Elhelbawy v. Pritzker

Decision Date21 September 2015
Docket NumberCivil Action No. 14-cv-01707-CBS
PartiesMONA ELHELBAWY, Plaintiff, v. PENNY PRITZKER, Secretary, U.S. Department of Commerce, Defendant.
CourtU.S. District Court — District of Colorado

Magistrate Judge Craig B. Shaffer


This civil action comes before the court on: (1) Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), and (2) Plaintiff's Motion for Leave to File Amended Complaint. This case was directly assigned to Magistrate Judge Craig B. Shaffer pursuant to the Pilot Program to Implement the Direct Assignment of Civil Cases to Full Time Magistrate Judges. The court has reviewed the Motions, Ms. ElHelbawy's Response (Doc. # 25), Defendant's Reply (Doc. # 42), the hearings held on November 18, 2014, December 17, 2014, February 13, 2015, February 20, 2015, and March 20, 2015 (See Courtroom Minutes/Minute Orders (Docs. # 23, # 35, # 37, # 41, # 44)), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.

I. Standard of Review

Defendant, the Secretary of the Department of Commerce, has moved to dismiss the Second Amended Complaint ("SAC") for lack of subject matter jurisdiction and failure to state a claim to which relief can be granted pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure.

Rule 12(b)(1) empowers a court to dismiss a complaint for "lack of jurisdiction over the subject matter." Defendant's assertion that Ms. ElHelbawy failed to exhaust her administrative remedies before the Merit Systems Protection Board ("MSPB") constitutes a challenge to the allegations of subject matter in the SAC. See Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) ("Exhaustion of administrative remedies is a 'jurisdictional prerequisite' to suit under Title VII."); Jones v. United Parcel Service, Inc., 502 F.3d 1176, 1183 (10th Cir. 2007) ("Title I of the ADA requires a plaintiff to exhaust her administrative remedies before filing suit" and "[i]n the Tenth Circuit, exhaustion of administrative remedies is a jurisdictional prerequisite to suit."). The burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

To withstand a motion to dismiss under Rule 12(b)(6), a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The burden is on the plaintiff to frame "a complaint with enough factual matter (taken as true) to suggest" that he or she is entitled to relief. Twombly, 550 U.S. at 556.

Because Ms. ElHelbawy appears pro se, the court reviews the "pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (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). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws inways that a plaintiff has not alleged. See Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (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").

II. Procedural Background

Ms. ElHelbawy was employed as an electronics engineer at the Institute for Telecommunication Sciences, National Telecommunications and Information Administration, U.S. Department of Commerce ("DOC") in Boulder, Colorado. On September 21, 2011, Ms. ElHelbawy filed a Complaint of Employment Discrimination with the DOC's Office of Civil Rights, alleging discrimination on the basis of her sex (female), race (Middle-Eastern), national origin (Egyptian), religion (Abrahamic), and in retaliation. (See Doc. # 1-2 at 24 of 37; Declaration of Christiann Colpoys Burek, Exhibit 1 to Defendant's Motion (Doc. # 19-1) at 6 of 44).1 On July 10, 2012, Ms. ElHelbawy requested a hearing before an EEOC judge. (See Doc. # 19-1 at 2 of 44, ¶ 4; Doc. # 19-3 at 1 of 65). Administrative Judge Nancy Weeks in the Denver Field Office held a hearing on the EEO complaint on July 25, 2013. (See id. at ¶ 6; Doc. # 19-3 at 8 of 65).

When Ms. ElHelbawy stated in January of 2014 that she intended "to file a case in federal court on the issues of this complaint," Administrative Judge Weeks dismissed the case and remanded to the DOC's Office of Civil Rights for a Final Agency Decision. (See Doc. # 19-1 at 2 of 44, ¶ 7; Doc. # 19-3 at 8 of 65). On April 1, 2014, DOC's Office of Civil Rights issued its "Final Agency Decision Without a Hearing," finding "no violation of Title VII or the Rehabilitation Act withrespect to the matters alleged." (See Doc. # 19-3 at 57 of 65). The Final Agency Decision advised Ms. ElHelbawy that a civil action in Federal District Court must be filed within 90 calendar days of the date of the receipt of the final order. (See id. at 59 of 65). Ms. ElHelbawy received the Final Decision by certified mail on April 9, 2014. (See Doc. # 19-1 at ¶ 9; Doc. # 19-3 at 65 of 65).

On November 15, 2012, the agency removed Ms. ElHelbawy from her job on charges of being AWOL and failing to follow procedures to request leave. ElHelbawy v. Department of Commerce, No. DE-0752-13-0130-I-2, 2014 WL 2853621 (M.S.P.B. June 20, 2014). (See also Doc. # 1-1 at 62-72 of 72; Doc. # 1-2 at 1-15 of 37; Doc. # 19-2 at 20-50 of 56). On December 14, 2012, Ms. ElHelbawy appealed her removal to the MSPB and asserted as an affirmative defense that the agency discriminated against her. (See id.; 5 U.S.C. § 7702(a)(1); Doc. # 19-1 at 2 of 44, ¶ 5, 9-23 of 44). In her appeal, she claimed discrimination based on gender, race, color, religion, national origin, and disability, retaliation for her prior EEO activity, whistleblower claims, prohibited personnel practices, and harmful procedural error. (See Doc. # 19-1 at 12-22 of 44). Administrative Law Judge ("ALJ") Patricia Miller in the Denver Field Office held a hearing on the MSPB appeal on March 19 and 20, and April 3, 2014. (See Doc. # 19-1 at ¶ 8; Doc. # 19-4 at 3 of 73). On June 20, 2014, ALJ Miller issued an Initial Decision finding that the agency had proven its misconduct charges; that Ms. Elhelbawy failed to prove her affirmative defenses; and that the penalty of removal was reasonable. (See Doc. # 19-1 at ¶ 10; Exhibit 4 to Defendant's Motion, Doc. # 19-4 at 2-23 of 73; ElHelbawy, 2014 WL at 2853621). Ms. ElHelbawy was advised that the Initial Decision would become final on July 25, 2014 unless she filed a petition for review by that date. (See Doc # 19-4 at 18 of 73; Doc. # 19-1 at ¶ 10; ElHelbawy, 2014 WL at 2853621). She was also advised that she had the right to seek further review of the final decision by theEEOC or a federal court. (See id.).

Ms. ElHelbawy filed a Petition for Review with the MSPB on July 26, 2014. (See Exhibit 5 to Defendant's Motion (Doc. # 19-4); Doc. # 19-1 at ¶ 11). On July 28, 2014, the Office of the Clerk of the Board for the MSPB issued a notice acknowledging receipt of her Petition for Review and explaining that it was untimely. (See Exhibit 6 to Defendant's Motion (Doc. # 19-4 at 40 of 73; Doc. # 19-1 at ¶ 12). With permission, on August 1, 2014, Ms. ElHelbawy filed a Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit. (See Exhibit 7 to Defendant's Motion (Doc. # 19-4 at 49 of 73); Doc. # 19-1 at ¶ 13). The agency filed its response to her Petition for Review on August 22, 2014. (See Exhibit 8 to Defendant's Motion (Doc. # 19-4 at 51 of 73); Doc. # 19-1 at ¶ 14). After several of Ms. ElHelbawy replies were rejected on procedural grounds, the MSPB permitted her to file a reply on or before September 17, 2014. (See Exhibit 9 to Defendant's Motion (Doc. # 19-5) at 2-5 of 91; Doc. # 19-1 at ¶ 15). Ms. ElHelbawy filed her "Response to Agency Representative's Response" ("Reply") on September 18, 2014. (See Exhibit 10 to Defendant's Motion (Doc. # 19-5 at 7-91 of 91); Doc. # 19-1 at ¶ 16). The MSPB issued a Final Order on June 16, 2015, denying Ms. ElHelbawy's Petition for Review and affirming the Initial Decision of Administrative Judge Miller. See ElHelbawy v. Department of Commerce, No. DE-0752-13-0130-I-2, 2015 WL 3750738 (M.S.P.B. June 16, 2015). The MSPB forwarded her individual right of action ("IRA") to the field office for adjudication.2

On June 19, 2014, one day before ALJ Miller issued her Initial Decision, Ms. ElHelbawy filed this civil action. (See "Title VII Complaint" (Doc. # 1). At the direction of the court, she filed her Amended Complaint on July 28, 2014. (See Doc. # 6). Without complying with Fed. R. Civ. P. 15, she filed her Second Amended Complaint ("SAC") on July 29, 2014. (See Doc. # 7). On October 27, 2014, Defendant filed her Motion to Dismiss the SAC. Ms. ElHelbawy withdrew a subsequently tendered pleading (Doc. # 22) as improvidently filed. (See Courtroom Minutes/Minute Order (Doc. # 23)). When Ms. ElHelbawy expressed that she wished to file a Third Amended Complaint, the court afforded her additional time. (See Courtroom Minutes/Minute Orders (Docs. # 23, # 35, # 37)). On February 17, 2015, she filed her Motion for Leave to File a Third Amended Complaint without submitting a proposed Third Amended Complaint. (See Doc. # 39).

In the operative pleading, the SAC, Ms. ElHelbawy alleges...

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