’s de novo review of the record, the relevant legal authorities, Judge
Pead’s Report and Recommendation, and Plaintiff’s Objection, the Court ORDERS as follows:
1. The Report and Recommendation (ECF No. 115) is ADOPTED IN PART.
2. Plaintiff’s Age Discrimination Claim is DISMISSED FOR LACK OF SUBJECTMATTER JURISDICTION.
3. Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiff’s
4. Plaintiff’s Motion for Judgment on the Pleadings (considered as a Cross Motion for
Summary Judgment) is DENIED.
5. Plaintiff’s Motion to Compel Defendants to Deposit Money is DENIED AS MOOT.
6. The Clerk of Court is directed to close the case.
SO ORDERED September 7, 2017.
BY THE COURT:
JILL N. PARRISH
United States District Judge
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