Finan v. Hachmeister et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03103-STV
JILL FINAN,
Plaintiff,
v.
DAVID HACHMEISTER, and
CARE AND COMFORT AT HOME FOR SENIORS AND VETERANS,
Defendants.
ORDER
Entered By Magistrate Judge Scott T. Varholak
This civil action is before the Court on Defendants’ Motion to Dismiss Complaint
[#9] (the “Motion”). The parties have consented to proceed before the undersigned United
States Magistrate Judge for all proceedings, including entry of a final judgment. 	[##20,
21] This Court has carefully considered the Motion and related briefing, the entire case
file, and the applicable case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the following reasons, the Motion is
DENIED.
I. 	BACKGROUND1
In September 2017, Plaintiff, Jill Finan, was offered a compensation package to
work for Defendant Care and Comfort at Home (“CCH”) as an “Agency Director” in
1 The facts are drawn from the allegations in Plaintiff’s Complaint [#1], which must be
taken as true when considering a motion to dismiss. Wilson v. Montano, 715 F.3d 847,
850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
The Court also considers the Charge of Discrimination filed with the Colorado Civil Rights
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Colorado. [## 1 at 4; 1-4 at 1]. This compensation package included 30% ownership of
agency, salary, housing stipend, health insurance, company car and maintenance, gas
and tollway allowance, car insurance, life insurance, home office stipend, paid time off
and a Christmas bonus. 	[#1 at 4] 	Plaintiff accepted the job in Colorado due to these
benefits. 	[Id.] The Agency Director of CCH in Illinois (the “Elmhurst Agency Director”)
received the same compensation package as Plaintiff. [Id.; #1-4 at 1]
Plaintiff was thereafter employed by Defendant CCH from September 2017 until
May 20202, when Plaintiff was terminated. [#9-1 at ¶ 1, Jill Finan’s Counterclaims against
CCH in Jefferson County civil case, Case No. 2020CV31025 (the “State Proceedings”)]
On August 25, 2020, CCH sued Plaintiff in Jefferson County Court, alleging that Plaintiff
had stolen corporate funds, records, and other property, which led to her termination. [#9-
Division and the U.S. Equal Employment Opportunity Commission (the “EEOC”) [#1-4],
and the EEOC Notice of Right to Sue [#1-5], as these documents were attached to
Plaintiff’s Complaint and incorporated by reference. 	[See generally #1]; see also
Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194,
1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, [a court] may consider not only
the complaint, but also the attached exhibits and documents incorporated into the
complaint by reference.”). 	Finally, the facts are also drawn from the related state court
proceedings, Jefferson County civil case, Case No. 2020CV31025, of which the Court
takes judicial notice. Hodgson v. Farmington City, 675 F. App’x 838, 841 (10th Cir. 2017)
(finding the court may take judicial notice of another court’s publicly filed records
concerning “matters that bear directly upon the disposition of the case at hand” (quotation
omitted)); Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (“[F]acts subject to
judicial notice may be considered in a Rule 12(b)(6) motion. . . . This allows the court to
take judicial notice of its own files and records, as well as facts which are a matter of
public record.” (quotation omitted)); Brickert v. Deutsche Bank Nat’l Tr. Co., 380 F. Supp.
3d 1127, 1133 n.1 (D. Colo. 2019) (“[A] court can take judicial notice of ‘documents and
docket materials filed in other courts.’”) (quoting Stan Lee Media, Inc. v. Walt Disney Co.,
774 F.3d 1292, 1298 n.2 (10th Cir. 2014)).
2 Plaintiff alleges in the EEOC Charge of Discrimination that she was terminated in
November of 2021. [#1-4 at 1] 	In reviewing the response to the Motion, however, it
appears that the November 2021 date does not refer to the date of termination. [#15 at 2
(“The ‘different terms and conditions employment’ were announced to the Plaintiff after
receiving the Amended Order on Trial dated 11/15/21, which is when the Plaintiff first
knew of her injury of Age Discrimination.”)]
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2 at ¶¶ 7-8, Complaint in the State Proceedings] Plaintiff filed counterclaims in the State
Proceedings related to unpaid wages. [See generally #9-1] A trial was held in the State
Proceedings, and on November 2, 2021, the court issued an Order on Trial, which granted
CCH’s “Claim for Relief against [Jill Finan] for conversion of money for salary increases,
personal 	(rent, 	utility, 	internet) 	expenses, 	auto 	expenses, 	health 	expenses 	and
miscellaneous ‘direct’ payments in the total amount of $90,963.45,” and also granted Jill
Finan’s “Counterclaim under the Colorado Wage Act for unpaid salary of $1,220.02 plus
a 125% penalty plus a 50% surcharge for not acting in good faith for the continued refusal
to pay any wages earned in the last pay period, for a total award of $2,135.02.” [#9-3]
At some time prior to August 25, 2023, Plaintiff filed an EEOC Charge of
Discrimination, alleging discrimination based on age.3 [## 1-4; 1-5; 9-5] Plaintiff alleges
that CCH filed suit against her in state court after Defendant David Hachmeister—the
owner of CCH—falsely claimed he never agreed to the terms of the compensation
package. [#1 at 2, 4; #15 at 1 (“David Hechmeister reneged on the agreement that had
been in practice for 2.5 years and subsequently sued Plaintiff in State Court, resulting in
discrimination against the Plaintiff.”)] 	In sum, the State Proceedings, Plaintiff alleges,
sought reimbursement for the benefits she received as part of the earlier-discussed
compensation package. [#1-4 at 1-2] 	Plaintiff further contends that the Elmhurst Agency
Director was also fired in June of 2019, but after that termination, Defendants did not sue
the “younger Elmhurst Agency Director for reimbursement of benefits even though she
received the same terms that [Plaintiff] received and more.” [#1-4 at 2] At the time Plaintiff
3 The Charge of Discrimination is not dated, and the Complaint does not provide any
relevant allegations as to when Plaintiff filed the Charge of Discrimination with the EEOC.
Plaintiff states in her response to the Motion, however, that “[s]he filed with the EEOC on
September 5, 2022” [#15 at 2]
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was fired, she was fifty-five years old, and the Elmhurst Agency Director was in her
thirties. [Id. at 1-2]
On August 25, 2023, the EEOC issued a Notice of Suit Rights and a determination
that the charge was not timely filed. [#1-5] Plaintiff initiated this action on November 21,
2023. [#1] 	The Complaint asserts a single claim of age discrimination in violation of the
Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 621, et seq. 	[Id. at 2,
4] On January 23, 2024, Defendants filed the instant Motion to Dismiss. [#9] Plaintiff has
responded to the Motion [#15] and Defendants have replied [#18].
II. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original)
(quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a
plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
“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) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
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across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “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.” Id. (quoting Twombly, 550 U.S. at 556). The court’s ultimate duty is
to “determine whether the complaint sufficiently alleges facts supporting all the elements
necessary to establish an entitlement to relief under the legal theory proposed.” 	Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008).
III. 	ANALYSIS
The ADEA prohibits employers from discriminating against employees who are at
least 40 years old, on the basis of age. 29 U.S.C. §§ 623, 631. Defendants make two
arguments in support of dismissal: (1) the complaint is barred by the two-year statute of
limitations period, applicable to age discrimination claims [#9 at 6-8] and (2) the two-year
statute of limitations should not be tolled because Plaintiff was terminated for cause [id.
at 8-10]. 	Defendants cite a single Colorado Court of Appeals case from 1993 for the
proposition that the relevant limitations period is two years. [#9 at 8 (citing Evenson v.
Colo. Farm Bur. Mut. Ins. Co., 879 P. 2d 402 (Colo. App. 1993))] In Evenson, the Court
applied the two-year statute of limitations as set forth in the Portal-to-Portal Pay Act, 29
U.S.C. § 255, to an age discrimination claim. Evenson, 879 P. 2d at 407. However, the
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Portal-to-Portal Pay Act, applies only to actions brought under the ADEA where the
alleged act of discrimination occurred before November 21, 1991, the effective date of
the Civil Rights Act of 1991 (“CRA”).4 See Hartig v. Safelite Glass Corp., 819 F. Supp.
1523, 1529 (D. Kan. 1993) (using the limitations period of the Portal-to-Portal Pay Act in
an ADEA case, noting that the CRA does not apply to a claim that accrued and was filed
before the CRA became effective); see also Littell v. Aid Ass'n for Lutherans, 62 F.3d 257,
258–59 (8th Cir. 1995) (“[O]n November 21, 1991, Congress amended the statute of
limitations through the Civil Rights Act of 1991, by deleting the reference to § 255 and
thereby eliminating the two/three-year statute of limitations period.”).
Here, Plaintiff was employed by Defendant CCH from September 2017 until May
2020 [#9-1]; therefore, the alleged act of discrimination occurred after November 21,
1991. Because Defendants fail to address the relevant exhaustion requirements, see 29
U.S.C. § 626,5 the Court declines to consider whether Plaintiff’s claim was untimely
4 As another district court has explained:
Prior to the effective date of the CRA, the ADEA provided that all causes of action
for age discrimination must be commenced within two years from the date of the
allegedly discriminatory act unless such act was “willful.” 	29 U.S.C. § 626(e)(1)
(1985) (providing that two-year statute of limitations set forth in the Portal-to-Portal
Pay Act, 29 U.S.C. § 255, shall apply to actions brought under the ADEA). If the
alleged discriminatory act was willful, a three-year limitations period applied. Id. In
1991, the CRA amended the statute of limitations under the ADEA to provide that
a civil action for age discrimination may be brought within ninety days after the
plaintiff receives a notice from the EEOC that it has dismissed the charge or that
the proceedings before it have otherwise terminated. 	Pub.L.No., 102–166, 105
Stat 1071. The Supreme Court recently determined that the CRA does not apply
retroactively, however, to acts of alleged discrimination that occurred before
November 21, 1991, the effective date of the CRA. See Landgraf v. U.S.I. Film
Products, [511 U.S. 244 (1994).]
Antos v. Bell & Howell Co., 891 F. Supp. 1281, 1286 n. 4 (N.D. Ill. 1995).
5 Unlike the statute of limitations set forth in the Portal-to-Portal Pay Act, which required
the filing of suit within two/three years of the alleged discriminatory act, the ADEA now
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brought. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (“a plaintiff's
failure to file an EEOC charge regarding a discrete employment incident merely permits
the employer to raise an affirmative defense of failure to exhaust but does not bar a
federal court from assuming jurisdiction over a claim”); Cummings v. United States Postal
Serv., No. 20-7066, 2021 WL 4592271, at * 4 (10th Cir. Oct. 6, 2021) (“As with Title VII,
failure to exhaust administrative remedies under the [ADEA] is a non-jurisdictional
affirmative defense.”); see also South Denver Anesthesiologists, PC v. Oblachinski, No.
06-cv-02425-REB-BNB, 2007 WL 2255123 at *1 (D. Colo. Aug. 3, 2007) (noting that the
court 	does 	not 	consider 	“cursory, 	unsupported, 	or 	otherwise 	inadequately 	briefed
arguments”).6
IV. 	CONCLUSION
For the reasons outlined herein, Defendants’ Motion to Dismiss [#9] is DENIED. A
scheduling conference is set in this matter for September 16, 2024 at 9:00 a.m. The
parties shall submit a proposed scheduling order by September 3, 2024.
DATED: July 18, 2024 	BY THE COURT:
s/Scott T. Varholak__________
United States Magistrate Judge
requires the filing of a charge of discrimination with the EEOC within a certain period of
time of the discriminatory act. 29 U.S.C. § 626(d). The problem here is that the Charge
of Discrimination attached to the Complaint is undated and the Complaint itself does not
indicate when Plaintiff filed the Charge. [##1, 1-4] Thus, the Court cannot conclude from
the Complaint or items attached to the Complaint that the Charge was untimely filed. And
because Defendants’ briefing is focused on the wrong statute of limitations period,
Defendants have not argued that the Court may consider Plaintiff’s statement in her
response brief that the charge was filed on September 5, 2022. [#15 at 2]
6 Defendants’ Motion briefly mentions McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and the burden shifting framework set forth therein, but does so only in the context
of a statute of limitations argument that the Defendants’ action was not willful. [#9 at 8-
10] Given that this argument is made under the heading: “The Complaint is barred by the
Statute of Limitations,” the Court does not consider this as a separate challenge as to
whether or not Plaintiff has plausibly alleged discriminatory conduct.
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