Celauro v. Fed. Express Ground

• Decision Date: 09 July 2021
• Docket Number: Civil Action No. 20-cv-02398-KLM
• Citation: 548 F.Supp.3d 1034
• Parties: Sal CELAURO, Jr., Plaintiff, v. FEDERAL EXPRESS GROUND, Robby Baier, Paul Burgelon, and Ryan Pelky, Defendants.
• Court: U.S. District Court — District of Colorado

548 F.Supp.3d 1034

Sal CELAURO, Jr., Plaintiff,

v.FEDERAL EXPRESS GROUND, Robby Baier, Paul Burgelon, and Ryan Pelky, Defendants.

Civil Action No. 20-cv-02398-KLM

United States District Court, D. Colorado.

Signed July 9, 2021

Sal Celauro, Jr., Englewood, CO, pro se.

Brian Thomas Ruocco, Wheeler Trigg O'Donnell LLP, Denver, CO, for Defendants.

ORDER

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on Defendants’ Motion to Dismiss for Failure to State a Claim [#24]¹ (the "Motion"). Plaintiff, who proceeds as a pro se litigant,² filed a Response [#27] in opposition to the Motion [#24], Defendants filed a Reply [#28], and Plaintiff filed a Surreply [#29].³ The Court has reviewed the briefs, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set for below, the Motion [#24] is GRANTED .⁴

I. Background⁵

Plaintiff initiated this action on August 11, 2020. See Compl. [#1]. On August 13, 2020, Plaintiff was directed to cure deficiencies in the Complaint [#1] and notified that if he failed to cure the deficiencies within thirty days from August 13, 2020, the action would be dismissed without further notice. Order Directing Plaintiff to Cure Deficiencies [#3]. On September 15, 2020, the Court granted Plaintiff another opportunity to cure the deficiencies in the complaint. Second Order Directing Plaintiff to Cure Deficiencies [#7].

On September 23, 2020, Plaintiff filed an Amended Complaint [#8], which is currently the operative complaint. In the Amended Complaint [#8], Plaintiff alleges that Defendants, i.e., his employer and supervisors, tried to require him to wear a face mask while working during the COVID-19 global pandemic. Am. Compl. [#8] at 4. According to Plaintiff, in late April or early May 2020, his employer, Defendant Federal Express Ground ("FedEx Ground"), implemented a new company policy requiring workers to wear masks while working. Id. Plaintiff refused to wear a mask while working. Id. Based on his own research, Plaintiff asserts that wearing a mask does not prevent contraction of the COVID-19 virus and may actually harm his health. Id.

On May 21, 2020, the head of the facility where Plaintiff worked, Defendant Robby Baier ("Baier"), approached Plaintiff and told him that he needed to wear a mask at work. Id. at 6. Plaintiff told him that wearing a mask was harmful to his health. Id. Defendant Baier told Plaintiff that he could wear it on his chin, but because of the Occupational Safety and Health Administration ("OSHA"), he was required to wear it. Id. After Plaintiff continually refused to wear a mask, Defendant Baier asked Plaintiff to leave the premises. Id. That evening, Defendant Baier called Plaintiff and told him that he had three options: (1) he could come to work wearing a mask, (2) he could take a thirty-day leave of absence, or (3) he could not come to work anymore and eventually be terminated. Id.

On May 23, 2020, Plaintiff went to Defendant FedEx Ground and signed a request for a thirty-day leave of absence. Id. On June 5, Plaintiff went to see Defendant Baier and requested an exemption from the mask requirement. Id. at 7. Plaintiff gave Defendant Baier numerous articles stating that masks do not work and can be harmful. Id. Defendant Baier said wearing a mask is company policy, and he declined to issue Plaintiff an exemption. Id. Eventually, Defendant Baier asked Plaintiff to leave the premises. Id.

After thirty days, Plaintiff's leave of absence expired, and he returned to work on June 25, 2020. Id. Plaintiff again refused to wear a mask. Id. A FedEx Ground manager, Chip Crumb ("Crumb") (a non-party to this litigation), told Plaintiff he had to wear a mask. Id. Plaintiff handed Mr. Crumb a stack of stapled documents. Id. One document stated that Plaintiff was exempt from wearing a mask due to a disability, which he was not required to disclose under the Americans with Disabilities Act ("ADA") and Health Insurance Portability and Accountability Act ("HIPAA"). Id. Plaintiff continued to work without a mask until Defendant Baier told Plaintiff that he needed to wear a mask. Id. at 8. Plaintiff refused and therefore was asked to leave the premises and hand over his badge. Id. Plaintiff thinks that he heard Defendant Baier say Plaintiff was suspended, but nothing was directly said to Plaintiff. Id.

On July 23, 2020, Plaintiff had a meeting with Defendants Paul Burgelon ("Burgelon") and Ryan Pelky ("Pelky"), both of whom are apparently supervisors with Defendant FedEx Ground. Id. At the meeting, Plaintiff told them that masks do not work. Id. Defendant Burgelon told Plaintiff that wearing a mask was company policy. Id. Defendants Burgelon and Pelky also handed Plaintiff a copy of the Governor of Colorado's Executive Order regarding masks. Id. Plaintiff told them that the Executive Order was unconstitutional because the Governor of Colorado did not have the right to make Plaintiff's medical decisions. Id. Defendants Burgelon and Pelky explained that Plaintiff could resign and then later be rehired after the mask mandate was lifted. Id. After the meeting, Plaintiff signed a "Package Handler Documented Discussion" form. Id. On the form, Plaintiff wrote: "Masks don't work. This is all a fraud. I will resign from Fed Ex." Id. at 8-9.

In this lawsuit, Plaintiff asserts that the Court has federal question jurisdiction under 28 U.S.C. § 1331, and he specifically cites to 28 U.S.C. § 1343 as well. Id. at 3. He asserts a single claim, titled: "Violated my Right to make my own medical decisions by requiring me to wear a mask." Id. at 4. He requests monetary damages and/or equitable relief. Id. at 5, 15.⁶

On December 9, 2020, the Court sua sponte issued an Order to Show Cause directing Plaintiff to show how the Court has subject matter jurisdiction over his claim. Order to Show Cause [#18] at 6. On December 21, 2020, Plaintiff filed a response to the Order to Show Cause [#18]. See [#20]. Plaintiff reiterated his argument that the Governor of Colorado's Executive Order requiring masks was unconstitutional and did not need to be followed by Defendants, and that by following the Executive Order, Defendants violated his "[r]ight to make my own medical decisions." Id. at 3, 5. However, Plaintiff did not provide legal authority demonstrating the basis for this purported right. Plaintiff also did not assert that his rights had been violated by a state actor by naming any state authorities as defendants.

Meanwhile, on December 24, 2020, three days after Plaintiff responded to the Order to Show Cause [#18], Defendants filed the present Motion [#24]. Defendants argue that Plaintiff's claim under 28 U.S.C. § 1343 fails because he lacks standing, the statute is purely jurisdictional, and he fails to state a plausible civil rights claim. Motion [#24] at 3-8. Defendants also argue that the Court should not consider any ADA claim(s) because Plaintiff has not explicitly asserted a claim under the statute, and, even if the Court so construes the Amended Complaint [#8], any such attempt would fail to state a viable legal claim. Id. at 9-10.

In the Response, Plaintiff argues that he has standing and that § 1343 is the proper statute because "it states ANY civil action." Response [#27] at 14-16. Further, Plaintiff admits that he is not asserting any claims under 42 U.S.C. § 1983 or the ADA. Id. at 17, 19.

II. Standard of Review

The purpose of a motion to dismiss pursuant to Rule 12(b)(1) is to test whether the Court has jurisdiction to properly hear the case before it. Because "federal courts are courts of limited jurisdiction," the Court must have a statutory basis to exercise its jurisdiction. Montoya v. Chao , 296 F.3d 952, 955 (10th Cir. 2002) ; Fed. R. Civ. P. 12(b)(1). Statutes conferring subject matter jurisdiction on federal courts are to be strictly construed. F & S Const. Co. v. Jensen , 337 F.2d 160, 161 (10th Cir. 1964). "The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction." Id. (citing Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ).

A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a facial attack or a factual attack. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a facial attack on a complaint, the Court accepts the allegations of the complaint as true. Id. By contrast, with a factual attack, the moving party challenges the facts upon which subject-matter jurisdiction depends. Id. at 1003. When reviewing a factual attack on a complaint, the Court "may not presume the truthfulness of the complaint's factual allegations." Id. at 1003. The Court therefore must make its own findings of fact. Id. In order to make its findings regarding disputed jurisdictional facts, the Court "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing." Id. (citing Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir. 1990) ; Wheeler v. Hurdman , 825 F.2d 257, 259 n.5 (10th Cir. 1987) ).

III. Analysis

A. Plaintiff's Cause of Action

At the outset, the Court notes that there is a substantial question regarding whether Plaintiff has asserted a valid cause of action in this case. Plaintiff's only "claim" is that Defendants’ company policy requiring employees to wear masks at work violates his right to make his own medical decisions, which he asserts solely pursuant to 28 U.S.C. § 1343. Am. Compl. [#8] at 3-4. Defendants argue that this statute does not provide Plaintiff with an independent cause of action. See Motion [#24] at 6-7 ("As a threshold matter, Plaintiff cannot pursue a claim under 28 U.S.C. § 1343, a jurisdictional statute. Plaintiff references no other law or cause of action.").

Section 1343 is purely a jurisdictional statute. See Chapman v. Houston Welfare Rights Org. , 441 U.S. 600, 608, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) (stating 28 U.S.C. § 1343 is the codified...