Villescas v. Richardson, No. Civ.A. 97-B-1955.

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtBabcock
Citation124 F.Supp.2d 647
PartiesCarlos VILLESCAS, Plaintiff, v. Bill RICHARDSON, Secretary of the Department of Energy, and Janet Reno, Attorney General, Department of Justice, Defendants.
Decision Date06 November 2000
Docket NumberNo. Civ.A. 97-B-1955.
124 F.Supp.2d 647
Carlos VILLESCAS, Plaintiff,
v.
Bill RICHARDSON, Secretary of the Department of Energy, and Janet Reno, Attorney General, Department of Justice, Defendants.
No. Civ.A. 97-B-1955.
United States District Court, D. Colorado.
November 6, 2000.

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COPYRIGHT MATERIAL OMITTED

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Darold W. Killmer, John T. Carlson, Miller, Lane, Killmer & Greisen, LLP, Denver, CO, for plaintiff.

Lois B. Osler, Lisa A. Olson, Karyn A. Temple, U.S. Department of Justice, Civil Division, Washington, DC, Regina M. Rodriguez, United States Attorney's Office, Denver, CO, for defendant.

MEMORANDUM OPINION AND ORDER

BABCOCK, Chief Judge.


Defendants move for judgment on the pleadings, and summary judgment. Plaintiff moves to file a second amended complaint. All of the motions are opposed. The motions are adequately briefed, and oral argument would not materially aid their resolution. For the reasons set forth below, I grant in part and deny in part Defendants' motions, and deny as moot Plaintiff's motion. Jurisdiction exists under 28 U.S.C. § 1331.

I.

The following facts are undisputed unless otherwise noted. For over ten years, Plaintiff held the position of Equal Employment Opportunity Manager for the Western Area Power Association (WAPA), an agency of the United States Department of Energy. In 1989, Plaintiff left WAPA to become the Deputy District Director in the Denver District of the United States Equal Employment Opportunity Commission. In 1992, Plaintiff testified in support of an administrative complaint of age and/or sex discrimination filed by Edward Craig, a WAPA employee.

After Mr. Craig lost his administrative case, he pursued his claims in the United States District Court for the District of Colorado. See Craig v. O'Leary, 93-K-1828. Plaintiff again agreed to provide testimony in support of Mr. Craig's case. During trial preparation in 1995, WAPA's Deputy General Counsel, Liova Juarez, investigated rumors that in the early to mid-1980s Plaintiff engaged in an adulterous relationship with a subordinate WAPA employee to whom he provided employment benefits in violation of federal anti-nepotism statutes and regulations, and fathered a child with the same woman prior to his divorce from his first wife. Ms. Juarez allegedly found corroborating evidence of these allegations from public documents obtained by Pat Scrivner at Ms. Juarez's

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request. Ms. Juarez turned over the results of her investigation to J.B. Garcia, the Assistant United States Attorney who defended the Government in Craig.

Mr. Garcia subsequently sought to compel Plaintiff to produce various materials including his marriage license and birth certificates of his children. When Plaintiff moved for a protective order, the Government responded that the evidence sought was relevant in the employment discrimination case filed by Mr. Craig because it "pertain[ed] to [Plaintiff's] personal turpitude, such as to indicate such moral depravity or degeneracy on his part as would likely render him insensible to the obligations of an oath to speak the truth." Judge Kane rejected the Government's reasoning, and granted the protective order.

Approximately one month later, Ms. Juarez referred the allegations against Plaintiff to the Office of Inspector General for disciplinary proceedings. The Inspector General's office refused to open an investigation. Plaintiff subsequently filed this suit on September 9, 1997 alleging that Defendants' actions in the Craig case, and in filing the charges with the Inspector General's office, constituted both illegal retaliation in violation of Title VII, and the Age Discrimination in Employment Act (ADEA), and a violation of the Privacy Act.

On June 5, 1998, Defendants moved pursuant to Rules 12(b)(1) and 12(b)(6) to dismiss the Title VII and ADEA claims against Defendant Department of Justice (DOJ) contending, inter alia, that Defendant DOJ did not qualify as an "employer" of Plaintiff. Defendants also sought dismissal of the Privacy Act claim on the basis that the statute of limitations had expired prior to Plaintiff's filing of his claim. I denied the motion on February 16, 1999 because of the fact-intensive nature of the motion. Defendants then filed a motion to dismiss pursuant to Rule 12(c) on April 30, 1999 in which they, inter alia, reasserted the arguments that Plaintiff is not an "employee" of Defendant DOJ, and Plaintiff's Privacy Act claim is time-barred. On July 27, 1999, I denied the Rule 12(c) motion in part because motions made pursuant to Rules 12(b), and 12(c) are analyzed under the same standard of review and, consequently, my February 16, 1999 order was the law of the case on these arguments.

On May 1, 2000, Defendants moved to dismiss again pursuant to Rule 12(c) asserting that they are absolutely immune from Plaintiff's claims. Defendants also moved for summary judgment on May 22, 2000. On July 7, 2000, Plaintiff moved to file a second amended complaint.

II.
A.

A Rule 12(c) motion for judgment on the pleadings is reviewed under the standard of review applicable to a Rule 12(b)(6) motion to dismiss. McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir. 1991). Thus, dismissal is appropriate only if it appears that a plaintiff can prove no set of facts under which he would be entitled to relief. Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). I must accept all the well-pleaded allegations of the complaint as true and construe them in the light most favorable to plaintiff. Id. The dismissal of a complaint is a "harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir.1997) (quotations omitted). In analyzing a motion for judgment on the pleadings, I exclude from consideration all material presented outside the pleadings. See Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1265 (10th Cir.1996).

B.

Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions,

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or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The very purpose of a summary judgment motion is to assess whether a trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir.1995). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that demonstrate the absence of genuine issues for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992).

Once a properly supported summary judgment motion is made, the non-moving party has the burden of showing that issues of undetermined material fact exist. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. In so doing, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Unsupported allegations "without any significant probative evidence tending to support the complaint" are insufficient, White, 45 F.3d at 360 (internal quote and citation omitted), as are conclusory assertions that factual disputes exist. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate if genuine issues of material fact exist. James Barlow Family Ltd. Partnership v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th Cir.1997).

In ruling on summary judgment, I must view the factual record and reasonable inferences therefrom in the light most favorable to the nonmoving party. See id. If no reasonable juror could find for the nonmoving party based on the evidence present in the motion and response, then summary judgment is proper and a trial is unnecessary. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment should not enter if a reasonable trier of fact could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505; Mares, 971 F.2d at 494.

C.

The analytical framework first pronounced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies to retaliation claims brought under Title VII and the ADEA. See Cisneros v. Wilson, 226 F.3d 1113, 1132 (10th Cir.2000) ("Retaliation claims generally proceed under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) burden-shifting analysis."); McGarry v. Board of County Comm'rs, 175 F.3d 1193, 1201 (10th Cir.1999) (applying McDonnell Douglas framework to Title VII retaliation claim); Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988) (applying McDonnell Douglas framework to ADEA retaliation claim). But see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2105-06, 147 L.Ed.2d 105 (2000) (assuming, without deciding, that McDonnell Douglas framework is applicable to ADEA cases). In the summary judgment context, a plaintiff initially must raise a genuine issue of material fact on each element of the prima facie case. See id. (citing Lowe v. Angelo's Italian Foods, Inc., 87 F.3d 1170, 1174 (10th Cir.1996)). To establish a prima facie case of retaliation under Title VII or the ADEA, a plaintiff must demonstrate that:...

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7 practice notes
  • Shearson v. Holder, Case No. 1:10 CV 1492.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • September 9, 2011
    ...violations of the Act by the FBI and therefore should have brought her claims within the year 2008. See Villescas v. Richardson, 124 F.Supp.2d 647, 659 (D.Colo.2000) (statute of limitations began to run when plaintiff received declaration in another lawsuit describing disclosure of records,......
  • Center for Legal Advocacy v. Earnest, No. Civ.A.01-WY-642-CB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • February 22, 2002
    ...for judgment on the pleadings is reviewed under the standard applicable to a Rule 12(b)(6) motion to dismiss. Villescas v. Richardson, 124 F.Supp.2d 647, 650 (D.Colo.2000) (citing McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991)). Thus, dismissal is appropriate only if it a......
  • Moore v. Gunnison Valley Hosp., No. 99-WM-990.
    • United States
    • U.S. District Court — District of Colorado
    • October 22, 2001
    ...`intimately associated' with the judicial process. Rex [v. Teeples], 753 F.2d [840]at 843 [(10th Cir.1985)]." Villescas v. Richardson, 124 F.Supp.2d 647, 654 (D.Colo.2000) (Babcock, The essential inquiry is, therefore, whether or not the roles of the defendants were "functionally comparable......
  • Scranton Laminated Labels, Inc. v. Florimonte (In re Florimonte), Case Number: 5:15-bk-02377-RNO
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Middle District of Pennsylvania
    • April 4, 2019
    ...addressed fully at the Rule 12(b)(6) stage," which implies the applicability of the doctrine. Id. ; see also Villescas v. Richardson , 124 F.Supp.2d 647, 650 (D. Colo. 2000) (providing that Judge Babcock denied, as law of the case, part of a Rule 12(c) motion which he had previously ruled u......
  • Request a trial to view additional results
7 cases
  • Shearson v. Holder, Case No. 1:10 CV 1492.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • September 9, 2011
    ...violations of the Act by the FBI and therefore should have brought her claims within the year 2008. See Villescas v. Richardson, 124 F.Supp.2d 647, 659 (D.Colo.2000) (statute of limitations began to run when plaintiff received declaration in another lawsuit describing disclosure of records,......
  • Center for Legal Advocacy v. Earnest, No. Civ.A.01-WY-642-CB.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • February 22, 2002
    ...for judgment on the pleadings is reviewed under the standard applicable to a Rule 12(b)(6) motion to dismiss. Villescas v. Richardson, 124 F.Supp.2d 647, 650 (D.Colo.2000) (citing McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir.1991)). Thus, dismissal is appropriate only if it a......
  • Moore v. Gunnison Valley Hosp., No. 99-WM-990.
    • United States
    • U.S. District Court — District of Colorado
    • October 22, 2001
    ...`intimately associated' with the judicial process. Rex [v. Teeples], 753 F.2d [840]at 843 [(10th Cir.1985)]." Villescas v. Richardson, 124 F.Supp.2d 647, 654 (D.Colo.2000) (Babcock, The essential inquiry is, therefore, whether or not the roles of the defendants were "functionally comparable......
  • Scranton Laminated Labels, Inc. v. Florimonte (In re Florimonte), Case Number: 5:15-bk-02377-RNO
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Middle District of Pennsylvania
    • April 4, 2019
    ...addressed fully at the Rule 12(b)(6) stage," which implies the applicability of the doctrine. Id. ; see also Villescas v. Richardson , 124 F.Supp.2d 647, 650 (D. Colo. 2000) (providing that Judge Babcock denied, as law of the case, part of a Rule 12(c) motion which he had previously ruled u......
  • Request a trial to view additional results

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