Jeffers v. Denver Pub. Sch.

DEVRA JEFFERS, MPA, MURP, MAED, Plaintiff, v. DENVER PUBLIC SCHOOLS, DAVID SUPPES, and NICOLE PORTEE, Defendants.

Civil Action No. 16-cv-02243-CMA-MJW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 11, 2017

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS (DOCKET NO. 9)

Michael J. Watanabe United States Magistrate Judge

This case is before this court pursuant to an Order of Reference to Magistrate Judge issued by Judge Christine M. Arguello on April 20, 2017. (Docket No. 29.) Now before the court is Defendants Denver Public Schools ("DPS"), David Suppes, and Nicole Portee's (collectively, the "Defendants") Motion to Dismiss. (Docket No. 9.) The court has carefully considered the motion, Plaintiff's response (Docket No. 14), and Defendants' reply. (Docket No. 17.) The court has taken judicial notice of the court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.

I. BACKGROUND

a. Relevant Facts

Plaintiff was employed by DPS as a school bus driver from January 31, 2012 to November 3, 2015. (Docket No. 3 at 9.) She was a member of the Amalgamated Transit Union Local 1563 ("ATU"), which is a party to a collective bargaining agreement ("CBA") with DPS. (Id. at 5.) Defendant David Suppes is an executive of DPS and Defendant Nicole Portee is its Executive Director of Transportation. (Id. at 10-11.) Plaintiff alleges that Defendant Portee was involved in the negotiations of the CBA. (Id. at 5.)

Plaintiff alleges that the termination of her employment stems from the Class Action Grievance she delivered to Defendant Portee in August 2014, after Plaintiff discovered that DPS employees were not receiving their flex pay. (Id. at 10-11.) Defendant Portee denied that this was the case. (Id.) Thereafter, Defendants "perpetrated an unrelenting and duplicitous pogrom against her in order to wrongfully terminate her." (Id.) In October 2014, she was placed on two weeks paid leave while DPS investigated a claim that she had pushed a student, even though administrators could have simply checked a video tape to see that the student had lied. (Id. at 12.) She then received a Letter of Reprimand, later reduced to a Letter of Warning, for yelling at students. (Id. at 13.) After Plaintiff complained about a fellow driver's break room behavior, Plaintiff told Defendant Portee that she was afraid for her job, to which Portee "vehemently denied that the plaintiff would be fired" in front of a witness. (Id. at 14.) However, Plaintiff was disciplined again on May 27, 2015 for her conduct. (Id. at 14-15.)

On October 9, 2015, Plaintiff received a phone call from a DPS human resources ("HR") representative about union activities and off duty time. (Id. at 15.) Plaintiff was not happy with the quality of customer service and called the HR representative a "bitch" after she thought the call had ended. (Id.) The call had not ended, however, and HR representative heard the derogatory statement and informed a supervisor. (Id. at 16.) Plaintiff's employment was then terminated. (Id. at 17.)

Consistent with the procedures outlined in the CBA, Plaintiff filed Level I and Level II grievances with DPS, protesting her dismissal. (Id. at 20-21.) She also had a hearing on the matter on February 29, 2016. (Id. at 21.) Her grievance was denied. (Id. at 22.) The ATU declined to pursue the matter further. (Id. at 7.) Thereafter, the Industrial Claims Appeals Office's denied Plaintiff's unemployment benefits application. This decision was affirmed by the Colorado Court of Appeals in June 2016. (Docket No. 9-11.)

b. Procedural History

Plaintiff initially brought this action in Arapahoe County District Court on August 12, 2016. Defendants timely removed the case pursuant to 28 U.S.C. §§ 1441 and 1446. (Docket No. 1.)

In their Motion to Dismiss (Docket No. 9), Defendants interpret Plaintiff's admittedly hard to understand Complaint to have alleged a 42 U.S.C. § 1983 due process claim and state law claims for breach of contract, wrongful discharge, discrimination, hostile work environment, fraud, and violation of the Lawful Activities Statute, Colo. Rev. Stat. § 24-34-402.5, an employment discrimination provision of theColorado Civil Rights Act ("CCRA"). The court finds this an accurate framing the pleading and will follow suit.

Plaintiff's response to the motion to dismiss (Docket No. 14) fails to address any of the arguments made by Defendant. She instead raises the new claim that Defendant Portee was an "'officer' under the Constitution and breached her fiduciary obligations to the People," including Plaintiff, and emphasizes her status as a pro se litigant.

II. STANDARDS OF REVIEW

a. Pro Se Plaintiff

Plaintiff is proceeding pro se. The Court, therefore, "review[s] [her] 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). 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. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (cou rt 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 her to an application of differentrules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

b. Lack of Subject Matter Jurisdiction

Federal Rule of Civil Procedure Rule 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 case 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)

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 thecomplaint'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.

c. Failure to State a Claim Upon Which Relief Can Be Granted

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall, 935 F.2d at1198. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Courtconsiders the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

However, the court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of...