Lyons v. Sw. Mem'l Hosp.

CHARLES M. LYONS, Plaintiff, v. SOUTHWEST MEMORIAL HOSPITAL, Defendant.

Civil Action No. 13-cv-00328-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: March 17, 2014

Magistrate Judge Kathleen M. Tafoya

ORDER

This matter is before the court on "Defendant's Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)" (Doc. No. 12, filed May 3, 2013) and "Plaintiff's Motion for Leave to Amend Original Complaint" (Doc. No. 42, filed Oct. 7, 2013). The court also considers herein, "Plaintiff's Motion to Compel" (Doc. No. 48, filed Feb. 13, 2014), "Plaintiff's Motion for Extension of Time" (Doc. No. 50, filed Feb. 24, 2014), and Plaintiff's "Second Request Motion to Request the Court to Appoint Pro Se Plaintiff Legal Counsel Respresentation [sic] According to the Pilot Program, Pro Bono Panel" (Doc. No. 51, filed Feb. 25, 2014).

For the following reasons, Defendant's Motion to Dismiss is GRANTED, Plaintiff's Motion to Amend the Complaint is DENIED, and the remaining pending motions are denied as moot.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Title VII Complaint (Doc. No. 1, filed Feb. 6, 2013 [Compl.]) and the parties' briefing on the motions pending before the court. Plaintiff worked as a paramedic for Defendant Southwest Memorial Hospital (at times, "SWMH") from on March 1, 2011 until he was terminated on February 15, 2012. (Compl. at 3-4.)

On or about September 3, 2011, Plaintiff was escorted to the SWMH emergency room by the Montezuma County Sheriff's Department because he had suffered an emotional breakdown related to his psychological disorder, Post-Traumatic Stress Disorder (PTSD), and had indicated to a Sheriff's Department Officer that he intended to "harm himself." (Id. at 5.) Plaintiff was examined by a medical doctor and mental health professional. (Id.) Plaintiff informed the doctor and the mental health professional that he had PTSD and that he had been assaulted while on duty with SWMH at least three times in the previous month. (Id.)

Plaintiff was immediately removed from the work schedule. (Id.) He returned to SWMH on October 3, 2011, for the sole purpose of completing paperwork to take leave under the Family and Medical Leave Act (FMLA). (Id.)

Plaintiff returned from FMLA leave on October 18, 2011. (Id.) Plaintiff met with SWMH's Human Resources Director, Jim Bob Wynes,¹ and Director of Emergency Services, Becky Oliver, to discuss his ability to return to work. (Id.) Plaintiff advised Mr. Wynes and Ms. Oliver that he had PTSD and was attending on-going weekly meetings. (Id.) Ms. Oliver advised Plaintiff's supervisor, Matt Lindsay, to accommodate Plaintiff's weekly appointments as needed.(Id.)

On December 1, 2011, Plaintiff was on an ambulance call with two Emergency Medical Technicians (EMTs), Wendy Bryan and Amy Linman.² (Id. at 3.) During the call, Ms. Bryan and Ms. Linman allegedly contaminated a needle and "IV product" and attempted to conceal this information from Plaintiff. (Id.) Upon their return to the SWMH emergency room, Ms. Bryan admitted the contamination to Plaintiff. (Id.) Plaintiff directed Ms. Bryan to report the incident to the on-duty registered nurse or to the EMTs' supervisor. (Id.)

Plaintiff subsequently contacted Ms. Oliver and Liz Sellers, SWMH's Director of Clinical Services, regarding the contamination incident. (Id.) Ms. Oliver and Ms. Sellers informed Plaintiff that the incident was "none of his business and it was already handled." (Id.)

On December 16, 2011, Plaintiff and his wife met with Mr. Wynes to discuss the contamination incident, as well as another issue involving an EMT practicing outside of the scope of his practice. (Id.) Mr. Wynes advised Plaintiff that "Becky [Oliver] will handle it" and ended the conversation. (Id.)

Plaintiff maintains that Defendant continued to ignore his repeated attempts to uncover the alleged negligence of the three EMTs, Ms. Bryan, Ms. Linman, and the unnamed EMT discussed above. (Id.) Plaintiff alleges that Defendant's disregard of his concerns over the contamination incident exacerbated his PTSD. (Id.)

On January 9, 2012, Plaintiff received an "unblemished" report of his work from Ms. Oliver. (Id.) On or about February 7, 2012, Plaintiff delivered a patient's insulin without notifying his Physician Advisor, Dr. Marc Turpin. (Id.) Plaintiff maintains that it is standard protocol for a Nationally Registered Paramedic (NREMT-P), like himself, to deliver a patient's insulin. (Id. at 3-4.) Nevertheless, Plaintiff was placed on administrative leave pending an investigation into this incident. (Id. at 4.)

After the investigation was completed, Plaintiff's supervisor, Mr. Lindsay, issued a formal report recommending that Plaintiff be given six months' probation and a reassignment of work hours. (Id.) However, on or about February 15, 2012, Plaintiff was terminated from his position based on the recommendations of Ms. Oliver and Ms. Sellers. (Id.) Plaintiff received a termination letter Plaintiff from Defendant stating that the basis for the termination was because Plaintiff had practiced outside of the scope of his practice by delivering insulin without notifying his Physician Advisor. (Id.)

Plaintiff was given less than five days to appeal his termination. (Id.) SWMH's CEO, Kent Hedwig, denied Plaintiff's appeal based on the fact that Plaintiff had admitted to the infraction. (Id.)

On March 5, 2012, Plaintiff completed an EEOC intake questionnaire form and sent it to the EEOC. (Resp. Mot. Am., Doc. No. 45, Ex. A.) On April 24, 2012, Plaintiff filed a charge of discrimination with the EEOC, alleging retaliation for reporting sex-based discrimination. (Id., Ex. B.)

Plaintiff alleges that the EEOC investigation of his complaint revealed that Defendant hadnot disciplined Ms. Bryan and Ms. Linman, the two EMTs involved in the contamination incident, until after Plaintiff was terminated. (Compl. at 4.) Defendant allegedly³ maintained to the EEOC that Ms. Bryan and Ms. Linman had not been disciplined because it was not previously aware of the contamination incident. (Id.)

PROCEDURAL HISTORY

Plaintiff filed his Complaint on February 6, 2013. Plaintiff's Complaint asserts that Defendant violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, by terminating him.

Defendant's Motion to Dismiss was filed on May 3, 2013. (See Mot. Dismiss.) After receiving two extensions of time (see Doc. Nos. 16 & 23), Plaintiff's Response to Defendants' Motion to Dismiss was filed on July 25, 2013 (Doc. No. 32 [Resp. Mot. Dismiss]). Defendant filed a Reply in Support of its Motion to Dismiss on July 29, 2013. (Doc. No. 34 [Reply Mot. Dismiss].)

Plaintiff's Motion to Amend was filed on October 7, 2013. (See Mot. Am.) Defendant's Response in Opposition to Plaintiff's Motion for Leave to Amend Original Complaint was filed on October 17, 2013. (Resp. Mot. Am., Doc. No. 45.) "Plaintiff's Response to Defendant's Opposition of Motion for Leave to Amend Original Complaint," which the court construes and hereinafter refers to as Plaintiff's Reply in Support of his Motion to Amend, was filed on November 22, 2013. (Doc. 47 [Reply Mot. Am.].)

Accordingly, these matters are ripe for the court's review and ruling.

LEGAL STANDARDS

A. 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 (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) (citations omitted). 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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a 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").

B. Lack of Subject Matter Jurisdiction

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 thecomplaint. 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...