Opinion
Civil Action 20-cv-01536-WJM-KMT
05-10-2021
MARY KAHLER, Plaintiff, v. WAL-MART STORES, INC aka WALMART, INC, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kathleen M. Tafoya, Magistrate Judge.
Before the court are two motions: (1) “Defendant Walmart Inc.'s Motion to Dismiss Plaintiff's Complaint;” and (2) “Plaintif's [sic] Motion for Leave to Amend Complaint.” ([“Defendant's Motion”], Doc. No. 40; [“Plaintiff's Motion”], Doc. No. 51.) Plaintiff has responded in opposition to Defendant's motion, and Defendant has replied. ([“Plaintiff's Response”], Doc. No. 42; [“Defendant's Reply”], Doc. No. 47.) Defendant has likewise responded in opposition to Plaintiff's motion, and Plaintiff has replied. ([“Defendant's Response”], Doc. No. 54; [“Plaintiff's Reply”], Doc. No. 55.) For the following reasons, it is RECOMMENDED that Defendant's motion be GRANTED, and that Plaintiff's motion be DENIED.
In her Response, Plaintiff argues that Defendant “failed to confer as required” prior to filing its motion to dismiss. (Pl.'s Resp. 1.) However, conferral is not required with respect to motions filed under Federal Rule of Civil Procedure 12(b). D.C.COLO.LCivR 7.1(b)(2).
In support of her motion to amend, Plaintiff has also filed a two-page document, entitled “Plaintiff's Addendum to Amended Complaint.” (Doc. No. 53.)
STATEMENT OF THE CASE
Pro se Plaintiff Mary Kahler [“Kahler”] brings this lawsuit against her former employer, Defendant Walmart Stores, Inc. [“Walmart”], alleging violations of the Americans with Disabilities Act [“ADA”], 42 U.S.C. §§ 12101, et eq., the Age Discrimination in Employment Act of 1967 [“ADEA”], 29 U.S.C. § 621 et seq., the Family and Medical Leave Act of 1993 [“FMLA”], 29 U.S.C. §§ 2601 et seq., and Title VII of the Civil Rights Act of 1964, as amended [“Title VII”], 42 U.S.C. §§ 2000(e) et seq.. ([“Complaint”], Doc. No. 1.) Kahler, a female over the age of sixty-five, worked for Walmart as a fitting room/sales associate, from May 14, 2014, until her termination on April 3, 2016. (Id. at 7 ¶¶ 4-5.) According to the Complaint, shortly after Kahler was hired by Walmart, she “began to suffer from a work and age-related medical condition that required medical assistance.” (Id. at 7-8 ¶ 11.) Due to this “recurring medical condition, ” on February 20, 2015, Plaintiff reportedly submitted a request to Defendant's HR representative, Kathy Shanaman, for “12 weeks of leave under the FMLA, ” as well as a second request “to extend leave, ” relating to “knee surgery and recovery time.” (Id. at 8 ¶¶ 12-14.) Ms. Shanaman is said to have “rejected” the FMLA leave requests, on the stated basis that Plaintiff “was not eligible.” (Id. at 8 ¶ 15.)
Eleven months later, in January 2016, Plaintiff reportedly “verbally submitted” a third FMLA leave request to “Tina, ” Walmart's Department Manager of Store #1384, “for leave to care for a family member for three days.” (Id. at 8 ¶ 16.) That request was also said to be “rejected” by Ms. Shanaman, on the purportedly “not true” basis that “hours worked had to be consecutive.” (Id. at 8 ¶ 17.)
On February 12, 2016, Plaintiff is said to have “again requested finalization of authorization for FMLA leave or authorization for all three days.” (Id. at 8 ¶ 18.) Plaintiff complains that, even though “[p]roof for the family members' medical condition was offered, ” Ms. Shanaman, once again, “refused” the FMLA request. (Id.) Plaintiff now alleges that she “never received any written notice” regarding whether any of her FMLA requests “had been granted or rejected, ” or even as to “whether she was eligible for FMLA leave.” (Id. at 8-9 ¶¶ 1921.) Kahler further alleges that Walmart “illegally recorded” each of her “absences and tardies as unauthorized for unknown reasons.” (Id. at 9 ¶ 23.) Plaintiff is adamant that her former employer, by “[f]ailing to authorize these events, ” engaged in “illegal, retaliatory action.” (Id.) Plaintiff also complains that she “was treated differently from other associates who requested time off.” (Id.)
On April 3, 2016, Walmart terminated Kahler's employment “for alleged excessive absences and tardies.” (Id. at 9 ¶ 24.) Kahler claims that, after she was fired, Ms. Shanaman “stated to [her] that she would be eligible to reapply for employment after waiting 30 days.” (Id. at 9 ¶ 26.) Plaintiff reportedly then “reapplied on the Walmart careers website on May 4, 2016 and continued to reapply every 60 days as required by Walmart policy.” (Id. at 9 ¶ 27.) Although Kahler ultimately “attended an open hiring event” hosted by Walmart, where she “was interviewed” for a position by “Mona, ” she complains that “[n]o offers of employment resulted, ” and no “state[d] reason for refusal to rehire” was given. (Id. at 10 ¶¶ 28-29.)
Nearly eleven months after her termination, on February 24, 2017, Plaintiff filed a charge of age and disability discrimination with the Equal Employment Opportunity Commission [“EEOC”]. (Id. at 10 ¶ 30.) Walmart filed a response to the EEOC charge on March 16, 2017, reportedly stating that it “would not be open to mediation.” (Id. at 10 ¶ 31.) On September 16, 2018, Plaintiff received notice of her right to sue from the EEOC. (Id. at 10 ¶ 33.) Three months later, on December 10, 2018, Kahler filed suit against Walmart and its store manager, Jonna Leggitt, asserting claims under the ADA, the ADEA, and Title VII for wrongful discharge, failure to hire, failure to promote, and retaliation. Kahler v. Walmart, Inc. [“Kahler I”], No. 1:18-cv-03162-WJM-KMT, 2019 WL 3928622 (Aug. 20, 2019), appeal dismissed 2019 WL 8301054 (10th Cir. Oct. 11, 2019). Plaintiff's claims in Kahler I were ultimately dismissed, on August 20, 2019. Kahler I, 2019 WL 3928622, at *11. Final judgment was thereafter entered against Kahler, on January 10, 2020, and the Kahler I case was dismissed. Kahler I, 2020 WL 127974, at *5 (D. Colo. Jan. 10, 2020).
Jonna Leggitt is not a party to the present lawsuit.
The claims against Jonna Leggitt were dismissed with prejudice, for failure to establish grounds for personal liability under any relevant statute. Kahler I, 2019 WL 3928622, at *4. Plaintiff's age-based wrongful termination claim against Walmart was dismissed with prejudice as time-barred, the age-based failure to rehire claim was dismissed for failure to satisfy the requisite pleading standard, and the ADA and retaliation claims were dismissed for failure to exhaust administrative remedies. Id. at *4-9.
After the entry of final judgment in Kahler I, Plaintiff filed a motion to reopen the case, on January 24, 2020, as well as a motion to appoint counsel, on April 13, 2020. Both of those motions were denied on August 6, 2020. Kahler I, 2020 WL 4539635, at * 2 (D. Colo. Aug. 6, 2020). The case in Kahler I remains closed.
Six weeks later, on February 21, 2020, Plaintiff filed a second charge of discrimination with the EEOC, which included the following allegations against Walmart:
On February 24, 2017, I filed a charge of discrimination with the EEOC 541-201700905. Since then and continuing, I have applied for numerous positions for which I qualify, however, I have only been interviewed once. Beginning May 4, 2016, I have renewed my application per policy of every 60 days, but still have been denied interview and/or rehire [sic]. On January 16, 2020, I received an email from [Walmart's] attorney stating that ‘Among other things, you would be required to agree to dismiss your lawsuit, release/waive your claims, acknowledge that you've been paid all wages due to you, not disparage Walmart, and not reapply for employment. These are standard terms in cases like this.' This to me supporting [sic] retaliation for filing the original EEOC complaint.(Compl. 3.)
Approximately three months later, on May 29, 2020, Plaintiff filed this, her second, employment discrimination action against Walmart, asserting similar claims for wrongful discharge, failure to hire, disparate treatment, failure to accommodate a disability, and retaliation. (Compl. 3-4.) In the present lawsuit, Kahler alleges, among other things, that Walmart interfered with her right to take FMLA leave, in violation of 29 U.S.C. § 2615(a)(1), retaliated against her for attempting to exercise her rights under the FMLA, discriminated against her on the basis of her age and disability, and retaliated against her for filing an EEOC charge. (Id. at 10-12 ¶¶ 35-47.) As relief, Plaintiff seeks backpay, damages “for all other monetary losses sustained as a direct result of the violations, ” reinstatement of her position, mental health damages, and punitive damages, as well as interest, costs, and attorneys' fees. (Id. at 12-13 ¶¶ 18.)
Walmart now moves to dismiss the Complaint, in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot. 1.) Defendant argues, specifically, that Plaintiff's claims are barred by the doctrine of res judicata, because each of those claims “either were or could have been litigated” in Kahler I. (Id. at 8-10.) In addition, Defendant argues that the FMLA claims are barred by the statute of limitations. (Id. at 10-11.) Finally, Walmart argues, in the alternative, that Kahler has failed to plausibly allege any cognizable claim for relief. (Id. at 1113.)
STANDARDS OF REVIEW
I. Pro Se Plaintiff
Plaintiff is proceeding pro se. The court, therefore, “review[s] h[er] 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 Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding the 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 Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating that 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”). The plaintiff's pro se status does not entitle her to an application of different rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
II. Federal Rule of Civil Procedure 12(b)(6)
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) (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 v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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 court considers 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.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).
ANALYSIS
I. The Motion to Dismiss
A. Res Judicata
Walmart argues, first, that the doctrine of res judicata precludes Kahler from litigating her present claims in federal court. (Def.'s Mot. 8-10.) Defendant argues, specifically, that because the district court in Kahler I entered a final decision on the merits regarding “the same adverse employment actions” at issue here, Plaintiff's present claims “must all be dismissed as barred by the doctrine of res judicata.” (Id.)
“The doctrine of res judicata, or claim preclusion, will prevent a party from litigating a legal claim that was or could have been the subject of a previously issued final judgment.” Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (brackets and internal quotation marks omitted). Claim preclusion has three elements: “(1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits.” Id. If all three elements are met, claim preclusion is appropriate, “unless the party seeking to avoid preclusion did not have a ‘full and fair opportunity' to litigate the claim in a prior suit.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999)).
Here, given Kahler I, there is no question that claim preclusion bars Plaintiff from bringing her present claims against Defendant. First, in Kahler I, the district court's ruling on Walmart's Rule 12(b)(6) motion to dismiss, which was later affirmed by the Tenth Circuit, was a final judgment on the merits. See Brownback v. King, 141 S.Ct. 740, 748 (2021) (“A ruling under Rule 12(b)(6) concerns the merits.”). Specifically, in Kahler I, Plaintiff's age-based wrongful termination claim, which was also purportedly predicated upon Walmart's “refusal to authorize a family leave absence, ” was dismissed with prejudice as time-barred. Kahler I, 2019 WL 3928622, at *5; see Johnston v. Cigna Corp., 14 F.3d 486, 493 (10th Cir. 1993) (“A decision by a federal court adjudging a claim to be time barred is a final judgment on the merits[.]”). Plaintiff's age-based failure to rehire claim was dismissed without prejudice for inadequate pleading, while Plaintiff's remaining claims were dismissed without prejudice for failure to exhaust administrative remedies. Kahler I, 2019 WL 3928622, at *5-9; see Wallin v. Dycus, No. 07-cv-00318-WDM, 2010 WL 924232, at *7 n.8 (D. Colo. Mar. 10, 2010) (“[A] dismissal for failure to state a claim upon which relief can be granted is treated as a judgment on the merits, and is therefore entitled to preclusive effect.”); Schubert v. Hood, No. 13-CV-225-JED-FHM, 2014 WL 546004, at *4 (N.D. Okla. Feb. 10, 2014) (holding that the doctrine of res judicata barred the plaintiff's assertion of claims which were “identical to the claims asserted and [previously] dismissed without prejudice” for failure to exhaust administrative remedies); see also Fed.R.Civ.P. 41(b) (stating that a dismissal “operates as an adjudication on the merits, ” unless it is a dismissal for “lack of jurisdiction, improper venue, or failure to join a party under Rule 19”). Accordingly, the court finds that the first element of res judicata is met.
Notably, in the present lawsuit, Kahler does not allege that she has exhausted administrative remedies with respect to any of the claims that were previously dismissed on that basis.
As to the second element, res judicata “is applicable only to parties to the first suit or their privies.” Satasky v. Paramount Commc'ns, Inc., 7 F.3d 1464, 1468 (10th Cir. 1993). Here, Plaintiff and Defendant were opposing parties in Kahler I. Thus, the second element is also satisfied.
As to the third element, the Tenth Circuit uses a “transactional approach” to determine whether there is “identity of the cause of action in both suits.” City of Eudora, Kan. V. Rural Water Dist. No. 4, Douglas Cty., Kan., 875 F.3d 1030, 1035 (10th Cir. 2017); Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997). “Under this approach, a cause of action includes all claims or legal theories of recovery that arise from the same transaction, event, or occurrence. All claims arising out of the transaction must therefore be presented in one suit or be barred from subsequent litigation.” Lenox v. MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1240 (10th Cir. 2017) (quoting Nwosun, 124 F.3d at 1257). What constitutes “the same transaction” must be “determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.” Hatch v. Boulder Town Council, 471 F.3d 1142, 1149 (10th Cir. 2006) (quoting Restatement (Second) of Judgments § 24).
Here, in Kahler I, Plaintiff alleged that Defendant discriminated and retaliated against her on the basis of age and disability, by among other things, “refus[ing] to authorize a family leave absence, ” failing to promote her, treating her differently than “younger and less experienced/less qualified” employees, refusing to accommodate her disability, terminating her employment, and failing to rehire her after she was terminated. (Complaint, Kahler I, No. 1:18-cv-03162-WJM-KMT (D. Colo. Jan. 7, 2019), ECF No. 4 at 3-5.) In other words, Kahler's previous claims related to her termination, as well as to Walmart's conduct leading up to, and immediately following, her termination. In the present lawsuit, Kahler once again alleges that Walmart discriminated and retaliated against her on the basis of age and disability, by denying her FMLA leave request, engaging in disparate treatment, refusing to accommodate her disability, terminating her employment, and refusing to rehire her. (Compl. 3-4.) Given that these claims were all previously asserted in Kahler I, Plaintiff is undoubtedly precluded from raising them again in this subsequent lawsuit.
However, in this case, Plaintiff also asserts certain “new” claims. (Compl. 5.) Specifically, Kahler now alleges that Walmart “interfered with, restrained, or otherwise denied” her rights under the FMLA, in violation of 29 U.S.C. § 2615(a)(1), and subsequently “illegally terminated and failed to rehire [her] when she opposed then demanded to exercise her legal rights under the FMLA, ” in violation of 29 U.S.C. § 2615(a)(2). (Id. at 11 ¶¶ 38-39.) Plaintiff likewise alleges that Walmart “failed to comply” with certain FMLA employer notice requirements, which purportedly “caused the termination of [her] employment by not providing her the notice or information necessary to determine that her absences from work would not be counted as FMLA leave nor would they be otherwise authorized for any reason.” (Id. at 10-11 ¶¶ 36-37, 40.) In addition, Plaintiff now alleges that Walmart “continues” to unlawfully retaliate against her “to the present day, ” by “refusing to hire or rehire” her, due to “her legal action of filing an EEOC charge of age and disability discrimination, filing a legal lawsuit for same[, ] and now this charge of Retaliation.” (Id. at 3, 6, 12 ¶ 47.)
In her Response, Plaintiff argues that the preclusive effect of res judicata does not apply to these “new” claims. (Pl.'s Resp. 5, 7.) Plaintiff contends, as to the FMLA claims, that she has “new-found evidence to prove Walmart was wrong to deny her time off for family leave.” (Id. at 7.) In addition, Plaintiff posits that “the logical remaining reason” for Walmart “to continue to deny [her] employment” is “retaliation for requesting FMLA and filing lawsuits for discrimination and wrongful termination against [it].” (Id. at 4.)
To the extent that Plaintiff argues that the present lawsuit does not involve the same “identity of the cause of action” as her previous lawsuit, the court disagrees. In Kahler I, Kahler's claims were predicated upon the termination of her employment, as well as upon Walmart's conduct leading up to the termination, and its conduct after the termination. Walmart's decision to deny Kahler's FMLA leave requests, and its decision, shortly thereafter, to terminate her employment “for alleged excessive absences and tardies, ” are clearly part of the same transaction or series of transactions for purposes of res judicata. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1202 (10th Cir. 2000) (“[A]ll claims arising from the same employment relationship constitute the same transaction or series of transactions for claim preclusion purposes.”); see also Stone v. Dep't of Aviation, 453 F.3d 1271, 1279 (10th Cir. 2006) (“One major function of claim preclusion . . . is to force a plaintiff to explore all facts, develop all theories, and demand all the remedies in the first suit.”). Indeed, in Kahler I, Kahler based her wrongful termination claim, in part, on Walmart's “refusal to authorize a family leave absence.” (Complaint, Kahler I, No. 1:18-cv-03162-WJM-KMT, ECF No. 4 at 3-4.) After Kahler was fired, she opted to sue her former employer, and Walmart appears to have concomitantly refused to rehire Kahler as an employee. (Compl. 6, 12 ¶ 47.) Although Plaintiff's termination and Defendant's subsequent, ongoing refusal to rehire her are separate factual events, they are not so unrelated as to defeat the application of res judicata in this case. See Wilkes v. Wyom. Dep't of Emp. Div. of Lab. Standards, 314 F.3d 501, 505 (10th Cir. 2002) (“[W]e are not free to transactionally distinguish wrongful termination claims from those claims arising out of the employment but before and unrelated to the discharge.”). Indeed, both involve alleged adverse employment actions taken by Walmart, and both directly pertain to the circumstances surrounding Kahler's discharge. As such, the resolution of both claims would require “a determination of the propriety of the employer's motivation in discharging the employee.” King v. Union Oil Co. of Calif., 117 F.3d 443, 446 (10th Cir. 1997) (citing Prochotsky v. Baker & McKenzie, 966 F.2d 333, 335 (7th Cir. 1992)). Further, the facts supporting Plaintiff's “new” retaliation claim substantially overlap with the facts supporting her claims in Kahler I, given that Plaintiff's decision to bring the first lawsuit purportedly formed the basis for Walmart's subsequent decision to refuse to rehire her. See King, 117 F.3d at 445 (holding that an employer's decision to terminate an employee, and its subsequent decision to refuse to pay severance benefits, were part of a “series of connected transactions, ” and thus, the employee's initial discrimination and retaliation claims barred his subsequent ERISA claim, where both events “arose as a result of [the employee]'s termination, ” and where the employee's “decision to bring the first suit formed the basis for [the employer]'s ultimate decision to deny [the employee]'s claim for severance benefits”). Thus, Kahler's various claims, if brought together, would form “a convenient trial unit.” See Clark v. Haas Grp., Inc., 953 F.2d 1235, 1238 (10th Cir. 1992) (holding that a plaintiff's prior claim for unpaid overtime compensation barred her subsequent claims for age discrimination and denial of equal pay, because “the various ‘claims' and legal theories were predicated exclusively on [the plaintiff]'s employment relationship with [her employer]”). The fact that Kahler has asserted slightly different legal theories in each case is irrelevant to the claim preclusion inquiry. See Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997) (“It is immaterial that the legal basis for the relief sought in the two complaints is different; it is the occurrence from which the claims arose that is central to the ‘cause of action' analysis.”); Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 448 (8th Cir. 1979) (“It is well established that res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his rights.”) (alterations, citation, and quotations omitted).
Therefore, because this lawsuit and Kahler I concern the same “identity of parties” and “identity of the cause of action, ” and because Kahler I resulted in a final judgment on the merits, dismissal of Plaintiff's present claims under the doctrine of res judicata is appropriate. As such, there is no need to address Defendant's other arguments for dismissal.
Nevertheless, it is worth noting that Plaintiff's FMLA claims are also clearly time barred. Specifically, the FMLA imposes a two-year statute of limitations for non-willful violations of its provisions, and a three-year statute of limitations where such violations are “willful.” 29 U.S.C. §§ 2617(c)(1)-(2). Both limitations periods begin to run on “the date of the last event constituting the alleged violation for which the action is brought.” Id. Here, Kahler asserts FMLA claims exclusively relating to events that occurred either at the time of, or prior to, her April 2016 termination. (Compl. 10-11 ¶¶ 36-44.) As such, Plaintiff's FMLA claims are all subject to dismissal for that reason, as well.
II. The Motion to Amend
Two months after Walmart filed its motion to dismiss, on February 18, 2021, Kahler filed the present motion to amend her complaint. (Pl.'s Mot. 1.) Plaintiff argues that she should be allowed to amend her pleading, under Federal Rule of Civil Procedure 15, so as to “cure the deficienc[ies]” identified by Defendant's motion to dismiss. (Id. at 1-2.) Kahler also seeks to assert certain “new” tort claims, specifically relating to Walmart's “training and supervision of [its] agents.” (Id. at 4.) In addition, Kahler seeks to “clarif[y]” certain existing claims. (Id.)
The “Proposed Amended Retaliation and Negligence and Harassment Complaint, ” which is attached as an exhibit to Kahler's motion, modifies and augments certain factual allegations, and contains several lengthy digressive passages, including one in which Kahler compares this lawsuit to the recent impeachment trial of former United States President Donald J. Trump. ([“Proposed Amended Complaint”], Doc. No. 51-1.) In the proposed pleading, Plaintiff, once again, invokes this court's jurisdiction pursuant to Title VII, the ADA, the ADEA, and the FMLA, as well as now pursuant to the Colorado Anti-Discrimination Act [“CADA”], Colo. Rev. Stat. §§ 24-34-402, et seq.. (Id. at 2.) Similar to the existing Complaint, the proposed pleading alleges that Walmart unlawfully discriminated and retaliated against Kahler, “by failing to authorize absences or tardies, changing her scheduled hours to inhibit family obligations, unlawfully terminating her, failing to rehire her, denying the opportunity to mediate[, ] and . . . stating [that] she must sign an agreement that she would never apply to Walmart for employment again, would not disparage Walmart (denying freedom of speech)[, ] and would give up her lawsuit against them (without compensation of any kind) among other things.” (Id. at 3.)
In the proposed Amended Complaint, Kahler seeks to assert additional claims against her former employer relating to “harassment, ” “negligence, ” and “defamation.” (Id. at 2, 8-12 ¶¶ 3547.) As to the negligence claim, Kahler alleges that Walmart breached a “duty of care:” (1) by failing to provide Kahler with “any written notice that her final FMLA request or authorization had been granted or rejected;” (2) by failing to adequately “train[] and/or supervis[e]” its employees to provide proper FMLA notices; (3) by failing to rehire Kahler after she was fired, or to provide a written explanation for its refusal to do so; (4) by refusing to “discuss or mediate” Kahler's EEOC charge; and (5) by failing “to protect [its] employees, ” including Kahler, “from discrimination, retaliation, and harassment.” (Id. at 5-8 ¶¶ 19, 21, 29-31, 34.) In addition, Kahler appears to allege that Walmart is vicariously liable for certain actions taken by its legal counsel in connection with this lawsuit. (Id. at 8-9.)
Federal Rule of Civil Procedure 15(a), which applies here, provides that “[t]he court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). The rule's purpose “is to provide litigants the maximum opportunity for each claim to be decided on the merits rather than on procedural niceties.” Minter v. Prime Equip., 451 F.3d 1196, 1204 (10th Cir. 2006) (internal quotations omitted). Therefore, “[r]efusing leave to amend is generally only justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009) (quoting Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993)); see Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits.”).
A Scheduling Order has not yet been entered in this case, and thus, no deadline for the amendment of pleadings has been set. In the absence of an amended pleadings deadline, the court examines Plaintiff's motion to amend exclusively within the confines of Rule 15(a). See Laurienti v. Bicha, No. 14-cv-02592-NYW, 2015 WL 1609636, at *1 (D. Colo. Apr. 10, 2015 (“Because the court has not yet entered a Scheduling Order in this case, Federal Rule of Civil Procedure 15(a) governs the consideration of Plaintiff's Second Motion to Amend.”).
Walmart opposes Kahler's motion to amend, primarily on the grounds that the proposed amendment would be futile. (Def.'s Resp. 5-13.) Defendant contends, specifically, that “every claim asserted by Plaintiff” in the proposed pleading “is factually or legally deficient.” (Id. at 5.) The court agrees.
Leave to amend may be properly denied based on futility. “A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” United States ex rel. Barrick v. Parker-Migliorini Int'l, LLC, 878 F.3d 1224, 1230 (10th Cir. 2017) (quoting Barnes v. Harris, 783 F.3d 1185, 1197 (10th Cir. 2015)). “The futility question is functionally equivalent to the question whether a complaint may be dismissed for failure to state a claim[.]” Gohier v. Enright, 186 F.3d 1216, 1218 (10th Cir. 1999). “In ascertaining whether [a] plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to [the] plaintiff, and the allegations in the complaint must be accepted as true.” Session v. Clements, No. 14-cv-02406-PAB-KLM, 2016 WL 814715, at *2 (D. Colo. Mar. 1, 2016) (quoting Myers v. City of Loveland, Colo., No. 12-cv-02317-REB-KLM, 2013 WL 3381276, at *6 (D. Colo. July 8, 2013)). Further, “[a]ny ambiguities must be resolved in favor of [the] plaintiff, giving h[er] the benefit of every reasonable inference drawn from the well-pleaded facts and allegations in h[er] complaint.” Id.
Here, the proposed Amended Complaint does not cure the existing deficiencies of the operative Complaint. First and foremost, the proposed pleading continues to allege discrimination and retaliation claims arising from Kahler's employment relationship with, and termination by, Walmart. As Defendant correctly points out, the proposed pleading does not identify any new adverse employment action that was not at issue in Kahler I. (Def.'s Resp. 6.) As discussed in greater detail supra, given that Kahler I involved the same parties as here, and because Kahler I resulted in a final judgment on the merits, Plaintiff is precluded from asserting claims that either were, or could have been, litigated in that previous lawsuit. See MACTEC, 427 F.3d at 831 (discussing the elements of res judicata). The proposed Amended Complaint, even liberally construed, does not assert any claims that would not be subject to dismissal on the grounds of res judicata. In addition, to the extent that Kahler is attempting to assert new claims for negligence or defamation, any such claim is barred by the applicable statute of limitations. Under Colorado law, a negligence claim must be brought “within two years after the cause of action accrues.” Colo. Rev. Stat. § 13-80-102(1)(a). A defamation claim, likewise, must be brought “within one year after the cause of action accrues.” Colo. Rev. Stat. § 13-80-103(1)(a). Such claims accrue “on the date both the injury and its cause are known or should have been known by the exercise of due diligence.” Colo. Rev. Stat. § 13-80-108(1). Here, the proposed negligence and defamation claims relate to alleged actions taken by Walmart at or near the date of Kahler's termination, on April 3, 2016, as well “on or about March 16, 2017, ” when Walmart filed its “position statement” with the EEOC. (Proposed Am. Compl. 5-8, 12 ¶¶ 18-19, 21, 2629, 31, 34, 45.) As such, these claims are clearly time-barred.
In her Reply, Plaintiff states that she “only recently learned of the existence of tort law and the four elements to prove negligence.” (Pl.'s Reply 4.) Plaintiff argues that she was “not made aware of the existence” of Walmart's EEOC “position statement, ” in which the company indicated that it “would NOT be open to mediation, ” until September 18, 2018. (Id.) However, even assuming Plaintiff's assertion to be true, any negligence claim arising from Walmart's refusal to mediate would still fall outside of the two-year limitations window.
On this record, then, it would be futile to grant Plaintiff leave to amend her existing Complaint. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (affirming dismissal of a pro se plaintiff's claim, where “it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend”). For that reason, it is recommended that Plaintiff's motion to amend be denied.
As a final matter, throughout the proposed Amended Complaint and related briefing, Kahler laments the fact that she is a pro se litigant “with no background in the law, ” who is facing off against the “world's largest company by revenue, ” which is, itself, represented by “one of the premier employment law firms in Colorado.” (Proposed Am. Compl. 1, 13; see Pl.'s Reply 6-10.) Plaintiff complains that the “odds” are stacked against her in this case, and she expresses “hope[]” that the court “will see the overwhelming discrepancy in knowledge and expertise” between the opposing parties, and ultimately, “uphold[] the laws intended to protect those most in need of protections.” (Proposed Am. Compl. 13-14.) While the court does acknowledge and empathize with Plaintiff's circumstance, it is well-settled that a litigant's pro se status does not entitle them to a different set of rules. Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Although the rulings in this case may seem harsh or technical, the court must, nevertheless, hold Plaintiff to the same procedural and substantive requirements applicable to all federal litigants. In this case, Plaintiff has failed to allege a viable cause of action. As such, dismissal of this case is warranted.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that “Defendant Walmart Inc.'s Motion to Dismiss Plaintiff's Complaint” (Doc. No. 40) be GRANTED. The court further
RECOMMENDS that “Plaintif's [sic] Motion for Leave to Amend Complaint” (Doc. No. 51) be DENIED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).